text:
    BILL McRAE v. STATE.
    No. A-1502.
    Opinion Filed January 13, 1913.
    (129 Pac. 71.)
    1. TRIAL — Motive—Evidence—Limitation. Where the motive of a person for going to a certain place or for doing a certain act is material, it is permissible to show the reasons for the presence of such person at such place or for committing the act which is . the subject of inquiry; but, where such evidence is admitted, the jury should be clearly instructed by the court as to the reason for which it was received and should be prohibited by the court from considering it for any other purpose.
    2. INTOXICATING- LIQUORS — Seizure—Motive of Officer. Where the motive of an officer for making a seizure of intoxicating liquors is not an issue in a ease, it is improper to allow him to state any information which he had received and upon which he acted in making such seizure.
    3. APPEAL — Review—Hearsay Evidence. Where hearsay evidence has been received which reasonably contributed to a verdict of guilty, the reception of such evidence does not constitute harmless error, but will be ground for reversal.
    4. CONSTITUTIONAL LAW — Due Process of Law — Conviction on Hearsay Evidence — Suspicion. A conviction based upon hearsay evidence or upon suspicion is not obtained by due process of law and is contrary to the Constitution of this state and also to the Constitution of the United States.
    (Syllabus by the Court.)

      Appeal from Superior Court, Grady County; Will Linn, Judge.

    Bill McRae and Bob Powell were jointly prosecuted for having possession of intoxicating liquors for the purpose of unlawfully disposing of them. Powell was convicted and sentenced to pay a fine of $500 and be confined six months in the county jail, while McRae was found guilty and punishment assessed, at a fine of $50 and 60 days’ confinement in the county jail, and he appeals.
    Reversed.

      A. L. Herr, for appellant.

      Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

Upon the trial of this cause G. W. Feath-erstone,’ a deputy sheriff of Grady county, testified that he was acquainted with appellant and one Bob Powell; that on the 20th day of May, 1911, he had occasion to make a certain search of a room in the Scotty rooming house in the city of Chickasha. He then testified as follows:

“Q. What was the cause of your making the search? By Counsel for the Defendants: Objected to, if the court please, for the reason that it is incompetent, irrelevant, and immaterial. (Which objection was then and there by the court overruled, and the defendants duly saved an exception.) A. Why, we had had' complaints. By Counsel for the Defendants: Wait a minute. We move to strike out the answer of the witness as incompetent, irrelevant, and immaterial and purely calls for hearsay testimony. (Which objection was then and there by the court overruled, and the defendants duly saved an exception.) Q. What was the cause of your making the search? A. We had information that they were handling beer and whisky up -there in some of those rooms— it is the annex of the Scotty rooming house up there. Q. Who was? By Counsel for the Defendants: Objected to, if the court please, as incompetent, irrelevant, and immaterial, because it clearly shows hearsay testimony. By Counsel for Plaintiff: It is offered, if your honor please, to show the motive of Mr. Feather-stone in making this search. By the Court: I will overrule the objection, gentlemen. (To which ruling of the court the defendant then and there duly saved an exception.) Q. You had information that who was handling beer there, Mr. Featherstone ? A. Well, that the defendants here were seen going and coming up and down the stairs there. Q. From where? By Counsel for the Defendants: Defendants now move the court to strike out the answer of the witness for the reason that it is not responsive to the question, and for the further reason that the testimony given is incompetent, irrelevant, and immaterial and wholly hearsay testimony. (Which motion was then and there by the court overruled, and the defendants duly saved exception.) Q. The defendants were going and coming from where to where? A. They were going from and coming to this Scotty rooming house there, and they were in business on the corner of Third street and Kansas avenue.”

The court doubtless admitted this testimony upon the theory that the county attorney had the right to show the motives of the officers in making the raid. Where the motive of any person, be he officer or not, for going to any place or for doing any act, is material, it is always admissible to show the reasons for the presence of such person at such place or for doing the act which is the subject of inquiry. Where such evidence is admissible, the jury should be clearly instructed by the court as to the reasons why it was received and should be prohibited by the court from considering it for any other purpose. The announcement by the county attorney.of the purpose for which the testimony was offered was not alone sufficient. The motive of the officer was not in issue in this case and had not been in any manner attacked. Neither were the jury instructed as to the purpose for which this testimony was admitted. It was purely hearsay and did not come within any of the exceptions admitting such evidence. The persons who gave the officers the information described should have been summoned as witnesses and placed upon the stand and subjected to cross-examination, so that the jury might have been able to determine as to whether or not these statements were based upon their own personal knowledge or were merely a matter of rumor or suspicion. If hearsay of this kind were admissible as evidence, no man, however innocent, would be safe, and any man might be convicted of an offense with which he. was not in any manner connected. Section 15 of Williams’ Const. Okla. provides :

“No person shall be deprived of life, liberty or property without due process of law.”

No one will contend that a conviction based upon hearsay and suspicion constitutes due process of law. Even if this provision were not in our Constitution, the fourteenth amendment to the Constitution of the United States is as follows:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Under this provision no state or court has the right to deprive any person of life, liberty or property except in a lawful manner and upon lawful evidence. It is true that the admission of illegal testimony does not necessarily deprive a defendant of due process of law, because the other testimony in a case might show that it did not affect the results; but where illegal evidence is admitted which is material in its character and which goes directly to the question at issue, and where the record shows that such evidence reasonably contributed to a verdict of guilty, then such a conviction cannot be said to have been obtained by due process of law. This is the condition of the record now before us. The hearsay evidence admitted was material and directly involved the pivotal points in the case, and without this testimony the jury might well have returned a verdict of acquittal. We cannot therefore say that the introduction of this evidence was harmless error.

, The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

author: EURMAN, P. J.

license: Public Domain

text:
    T. C. HARGROVE v. STATE.
    No. A-1513.
    Opinion Filed January 13, 1913.
    (129 Pac. 74.)
    1. INTOXICATING- LIQUORS — Admission of Evidence. A certified copy of the record of the United States internal revenue collector for the district of Oklahoma, showing the payment of a special revenue tax for pursuing the business of retail liquor dealer in Oklahoma, is admissible in evidence against a defendant, charged with the sale of such liquors. The effect of the introduction of • such evidence simply shifts the burden of proof and requires the defendant to introduce such testimony as will raise a reasonable doubt of his guilt.
    2. SAME — Sufficiency of Evidence. For circumstantial evidence sustaining a conviction against a defendant charged with the illegal sale of intoxicating liquors, see opinion.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court-; John W. Hayson, Judge.

    T. C. Hargrove was convicted of selling intoxicating liquors, and his punishment assessed at confinement in the county jail for 90 days and a fine of $300, and he appeals.
    Affirmed.

      Jennings & Levy, for appellant.

      Smith C. Matson,. Asst. Atty. Gen., for the State.
   EURMAN, P. J.

First. The state introduced in evidence a certified copy of the record of the United States internal revenue collector for the district of Oklahoma, showing that the defendant had taken out an internal revenue license to pursue the business of retail liquor dealer in Oklahoma City covering the time of the commission of the offense charged. To the introduction of this evidence counsel for áppellant excepted. The admissibility of this testimony is not an open question in Oklahoma. See Billingsley v. State, 4 Okla. Cr. 597, 113 Pac. 241. Our statute makes the payment of this internal revenue tax prima facie evidence of the defendant’s guilt. This does not in any manner deprive a defendant of any substantial right or interfere with the jury in the consideration of the evidence. It simply fixes the burden of proof in such cases. The court therefore did not err in admitting this testimony.

Second. - Counsel contends that the verdict is contrary to the evidence. With this we cannot agree. It is true that the testimony against appellant is all purely circumstantial, but we think that the circumstances are incapable of reasonable explanation consistent with the innocence of appellant.

George Wood testified for the state that he knew the place of business of defendant on Second street in the city of Oklahoma; that he had been there a number of times; that he was there on the 16th day of May, 1911, and saw the defendant there; that Jack AVillingham was with witness; that witness and Willingham walked into the place of. business of appellant, and Willingham asked if they had anything to drink; that the defendant objected to witness, and said he did not know him; that he wanted to be positive; defendant said he knew Willingham; that witness and Willingham finally went back into the rear of the building; that Willingham bought a bottle of beer back there; that witness paid for it; witness does not know the name of the person from whom the beer was purchased.

Jack Willingham testified that he had known the defendant for three years; that he went into the place of business of the defendant on Second street on the 16th day of May, 1911; that witness bought two bottles of beer there; that witness saw the defendant at this place of business as he came out of the house; that witness had seen the defendant around this place of business before this time; that the beer was not purchased from the defendant.

J. C. Gilmore testified that he was acquainted with the defendant and had known him for three years; that defendant’s place of business was 309 West Second street; defendant has his sign on the front window; that witness frequently saw the defendant about his place of business during 1911; that the defendant kept a pool hall and cigar stand at this place of business.

It is utterly immaterial as to who made the sale. The proof is positive that the defendant had possession of and was in charge of the place of business at which the sale was made, and that the defendant had taken out an internal revenue license to sell liquors at this place, and that, when Wood entered the place, appellant objected to his going back where the liquor was bought because he did not know Wood. These circumstances conclusively establish the fact that appellant had a guilty connection with this transaction.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: FURMAN, P. J.

text:
    OTTO McSPADDEN v. STATE.
    No. A-1476.
    Opinion Filed January 13, 1913.
    (129 Pac. 72.)
    1. JURY — Trial by Jury — Assessment of Punishment, (a) In all cases of conviction by a jury for any offense against the laws of the state of Oklahoma, if the defendant requests it, the court must submit the question of punishment to the jury, and it is error for the court to overrule such request.
    2. APPEAL AND ERROR — Disposition of Cause — Modification of Judgment, (b) If the court refuses to submit the question of punishment of a defendant to the jury, when requested so to do, such refusal will not necessarily result in the reversal of a case, but this court upon appeal may so modify the judgment as will prevent injustice to the defendant.
    3. TRIAL. — Conduct in G-eneral. (c) Attorneys for a defendant are entitled to and must receive absolutely fair treatment at the hands of the trial court, and when this is not accorded them, and the error is of such a character that it may have influenced the jury in finding a verdict, a conviction will bo reversed.
    (Syllabus by the Court.)

      Appeal from Rogers County Court; H. Tom Right, Judge.

    Otto McSpadden was convicted of unlawfully selling intoxicating liquors, and his punishment was assessed at a fine of $500 and six months’ imprisonment, and he appeals.
    Reversed and remanded for new trial.

      Archibald Bonds and /. I. Howard, for appellant.

      Smith C. Matson and B.' G. Spilman, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

We only deem it necessary to discuss one of the questions presented by the record. When this case was tried, counsel for appellant requested the court to instruct the jury that, if they found the defendant guilty, they might assess his punishment. This was denied by the court, to which action of the court appellant duly excepted at the time. Sections 2028 and 2029, Comp. Laws 1909, are as follows:

“Sec. 2028'. Jury May Assess Punishment. — In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.

“Sec. 2029. Failure of Jury. — Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Under these statutes, it was appellant’s right to have the question of punishment submitted to the jury if he so demanded, and to give the jury the privilege of assessing such punishment if they saw fit. The court therefore erred in overruling the request of appellant to submit the question of punishment to the jury.

Section 6955, Comp. Laws 1909, is as follows:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner, to be prescribed by rule of the court.”

In the case of Fritz v. State, ante, 128 Pac. 170, decided at the November term of this court, Judge Doyle, discussing this statute, said:

“Under this statute, this court, exercising its revisory jurisdiction, has the power and authority to modify any judgment appealed from by reducing the sentence. However, that power should not be exercised unless it is apparent that injustice has been done.”

As the jury agreed unanimously that appellant was guilty, if the question of punishment had been submitted to them they could not have done less than fix his punishment at 30 days’ confinement in the county- jail and a fine’ of $50, while they might have assessed it at a fine of $500 and six months’ imprisonment. If they had done so, we would not have regarded the punishment as excessive. The trial court did not .have the right to substitute his judgment for that of the jury on the subject of punishment after the defendant had requested that this be left to the jury. If the matter had stopped here, we could and would have affirmed the conviction and modified the judgment by reducing the punishment to the least amount which could have been inflicted by the jury, and thereby have avoided the possibility of injury to appellant on account of the error of the trial judge.

In fact, we at first intended- to make this disposition of the case, but, upon making a second and more careful examination of the case-made, we find that, when counsel for appellant requested the court to submit the question of punishment to the jury, the court not only did not comply with this request but fined counsel for appellant $5 for contempt of court, which he was forced to pay. In the case of Ostendorf v. State, ante, 128 Pac. 143, decided at the November term of this, court, we clearly stated that it was the right and duty of counsel for a defendant to do everything that was fair and legal to protect the substantial rights of their clients, and in so doing they should be upheld by the courts. We have also repeatedly declared that attorneys for a defendant were entitled to and must receive absolutely fair treatment at the hands of the courts and prosecuting attorneys, and we intend to enforce this rule rigidly. It requires no argument to show that unfairness and justice cannot be harmonized with each other. Counsel for appellant in this case was clearly within his rights in requesting the court to submit the question of punishment to the jury. To refuse to grant this request, and at the same time to adjudge counsel guilty of contempt of court and fine him for the same, was a flagrant outrage on his rights, and could not have been otherwise than injurious to appellant. Courts have no right to humiliate and outrage lawyers for the defense for doing their duty. The effect of this necessarily creates the impression upon the minds of the jury that counsel for the defense has been guilty of unfairness and improper conduct, and this is calculated to excite their prejudice against the defendant. It may be accepted as a cardinal principle of criminal jurisprudence that fairness is a necessary element in the trial of criminal cases in this state. Attorneys for the defense may rely with confidence upon the protection of this court as long as they act within their legal rights. This is as much our duty as it is to condemn their conduct when they are guilty of unprofessional practice.

Because of the conduct of the trial court as above pointed out, the judgment of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ., concur.


author: ARMSTRONG, J.

text:
    HORACE L. WILSON v. STATE.
    No. A-1429.
    Opinion Filed January 13, 1913.
    (129 Pac. 82.)
    1. PHYSICIAN'S AND SURGEONS — Practicing Without Authority —Failure to Record License. A person who has been regularly licensed to practice medicine in this state, and who has failed to record the certificate issued to him by the board having jurisdiction to issue licenses under the laws of this state in the county in which he resides and maintains a place of business, can not be convicted under section 4256, Comp. Laws 1909, for practicing medicine without a license, but is subject to prosecution under section 4252, Id., for failure to record his license in said county.
    2. SAME — Criminal Prosecution — Evidence. A certificate to practice medicine in this state issued by the state board having jurisdiction to issue same, properly authenticated and under the seal of said board, is entitled to be received in evidence when ■ tendered on behalf of a person who is on trial charged with practicing medicine without authority, and such certificate when bona fide is a complete defense to a prosecution based on section 4256, Gomp. Laws 1909.
    (Syllabus by the Court.)

      Appeal from Woodzvard County Court; C. H. Wyand, Judge.

    Horace L. Wilson was convicted of practicing medicine without a license, and appeals.
    Reversed, with directions to grant a new trial.

      Fred M. Elkin and George W. Btickner, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and Jos. L. -Hull, Sp. Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Horace L. Wilson, was tried and convicted in the county court of Woodward county on an information charging him with practicing medicine in said county without having at the time a valid and unrevoked certificate from the state board of medical examiners of the state of Oklahoma.' The information is based upon section 4256, Compiled Laws 1909, which is as follows:

“Any person practicing medicine and surgery in this state, without having at the time a valid unrevoked certificate as provided in this act, shall be deemed guilty of a misdemeanor and shall be fined not less than one hundred ($100) nor more than five hundred ($500) dollars, or by imprisonment for a term of not less than sixty clays nor more than one hundred and eighty days, or both such fine and imprisonment, and each day’s practice shall constitute a separate offense. * * * ”

The punishment 6f the accused was fixed by the jury at a fine of $200 and imprisonment in the county jail for a period of 20 days.

A number of assignments of error are brought. Among others, it is urged that the court erred in refusing to admit in evidence a certificate issued to accused in 1907 by the state boai'd of health, which cei'tificate is as follows:

“State of [Great seal of the state of Oklahoma 1907.] Oklahoma. Physician’s Cei'tificate. No. 2,115. This certifies that the Oklahoma state boai'd of health having received evidence that Horace L. Wilson, of the county of Woodward and state of Oklahoma, is a practitioner of medicine, legally licensed and actively engaged in the practice of medicine on the 16th day of November, 1907, and has submitted such evidence to this board this 10th day of April, 1908. We do hereby authorize him under the provisions of the Oklahoma Constitution regulating the practice of medicine and surgery, approved November 16, 1907, to pursue the practice of medicine and surgery in this state. Given under our hands and the seal of the Oklahoma state board of health at Shawnee, this 10th day of April, in the year of our Lord one thousand nine hundred and eight. W. G. Gilly, M. D. President, Muskogee, Oklahoma. A. E. Davenport, M. D. Vice President, Tishomingo, Oklahoma. J. C. Mahr, M. D, Supt. and ~Bx Officio Secy. Shawnee, Oklahoma. [Seal.]”

The following are the indorsements thereon:

“2410. State of Oklahoma, Harper County — ss.: This instrument was filed for record on the 3rd day of June, A. D. 1908, at 9 o’clock A. M., and duly recorded in Book 1, Mise., on page 84. W. H. Little, Register of Deeds. [Seal.]

“2:15 P. M. p. 13. Pawnee, Oklahoma. Filed June 1, 1909. Frank Shoemaker, County Clerk. Recorded page .-, Book ——, Fees 50 cents Pd.

“State of Oklahoma, County of Craig — ss.: This instrument was filed and recorded in this office in Physician’s Register at page 13, this 9th day of June, 1909, at 2:15 o’clock P. M. R. F. Nix, County Clerk.

“Filed Oct. 9, 1909. J. FI. Donart, County Clerk, Payne County. [Seal.] Recorded on page 10, Medical Register No. 1. Fee Paid $1.00.

“State of Oklahoma, Pottawatomie County — ss.: This instrument was filed for record this the 18th day of Oct. A. D. 1909, at 10 o’clock A. M., and is duly recorded in Book 1, of-, page 45. Fee 75 cents. J. F. Cottell, County Clerk, by F. L. Cottell, Deputy. [Seal.)”

This certificate is under the seal of the state board of health, and is from the board which at that time had or was exercising jurisdiction to jgrant licenses to practice medicine in this state under the constitutional provisions and the statutory law. The certificate should have been admitted, and, when admitted, was a complete defense by the accused to the charge contained in the information. It clearly appears that the accused had not recorded this certificate in Woodward county. Section 4252, Comp. Raws 1909, provides as follows:

“Every person holding a certificate authorizing him to practice medicine and surgery in this state, must have it recorded in the office of the county clerk, as herein provided. Every such person on the change of residence must have his certificate recorded in like manner in the county to which he shall have changed his residence, and 'said certificate shall be displayed in his office as evidence of having complied with the law. The absence of such record shall be prima facie evidence of the want of possession of such certificate, and every such person holding such certificate who shall practice medicine and surgery or attempt to practice medicine and surgery without first having recorded same with the county clerk, as herein provided, shall be deemed guilty of a misdemeanor.”

The accused should have been prosecuted under this section of the statute, and had this been done, and a conviction resulted, no relief could have been had in this court upon the ground set out in the petition in error. We do not deem it necessary to consider the- other assignments.

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

FURMAN, P. J., and DOYLE, J., concur.


text:
    WILL MOORE v. STATE.
    No. A-1489.
    Opinion Filed January 13, 1913.
    (129 Pac. 71.)
    APPEAL AND ERROR — Review—Scope and Extent. When an appeal is taken to this court by a person convicted of violating the criminal laws of this state, and no brief is filed on his behalf, and no appearance made for oral argument, this court will examine the record for fundamental errors only, and, if none be disclosed, the judgment of the trial court will be affirmed.
    (Syllabus by the Court.)

      Appeal from Murray County Court; Harry W. Fielding, Judge.

    Will Moore was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Emanuel & Broad-bent, for plaintiff in error.

      Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Will Moore, was convicted in the county court of Murray county on a charge of having in his possession, intoxicating liquors for the purpose of selling the same, and his punishment fixed at imprisonment in the county jail for a period of 30 days and a fine of $75. We have carefully examined the record and find no error sufficient to justify a reversal of the judgment. No brief was filed on behalf of the plaintiff in error, and no appearance made for oral argument.

This court examined the record for fundamental errors only, and, finding none, the judgment is affirmed; with direction to the trial court to enforce the judgment and sentence.

FURMAN, P. J., and DOYLE, J., concur.


text:
    CHARLES WARNER v. STATE.
    No. A-1509.
    Opinion Filed January 13, 1913.
    (129 Pac. 76.)
    1. COURTS — Jurisdiction — Misdemeanors—County Courts — Transfer of Cause, (a) When an indictment is returned by a grand jury in a district court charging a' misdemeanor, it is the duty of the judge of the district court to make an order transferring such indictment to the county court for trial.
    (b) When an order is made by a district court for the transfer of a misdemeanor indictment to a county court, it.is the duty of the clerk of such district court to properly enter said ordeT in the minutes of the court and certify the same down, together with the indictment and other papers in the ease.
    (c) When an order is made by a district court for the transfer of an indictment in a misdemeanor case, and the clerk fails to enter such order properly upon the minutes, and the papers and indictment are certified to the county court without such order of transfer, although the same was in fact made, and then upon application of the county attorney the district court enters a plea to the indictment, any defects in the transfer asi to the county court, this is sufficient to take the place of the original order and to validate the transfer in all respects.
    2. SAME — Transfer of Cause — Defects in Transfer. When an indictment charging a misdemeanor is transferred from a district court to a county court, and the person against whom the offense is charged appears in court, gives bond, waives arraignment, and enters a plea to the indictment, and defects in the transfer are thereby waived.
    (Syllabus by the Court.)

      Appeal from Okmulgee County Court; Geo. A. Jones, Judge.

    Charles Warner was convicted of violating' the prohibitory law, and he appeals.
    Affirmed.

      M. M. Alexander, for plaintiff in error.

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

The plaintiff in error, Charles- Warner, was tried and convicted at the October, 1911, term of the county court of Okmulgee county "on a charge of selling intoxicating liquors, and his punishment fixed by the court at a fine of $500 and imprisonment in the county jail for a period of 90 days.

The only assignment of error that is urged for reversal of this judgment is based upon the contention that the county court >vas without jurisdiction to try the accused by reason of alleged irregularities in transferring the indictment from 'the district court to the county court. Counsel in his brief has argued the question at length. A motion to dismiss was filed in the county court on this ground; the allegation of the motion being in the following language:

“Comes now the defendant in the above-entitled cause * * * and * * * moves the court that it dismiss the action herein pending against this defendant, and for cause of said dismissal shows to this honorable ■ court that it is without jurisdiction to hear and determine this action now pending against this defendant for the reason that there is no order of court of record in this court transferring said cause from the district court of Ok-mulgee county, Oklahoma, ,to the county court of said county and state, as is provided by law. The defendant in-support of his motion shows unto this honorable court that this cause is now pending in this court by virtue of an indictment returned into the district court of Okmulgee county, Oklahoma, and that no order was made of record whereby said cause, which was a misdemeanor, was transferred to the county court of Okmulgee county, Oklahoma, at the time the clerk of the district court aforesaid pretended to transfer said cause to said county court aforesaid, but that the clerk of said district court made a transcript of a pretended order of transfer of said cause to the county court aforesaid which pretended order is not of record in this court. * * * ”

The motion then sets out an unsigned order of the judge of the district court of Okmulgee county ordering the transfer of this cause to the county court. Upon the filing of this motion, the county attorney appeared before the district court and asked that a nunc pro tunc order be entered of record transferring the cause, which was done. Such order, among other things, contains the following recital:

“And it appearing to the court that certain indictments were returned by said grand jury to said district court, and that each and all of said indictments, hereafter referred to by number, were misdemeanors and properly triable in the county court of Okmulgee county, Oklahoma. And it further appearing to the court that by inadvertence, oversight, and mistake the criminal journal of the district court of Okmulgee county, Oklahoma, does not show that said causes were transferred to the county court of Okmulgee county, Oklahoma, as required by law. It is therefore here ordered and adjudged by the court that an entry nunc pro tunc be entered in the criminal journal of said court as of date, December 13, 1910,” etc.

This nunc pro tunc order includes the case at bar.

Counsel for appellant at no time contended by his motion, nor does he contend here in his brief, that the district court failed to make an order transferring the indictment in this cause to the county, court as provided by statute. His contention is based solely upon the ground that there was no certified copy of such order included in the papers on file at the time they were transferred. It is true that this order should have been included in the papers, but, if the order was in fact made, it is not fatal to the jurisdiction of the county court that a certified copy thereof did not come down from the district court to the county court at the same time and attached to the indictment. This omission, while it should not have occurred, was an omission of a duty imposed upon the clerk and not the court. The court having made the order, the clerk should have entered it in the record. Having failed to enter it in the record, when the court’s attention was called to it, the order should have been made and certified down. This was done. This court has never held the contrary, and, in fact, has specifically said that it was the duty of the county attorney to see that these orders were properly made and included in the record, and that, when this was not done, the county court should return them to the district court for completion. See Hendrix v. State, 5 Okla. Cr. 125, 113 Pac. 544. The bringing down of a nunc pro tunc order showing the transfer answers all the purposes of an original order. The county court had jurisdiction in fact, but the record did not show it until this nunc pro tunc order was filed. The county court properly refused to overrule the motion to dismiss the indictment.

In this case it appears that the accused was arrested on a warrant from the county court after the indictment was transferred from the district cou^t; that he gave bond for his appearance, waived arraignment, and entered a plea of not guilty. This action upon his part had the effect of waiving any defect in the transfer, and, even though the county attorney had not procured the nunc pro tunc order, this judgment would not be reversed. See Eakins v. State, 7 Okla. Cr. 351, 123 Pac. 1035.

There being no other error urged for reversal, and none appearing from our examination of the record, the judgment of the trial court is affirmed.

FURMAN, P. J.,' and DOYEE, J., concur.


text:
    ENOCH McGILL v. STATE.

      No. A-1521.
    Opinion Filed January 13, 1913.
    (129 Pac. 75.)
    1. TRIAL — Instructions—Burden of Proof. When a trial court instructs a jury that it is necessary for them to find from the facts, beyond a reasonable doubt, that the person on trial for having the unlawful possession of intoxicating liquor with intent to sell the same had such liquor for his own use, and a conviction results, such conviction cannot be sustained on appeal.
    2. NEW TRIAL — Grounds—Erroneous Instructions. When, by oversight or otherwise, a trial court gives an instruction which requires the jury to find that the accused is innocent beyond a reasonable doubt, and a conviction results, he should set aside such conviction and grant a new trial according to law. There is no rule of law that requires a jury to find an accused innocent beyond a reasonable doubt, but, on the contrary, the universal rule is that his guilt must be found beyond a reasonable doubt; and an acquittal should follow, unless the facts satisfy the jury, beyond a reasonable doubt, of the guilt' of the accused on trial for the offense charged.
    (Syllabus by the Court.)

      Appeal from Superior Court, Bogan County} S. S. Lawrence, Judge.

    Enoch McGill was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded for new trial.

      James Hepburn, for plaintiff in error.

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

The plaintiff in error, Enoch McGill, was tried and convicted at the July, 1911, term of the superior court of Logan county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a period of 30 days and a fine of $50.

The Attorney General has filed a confession of error in this case, based upon the following instruction of the court:

“It is admitted by the defendant that he had in his possession at that time one quart bottle partly filled with whisky, one pint bottle partly filled with whisky, and one pint of beer; -but He claims, and testified before you, that he then and there had such liquors in his possession for his own personal use, and not for the purpose of sale. You are at liberty, and it is your duty, to determine from all the facts, circumstances, and testimony in this case whether the defendant had these liquors in his possession for his own personal use, or whether he had them there for the purpose of sale. If you believe from all the evidence, facts, and circumstances in the cáse, beyond a reasonable doubt, that he did have said liquors in his possession for his own use only, and not for the purpose of sale, or any part thereof, then you will find the defendant not guilty. And if, on the other hand, you believe from all the facts, circumstances, and evidence in the case, beyond a reasonable doubt, that he did have said liquors in his possession, or any part thereof for the purpose of sale, you will find the defendant guilty.”

In Mitchell v. State, 6 Okla. Cr. 622, 117 Pac. 650, we held an instruction which placecj the burden upon the accused to establish his innocence by a preponderance of the evidence was erroneous, and a conviction upon a record showing such instruction could not be sustained.

The instruction here complained of is more serious; the court having required the jury to find from the evidence, beyond a reasonable doubt, that the accused had the liquors in his possession for his own use only, and not for the purpose of sale. If such were the law, it would not be necessary for the state to make out a case. Our citizenship could be dragged into court and required to prove that they had not committed a crime. Whereas, it is fundamental that the burden is upon the state to make out a case of guilt beyond a reasonable doubt; and such burden never shifts from the state to the accused at any stage of the trial, nor under any circumstances, to the extent of requiring an accused to prove his innocence beyond a reasonable doubt, or even by a preponderance of the evidence. All that is ever required to entitle an accused to an acquittal is that the jury, upon a consideration of the whole case, entertain a reasonable doubt as to his guilt.

A trial court should not permit a case to come to this court on appeal when, by oversight or otherwise, this character of instruction' is included in the record. A conviction should be set aside and a new trial forthwith awarded by the trial court, conducted according to law.

Ret the judgment be reversed and the cause remanded, with direction to grant a new trial:

FURMAN, P. J., and DOYLE, J., concur.


text:
    A. C. FLOWERS v. STATE.
    No. A-1530.
    Opinion Filed January 13, 1913.
    (129 Pac. 81.)
    INTOXICATING LIQUORS — Statutory Provisions — Constitutionality. A conviction based upon section 4, c. 70, Sess. Laws 1910-11, cannot be sustained under the doctrine laid down in Ex parte Wilson, 6 Okla. Or. 451, 119 Pae. 596.

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

    A. C. Flowers was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded, with direction to dismiss.

      Burns & Meek, for plaintiff in error.

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

The prosecution in this case was based upon section 4, c. 70, Sess. Taws 1910-11; the charging part of the information being as follows:

“ * * * The said A. C. Flowers, late of Stephens county, and within the jurisdiction of this court, did willfully and unlawfully have in his possession at his place of business more than one quart of intoxicating liquor, to wit, 41 quarts of beer, contrary to the form of the statutes,” etc.

The punishment imposed in this case was imprisonment for 30 days in the county jail and a fine of $50. Upon the conviction, a motion for a new trial was filed and overruled, and the judgment and sentence followed. The Attorney General has filed a confession of error setting out that this' conviction is based on a statute heretofore declared unconstitutional by this court. The question here raised was determined by this court in Ex parte Wilson, 6 Okla. Cr. 451, 119 Pac. 596, wherein the act in question was declared unconstitutional.

Following the rule laid down in that case, the judgment is reversed, and the cause remanded, with direction to the trial court to dismiss.

FURMAN, P. J., and DOYTE, J., concur.


text:
    A. C. FLOWERS v. STATE.
    No. A-1529.
    Opinion Filed January 13, 1913.
    INTOXICATING- LIQUORS — Unlawful Possession — Information—“Intent.” When a person is to be prosecuted on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, the information should specifically so charge; but this court has held that an information which charges an intent to violate the prohibitory law is sufficient. However, because such infor-mations have been sustained it does not mean that they are approved by this court as models.
    (Syllabus by the Court.)

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

      A. C. Flowers was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Burns & Meek,, for plaintiff in error.

      Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, A. C. Flowers, was tried and convicted at the October, 1911, term of the county court of Stephens county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same. The charging part of the information is as follows:

“The said A. C. Flowers, late of Stephens county, and within the jurisdiction of this court did willfully and unlawfully have in possession forty-one quarts of intoxicating liquor, to wit, beer, for the purpose and intent of violating the prohibition laws of the state of Oklahoma. * * * ”

The accused was arrested, gave bond for his appearance, was later arraigned, and entered a plea of not guilty. No demurrer or motion to set aside the information raising its sufficiency was filed. After the tidal was concluded and a verdict of guilty returned, a motion for a new trial was filed complaining that the information was insufficient in that it charged the accused with intent to violate the prohibitory law. The proof in the record clearly establishes, to our minds, that the accused was in possession of the liquor charged with the intent to sell the same. The information should have charged that he had possession of the prohibited liquors with the intent to sell them, and not with intent to violate the prohibition laws; but such an information has been held sufficient by this court. See State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442; Childers v. State, 4 Okla. Cr. 237, 111 Pac. 958; Ex parte Spencer, 5 Okla. Cr. 7, 112 Pac. 557.

We decline at this time to disturb the ruling of the court, but these informations are not approved by this court as models of pleading, and they should be avoided.

We have carefully considered the other assignments raised by the brief, and find no error sufficient to justify a reversal of the judgment. It is, therefore, affirmed.

FURMAN, P. J, and DOYLE, J., concur.


author: DOYLE, J.

text:
    STATE v. MOSE HUNTER.
    No. A-1473.
    Opinion Filed January 13, 1913.
    (129 Pac. 440.)
    1. COURTS — Jurisdiction of — County Court. Under a plea to its jurisdiction, a county court is unauthorized to set aside and hold for naught an indictment of a lawful grand jury charging an ofiense within the jurisdiction of such court and transferred thereto by an order of the district court.
    2. APPEAL — Writ of Error — Record—Scope and Contents. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.
    3. INDICTMENT AND INFORMATION — Setting Aside — Grounds. No indictment should be set aside by an inferior court on the grounds of technical errors, informalities, or irregularities in the proceedings had in the district court returning said indictment and transferring the same to the trial court.
    (Syllabus by the Court.)

      Error from Coal County Court; R. H. Wells, Judge.

    Mose Hunter was indicted for a violation of the prohibitory law, and from an order of the county court, setting aside the indictment, the state brings error.
    Reversed and remanded.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Jas. R. Wood, Co. Atty., for the State.

      Charles T. Gibson„ for defendant in error.
   DOYLE, J.

This is an appeal by ■ transcript of the record on the part of the state from a judgment of the county court of Coal county setting aside and holding for naught an indictment returned into the district court of Coal county, and by that court transferred to said county court, charging the defendant in error with a misdemeanor, to wit, the unlawful sale of whisky. The defendant in error has filed a motion to dismiss the appeal upon fourteen separate grounds, none of which have merit, as a reason for dismissing the appeal. Section 6947, Procedure Criminal (Comp. Laws 1909), provides:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases, and no other: (1) Upon judgment for the defendant on quashing or setting aside an indictment or information. (2) Upon an order of the court arresting the judgment. (3) Upon a question reserved by the state.”

This court has repeatedly held, and the statutes so provide, that an appeal may be taken to this court on a transcript of the record. The county attorney fully complied with all the requirements necessary to confer jurisdiction on this court. Notices of appeal were seasonably served, and the appeal perfected within the time allowed by law, and the certificate of the clerk to the transcript is sufficient. The motion to dismiss the appeal is therefore overruled.

On the question presented, it is the contention of the state that the plea of the defendant to the jurisdiction of the county court was insufficient to authorize the said court to set aside such indictment. The record discloses that upon arraignment the defendant filed the following plea:

“The State of Oklahoma v. Mose Hunter, Defendant. No. 1,230. Plea: Comes now the defendant, Mose Hunter, and respectfully shows to the court that this court is without jurisdiction to put this defendant upon trial under the indictment filed herein, and as grounds for such plea says: First, that said indictment was found and returned into the district court of Coal county, Oklahoma, by a grand jury of said Coal county; second, that said indictment was not triable in said district court; third, that said indictment has not been transferred from said court to this honorable court in the manner provided by law; fourth, that the purported order transferring said indictment from said district court to this honorable court is not a true and correct copy of any order of said district court made in relation to said indictment; fifth, that the said attempted transfer and the purported order by and of the said district court is insufficient in law to confer jurisdiction upon this honorable court to try this defendant for the offense charged in said indictment; sixth, that said purported transfer and the purported order transferring said indictment, and the certificate thereto attached, is not under the seal of said district court, and is not signed by the judge of said district .court-, the honorable Robert M. Rainey; seventh, that the said proceedings had in relation to said indictment, the said indictment, and any and all papers coming from the said district court in this cause, do not bear the seal of the said district court and cannot be considered by this honorable court as coming from a court of record. Wherefore, premises considered, the defendant prays that said indictment may be set aside. [Signed] Jahn & Gibson, Attorneys for Defendant.”

It will be observed that none of the statutory grounds for setting aside an indictment as prescribed by section 6738, Procedure Criminal (Comp. Laws 1909), are set forth, nor is it verified, alleging under oath that he (the defendant) is acting in good faith. In support of the plea, the following testimony was offered:

“C. L. Cardwell, clerk of the district court, being duly sworn, testified as follows: By'Geo. E. Jahn: Q. State your name. A. C. L. Cardwell. Q. Are you a resident of Coal county? A. Yes, sir. Q. Do you hold any official position in Coal county? A. Yes, sir. Q. What is it? A. Clerk of the district court. Q. As such clerk, are you the custodian of the records? A. I am. Q. Were you the district clerk of the district court of Coal county during the August, 1911, term of the district court of Coal county? A. I was. Q. As such clerk, did you.keep the records? A. I did. Q. State whether you have a record of an order by the district judge of that court directing the transfer of the misdemeanor indictments returned into that court at that term. A. I have. Q. Where is that record to be found? A. In the criminal journal, volume 1. Q. What page? A. There are several. The order of transfer is pages 313, 314, 315, 316, and 317, Criminal Journal, No. 1. Q. At that time, Mr. Cardwell, was it your business to transfer this indictment among others to the county court? A. Yes, sir. Q. Did you do it? A. I did. Q. Did you attach to that indictment the court’s order? A. I consider that I did. O. Mr. Cardwell, read from your record the order. A. ‘Order Transferring Causes. Now on this the 5th day of September, 1911, it appearing to the court that indictment No. 451, entitled the State of Oklahoma v. James Webster, charges the said James Webster with the offense of selling liquor. Indictment No. 452, entitled the State of Oklahoma v. Martin Másoner, charges the said Martin Masoner with the offense of selling liquor. Indictment No.-453, entitled the State of Oklahoma v. W. S. Eyeman, charges the said W. S. Eyeman with the offense of selling liquor. Indictment No. 454, entitled the State of Oklahoma v. Ed Cook, charges the said Ed Cook with the offense of selling liquor. Indictment No. 455, entitled the State of Oklahoma v. Ed Cook, charges the said Ed Cook with the offense of selling liquor. Indictment No. 456, entitled the State of Oklahoma v. Art Williamson, charges said Art Williamson with the offense of selling liquor. Indictment No. 457, entitled the State of Oklahoma v. Mark Chapman, charges the said Mark. Chapman with the offense of selling liquor. Indictment No. 458, entitled the State of Oklahoma v. Joe King, charges the said Joe King with the offense of selling liquor. Indictment No. 459, entitled the State of Oklahoma v. Claud Stevens, charges the said Claud Stevens with the offense of selling liquor. Indictment No. 460, entitled the State of Oklahoma v. Barney Ces-colini, charges the said Barney Cescolini with the offense of selling liquor. Indictment No. 461, entitled the State of Oklahoma v. Barney Cescolini, charges the said Barney Cescolini with the offense of selling liquor. Indictment No. '462, entitled the State of Oklahoma v. Art Williamson, charges the said Art. Williamson with the offense of selling liquor. Indictment No. 463, entitled the State of Oklahoma v. Art Williamson, charges the said Art Williamson with the offense of selling liquor. Indictment No. 464, entitled the State of Oklahoma v. Mark Chapman, charges the said Mark Chapman with the offense of selling liquor. Indictment No. 465, entitled the State of Oklahoma v. Art Williamson, charges the said Art Williamson with the offense of selling liquor. Indictment No. 466, entitled the State of Oklahoma v. Wilton Droke, charges the said Wilton Droke with the offense of selling liquor. Indictment No. 467, entitled the State of Oklahoma v. Joe Brooks, charges the said Joe Brooks with the offense of selling liquor. Indictment No. 468, entitled the State of Oklahoma v. Bud Taylor, charges the said Bud Taylor with the offense of selling liquor. Indictment No. 469, entitled the State of Oklahoma v. Mrs. C. J. Diamond, charges the said Mrs. C. J. Diamond with the offense of selling liquor. Indictment No. 470, entitled the State of Oklahoma v. James Barker, charges the said James Barker with the offense of selling liquor. Indictment No. 471, entitled the State of Oklahoma v. Lit Bays, charges the said Lit Bays with the offense of assault and battery. Indictment No. 472, entitled the State of Oklahoma v. Joe Brooks, charges the said Joe Brooks with the offense of gambling. Indictment No. 473, entitled the State of Oklahoma v. Isaac Boyd, charges the said Isaac Boyd with the offense of selling liquor. Indictment No. 474, entitled the State of Oklahoma v. Barney Cescolini, charges the said Barney Cescolini with the offense of selling liquor. Indictment No. 475, entiteld the State of Oklahoma v. George Sharron, charges the said George Sharron with the offense of selling liquor. Indictment No. 476, entitled the State of Oklahoma v. George Sharron, charges the said George Sharron with the offense of selling liquor. Indictment No. 477, entitled the State of Oklahoma v. Ben Summers, charges the said Ben Summers with the offense of selling liquor. Indictment No. 478, entitled the State of Oklahoma v. George Sharron, charges the said George Sharron with the offense of selling liquor. Indictment No. 479, entitled the State of Oklahoma v. Wallace Wolf, charges the said Wallace Wolf with the offense of selling liquor. Indictment No. 480, entitled the State of Oklahoma v. Mose Hunter, charges the said Mose Hunter with the offense of selling liquor. Indictment No. 481, entitled the State of Oklahoma v. Bob Arnold, charges the said Bob Arnold with the offense of carrying weapons. Indictment No. 482, entitled the State of Oklahoma v. Tom Guyens, charges the said Tom Guyens with the offense of gambling. Indictment No. 483, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 484, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 485, entitled the State of Oklahoma v. Bill Carroll, charges the said Bill Carroll with the offense of selling liquor. Indictment No. 486, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 487, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 488, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 489, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 490, entitled the State of Oklahoma v. Mark Chapman, charges the said Mark Chapman with the offense of selling liquor. Indictment No. 491, entitled the State of Oklahoma v. Mark Chapman, charges the said Mark Chapman with the offense of selling liquor. Indictment No. 492, entitled the State of Oklahoma v. Mark Chapman, charges the said Mark Chapman with the offense of selling liquor. Indictment No. 493, entitled the State of Oklahoma v. Isaac Boyd, charges the said Isaac Boyd with the offense of selling liquor. Indictment No. 494, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 495, entitled the State of Oklahoma v. Adam Zingle, charges the said Adam Zingle with the offense of selling liquor. Indictment No. 4-96, entitled the State of Oklahoma v. Grover Garr, charges the said Grover Garr with the offense of selling liquor. Indictment No. 497,' entitled the State of Oklahoma v. W. S. Partain, charges the said W. S. Partain with the offense’ of selling liquor. Indictment No. 498, entitled the State of Oklahoma v. Ed Cook, charges the said Ed Cook with the offense of gambling. Indictment No. 499, entitled the State of Oklahoma v. Tuck Love, charges the said Tuck Love with the offense of gambling. Indictment No. 500, entitled the State of Oklahoma v. Tom Tiner, charges the said Tom Tiner with the offense of gambling. Indictment No. 501, entitled the State of Oklahoma v. C. H. Evans, charges the said C. H. Evans with the offense of gambling. Indictment No. 502, entitled the State of Oklahoma v. John Allen, charges the said John Allen with the offense of gambling. Indictment No. 503, entitled the State of Oklahoma v. Charles Covington, charges the said Charles Covington with the offense of selling liquor. Indictment No. 504, entitled the State of Oklahoma v. Charles Covington, charges the said Charles Covington with the offense of selling liquor. Indictment No. 505, entitled the State of Oklahoma v. Silva Otrero,. charges the said Silva Otrero with the offense of selling liquor. Indictment No. 506, entitled the State of Oklahoma v. Art. Williamson, charges the said Art Williamson with the offense of selling liquor. Indictment No. 507, entitled the State of Oklahoma v. James Clark, charges the said James Clark with the offense of selling liquor. -Indictment No. 508, entitled the State of Oklahoma v. Ed Cook, charges the said Ed Cook with the offense of selling liquor. Indictment No. 509, entitled the State of Oklahoma v. W. S. Partain, charges the said W. S. Partain with the offense of selling liquor. Indictment No. 510, entitled the State of Oklahoma v. William Alcorn, charges the said William Alcorn with the offense of selling liquor. Indictment No. 511. entitled the State of Oklahoma y. Lee Garr, charges the said Lee Garr with the offense of selling liquor.' Indictment No. 512, entitled the State of Oklahoma v. Lee Garr, charges the said Lee Garr with the offense of selling liquor. Indictment No. 513, entitled the State of Oklahoma v. Mrs. Adam Zingle, charges the said Mrs. Adam Zingle with the offense of selling liquor. Indictment No. 514, entitled the State of Oklahoma v. Barney Cescolini, charges the said Barney Cescolini with the offense of selling liquor. Indictment No. 515, entitled the State of Oklahoma v. Adam Zingle, charges the said Adam Zingle with the offense of selling liquor. Indictment No. 516, entitled the State of Oklahoma v. Art Williamson, charges the said Art Williamson with the offense of selling liquor. Indictment No. 517, entitled the State of Oklahoma v. William Alcorn, charges the said William Alcorn with the offense of selling liquor. Indictment No. 519, entitled the State of Oklahoma v. Tony Antone, charges the said Tony Antone with the offense of selling liquor. Indictment No. 520, entitled the State of Oklahoma v. W. S. Partain, charges the said W. S. Partain with the offense of selling liquor. Indictment No. 521, entitled the State- of Oklahoma v. Art Williamson, charges the said Art Williamson with the offense of selling liquor. Indictment No. 522, entitled the State of Oklahoma v. Dick Dye, charges the said Dick Dye with the offense of selling liquor.’ Indictment No. 523, ■ entitled the State of Oklahoma v. Earl Chapman, charges the said Earl Chapman with the offense of selling liquor. Indictment No. 524, entitled the State of Oklahoma v. Mrs. Joe Ellene, charges the said Mrs. Joe Ellene with the offenes of selling liquor. Indictment No. 525, entitled the State of Oklahoma v. James Webster, charges the said James Webster with the offense of selling liquor. Indictment No. 526, entitled the State of Oklahoma v. Mrs. Joe Ellene, charges the said Mrs. Joe Ellene with the offense of selling liquor. Indictment No. 527, entitled the State of Oklahoma v. Mrs. Corrups, charges the said Mrs. Corrups with the offense of selling liquor. Indictment No. 528, entitled the State of Oklahoma v. Joe King, charges the said Joe King with the offense of selling liquor. Indictment No. 529, entitled the State of Oklahoma v. Fred Reggi, charges the said Fred Reggi with the offense of selling liquor. Indictment No. 530, entitled the State of Oklahoma v. Will Sandy, charges the said Will sandy with the offense of selling liquor. Indictment No. 531, entitled the State of Oklahoma v. Martin Masoner and Mrs. Martin Masoner, charges the said Martin Masoner and Mrs. Martin Masoner with the offense of liquor nuisance. That said offenses are misdemeanors, and that the district court of Coal county, Oklahoma, has no jurisdiction to try said causes. It is therefore ordered that the above and foregoing numbered and styled causes be, and the same are hereby transferred to the county court of Coal county, Oklahoma, there to be docketed, held and probeeded with in the manner provided by law. Robert M. Rainey, District Judge.’ Q. Is that the order of the court on which this indictment was transferred? A. Yes, sir. Q. Is that signed by Judge Rainey in person? A. Yes, sir. Q. Is that order attached to indictment 480 asserted to be a true copy?' A. Yes, sir. Q. The order attached to indictment No. 480, was that signed by Judg? Rainey? A. No, sir; it is a certified copy of his signature.”

The record further shows the following clerk’s certificate to the order transferring said cause:

“State of Oklahoma, Coal County — ss.:

“I, C. L. Cardwell, clerk of the district court of Coal county, Oklahoma, do hereby certify that the above and foregoing is a true and correct copy of all the records and orders of the district court, of Coal county, Oklahoma, made in the case of the State of Oldahoma v. Mose Hunter, indictment No. 480, charging the said Mose Hunter with the crime of selling liquor, as the same appears of record in my office in the journal of said court; that the indictment. following this certificate, being indictment No. 480, State of Oklahoma v. Mose Hunter, is the original and identical indictment in said cause returned into the district court of Coal county, Oklahoma, by the grand jury on the 5th day of September, 1911.; and that the bill of costs hereto attached is a true and correct bill of all the costs that have accrued in said cause in the district court of Coal county, Oklahoma.

Docket _$2.00
Entering order to file indictment- .10
Eiling indictment - .10
Recording indictment in indictment record- .60
Jurat and seal to indictment record- .25
Entering order to transfer to county court- .10
Certifying to district court proceedings-1.25
Total---$4.40

“In witness whereof, I have hereunto set my hand and the seal of said court at Coalgate, in said county and state, on this, the 5th day of September, 1911.

“[Signed] C. L. Cardwell,

“Clerk of District Court. [Seal.]”

The judgment of the county court is as follows:

“The court, being fully advised in the premises, finds as follows, to wit: First. That this cause comes to this court from the district court of Coal county, Oklahoma. Second. That the said cause comes into this court upon a purported transcript of the clerk of the district court. Third. That from the purported record accompanying said cause the court finds that the district court of Coal county, Oklahoma, convened in regular session on the 21st day of August, 1911, and that there was no transcript showing that court convened on the first Monday in August, 1911. Fourth. That there was no order issued by the said district court calling a grand jury for said term of said district court. Fifth. That there is no record of the issuance of a venire for said grand jury from said district court. Sixth. That there is no record bearing the signature of the judge of the said district court, nor is there any record bearing the seal of said district court attached to the purported separate order that the district judge made transferring this cause to the county court of Coal county, Oklahoma, and that such purported order of the district judge is not such an order that would give the county court of Coal county, Oklahoma, jurisdiction of this cause. Seventh. ’That the purported order accompanying the indictment herein is not a true copy of any order made by the district court in relation to this cause. Eighth. That this cause comes into this court without a certified copy of the record of the proceedings had in said cause in the said district court of Coal county, Oklahoma. Ninth. That none of the record, proceedings, or papers coming to 'this court from the said district court are certified or signed by the judge of said district court, nor do they or either of them bear the attestation of the clerk of said district court, nor are any of the proceedings had in said district court in this cause certified to this court as true and correct copies as the same appear of record in said district court. Tenth. That the said purported transfer herein is not accompanied by an attached certified bill of costs. Eleventh. That the record as disclosed by the record coming to this court herein, as afore mentioned, is insufficient in law to confer jurisdiction upon this court to hear and determine the said cause. Twelfth. That this court is without jurisdiction in the premises. It is therefore ordered, adjudged, and decreed by the court that the plea of the defendant to the jurisdiction of this court be, and the same is hereby, sustained, and the indictment filed in this court be, and the same is hereby, set aside and held for naught. To the ruling of the court the state excepts, and is granted forty (40) days to make transcript to the Criminal Court of Appeals of the State of Oklahoma.”

After a careful examination of the record, the conclusion of the court is that this judgment of the county court cannot be permitted to stand. There was 'no question properly raised by this so-called plea to the jurisdiction of the county court that said indictment was not found, indorsed, presented, or filed as prescribed by law, or that the grand jury was not drawn or impaneled as provided by law.

The original indictment, with all its indorsements, becomes a part of the record of the case, and whatever is properly shown by the caption and the indorsement is considered as shown by the record. John Jolly v. State, 5 Okla. Cr. 301, 115 Pac. 124. The indictment recites that it was returned “at the August, 1911, term of the district court of Coal county, state of Oklahoma, begun and held at the city 'of Coalgate in said county on the 7th day of August, nineteen hundred and eleven, the grand jury of said county, good and lawful men, legally drawn and summoned according to law, and then and there examined, impaneled, sworn and charged according to law,” etc. It is signed by the county attorney of that county, and indorsed by the foreman of the grand, jury as a true bill. The record therefore shows that this indictment was found and returned in the manner and by the means prescribed by law.-

In addition thereto, the record shows a sufficient order transferring the indictment to the county court, with a certified copy of such order, and also with a bill of costs that have accrued therein in the district court. ' This is all that is necessary under the requirement of the statute (section 551, Comp.-Laws 1909). The trial court should have summarily overruled the so-called plea for the reason that it was insufficient as a motion to set aside on statutory grounds, and was not verified; and, as a plea in abatement, it is bad in so far as it contradicts the record. The absolute verity which a regular judicial record imports cannot be questioned by a proceeding of this kind in an inferior court. If an indictment, apparently legal and formal, has not in fact the sanctions which the law and the Constitution require, a motion to set aside, or a plea in abatement, must be specific as to that fact,, and, when properly raised, the question must be tried by an inspection of the record.

Here, under the findings and judgment of the county court, 70 odd indictments transferred from the district court thereto are held to be illegal. There is absolutely no warrant of law, technical or otherwise, to sustain the judgment of the county court. Courts are established to preserve the pure administration of justice, and to secure substantial, and not mere technical rights. Yet it would seem that there is a tendency, manifest in a few of the courts of inferior jurisdiction in this state, to set aside and hold for naught indictments transferred to them from district courts on motions and pleas that do not set forth any statutory ground for setting aside an indictment. No indictment should be set aside by an inferior court on the grounds of technical errors, informalities, or irregularities in the proceedings had in the district court returning said indictment and in transferring the same to the trial court.

The judgment of the county court of Coal county is reversed, and the cause remanded thereto to be proceeded with in accordance with the views herein expressed.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: FURMAN, J.

text:
    ROBERT DAVIS v. STATE.
    No. A-1223.
    Opinion Filed January 18, 1913.
    (128 Pac. 1097.)
    1. EVIDENCE — Confessions of Third Persons. When a defendant is on trial for a violation of the criminal laws of Oklahoma, confessions or admissions alleged to ■ have been made by other persons are not admissible in evidence, either in behalf of the state or the defendant, except for the purpose of impeaching the credibility of witnesses upon proper predicates therefor.
    2. APPEAL — Review. Whore, on appeal from a conviction, it appears that accused is guilty of the offense charged, the judgment will not be reversed except for a fundamental error, or in ease it appears that justice has not been done.

      Appeal from District Court, McIntosh County; R. C. Allen, Assigned fudge.

    Robert Davis was convicted of cattle theft, and he appeals.
    Affirmed.
    Robert Acker testified for the state that he resided near the town of Checotah, in McIntosh county, Okla., about fifteen miles from the home of appellant; that appellant lived east of witness; that some time in June, 1910, witness lost a red cow with a white striped face, branded R A on the left hip, and one red yearling with a white face branded R A on the left hip; that witness milked the cow on the morning of the 20th, and turned her out, but she never came up; that witness looked for the cow, but has never seen her since; that witness- had owned this cow for about eighteen months, and she was allowed to run at large upon the range; that before this time the cow came up regularly; that witness was milking the cow and feeding her; that the brand had been recently placed on the cow, and was just about ready to peel off when she was lost; that the same was true of the brand on the heifer; that the cow and heifer ranged right around the home of witness with other cattle belonging to the brothers of witness; that the cattle watered at Car creek; that the country around the home of witness was pretty roughly timbered; that witness went all over the country hunting for his lost cattle, but did not find them. •
    Lena Herron testified for the state that she was eighteen years of age and lived near Texanna, in McIntosh county, Okla.; that about the 30th day of June, 1910, while witness was picking blackberries with her brother Chester, she saw three men driving twelve or fifteen head of cattle down in a gully like; that one of these men passed close to witness and spoke to her; that witness recognized him as Joe Davis; that' he was riding a gray horse; that these cattle were being driven east.
    Chester Herron testified that he was twelve years of age; that he was a brother of Lena Herron; that some time in June, 1910, he was picking blackberries with his sister east of Texanna, in McIntosh county, Okla.; that he saw three men driving twelve or fifteen head of cattle; that the men were on horseback; that he did not know the men then, but since that time he has seen one of the men who were driving the cattle; that he was close to one of the men and identified Tom Cobb as being the man; that they were going east; that witness could not describe the cattle either as to /color or brands.
    Fred Lewis testified for the state that he was twelve years of age; that he lived near Texanna, in McIntosh county, Okla.; that he was acquainted with Bob Davis, Joe Davis, and Tom Cobb; that on the 30th day of June, 1910, witness saw these parties driving some cattle; that they were about four miles east of Texanna; that they were traveling east; that they had twelve- or fifteen head of cattle; that witness knew all of these parties then by name; that the cattle were driven by the home of witness; that the cattle were driven up through a bottom, and witness was about 50 or 60 yards from the cattle; that witness and his sister were hoeing cotton in the field at the time, and witness did not recognize any of the brands on the cattle; that witness, remembers the 20th day of June, because there was a picnic there on the 21st.
    Ollie Lewis testified for the state that she was fourteen years of age, and was a sister of Fred Lewis; that some time in June, 1910, she saw twelve or fifteen head of cattle driven by their place going east toward Porum; that witness did not recognize the men who were driving the cattle.
    Ben Maxwell testified that he resided near Texanna, in McIntosh county, Okla.; that he knew the appellant, Bob Davis; that Davis resided about three miles northeast of witness; that on the 20th day of June, 1910, witness saw Bob Davis and Tom Cobb driving about fifteen head of cattle by his place; that they were going east; that witness was between 50 and 100 yards from them; that witness never paid any special attention to the cattle, and could not identify them.
    Pete Graham testified that he was acquainted with Bob Davis, Joe Davis, and Tom Cobb; that about the 20th day of June, 1910, about half an hour before dark witness saw Joe Davis and Tom Cobb put a bunch of cattle in Bob Davis’ pasture. Bob Davis was also with them, but witness was not close enough to tell just what he was doing.
    C. C. Ives testified for the state that he was railroad agent for the Midland Railroad Company at Warner in June, 1910; that he knows the appellant Bob Davis; that on the 21st day of June, 1910, Bob Davis shipped out a car load of cattle from Warner to Kansas City.
    Oscar Stegall testified for the state that he was deputy sheriff of Muskogee county, and resided at Warner; that on the 21st day of June, 1910, he saw Joe Davis and Bob Davis at the depot at Warner; that they were shipping out a carload of cattle; that witness saw the cattle; that among them was a cow and calf, each freshly branded R A on the hip; that the cow and calf were both red with white faces; that the calf was a little over a year old.
    C. M. Dunbar testified for the state that he resides at Tex-anna, in McIntosh county, Okla., about two miles from the witness Mr. Acker, who lost the cattle in question; that witness owned a number of cattle; that they ran on the range; that he had lost three head of cattle on the 20th day of June, 1910; that witness’ cattle and the cattle of Acker ran on the same range; that witness hunted for his cattle but never found them.
    J. C. Frazier testified for the state that in 1910, he resided in McIntosh county, Okla., about a mile from the witness Acker; that witness owned a number of cattle which ran on the same range with Acker’s cattle; that on the 20th day of June, 1910, witness lost three head of cattle; that witness hunted for his cattle, but was never able to find them.
    R. F. Bell testified for the state that he was acquainted with appellant Bob Davis; that he saw him at the depot at Warner on the 21st day of June, 1910; that appellant was shipping cattle; that witness asked him why he was shipping such cattle; that appellant replied that he had bought them, and could not keep them at home, and thought he would ship them out. The cattle were a mixed bunch of cows, steers, and yearling heifers. They were in very poor condition for shipping. Witness examined the cattle. He saw in the bunch a red cow and a red yearling, each with a white mottled face. They were each branded R A. Witness also saw cattle with other brands testified to as being cattle owned by them which were lost at the same time.
    Jim Dunigan testified for the state that he knows appellant, Bob Davis; that witness was with him on the 21st day of June, 1910; that witness saw some cattle which Bob Davis was shipping out; that witness saw the brand-R A on some of the cattle.,
    William Stewart testified for the state that he resides at Warner, and is acquainted with appellant; that witness was in Warner on the 21st day of June, 1910, and saw appellant there, saw him put some cattle into- the stock pens; that witness asked appellant why he was shipping such cattle as that;- that appellant replied that they were some he had in the brush, and had to get them up, and concluded he would just ship them.
    William Ogden testified, in behalf of appellant that he resided near Texanna; that he knew Cliff Sellers and Dan Foster; that on the 20th day of June, 1910, he saw these parties driving a bunch of cattle in the direction of Porum.
    M. M. Stewart testified in behalf of appellant that he knew appellant; that on the 20th day of June, 1910, he saw appellant at the house of Jim Foster; that Foster resided about a mile from appellant.
    John West testified for appellant that on the 18th day of June, 1910, he saw the appellant Bob Davis, Joe Davis, and Tom Cobb driving some cattle; that he supposed, the cattle belonged to appellant; that he did not particularly notice the cattle.
    Joe Davis testified for appellant that on the 18th day of June, 1910, he assisted appellant to drive some steers and bulls; that he did not turn the cattle' into the pasture of appellant on the 20th day of June; that on the 20th day of June appellant was sick with a carbuncle on his neck.
    Tom Cobb testified for appellant that on the 18th day of June, 1910, he and Joe Davis and Bob Davis drove some cattle which belonged to appellant, but that witness did not drive any cattle on the 20th' day of June for appellant or with appellant.
    Charles McClure testified for appellant that on the 18th or 19th of June, Cliff Sellers borrowed a gray mare from witness; that he borrowed the mare on' Sunday and returned her on Monday; that she appeared to be ridden very hard.
    Appellant testified in his own behalf that twenty head of the cattle which he had shipped from Porum on the 21st day of June, 1910, he had purchased from Dan Foster and Cliff Sellers. Appellant denied he drove any cattle on June 20, 1910, as testified to by the state’s witness, but admitted there was a cow branded R A or A R in the bunch he shipped.

      S. M. Rutherford, for appellant.

      Joseph L. Hull, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). Counsel for appellant has filed, a most able and elaborate brief in which he has discussed a large number of supposed errors alleged to have occurred upon the trial of this case. None of these alleged errors involve any material question in this case, or could have influenced the action of the jury in finding a verdict. At best, they were mere irregularities. This is recognized by counsel for appellant, for he says in his brief:

“In this connection we desire to suggest that in view of the cumulation of error before pointed out, if none, standing alone, should be deemed sufficient by the court, when viewed in the light of all together, and in view of the record in this case, the 'defendant has been deprived of a fair trial as contemplated by the Constitution and laws of this state.”

We think, if human testimony is worth anything, the appellant is guilty'" of the offense of which he has been convicted. It appears from the record that appellant is an old and confirmed offender. See Bob Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560. It is true that the conviction in this case should not be affirmed upon the ground that appellant is a persistent criminal, but, as the evidence of his guilt in this case is conclusive', we should hesitate long before granting a new trial upon any mere irregularity. If there was any theory presented by the evidence upon which the jury could honestly have acquitted him, a different question would be presented. The property rights of the people of -Oklahoma should be protected against such characters. This court is not hunting for excuses to set aside the verdicts of juries. We only grant new trials when it appears that some fundamental error has been committed, or that justice has not been done. We believe that the law was substantially complied’ with in the trial of appellant, and that justice was vindicated in his conviction. It would, therefore, be a waste of time for this court to discuss and consider the various questions of practice presented in the brief of counsel for appellant, as we find no fundamental error there.

There is one matter, however, which has not yet been directly passed upon by this court, which we feel should be settled. Upon the trial of this case appellant attempted to prove that one Cliff Sellers and one Dan Foster had stated that they had gotten Bob Davis, Joe Davis, and Tom Cobb arrested for stealing a bunch of cattle; that the officers had arrested the wrong men; that Sellers and Dan Foster had sold these cattle to appellant, and could prove how they got them; and that appellant was not guilty of stealing the cattle. Appellant contends that this was a confession of Sellers and Foster that they, and not appellant, had stolen the cattle, and was therefore admissible as testimony in behalf of appellant. In support of this proposition appellant’s counsel cites the case of Gilder v. State, 61 Tex. Cr. R. 16, 133 S. W. 883, and Dubose v. State, 10 Tex. App. 230. In Dubose v. State, 10 Tex. App. 230, the defendant was charged with and convicted of murder. In that case Judge Hurt held that a defendant has the right to attack with every character and description of legal evidence any fact upon which his guilt depends. Not one word is said about the admission of hearsay evidence. The case of Gilder v. State, 61 Tex. C. R. 16, 133 S. W. 883, is also a Texas case. The opinion is by Presiding Judge Davidson. Gilder was tried and,convicted of burglary. The principal witness against him was a man named Smith. The defendant applied for a continuance upon the ground that he could prove by absent witnesses that the state’s witness Smith had confessed to being the real thief. The court held that this evidence was competent, and the continuance should have been granted. With this we fully agree, because the testimony was admissible for the purpose of impeaching the testimony of the state’s witness Smith. But, if Smith had not been a witness against Gilder, the previous confession of Smith would have been the wildest kind of hearsay. If Sellers and Foster had testified against appellant, they could have been questioned as to the alleged confession, and, if they had denied it, it would have been admissible in evidence for the purpose of impeaching their testimony. This is all that the authorities cited by counsel for appellant decide, and with this we agree. So it is seen upon examination that the authorities relied upon do not support the contention of counsel. If evidence of this kind were admissible as original testimony for a defendant, it would be impossible to convict any thief, because he could always find witnesses who would testify that they had heard some one who was absent confess to being guilty of the crime. To hold that such evidence was competent would put a premium on fraud, make perjury safe, and place the state at the mercy of criminals. This would make a mockery of the law, and will not be permitted in the courts of Oklahoma.

We find no material error in the record. The judgment of the lower court is in all things affirmed.

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


text:
    PAT ELLIS v. STATE.
    No. A-1339.
    Opinion Filed January 18, 1913.
    (128 Pac. 1095.)
    1. APPEAL AND ERROR — Record—Index. It is the duty of counsel for an appellant in preparing a ease-made or transcript of the record to attach to it an index to all material portions of such ease-made or transcript of the record.
    2. SAME — Briefs—Reference to Record. In preparing a brief, it is the duty of counsel for an appellant to cite the piage the transcript of the record which they rely upon to support -an assignment of error.
    3. EVIDENCE — Admissions—Silence. A person held in custody on a charge of crime is not called upon to contradict statements prejudicial to him made in his presence by another, and, though such statements were not contradicted by such person, they are not admissible in evidence against him.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge.

    Pat Ellis was convicted of manslaughter in the second degree, and appeals.
    Reversed, and remanded for new trial.

      Carr & Field, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

First. It is the duty of counsel for an appellant in preparing a case-made or transcript of the record to attach to it an index of all it contains, and this index should contain the name of each witness and the page upon- which his testimony will be found. This was not done in the case now before us, and has caused a great waste of time to the court in preparing the opinion. It is also the duty of counsel for an appellant in preparing their briefs to cite the page of the transcript of the record upon which they rely to support their assignments of error. This was not done in the brief now before us. We have, therefore, been compelled to waste several hours in hunting through the transcript of the record to verify statements made in the brief. We call the attention of all lawyers in Oklahoma to this matter. No transcript of the record or brief is complete which contains these-omissions. It is the duty of counsel for an appellant to assist the court, and not so prepare their transcripts of the record and briefs as to give the court additional and unnecessary labor.

Second'. We will only discuss 'one question presented in the brief of counsel for appellant. George Eayton was a witness for the state. Upon the trial, among other things, he testified that ■on the night after the homicide Sam Hartshorne and himself as officers placed the appellant, Pat Ellis, and his co-defendant, Will Byars, under arrest, and carried them in a two-seated hack to the town of Wanette; that appellant and Hartshorne sat on the front seat of the hack, and that Will Byars and the witness sat on the back seat of the hack; that while they were on the road the following occurred: “A. Bill Byars .said, T do not see what made that fellow do that shooting — kill Mr. Snap;’ and I said, ‘What fellow are you talking about?’ and he said, ‘Pat Ellis.’ Q. What did Pat say to that? A. He made no reply.” To all of which counsel for appellant objected and excepted at the time. This evidence was undoubtedly admissible as against Will Byars, but its admissibility against Pat Ellis presents an entirely different question.

Wharton on Criminal Evidence, sec. 680, lays down the rule as follows:

“To give silence, however, effect as an admission, the party ■charged with it must have been in a position to explain. Before acquiescence in the language of others can be used or as-. sumed as a confession of the truth of any particular statement or the existence of any particular fact, it must plainly appear that the language was heard and the conduct understood. Thus neither a person asleep nor when intoxicated, or a deaf person, can be in this way prejudiced by statements made in his presence, * * * nor can silence when a party is under arrest.”

Judge Hurt, of the Court of Criminal Appeals of Texas, in the case of Gardner v. State, 34 S. W. 945, states the rule as follows:

“A person held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence by another person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.”

And, after reviewing the authorities, says:

“We deem the authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in his presence by others.”

Even if it be admitted that the appellant heard the statements of Will Byars, of which there is no proof, we do not think that the statements of Will Byars under the circumstances should be admitted as evidence against appellant. Our Constitution provides that:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution expressly provided.” (See section 29, Williams’ Const, of Okla.) ■

If it be admitted that, while a person is under arrest, his failure to reply to statements made in his presence can be construed as an admission of the truthfulness of such statements, then the state would be able to do indirectly what the Constitution expressly provides it shall not do directly. This question was practically decided in the case of Gillespie v. State, 5 Okla. Cr. 546, 115 Pac. 620, 35 L. R. A. (N. S.) 1171, Ann. Cas. 1912D, 259. In that case this court said:

“To permit a demand to be made on a defendant in a criminal case, in the presence of a jury, to produce a paper or document referred to, containing incriminating evidence against him, is a violation of the immunity secured to him by section 21 of article 2 of our Constitution, providing that no person in a criminal case shall be compelled to give evidence against himself which will tend to incriminate him, even though no order for the production of the paper is made.”

See, also, Vaughn v. State, 7 Okla. Cr. 685, 127 Pac. 264.

We think that this is decisive of this case. The illegal evidence admitted was material and went directly to the question of the guilt of appellant, and could not, if believed by the jury, have done otherwise than resulted in his conviction. Its admission could not therefore be regarded as harmless error.

For the error above pointed out, the judgment of the lower court is reversed, and the cause is remanded for a new trial.

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


text:
    GUS WARD v. STATE.
    No. A-1482.
    Opinion Filed January 18, 1913.
    (128 Pac. 1104.)
    INTOXICATING- LIQUORS — Admissibility of Evidence — Internal Revenue License. Before a certified copy of the United States internal revenue collector’s record, showing that a license had been issued to a certain party to conduct the business of retail liquor dealer, is admissible in evidence against a defendant charged with a violation of the prohibitory liquor law, there must be some evidence showing that the defendant is the person to whom su'ch license was issued, or that he was .eo associated with such person as to connect him with such license.
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; John W. Hayson, Judge.

    Gus Ward was convicted of violating the prohibitory law, and appeals
    Reversed and remanded.

      Giddings & Giddings, for appellant.

      Smith C. Matson and B. G. Spilman„ Asst. Attys. Gen., for the State.
   FURMAN, J.

Appellant was prosecuted under the name of Gus Ward. There was no evidence that his name was not as charged in the information. The presumption of law therefore is that Gus was the given name of appellant.

Upon the trial of this cause the state introduced in evidence a certified copy of a United States internal revenue license issued to J. G. Ward to conduct the business of retail liquor dealer in the city of Oklahoma. To the introduction of this evidence counsel for appellant objected and excepted to the action of the court in overruling the same. There was no testimony that Gus Ward and J. G. Ward were one and the same person, or that Gus Ward was in any manner connected with J. G. Ward. In the absence of such testimony this certificate was clearly inadmissible. As it was material, and directly involved a vital question in this case, its admissibility in evidence was reversible error.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG, P. J., and DOYUE, J, concur.


text:
    ED HOUGHTON v. STATE.
    No. A-1525.
    Opinion Filed January 18, 1913.
    (128 Pac. 1105.)
    1. INTOXICATING- LIQUORS — Unlawful Salo — Sufficiency of Evidence. For circumstantial evidence sustaining a verdict of guilty of selling intoxicating liquors, see opinion.
    2. APPEAL AND ERROR — Discretion of Court — Continuance. An application for a continuance is addressed to the' sound discretion of the' trial court, and Ms action thereon will not be reviewed upon appeal, unless an abuse of this discretion is shown.
    (Syllabus by the Court.)

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

    Ed Houghton was convicted of violating the prohibitory law, and his punishment assessed at a fine of $50 and 30 days’ .confinement in the county jail, and he appeals.
    Affirmed.

      A. M. Works, for appellant.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   FURMAN, J.

First. Appellant contends that the verdict of the jury is contrary to the evidence. With this contention we cannot agree. Two witnesses who were officers testified for the state that they saw one Robert Allison in a partially intoxicated condition going to the house of appellant in the city of Hugo; that they watched for him, and, when he came out they stopped him about 75 feet from the house, and took from him a bottle of whisky. Allison testified that he purchased this whisky in the home of appellant, and in the presence of appellant, but that he could not identify the person who sold it to him. It was evident that Allison was doing all in his power to protect appellant. This only added to the force of his testimony. Appellant testified in his 'own behalf, and admitted that the witness Allison had been to his house sevei’al times, and was present on the occasion when the whisky was found on him just after he left the house of appellant. Appellant also testified that on this occasion his wife and a man named Foster were present when Allison was in the house, and that Allison was drunk, but denied selling any whisky to him. Appellant did not place either his wife or Foster on the witness stand. The whisky being obtained at the house of appellant and in his presence, it is immaterial as to whether he made the sale or not, as the circumstances justified the jury in believing he was interested therein. Men cannot permit and encourage drunken men to frequent their homes and obtain whisky there, and then claim exemption from punishment upon the ground that they did not sell or were not interested in the sale of the whisky. We think the evidence amply sustains the verdict.

Second. Appellant applied for a continuance of this cause on account of the absence of Mrs. Minnie Houghton, his wife, in which ' application he stated that, if she were present as a witness in his behalf, she would testify as follows:

“That she was present at the home of the defendant, Ed Houghton, at the time the alleged transaction took place; that she is acquainted with the prosecuting witness, and remembers the occasion when he came to said house; that she was present with her said husband and said prosecuting witness during all the time said prosecuting witness, Allison, was at said house, where said transaction is said to have occurred; that she saw and heard everything said or done at said time, and that said Allison did not purchase any whisky from her husband, Ed Houghton, nor was any whisky furnished to him by said Ed Houghton in any manner.”

This application for a' continuance was by the court overruled. There are a number of reasons why the ruling of the trial court should be sustained. Application was not made for process for this witness until the day on which the case was set for trial, and because appellant’s testimony shows that, if the testimony of Mrs. Houghton was true, he could have proven the same facts by a man named Foster who worked at the depot. His nonproduction of the witness Foster was not accounted for. The testimony of Mrs. Houghton was, therefore, only cumulative. We think the court did not err in overruling the application for a continuance.

The judgment of the lower court is in all things affirmed.

ARMSTRONG, P. J., and DOYEE, J., concur.