author: OWEN, Judge.

text:
    J. L. Rose v. State.
    No. 184.
    Opinion Filed September 25, 1909.
    (103 Pac. 1066.)
    1. APPEAL AND ERROR — Reversal — Evidence — Sufficiency. This court will not reverse the judgment of the triad court for lack of evidence where there is competent evidence in the record reasonably tending to sustain the judgment.
    2 INDICTMENT AND INFORMATION — Amendment—Prejudice. An information may be amended by leave of court after the defendant has pleaded, if it in no manner alters the condition of the case to his injury.
    (Syllabus by the Court.)

      Error from Oklahoma County Court;. Sam Hooker, Judge.

      J. L. Rose was convicted of illegally selling intoxicating liquors, and he brings error.
    Affirmed.

      H. 8. Pulse and Mornan Pruieil, for plaintiff in error.

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

The counsel for the defendant urge three reasons for reversing the case. They begin their brief by stating:

“The principal contention of the plaintiff in error is, first, that there was no evidence on the hearing of the cause either proving or tending to establish the guilt of the defendant and that the verdict was against the evidence, and for that reason the court erred in, first, not instructing a verdict for the defendant, and, second, in refusing the defendant a new trial after the verdict of guilty.”

We find on examination of the record that one witness testified to having stood in the alley, and, looking through the window into defendant’s place of business, saw two men at different times enter the place of business and approach the defendant, and, after some conversation, the defendant and the man went behind a bar, which had been formerly used in a saloon run by defendant before statehood; that on returning from behind the bar he saw the defendant put s'omething in his pocket and the other men on each occasion put something in their pockets. One of the men, on returning to the street, was searched by the witness, who was an officer, and was found to have a bottle of whisky in his hip pocket —the pocket into which the witness saw him put something as he emerged from behind the bar. The other man evaded the officer, and was,not searched. Another witness testified to having seen a shipment of five barrels of whisky in the Missouri, Kansas & Texas depot consigned to the defendant. The defendant testified that about the time mentioned in the testimony of witness for the state a man came into' his place of business and called for a drink of water, and that he showed him behind the bar where he could get some water. He denied selling whisky to this man or to any other man. His evidence so far as giving the man a drink of water was concerned was corroborated by two other witnesses. The defendant was not asked on the witness stand whether the shipment of five barrels of whisky belonged to him, or was ever received by him. That testimony on the part of the state was not contradicted by either the defendant or any of his witnesses. The jury heard the testimony, saw the witnesses, and returned a verdict of guilty.

The jury was very properly instructed by the court as to the weight of evidence in the following language:

“You are the sole judges of the weight of the evidence and the credibility of the witnesses; and, where witnesses testify directly opposite to each other, you are not bound to consider the weight of evidence evenly balanced, but, in determining the weight and credit that shall be given to the testimony of any witness, you may take into consideration his appearance upon the stand, his manner of testifying, his apparent candor and fairness or lack of the same, his intelligence or lack of intellligence, his opportunity or lack of opportunity for seeing and knowing the things about which he testified, his interest or lack of interest in the result of the action, and,. .together with all the facts and circumstances shown at the trial, determine the weight and credit that should .be given to the testimony of any witness, and give credit accordingly.”

This court in the case of Walter Cox v. Territory of Oklahoma, 2 Okla. Cr. 668, 104 Pac. 378, in passing on a similar assignment of error, said:

“This court will not disturb a verdict where there is competent evidence in the record reasonably tending to sustain the verdict. * * * There being competent testimony on the part of the state reasonably tending to prove the issue, the verdict will not be disturbed for that reason.”

We deem it unnecessary here to cite the authorities that are cited in that case. As was said there :

“The decisions are uniform as to the rule that the judgment of the trial court will not be disturbed where there is competent evidence reasonably tending to sustain the judgment.”

The second reason urged by counsel for defendant is:

“That the trial court erred in permitting the state to amend the complaint in this cause after the jury had been impaneled and sworn and after the plaintiff below had rested, and after the defendant below had moved the court to direct the verdict.”

In the brief filed by counsel, they fail to point out the amendment referred to or the page of the record on which the same may be found. At page 35 of the record, at the conclusion of the testimony on part of the state, and after the defendant had moved the court to direct the verdict, we find the following statement:

“And thereupon the plaintiff asks leave to amend its complaint. By the Court: I think it is a proposition which is entirely a question of fact for the jury to determine as to whether or not there is a sale of whisky, and I will allow the county attorney to amend his complaint so as to conform with the facts. (To which ruling the defendant excepts. Motion to instruct a verdict overruled, and an exception allowed the defendant. Thereupon, the defendant proceeds with the introduction of his evidence as follows, etc.)”

As was held by this court in the case of Ollie Lancaster and Luke Jenkins v. State of Oklahoma, 2 Okla. Cr. 681, 103 Pac. 1065, an information may be amended after the defendant has pleaded, if it in no manner alters the condition of the case to his injury. Section 5307, Wilson’s Rev. & Ann. St. 1903, is as follows :

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

There is nothing in the record before us to indicate what the amendment was. Neither is there anything in the record nor in the brief filed by counsel to indicate in what manner the eonditiou of the defendant was altered by the amendment. Whatever the amendment was, we feel safe in- assuming the learned counsel whose names appear on the brief would have complained to the trial court by pointing out how the defendant would be injured and asked a continuance of the case if the amendment was one that was calculated to do injury to the defendant. And they would have made it appear in the record as to what the amendment was, and would have pointed out -to this court in their brief how the defendant was injured.

The third reason assigned by counsel is:

“That the affidavits of the defendants Rose and of the witness McGuire show not only surprise to the defendant at the trial, but the discovery of sufficient material evidence to warrant the trial court in setting aside the verdict and granting a new trial; that, on the whole, there was no evidence warranting a verdict upon the showing made by the state, and that, aside from this, the defense, by the -testimony of undisputed witnesses positively and abso-lutelv proved their case, and therefore the verdict is against the weight of the evidence, and, on the whole, is contrary to law, and should be by this court reversed.”

The affidavit of McGuire is to the effect that McGuire is the station agent of the Missouri, Kansas & Texas Railway, and from In's personal knowledge of the records of his office no consignment of liquor was received in his office for the defendant. The affidavit of Rose is to the effect that he was surprised by the testimony of the witness as to the consignment of liquor, and for that reason did not have a fair trial. Inasmuch as the defendant Rose failed while on the witness stand to deny the consignment of liquor, we are forced to believe that he was not very greatly surprised by the testimony, or else did not consider it a very material question. If he was surprised by that testimony, the time to have said so was when the evidence was introduced. The records show this case was tried in Oklahoma City. The witness testified to seeing the consignment of whisky in the Missouri, Kansas & Texas depot in Oklahoma City. The defendant could easily have requested a suspension of the case until hé could send to the depot and secure the attendance of the agent, McGuire. This did not partake of the nature of newly discovered evidence. He knew whether he had received a consignment of whisky, and could easily have secured the attendance of the agent, together with his records, but the record in this case fails to disclose any effort on his part to do so. We do not think these two'affidavits were sufficient to warrant the trial court in setting aside the verdict and granting a new trial.

There being no error disclosed by the record, the judgment of the lower court is affirmed.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Reed v. State.
    No. 109.
    Opinion Filed September 25, 1909.
    (103 Pac. 1070.)
    1. INTOXICATING LIQUORS — Wrongful Sale — Issues and Proof. Under an information charging a sale of intoxicating liquors, a conviction cannot be had where the evidence shows that the defendant had no interest in the liquor sold nor in the money paid for it, but acted only as the agent or friend of the purchaser in procuring the liquor.
    2 INSTRUCTIONS — Applicability to Evidence. The instructions should cover the whole case. The defendant is entitled to an instruction defining the law as applicable to his defense, if there is any competent evidence reasonably tending to substantiate that defense.
    (Syllabus by the Court.)

      Appeal from Grady County Court, Sitting at Chich-asha; N. ¥. Williams, Judge. ■

    John Reed was convicted of illegally selling intoxicating liquors, and he appeals.
    Reversed and remanded.

      F. F. Biddle, for appellant, cited 23 Cyc. 179, 182, and cases therein cited.

      Fred 8. Caldwell, counsel to the Governor, for the State.
   OWEN, Judge.

The plaintiff in error (hereinafter referred to as the defendant) in his petition assigns six errors. The brief filed by counsel for defendant urges only the first and fourth assignments, which go to the instructions given by the court and the refusal of the court to give instructions requested on the part of the defendant. The charging part of the information on which this defendant was tried is as follows:

“ * * * At and within said county and state on the 31st day of December, 1907, John Reed then and there being, did then and there, wilfully and unlawfully sell intoxicating liquors, to wit, whisky, to S. H. Owens, contrary to the form of the statutes in such cases made and provided, and against the peace and dignit]r of the State of Oklahoma.”

The proof on the part of the state was to the effect: S. H. Owens stated to a negro woman that he wanted some whisky. She said she could get the defendant, who was in an adjoining room, to get it for him. That she called the defendant in, and the defendant said: “All right, but I will have to first go and get it. You give me a dollar, and I can get it.” Thereupon the witness Owens gave the defendant a dollar. The defendant went away and came back with two half pints of whisky, and delivered one-half pint to the witness Owens, and took a drink himself out of the other bottle, and that Owens then did not want the bottle and let the defendant keep it. The testimony on the part of the defendant, after corroborating the witness Owens in all things, was that he bought the whisky from a white man by the name of Fuller, and that he had no interest in the whisky and received no part of the money.

The court instructed the jury as follows:

“This is an information charging that John Reed did on the 31st day of December, 1907, sell intoxicating liquors, to wit, whisky, to S. H. Owens. If you find from the evidence that John Reed did on that date and day last above mentioned, in the county of Grady and State of Oklahoma, sell to S. H. Owens whisky as charged in this information, yon will ,so say by yonr verdict, and find the defendant guilty. The defendant is presumed to be innocent until his guilt has been established by competent evidence to your satisfaction, and, if you have a reasonable doubt as to his guilt, you will acquit the defendant. You are the solo judges of the credibility of the witnesses and the weight to be attached to their testimony. Five of you can render a verdict by signing the same. If the verdict be unanimous, it can be rendered by your foreman signing it.”

This was all the instructions given by the court as disclosed by the record. The defendant requested the following instruction:

“The court charges the jury that if you believe from the evidence that the defendant Reed acted as agent and took the money ■of one of the witnesses for the state, and purchased the whisky from a third party, and that he did not sell the same to the said witness himself, but only went at the request of the witness, and purchased the whisky-from a third party, and that the defendant had no connection with the sale of same other than to purchase it for the witness, as above stated, then in that event he would not be guilty under the law,.and you shall so find.”

The court refused to give this instruction, to which refusal the defendant, in proper form, excepted. It was error for the court to refuse the request of the defendant to give this instruction. The instruction given by the court was proper so far as it went. It only covered the testimony on the part of the state. The instructions should cover the whole case. The defendant is entitled to an instruction defining the law as applicable to his theory of the case covering his defense, if there is any competent evidence reasonably tending to substantiate that theory. An instruction which the jury might understand as taking from their consideration one element of the defendant’s defense is erroneous. Rattison’s Instruction in Crim. Causes, §14; Thompson on Trials, § 2328; Chappell v. Allen, 38 Mo. 213; Raysdon v. Trumbo, 52 Mo. 35; Grube v. Nichols, 36 Ill. 93.

If the defendant’s testimony was true, he was not guilty of •selling intoxicating liquor, and could not be convicted on the information in this case. He was charged with selling, not with furnishing or conveying, liquors. A sale is defined by the authorities to be “an agreement by which a title passes from one, and vests in another.” “A transfer of property from seller to buyer for a price in money paid or promised.” Anderson’s Law Dictionary; Butler v. Thompson, 92 U. S. 415, 23 L. Ed. 684; Benj. Sales, § 1. To take the money from Owens and buy the liquor from Fuller — if he was not interested in the liquor and received no part of the money — would not make defendant guilty of selling. Whitmore v. State, 72 Ark. 14, 77 S. W. 598; Bonds v. State, 130 Ala. 117, 30 South. 427; Maxwell v. State, 140 Ala. 131, 37 South. 266; Williams v. State, 107 Ga. 693, 33 S. E. 641; State v. John Cairns, 64 Kan. 782, 68 Pac. 621, 58 L. R. A. 55; and Anderson v. State, 32 Fla. 242, 13 South. 435.

In the case of Anderson v. State, the court said:

“The only evidence for the prosecution was the testimony of one J ames Smith, as follows: T knew the defendant. During the month of February, 1893, I was working in the woodyard of J. A. Bethea, in Lake City, Columbia county, Fla. I asked the defendant it he knew where I could get some whisky. He said, “Yes”; that he could get me some. I gave him the money, 25 cents, and he went off somewhere and got the whisky — one-half pint — and gave it to me. 1 do not know where he got the whisky. This occurred more than once. I do not know whether twice or a dozen or 20 times. I asked, him where I could get whisky-because I knew him better than any of the other boys. I came here from Atlanta, Ga., in December, 1892. It is true that I told Mr. Eaton in Lake City to-day that I did not know anything about the defendant selling whisky. I do not know whether he sold if or .not. I only know that I gave him the money and told him I. wanted some whisky, and when he came back he brought it to me.’ The defendánt admitted on the trial that he had no license to sell liquors. The burden was upon the state to prove every essential element of the offense charged beyond a reasonable doubt. The leading feature of the charge was the sale of liquor by the defendant, and it was necessary that this fact should have been proved by competent evidence beyond a reasonable doubt. The evidence establishes the fact that the defendant as the friend or agent of the witness took the latter’s money and at his request went off, and procured some whisky for him. Where or who he got the liquor from is not shown, neither is it shown by any word of proof that the defendant was the owner of or interested in the liquor furnished before its delivery by him to the witness, or that he. was interested in any way in the money given him by the witness with which the liquor was procured. The proof here shows nothing more than that the defendant acted, as the agent for purchase of the buyer, and we know of no law that prohibits the purchase of liquor either for one’s self or for another. Campbell v. Stale, 79 Ala. 271; Morgan v. State, 81 Ala. 72, 1 South. 472: Bryant v. State, 82 Ala. 51, 2 South. 670. The evidence being wholly insufficient for conviction, the judgment and sentence of the court below are reversed.”

Whether the defendant’s testimony was true, whether he sold the whisky to, or bought it for, the witness Owens, was a question of fact to be submitted to the jury under proper instructions.

For the refusal of the court to give the instruction requested by defendant, the cause is remanded with instructions to grant a new trial.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    Andy Yaltz v. State.
    No. A-21.
    Opinion Filed September 25, 1909.
    (103 Pac. 1104.)
    1. JURISDICTION — Misdemeanors—Courts—Transfer of Cause. The county court acquires no jurisdiction of a misdemeanor case transferred from the district court where the indictment and order of transfer are not accompanied by a certified copy of the proceedings taken therein in the district court.
    2. SAME — Transcript—Certification. An indorsement by the district clerk on the order transferring the case in the following language: “Transferred as per the foregoing order” — is not a sufficient certified copy of the proceedings had in the district court.
    3. COURTS — Records—“Filing”—What Constitutes. A paper is said to be filed when it is delivered to the proper officer, and by him received, to be kept on file.
    4. SAME — Transfer of Cause — Filing Papers. Papers are not delivered to the county court as required in section 2, art. 2, c. 16, p. 210, Sess. Laws 1907-08, when they are by the district clerk attached to papers on file in the county court, but not called to the attention of the judge or his clerk, and not received by them.
    (Syllabus by the Court.)

      Error from Goal County Court, Sitting at Coalgate; R. II. Wells, Judge.

    The plaintiff in error here, and defendant below, was indicted by the grand jury in the district court of Coal county, on the 4th day of April, 1908, on a charge of selling and furnishing intoxicating liquors. On the 11th day of April, 1908, on a motion of the county attorney, the district court made an order transferring the case to the county court of Coal county.
    On the 13th of August, 1908, the defendant was tried in the county court of Coal county; was convicted, and sentenced to pay a fine of $50.00 and to imprisonment for thirty days in the county jail. The ease is regularly before this court on appeal.
    Beversed and remanded.

      Rooshe & Brunson and Ralls Bros. & Randolph, for plaintiff in error,
    citing: Cobh v. State, 51 Tex. Cr. 464; Austin v. State, 40 S. W. 724; State v. Marrey, 64 Pac. 764; Johnson v. State, 79 S. W. 27.

      Fred S. Caldwell, Counsel to the Governor, for the State.
   OWEN, Judge.

At the threshold of this case we are met with a plea to the jurisdiction. The defendant filed a plea to the jurisdiction of the county court on the grounds that the case was not properly transferred from the district court to the county court, and therefore the county court had no jurisdiction to try him on the charge in the indictment.

It appears from the record that the district ’ court, on motion of county attorney, made the following order:

“State of Oklahoma, Coal County. — ss.: In the district court and county and state aforesaid. The State of Oklahoma v. Andy Yaltz, No. 41, an indictment for selling whisky, and it appearing that said cause is a misdemeanor, and that this court has no jurisdiction to try the same, it is therefore ordered, that said case shall, and the same is hereby transferred to the county court of Coal County, State of Oklahoma. • [Signed] A. T. West, District Judge. Transferred as per the foregoing order, 4-11-1908. H. A. Davis, District Clerk, George E. Jahn, Deputy.”

This order, together with the indorsements made by the deputy clerk, was Died May 28tli with the county court and indorsed, “No. 130, filed May 28th, 1908, R. H. Wells, Co. Judge, by Sallie Bruce, Clerk.”

Section 1, c. 16, art. 2, p. 210, Sess. Laws 1907-08, provides for the transfer of misdemeanors from the district court to such inferior courts as may have jurisdiction.

Section 2 of the same act provides:

“It shall be the duty of the clerk of the district court, without delay, to deliver the indictments in all eases transferred, together with all of the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each case with a certified copy of all the proceedings taken therein in the district court,” etc.

This court in the case of State v. Clifton, 2 Okla. Cr. 189, 100 Pac. 1124, held a certificate, made by the same clerk, in exactly the language of the certificate here, was not a compliance with tne section above quoted, and for that reason the county court did not acquire jurisdiction to hear and determine the case.

We deem it unnecessary to cite the authorities quoted and-cited in the opinion as reported in that case. We deem it sufficient to say that the decision in that case is approved here.

In the record also appears this statement:

“Subsequent to the filing of the bench warrant and indictment, together with the order of transfer with certificate thereto, as above, "the following papers were attached bj’’ the district clerk to the indictment and bench warrant, and same was attempted to be filed in the county court, to wit:”

Then follows what purports to be certified copies of the orders of the court impaneling the grand jury, receiving the indictment, and transferring the cause to the county court. Counsel for the state iii this case insists that this cures the failure of the clerk to make proper certificate at the time the indictment was delivered to the county court. With this contention we cannot agree. The statute quoted is capable of only one construction, and that is that the district clerk shall accompany each case with a certified copy of all the proceedings taken therein in the district court. The indictment, together with this certified copy, must be delivered by the district clerk to the court as directed in the order of transfer. It appears from the record in this case that subsequent to the filing of the indictment, together with the order of transfer, the district clerk attached what purports to be a certified copy. But there is nothing in the record to the effect that this certified copy was delivered to the county court, or was filed with the clerk of the county court. When the indictment and order of transfer were properly filed with the county court, the district clerk lost control of them. They were no longer in his official custody. His going to the office of the county court and attaching papers to the papers he had lost control of was not a proper filing under this statute.

A paper is said to be filed when it is delivered to the proper officer, and by him received, to be kept on file. Beebe v. Morrell, 76 Mich. 114, 42 N. W. 1119, 16 Am. St. Rep. 288; Phillips v. Beene’s Adm’r, 38 Ala. 248.

In the last-named case the court held that a claim was not filed when it was placed by the attorney of the claimants in the box appropriated to such papers in the probate judge’s office without the knowledge of tlie probate judge or his clerk, and was not called to the attention of either of them.

So far as this record discloses, the purported certificates attached bjr the district clerk to the indictment and order of transfer were never called to the attention of the county court or his clerk. There is no contention in this case that the same were in fact filed, but the statement is “that, subsequent to the filing of the indictment together with the order of transfer * * * the following papers were attached by the district clerk to the indictment. * * * and same was attempted to be filed in the county court.”

The case of Cobb v. State, 51 Tex. Cr. R. 464, 102 S. W. 1151, was very similar to the one under consideration. It was a misdemeanor transferred from the district court to the county court under a statute almost identical with our statute. The district clerk failed to attack the seal to his certificate transmitted with the order transferring' the case, and, after the papers were filed with the county court, he attached the seal. The court held that the putting the seal upon the papers by the district clerk after the same were filed in the county court ivas unauthorized.

For the failure of the district clerk to deliver to the county court the proper certificate as to the proceedings taken in the dis-' trict court, the county court acquired no jurisdiction to try the. cáse.

The judgment is therefore reversed, and the case is remanded.

FURMAN, PresidiNg Judge, and DOYLE, Judge, concur.


author: DAVIS, Special JiIdge

text:
    Jno. W. Sharp v. State.
    No. A-43.
    Opinion Filed September 27, 1909.
    (104 Pac. 71.)
    STATUTES — Trial—Procedure—What Law Governs. A defendant charged with the commission of a crime is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission of the offense of which he stands charged, in all matters where such laws vouchsafe to him a substantial protection.
    (Syllabus by the Court.)

      Error from District Court, Adair County; B. Y. Nance, Judge.

    John W. Sharp was convicted of manslaughter, and he brings error.
    Reversed and remanded.
    John W. Sharp, the plaintiff in error in this case, was indicted for the crime of murder by a grand jury in the United States court for the Northern district of the Indian Territorjr, the indictment being filed in open court on the presentment of the grand jury at Sallisaw, in the Northern district of the Indian Territory, on December 12, 1906, and accusing him of having committed the crime of murder ivithin the Northern district of the Indian Territory on the 28th day of November, A. D. 1906, by shooting and killing one William Powell. The case against the plaintiff in error, defendant below, was pending and undetermined in the United States court for the Northern district of the Indian Territory at the time the territory of Oklahoma and the Indian Territory were admitted into the Union as the state of Oklahoma. Under the Constitution of the state of Oklahoma and the enabling act the case was duly transferred and docketed in the district court of Cherokee county, state of Oklahoma, the crime having been alleged to have been committed within the town of Tahlequah, which said town is located within the geographical limits of what was the Northern district of the Indian Territory, and is now Cherokee county, state of Oklahoma. That on April 20, 1908, the said John W. Sharp filed his application for a change of venue in the district court of Cherokee county, state of Oklahoma, which said application was duly allowed, and said cause transferred for trial to the district court of Adair county, state of Oklahoma. That thereafter, and on the 8th day of May, 1908, the cause proceeded to trial, and the defendant was convicted of the crime of manslaughter, and, his motions for a new trial and in arrest of judgment having been overruled by the court, the defendant was on May 16, 1908, sentenced to be confined in the state penitentiary at Lansing for the term of 10 years, sentence to begin from said date, and that in addition to said sentence the defendant pay a fine of $500. The defendant prayed an appeal, and his bond was fixed at $5,000. The bond having been approved, the defendant was released pending appeal, and this case is now before this court for review upon petition in error and case-made.
    Thomas H. Owen, being of counsel for the defendant in the trial of this cause below, was disqualified to sit in this case in this court, and, the fact having been duly certified to the Governor as provided for by law, Preston S. Davis, of Yinita, Okla., was duly commissioned by the Governor to sit in this case as special judge.

      Roper <£■ Huckleberry, Thomas II. Owen, and Wm. M. Cravens, for plaintiff in error.
    • Chas. West, A tty. Gen., and E. C. Spilmah, Asst. Atty. Gen., for the State.
    No copies of briefs reached the reporter.
   DAVIS, Special JiIdge

(after stating the facts as above). This crime was alleged to have been committed prior to statehood, and the defendant charged with the crime of murder by indictment in the United States court for the Northern district of the Indian Territory, prior to statehood. The case did not come on for trial until after the territory of Oklahoma and the Indian Territory were admitted into the Union as the state of Oklahoma, and until after the Constitution of the state of Oklahoma had been adopted, and the act of Congress, approved March 4, 1907, c. 2911, 34 Stat. 1286, known as the “Enabling Act,” had been passed. There are a number of questions raised and saved by the objections and exceptions of counsel for plaintiff in error, as disclosed by the record, the most important of which are: What law of procedure shall apply in the trial and decision of this case against the plaintiff in error, Shall the law of Arkansas, as adopted by Congress and put in force in the Indian Territory at the time of -finding the indictment against plaintiff in error, apply, or shall the Constitution and laws of the state of Oklahoma and the laws of the territory of Oklahoma, as extended over the Indian Territory by act of Congress known as the “Enabling Act,” apply?

In the ease of United States v. Haskell et al. (Dist. Ct., E. D. Okla.) decided April 10, 1909, and found in 169 Fed. 449, this question was before the court on a motion to quash certain indictments found against the defendants therein, charging them with a conspiracy continuing to the date of the indictments and alleging that the last overt act that affected the objects of the conspiracy were committed byr the accused at a date prior to the termination of the territorial government for the Indian Territory. In this case, Marshall, District Judge, in discussing the third ground of the motion to quash, which is as follows: “(3) The.fact that the grand jury which returned the indictments consisted of 21 grand jurors instead of 16, the number claimed to have been prescribed by law at the date of the offenses charged” — said:

“The third objection, going to the validity of the grand jury, is of more weight. "The crimes charged are alleged to have been committed in the Indian Territory; that is to say, the several indictments'are found under section 5440 of the Revised Statutes (U. S. Comp. St. 1901, p. 3676), and each charge a conspiracy continuing to the date of the indictment, but the last overt act, alleged to affect the object of the conspiracy, is of a date prior to the termination of the territorial government. The crime was then complete, and the defendants then became, if at all, liable to the penalty. At that time Congress had established United States courts in the Indian Territory, and had extended over and put in force there certain laws of the state of Arkansas, including section 3991 of Mansfield’s Digest of the Laws of Arkansas, which reads:
“ 'A grand jury of 16 persons shall be selected from those designated as grand jurors, but if any shall be absent, incompetent to serve, or excused, the deficit shall'be made up by taking a sufficient number of competent alternates present in the order in which their' names appear upon the list.’
•“This was the only statute regulating the number of grand jurors in the constitution of a grand jury which was in force in the Indian Territory at the date of the alleged crimes, unless section 808 of the Revised Statutes (U. S. Comp. St. 1901, p. 626) of the United States was applicable therein, a matter to be presently considered. Before the statutes of the state of Arkansas had-been extended over the Indian Territory, it had been the subject of construction by the Supreme Court of that state in the case of Harding v. State, 22 Ark. 210, and it was there held that no grand jury consisting of more than 16 persons complied with its provisions, and that ah indictment returned by a grand jury of 17'per-sons must be quashed. This construction of the stainrte must be assumed to have been known to the: Congress of the United States, and it accompanied the statute when extended. The indictments here in question were each found by a grand jury consisting of 21 persons. After the commission of the offense and before any prosecution therefor, the Indian Territory had. together with the territory of Oklahoma, been admitted to the Union as the state of Oklahoma. United States Circuit and District Courts had been organized therein, and had been given jurisdiction of offenses theretofore committed in the respective territories so far as the same would have been within the jurisdiction of such courts if committed within a state. The indictments were thereafter found in the United States District Court for the Eastern district of Oklahoma, and it is claimed that the- grand jury in question was legally constituted under the provisions of section 808 of the Revised Statutes of the United States. That section provides, among other things, that every grand jury impaneled before any district or circuit court shall consist of not less than 16 nor more than 23 persons. It becomes important, then, to consider whether that section of the statute was applicable to the United States courts of the Indian Territory when the offenses were committed; or, if not, the effect as to the defendants of the subsequent legislation which transferred jurisdiction of the offenses charged to the United States District Court of the Eastern district of Oklahoma.
“Section 808 of the Revised Statutes was expressly limited to grand juries impaneled in a United States district or circuit court. The courts of the Indian Territory were courts of the United States, but not district or circuit courts of the' United States within section 808. The dual jurisdiction exercised by the United States courts of the Indian Territory is beside the question. They did not fall within the discription of the courts named in section 808, and that section had no application within any territory of the United States. This was settled by the Supreme Court of the United States in Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244, and needs no elaboration. But! when these indictments were found, section 808 of the Revised Statutes applied by reason of legislation which took effect after the commission of the offenses charged. It authorized a grand jury consisting of not less than 16 nor more than 23 persons, and the grand jury in question was" within the maximum limit prescribed. "Was the subsequent legislation, which for the first time made this provision of the statutes applicable to the prosecution of the defendants, ex post facto as to them, and forbidden by section 9 of article 1 of the Constitution of the United States, so far as it authorized a grand jury consisting of more than 16 persons ? It is evident that the change was of importance to the defendants. Neither before nor after statehood could they be held to answer the crime charged unless on a presentment or indictment of a grand jury; but, if sought to be indicted before statehood, five dissenting grand jurors of the entire number could have precluded the finding of an indictment, while after statehood, and as the grand jury was in fact constituted, it required not less than ten dissenting jurors to have the same effect. That the situation was altered to the disadvantage of the defendants is apparent.
“But it is argued that this is mere matter of procedure, and that one accused of crime has no vested right in being prosecuted in accordance with the methods of procedure in force at the date of the offense. That must be granted as a general proposition; but it is so because a change of procedure ordinarily imposes no hardship on the accused, nor seriously alters his position to his disadvantage. In his Constitutional Limitations, p. 272, Judge Cooley says:
“ ‘The Legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.'
“The following cases announce and illustrate the principle: Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506; Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485; Thompson v. Utah, 170 U. S. 352, 18 Sup. Ct. 620, 42 L. Ed. 1061; State of Utah v. Rock, 20 Utah, 38, 57 Pac. 532. Here, though the change was one of procedure, 1 am of the opinion that- a substantial protection, designed by the law for the benefit of the accused was, subsequent to the commission of the offenses, if not- dispensed with, so impaired as to injuriously» affect the rights of the accused, and alter the situation to their disadvantage, so that as to them it must be held to be ex post facto. =1: * *
“It follows that the indictments will be quashed, but as a grand jury can be impaneled in this court, consisting of 16 persons, and yet complying with the requirements of section 808 of the Bevised Statutes, the cases, if counsel for the government so desire, will be ordered to be submitted to another grand jury, and the defendants held to await the action of such grand jury.”

In the case of Crowley v. United States, 194 U. S. 461, 24 Sup. Ct. 731, 48 L. Ed. 1075, the Supreme Court of the United States, when the question was raised that a defect in the constitution of a grand jury is a defect or imperfection in» matter of form only, and therefore cured by section 1025 of the Bevised Statutes (U. S. Comp. St. 1901, p. 720), announced the following do.ctrine, to wit:

“That section can have no bearing in the present case. lor the disqualification of a grand juror is prescribed by statute, and cannot be regarded as. a mere defect or imperfection in form. It is matter of substance which cannot be disregarded without prejudice to an accused.”

See, also, the case of Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839.

In the case of State v. Caruthers, 1 Okla. Cr. 428, 98 Pac. 474, in an opinion handled down November 19, 1908, Baker, Judge, speaking for this court, upon the same point under discussion here, among other things, said:

"Coming now to the second proposition: ‘What law of procedure shall be applied in the determination of the rights of the relator?’ We think the law in force, in the Indian Territory from the time chapter 46 of Mansfield’s Digest of the Laws of the state of Arkansas was adopted by Act. Cong. May 2, 1890, c. 182, 26 Stat. 81, and put in force in the Indian Territory, and continuing until Oklahoma was admitted into the Union, shall control. Within the meaning of the Constitution of the United States, any law is ex post facto which is enacted after the commission of the offense, and which, in relation to it or its consequences, in any way affects the material situation of the accused to his prejudice or disadvantage. This doctrine is most ably sustained in a very learned and exhaustive opinion written by one of the world’s ablest jurists, Mr. Justice Miller, of. the Supreme Court of the United States, and decided by that court in the case of Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. 443, 27 L. Ed. 506, a capital case, ICring having been indicted and convicted of murder in the first degree. The judgment was affirmed by the Supreme Court of Missouri, a previous sentence, however, having been pronounced against him on his plea of guilty of murder in the second degree, and subjecting him to imprisonment for 25 years, which sentence, on his plea, had been appealed, reversed, and set aside by said court. By the law of Missouri, in force when the homicide was committed, this sentence was, in effect, an acquittal of the crime of murder in a higher degree. Before his plea of guilty was entered, the law was changed so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an 'acquittal of the higher crime. Held that, as to this case, the new law was ex post facto, within the meaning of section 10, art. 1, of the Constitution of the United States, and that lie could not be again tried for murder in the first degree. This decision is entirely in accordance with our conception of justice and fairness. The accused should be tried and dealt with under the law as it existed at the time of the commission of the crime of which he stands charged. Any other doctrine would be fraught with many hardships and uncertainties, and would be repugnant to the well-established policy of the law.
“It was, by counsel in the Kring Case, urged that as to the rights of persons charged with crime under subsequent legislation affecting those rights, even though the changes in the law were radically to the disadvantage of the accused, it is not ex post facto, because it was a change, not in crimes, but in criminal procedure. This view the Supreme Court of the United States refused to accept, but proceeded to define the much vexed question as to what is meant by 'procedure5 as a law term; and said court wisely adopted the definition laid down by the distinguished writer on criminal law, Joel Prentiss Bishop, in his valuable work on Criminal Procedure. Bishop, in the first chapter of his work, undertakes to define what is meant by 'procedure.5 He says: 'Sec. 2. The term ''procedure55 is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, pleading, evidence, .and practice.5 And in defining 'practice5 in this sense, he says: 'The word means those legal rules which direct the course of proceeding to bring parties into the court, and the course of the court after they are brought in.5 Evidence: 'Signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted.5 We think the court in the Kring v. Missouri case lays down a correct and clear idea of what is intended by the word 'procedure5 as applied to a criminal case. It is, therefore, obvious that a law which is one of procedure may be decidedly obnoxious as an ex post facto; for /my law which would alter the legal rules of evidence, or receive less, or different, testimony than the law requires at the time of the commission of the offense, or would apply different rules for the conduct of the trial of the ease, is ah ex post facto law. Many instances might be cited where a change of the law would not, in fact, change the crime or its punishment, but would still, in the application of the changed condition of the procedure, materially and prejudicially affect the rights of the accused. No ex post facto law will be enforced against the accused which would in any -way be prejudicial to his rights. We think that Congress, in passing the Enabling Act, intended to settle the question as to the law applicable in cases then pending!in the Indian Territory. Section 20 of the Enablng Act provides (Act March 4, 1907, c. 2911, 34 Stat. 1287). ‘All criminal cases pending in the United States Courts in the Indian Territory not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to final determination in the state courts of Oklahoma under the laws now in force in that territory.’ This court, therefore, holds that the law in force in the Indian Territory at the. time the indictments were returned in the cases against the relator shall govern the disposition of his cases.”

At the time this crime is alleged to have been committed, and the time the defendant, John W. Sharp, was indicted in the United States court for the Northern district of the Indian Territory, the territory, under acts of Congress, had been divided into four judicial acts, namety, Northern, Western, Central, and Southern; and United States courts had been established in each district with jurisdiction to try all offenses against the penal law's put in force in said Indian Territory by the various acts of Congress. By the act of Congress approved May 2, 1890, c. 182, 26 Stat. 81, entitled, “An act to provide a temporary government for the territory of Oklahoma, and to enlarge the jurisdiction of the United States courts in the Indian Territory, and for other purposes,” it ivas provided, under section 31 of said act, that:

“The Constitution of the United States and all general law's of the United States which prohibit crimes and misdemeanors in any place w-ithin the sole and exclusive jurisdiction of the United States, except in the District of Columbia, and all laws relating to national banking associations, shall have the same force and effect in the Indian Territory as elsewhere in the Unite.! States. * ❖ * «

And section 32 of said act provided as follows:

“That the word ‘county,’ as used in any laws of Arkansas which are put in force in the Indian Territory by the provisions of this act, shall be construed to embrace the territory within the limits of a judicial division in said Indian Territory; and whenever in said law's of Arkansas the word ‘county’ is used, the vmrds Íjudicial division’ may be substiluted therefor, in paid Indian Territory, for the purpose of this act. And whenever in said law's of Arkansas the word ‘state’ or the words ‘state of Arkansas’ are used, the word ‘territory’ or the words ‘Indian Territory’ may be substituted therefor, for the purposes of this act, and for the purpose of making said laws of Arkansas applicable to the said Indian Territory; but all prosecutions therein shall run in the name of the ‘United States.’ ”

Under section 33 of said act it is provided as follows:

“That the provisions of chapter forty-five of the said General Laws of Arkansas entitled ‘Criminal Law,’ except as to the crimes and misdemeanors mentioned in the proviso to this section, and the provisions of chapter forty-six of said General Laws of Arkansas, entitled ‘Criminal Procedure,’ as far as they are applicable, are hereby extended- over and put in force in the Indian Territory, and jurisdiction to enforce said provisions is hereby conferred upon the United States court therein: Provided, that in all cases where the laws of the United States and the said criminal laws of Arkansas have provided for the punishment of the same offenses, the laws of the United States shall govern as to such offenses.”

The act of Congress approved March 1, 1895, c. 145, 28 Stat. 693, entitled “An act to provide for the appointment of additional judges of the United States court in the Indian Territory, and for other purposes,” under section 4, provided, among other things, as follows:

“The provisions of chapter forty-five of Mansfield’s Digest of the General Laws of Arkansas, entitled ‘Criminal Law,’ except as to the crimes and misdemeanors mentioned in the proviso of this section, and chapter forty-six of said Laws of Arkansas, contained in said Digest, entitled ‘Criminal Procedure,’ and chapter ninety- one of said General Laws, regulating the jurisdiction and procedure before justices of the peace in civil cases, be, and they are hereby extended to and put in force in the Indian Territory; and the jurisdiction to enforce said provisions is hereby conferred upon the United States court in the Indian Territory: Provided, that in all cases Avhere the laws of the United States and the said criminal laws of Arkansas have provided for the punishment of the same offenses, the laws of the United States shall govern as to said offenses, except for the crime of larceny, the punishment for which shall be that prescribed by the laws of the state of Arkansas, any law in force in said Indian Territory to the contrary notwithstanding.”

And section 7 of said act provides as follows:

“That all prosecutions for crimes or offenses of which United States court in the Indian Territory shall have jurisdiction shall be had within the district in which said offense shall have been committed, and in the court nearest or most convenient to the locality where it is committed, to be determined by the judge on motion to transfer the trial of the case from one court to another. * * * All cases shall be tried in the court to which the process is returnable, unless a change of venue is allowed, in which case the court shall change the venue to the nearest place of holding court within the district, and any civil cause- may be removed to another district for trial if the court shall so order on the application of either party.”

In the ease of Simon et al. v. United States, reported in 4 Ind. T. 688, 76 S. W. 280, Chief Justice Gill, speaking for the United States Court of Appeals of the Indian Territory, said:

“This court has held in Williams v. United States, 4 Ind. T. 269, 69 S. W. 871, as follows: ‘But under Act March 1, 1895, c. 145, 28 Stat. 696, we are of opinion that Congress intended to put in force, and did put in force, chapters 45 and 46 of the laws of Arkansas, contained in Mansf. Dig. (Ann. St. Ind. T. 1899, cc. 19, 20), entitled, respectively, “Criminal Law” and “Criminal Procedure,” and, except where the punishment is different, as provided in the laws of the United States, and as provided in Mansfield’s Digest, in said chapter 45, said chapters 45 and 46 are exclusive of all other laws, except, of course, such laws as have since been put in force by Congress.” In other words, it is our construction of the act of March 1, 1895, that, as to criminal procedure, Congress has fixed for Indian Territory, exclusive of all other statutes of the United States, chapter 46 of Mansfield’s Digest; and this being true, section 1014, Rev. St. U. S. (U. S. Comp. St. 1901, p. 716), has no force in Indian Territory, it being in conflict with chapter 46, Mansf. Dig. By express provision of Congress, Act May. 2, 1890, c. 182, § 2, 26 Stat. 96 (Ann. St. Ind. T. 1899, § 32), it is provided ‘that, the word “county,” as used in any pf the laws of Arkansas, which are put in force in the Indian Territory, shall be construed to embrace the territory within the limits of the judicial divisions in said Indian Territory, and whenever in said laws of Arkansas the word “county” is used, the words “judicial division” may be substituted therefor in said Indian Territory.’ ” (Binyon v. United States, 4 Ind. T. 642, 76 S. W. 265.)

Under sections 3982, 3983, and 3984, c. 90, of Mansfield’s Digest of the Statutes of Arkansas, entitled “Jury,” which chapter was put in full force and effect in the Indian Territory by the act of Congress of May 2, 1890, the grand jurors and alternates and petit jurors and alternates were to be selected in the manner provided for in said chapter, from the electors of the county, in both civil and criminal cases in which circuit courts were to be held. Hence it followed that, in the Indian Territory at the time the defendant in this case was indicted, had he been tried in the United States court for the Northern district of said territory, prior to statehood, he would have been entitled to a petit jury drawn from the residents of said district, possessing the qualifications of electors as provided in the'chapter of Mansfield’s Digest, referred to, relating to jurors. Section 2225 of Mansfield’s Digest of the Statutes of Arkansas, chapter 46, entitled “Criminal Procedure,” provides as follows:

“Where the judge of the circuit court is satisfied, after having made a fair effort in good faith, for that purpose, that from any cause it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and, from those so summoned, the jury may be formed.”

Section 2227 of said chapter and digest provides:

“The sheriff shall have the same power of summoning jurors under such order that he would have in the county of which tie is the sheriff, and the court the same power of coercing the attendance of such jurors that it would have if they were summoned in the same county.”

This was the law in the Indian Territory, prior to statehood, and after the passage of the acts of Congress referred to herein; and the United States District Judge of the Northern district of the Indian Territory had the power to enforce its provisions whenever in his sound judgment and discretion, after having made a fair effort in good faitli to obtain a jury free from bias iu the district, to summon a petit jury from some adjoining district in the Indian Territory, and this law would unquestionably give the district court of any county in this state, in cases falling within the scope and purview of this decision, the authority and right to summon jurors from a county other than the county in which the defendant is being tried and the court sitting. In other words, where the word “county” appears in said chapter, the words “judicial division” under the act of Congress already above referred to in this opinion, should be substituted, and since under the act of Congress, May 2, 1890, referred to herein, “the Constitution of the United States and all general laws of the United States, which prohibit crimes and misdemeanors in any place within the sole and exclusive jurisdiction of the United States, except in the District of Columbia, and all laws relating to national banking associations, shall have the same force and effect in the Indian Territory as elsewhere in the United States,” it follows in our opinion that the Constitution of the United States certainly had as much force and effect in the Indian Territory as elsewhere in the United States, if the act of May 2, 1890, is to be given any effect at all, and that it must be held to mean that the Constitution of the United States shall have the same force and effect in the Indian Territory, from and after the passage of this act of Congress by which the Constitution of the United States was in express terms put in full force and effect in the Indian Territory, as in the states of the Union and in the organized territories thereof. It seems to us that any other construction would do violence to the very words of the act itself, for if the Constitution does not have the same force and effect 'in the Indian Territory after the passage of this act that it has in the states and in the organized territories of the Union, then there must be places “elsewhere in the United States” where the Constitution has a greater force than in the Indian Territory.

The sixth amendment to the Constitution of the United States provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speecly and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,” etc.

At the time of the alleged commission of the offense in this case the Constitution of the United States was in full force and effect and vigor in the Indian Territory, “as elsewhere in the United States”; the districts of said territory have been “previously ascertained by law” of the United States, and under the provisions of the sixth amendment of the Constitution of the United States and the provisions of section 7 of the act of Congress approved March 1, 1895, the accused, had he been brought to trial in the United States court for the Northern district of the Indian Territory, under the laws in force then, as they stood prior to statehood, as a matter of substantial right, was entitled to enjoy a speedy and public trial by an impartial jury of the Indian Territory, drawn from the body of the Northern district as it then stood.

The ease of United States v. Green et al. (D. C.) 146 Fed. 776, is precisely in point. In that case Speer, Judge, said:

“The broad question involved depends upon the proper construction to be given article 6 of the amendments to the Constitution of the United States. This was one of those great provisions of personal right which were exacted by the American people as a condition to the .adoption of the Constitution itself. It was proposed to the Legislatures of the several states by the first Congress on the 25th of September, 1779, and was ratified by a sufficient number of the states in that year and in the years immediately following. It provides: 'In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.’ The term 'previously, ascertained by law’ necessarily imports previously to the commission of the crime, or at least to the accusation. Now it will not be disputed that the offense charged against the prisoners, if offense it be, was committed before the creation of the Southwestern division of the Southern district of Georgia, with provision for courts at Valdosta. At that time the Eastern division of the district comprehended the counties from which the grand jurors who found the indictments under consideration were drawn. The district as it then stood was, therefore, the district as it had been previously ascertained by law. It follows that since a large number of counties have been, subsequently to the alleged commission of the offense, withdrawn from the Eastern division and comprehended in the Southwestern division, the Eastern division now at this time is not as it had been previously ascertained by law. It follows that this principle of our organic law, which is over and above all other laws, obliges the court to try the defendants in the district as it stood at the time the offense is alleged to have been committed. The obvious intention of the framers of the Constitution was to create a vicinage for the court from which jurors must be drawn. The vicinage was the late Eastern division of the Southern district of Georgia, but that vicinage had been impaired, as we have seen, by an act of Congress. Acts of Congress cannot impair the Constitution or its effect. It follows, therefore, that as to these prisoners the vicinage in which they are td be tried is the Eastern division of the Southern district of Georgia as it had been previously ascertained at the time the offense is alleged to have been committed.”

The defendant made the following objection at the inception of the trial, which was overruled and an exception duly saved, to wit:

“That this court has no jurisdiction to proceed further, and for the further reason that the jury was not properly impaneled and according to law.”

Taking this view of the law, we must hold that this defendant in this case was, and is now, entitled to have a petit jury, possessing the qualifications provided for under the laws of Arkansas in force in the Indian Territory at the time of the alleged commission of the crime of which he stands charged, drawn from the body of what was the Northern district of the Indian Territory at the time of the alleged commission of the offense. Under the “Enabling Act” the district courts of the various counties which have been carved out of what was the Indian Territory are made successors of the old United States courts, and are given full power and jurisdiction to proceed with all cases that were pending when statehood came and which have been subsequently and properly transferred to -them for trial, under the laws that were in force in said territory at the time of the passage of said act.

Section 2283 of chapter 46 of Mansfield’s Digest, entitled “Criminal Procedure,” provides:

“A general verdict is either ‘guilty’ or ‘not guilty’.; if guilty, the - jury affixing the punishment, if the amount thereof is not determined by lav/.”

In this case the record shows that the defendant requested the trial court to give the following instruction, to wit:

“You are instructed that if you should find, by your- verdict, the defendant guilty of manslaughter, you may fix the punishment at a fine of not more than $1,000, or by imprisonment not more than 10 years, or by both fine and imprisonment.”

And that the trial court refused to grant the request of the defendant as contained in said instruction, to which refusal the defendant duly excepted.

In the case of Taylor v. United States, reported in 6 Ind. T. 350, 98 S. W. 123, Chief Justice Gill, speaking for the United States Court of Appeals of the Indian Territory, among other things, said:

“Counsel for appellee contends in a very strong presentation of the matter, that the district courts in Indian Territory are governed as to fixing penalties by the United States Statutes and procedure, and that the court alone is authorized to fix the penalty, the ’jury being authorized only to determine whether guilty or not. We cannot accede to this. In Williams v. United States, 4 Ind. T. 204, 69 S. W. 849, this court held: ‘But, under the act of March 1, 1895, we are of opinion that Congress intended to put in force, and did put in force, chapters 45 and 46 of Mansfield’s Digest, entitled respectively “Criminal Law” and “Criminal Procedure.” ’ Watkins v. United States, 1 Ind. T. 364, 41 S. W. 1044. Mansf. Dig. c. 46, § 2283, provides what a general verdict of a jury shall contain as follows: ‘Section 2283. A general verdict is either “guilty” or “not guilty”; if guilty, the jury affixing-the punishment, if the amount thereof is not determined by law.’ Holding, as we do, that chapter 46 of Mansfield’s Digest is in force, the law gives the defendant the right to demand that the jury affix the. punishment, except under those statutes in which it is provided that the punishment shall be fixed in the discretion of the court. Failure to instruct the jury of this right, when requested by defendant, is prejudicial error. The motion or new trial should have been granted.
“The cause is reversed, and remanded with directions to grant defendant a new trial.”

In the case of Reynolds v. United States, reported in 7 Ind. T. 51, 103 S. W. 762, Justice Clayton, in delivering the opinion of the United States Court of Appeals for the Indian Territory, said:

“The fourteenth specification of error is that the court erred in refusing to allow the jury to assess the punishment. In the case of Taylor v. United States, 6 Ind. T. 350, 98 S. W. 123, this court, speaking through Chief Justice Gill, says: ‘Holding, as we do, that chapter 46 of Mansfield’s Digest is in force, the law gives the defendant the right to demand that the jury affix the punishment, except under the statutes in which it is provided that the punishment shall be fixed in the discretion of the court. Failure to instruct the jury of this right when requested by defendant is prejudicial error.’ In this ease, while there was. no request for such a charge, the court, over the objection of the defendant, to which exception was saved, instructed the jury that they were not to assess the punishment, and of course this was equivalent of a request, and therefore prejudicial error, entitling the defendant to a new trial. * * * ”

Holding this view of the law, as we are compelled to do under the authorities cited, it was reversible error in the trial court to refuse to give this instruction asked for by the defendant which permitted the jury to fix his punishment in the event they found him guilty, as the defendant was entitled to be tried and to be dealt with under the law as it existed at the time of the commission of the crime of which he stood charged, and the denial of this right under the law imposed a hardship upon the accused, seriously altered his position to his disadvantage, and was prejudicial to his substantial rights.

Section 2239 of Mansfield’s Digest (chapter 46), entitled “Criminal Procedure,” is as follows:

“The state shall be entitled to ten peremptory challenges in prosecutions for felony, and to three in prosecution for misdemeanor.”

Section 2240 of said digest (chapter 46), entitled, “Criminal Procedure,” provides :

“The defendant is entitled to twenty peremptory challenges in prosecutions for felony, and to three in prosecutions for misdemeanor.”

In the case of Watkins v. United States, reported in 1 Ind. T. 364, 44 S. W. 1044, the United States Court of Appeals of the Indian Territory, speaking through Chief Justice Springer, said:

“The first error assigned presents the question as to whether the laws of the United States in force in all the states, or the laws of Arkansas, put in force in the Indian Territory, govern in the selection of juries in capital eases in the United States court. The United States Eevised Statutes (section 819) limits the government to five peremptory challenges in capital cases, while section 2239 of Mansfield’s Digest of the Laws of Arkansas, in force in the Indian Territory, allows the prosecution ten challenges in such cases. Chapter 46 of Mansfield’s Digest entitled ‘Criminal Procedure,’ was put in force in the Indian Territory, both by act of May 2, 1890 (section 33), and by the act of March 1, 1895 (section 4). By the former act the provisions of this chapter were qualified by the words, ‘as far as they are applicable,’ but by the last-named act there was no qualification or exception whatever. We are therefore of the opinion that in capital and other felony cases the provisions of section 2239 of Mansfield’s Digest, which allow the prosecution ten peremptory challenges, are in force in the Indian Territory, and that the court did not commit any error in allowing that number of challenges in this case.”

Under this decision, in view of section 2240 of Mansfield’s Digest, a defendant, charged by indictment with the commission of a felony in the United States court for any judicial district of the Indian Territory, prior to statehood, in■ the prosecution for such felony, under such indictments, in the district courts of the state of Oklahoma to which such cases have been properly transferred by the provisions of the Enabling Act, is entitled to twenty peremptory challenges in all such cases.

We are therefore of the opinion that the defendant in this case, the plaintiff in error here, is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission of the crime of which he stands charged, in all matters where such laws vouchsafe to him a substantial protection. And when, subsequent to the alleged commission of the offense, such laws, if not wholly dispensed with, have been so altered or impaired, before he is placed on his trial, as to injuriously affect and prejudice his substantial rights, impose hardships upon him, and seriously alter his position or situation to his disadvantage, to such extent such subsequent abrogation or alterations in the laws must be held to be ex post facto. Inasmuch as there must be a new trial, we do not deem it necessary to notice the other specifications of error contained in the record, and ás to them we therefore express no opinion.

Beversed and remanded, with instructions to the trial court to give defendant, plaintiff in error here, a new trial.

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


author: BUCKNEE, Seegial Judge,

text:
    Ira Brown v. State.
    No. 223.
    Opinion Filed October 2, 1909.
    (104 Pac. 78.)
    1. ASSAULT AND BATTERY — Assault With Deadly Weapon — Sufficiency of Evidence. Upon the trial of an indictment charging an assault with a deadly weapon, to wit, a knife, without any description of the knife, and where the proof fails to show the kind or character of the knife, or that the wounds inflicted thereby would likely produce death, and where the evidence that was offered in regard to the weapon repels the idea that the knife was a deadly weapon, a new trial should be granted on the motion of the defendant alleging the insufficiency of the evidence to sustain the verdict of the jury.
    2. ASSAULT AND BATTERY — Assault With Deadly Weapon-Statutes. Sess. Laws 1901, p. 108. c. 13, art. 1, entitled “Assault with intent to kill,” embraces several species of offense, all punishable alike, yet different in description and degrees, as in some of the offenses denounced therein a conviction may be had of a lesser degree or misdemeanor, while under the last offense denounced therein there are.no lesser degrees.

      3. APPEAL AND ERROR — Review—Questions of Fact. Where the evidence in a case to sustain a verdict of guilty is of such a weak and uncertain character that the court cannot say that the jury was not influenced by prejudice, passion, or irrelevant and incompetent testimony, a great deal of such testimony appearing in the record, this court will order a new trial.
    (Syllabus by the Court.)

      Appeal from District Court, Kay County; W. M. Bowles, Judge.

    Ira Brown was convicted of an assault with a deadly weapon, and he appeals.
    Beversed, with directions to grant a new trial.
    The plaintiff in error, Ira- Brown, was tried and convicted of the offense of assault with a deadly weapon, and upon said conviction was sentenced by the court to serve a term of seven years in the state prison. Front such judgment and sentence he appeals.
    Judge Doyle being of counsel for the defendant in the trial of this cause below, was disqualified to sit in this cause in this court, and the fact having been duly certified to the Governor, as provided for by law, C. E. Buckner, of Guthrie, Okla., was duly commissioned by the Governor to sit in this case as special judge.

      Cress & Carter, for plaintiff in error,

      C. J. West, Atty. Gen., for defendant in error.
   BUCKNEE, Seegial Judge,

(after stating the facts as above). The plaintiff in error was prosecuted by indictment for the offense of an assault with a deadly weapon upon the person of one Horton. The statute (Sess. Laws 1901, p. 108, c. 13, art. 1), under which the prosecution was conducted reads as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent td kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the territorial prison not exceeding ten years.”

The indictment charges that the defendant and others, naming them, “unlawfully, knowingly, willfully, intentionally, wrongfully, and. feloniously, with certain knives, the same then and there being deadly weapons, which they then and there in their hands had and held, commit an assault and battery on one John Horton and they, the said Irá Brown,. Boy Temple, and Vide Minnick, with the said knives held in their hands as aforesaid, then and there at and against and into the head and lace and against and into divers other parts of the body and person of him, the said John Horton, with said knives, so held in their hands as aforesaid, did strike, cut, and wound, as aforesaid, the head, face, body, and person of him, the said John Horton, with the felonious intent then and there and thereby, he, the said John Horton, unlawfully, knowingly, willfully, intentionally,, -wrongfully, and feloniously to kill.” To this indictment a severance of trial was taken, and the plaintiff; in error, Ira Brown, was separately tried and convicted.

The above statute embraces several species of offense, punishable alike, yet different both in description and degree, as appears in some of the offenses denounced a person may be convicted of a lesser degree or misdemeanor, while under the last offense there are no degrees. The defendant by the indictment in this ease is charged with a violation of that species of the offense the elements of which are an assault and batterjr upon another by means of a deadly weapon, or by other means of force likely to produce death. The language of the indictment is that “defendants with certain knives, the same being deadly weapons, which they then and there in their hands had and held, commit an assault and battery on one John Horton,” etc. An ordinary pern-knife is not necessarily a deadly weapon. A witness’ testimony is no stronger than it is made on his cross-examination. Kopf v. Monroe Stone Co., 133 Mich. 296, 95 N. W. 72. The prosecuting witness, Horton, testified, in answer to a question concerning the assault and battery, as follows:

“No; here is'where he struck me first [indicating], and after that he broke his knife blade, and I had on a thin shirt, and of course he struck me with the blunt end of the knife blade and made this scar.”

Troup, the next witness for the state, was a night watchman at Ponca City, the scene of the affray, and the only testimony given by him relative to the assault was that he saw Horton after the alleged assault at the depot, and that Horton was .bleeding. The next witness for the state was Dr. Roberson, who testified that he was called to see Horton; that Horton was bleeding a good deal when he reached him, and described the wounds of Horton as follows: That Horton had a wound on the face and on the hand, 'and a small cut on the breast and possibly another on the arm. When asked if the wounds would be apt to cause death, he said that that depended on a good many circumstances. They might, or they might not, according to circumstances. When asked if there was a probability that they might, answered that they could, and in describing the wounds said the one on the wing of the nose was about an inch to an inch and a half in length, and was quite deep, almost-through the lip; the one on the hand he said was not deep, and the one on the breast was very shallow, only through the skin. On cross-examination the doctor stated that the wounds in and of themselves could not produce death. The next witness for the state, Brilley, did not testify to anything relative to the weapon used or the wounds received. The only other witness, Reeves, testified to Horton being at his home after the affray. Under this evidence it cannot be said, either as a matter of law or matter of fact, that a knife with the blade broken off is a deadly weapon. Evins v. State, 46 Ala. 88. There is no evidence as to the size of the knife, or the length of the broken blade. The evidence shows that the wounds inflicted by the knife were slight, and not of a, serious nature. There being no proof in the record of the deadly character of the weapon, and such proof as was offered repelling the idea that the weapon was deadly, dangerous, or likety to produce death, the motion of the plaintiff in error based on the ground of the'insufficiency of the evidence to sustain the verdict, should have been granted. Key v. State, 12 Tex. App. 506.

The plaintiff in error complains that the verdict of the jury is not sustained by the evidence, and this court is not unmindful of the rule that appellate courts should not disturb verdicts of juries in cases where there is a conflict in the evidence, and especially where the verdict has been approved by the trial judge upon a motion for a new trial; yet where the evidence in the case to sustain the verdict is of such weak and uncertain character that the court cannot say that the jury was not misled by irrelevant and illegal testimony appearing in the record, and did not act upon prejudice or passion, this court will order a new trial. Drury v. Territory, 9 Okla. 398, 60 Pac. 101. We have examined the evidence in this case, and find it very weak and uncertain, anda on this evidence the defendant was sentenced by the court to serve a period of seven years in the state prison. He is a young man, having a family, and as far as the record discloses has always borne a good character. There is no evidence whatever, except the testimony of the prosecuting witness, that the defendant committed the crime charged. On the other side, the evidence is most convincing that he did not, at least, taking the testimony as a whole, it is so uncertain as to raise a reasonable doubt. Okla. St. 1893, § 5201; Ratzky v. People, 29 N. Y. 124. And such a severe sentence should not be permitted to stand on such weak evidence.

The case involves the identity of the defendant by the prosecuting witness. The evidence shows that the prosecuting witness is nearly blind; he was a stranger in Ponca City; does not claim to have ever known the defendant; says that he met him for the first time in a saloon a few minutes before he was assaulted. His testimony is as follows: That he was assaulted by three persons, and that those persons were Brown, Temple, and Minnick; that he saw these three persons in Daley’s saloon just before the assault; that one of them paid for a cigar for him; that after that he left the saloon to go to the depot; and that these three persons came out of the saloon, followed him, and assaulted him. He testifies positively that the assault was made at half past 11 o’clock that night; that he first saw defendant, Brown, in Daley’s saloon that night about half past 10 o’clock, getting along towards 11 o’clock. Further on he testifies that he did not go into Daley’s saloon that night until 11 o’clock, and that he remained in- the saloon 15 or 20 minutes before leaving for the depot, on which mission he claims to have been assaulted. The manner of the witness in answering questions shows that he was not frank. As against this testimony the evidence of other witnesses shows that Temple was tending bar in Daley’s saloon that night, and that the saloon was kept open until 12 o’clock that night, and that Temple could not have been one of the parties who made the assault. Besides this William Collins testified that he saw Horton uptown the night of the assault, and saw Horton on the way to the depot just prior to the assault; that he (Collins) was stopping at a feed-yard near the place of the assault; and that he saw Horton and some other person walking together towards the depot; and that there was only one person with Horton; and that he knew Brown; and that it was. not Brown with Horton. Other witnesses testified to seeing Horton on the streets taking up collections at the time he claimed he was loitering in the saloon of Daley. Both Temple and Brown testify that Brown was not in Daley’s saloon on the day of the assault after 4 o’clock in the afternoon of'that day. Both Brown and Temple deny that they made the assault. Troup, a witness for the state, said that he met defendant, Brown, on the night of the assault in company with a man named Thomas, and that Brown and Thomas had a drunken man in their possession, and that this was between 11 and 12 o’clock that night, and that he took the drunken man and put him in jail;.that he looked at his watch when he put the man in jail, and it was then just half past 11 o’clock. Thomas corroborates • this statement, and says that after they turned the drunken man over to Troup he and Brown came back to town, and separated on a corner; that just as they separated a man named Cravens came up, and that Cravens and Brown went away together. Cravens testified that he met Brown and Thomas at the place stated by Thomas where they turned the drunken man over to Officer Troup. Cravens then says that he and Brown went home together; that on the way they met Brown’s wife, father, and mother; that they all then went-back to Brown’s father’s house; and that he thought it was about 11 o’clock.

Lee Brown testifies that he took Mrs. Ira Brown and three young ladies to the shows that night; that they returned home about 11 o’clock that night; that after they reached home he and his wife and Ira’s wife started up to the defendant’s house; and that on the way they met Cravens and the defendant; and that they with the defendant then all returned to his home and stayed there that night. Ollie Brown testified that she would judge it was about 10 o’clock when they left the shows uptown, and corroborated Lee Brown as to meeting Cravens and her husband. Malinda Brown testified that her husband and Ira’s wife and the three young ladies returned home from the shows between 10 and 11, and that when Ira Brown came that night, he and his wife stayed all night with them, and that he came between 10 and 11 o’clock. Geo. Cripe testified that he saw Horton uptown on the streets 8 or 10 minutes before the assault. Ira Brown testified that he went home with Cravens, and reached there about 11 o’clock.

The motion for a new trial was based upon newly discovered evidence, among other grounds, and in support of this ground the defendant filed the affidavits of. E. H. Irwin and Vm. Aider-man, to the effect ihat on the night of the assault they came in town from the country, and in doing so passed the place of the assault as described by the prosecuting witness; that when they reached this place it was 11 or half past 11 o’clock, and at the place of the assault they saw several negroes quarreling; that they passed by, and did not see any assault committed. The evidence in the case discloses that the prosecuting witness is a negro. This newly discovered testimony is not cumulative of any other testimony in the case, and, in view of the defense made by defendant, is material; and it is probable that with this testimony, when considered with the other testimony by a jury, the verdict might be different, and for this reason a new trial should have been granted.

The case will be reversed, with directions to grant the plaintiff in error a new trial. The clerk of the Criminal Court of Appeals will issue an order to the superintendent of the state penitentiary at McAlester to deliver the prisoner to the sheriff of Kay county, Okla., and that said sheriff shall detain the said prisoner in custody subject to the order of the district court of Kay county, Okla.

FURMAN, Presiding Judge, and OWEN, Judge, concur.