text:
      Ex parte PAUL HAYES et al.

    No. A-1452.
    Opinion Filed November 9, 1911.
    (118 Pac. 609.)
    1. CONSPIRACY — Criminal Responsibility — Liability for Acts of Co-Conspirators. Where two or more persons combine together for the purpose of accomplishing some unlawful act, every act or declaration of either of • such persons in pursuance of the common concerted plan and with reference to the common object is, in contemplation of law, the act and declaration of all of them.
    2. SAME. A conspiracy makes each conspirator liable under the criminal law for the act of each other conspirator- done in pursuance of such conspiracy.
    3. SAME — The least degree of concert of action or collusion makes the act of one conspirator the act of all.
    4. SAME — Evidence—Acts and Declarations of Conspirators. Slight evidence of collusion is all'the law requires to admit the acts and declarations of a conspirator in evidence against his co-conspirator.
    5. SAME. Written correspondence and entries in books and other documents made by one conspirator, having reference to the common object of the conspiracy, are admissible in evidence against a co-conspirator.,
    6. BAIL — Criminal Prosecutions — Weight of Evidence. For circumstances which require the refusal of bail in' a murder ease, see statement of case and opinion.
    EVIDENCE — Circumstantial Evidence- — -Sufficiency. The chain -theory with reference to circumstantial evidence repudiated, and the cable theory adopted. ' <1
    (Syllabus by the Court.)
    Application by Paul Playes and ’another for writ of habeas corpus. Petitioners remanded to custody of sheriff.
    The petitioners* Paul Hayes and Edgar Plarry White, being in the -custody of the sheriff of Pottawatomie county, under and by virtue of a commitment issued out of a justice court o'f said county, after a preliminary - examination therein, wherein said petitioners were charged with the murder of one-Arthur Arnett, and upon which said preliminary examination the petitioners were committed by Pial Johnson,-said-justice of the peace, to the custody- of said sheriff without bail to await- trial on- said charge, petitioners have applied for a writ of habeas corpus, in which they do not ask to he admitted to bail on said charge, but seek to be dismissed entirely from said custody, upon the ground that there was no evidence introduced or offered which showed or tended to show in any manner that said petitioners were guilty of said charge of murder, or of any other offense against the laws of the state of Oklahoma.
    The following is the substance of the testimony introduced upon this hearing:
    E. J. Ross testified that he was acquainted with Arthur Ar-nett, the deceased, and that Arnett lived at McLoud, Pottawatomie county, Okla., and that he was killed about 2 o’clock in the morning, on the 21st day of April of the present year. Witness examined the body of said Arnett after his death; that he found a pistol bullet wound in the left side of the head of the deceased; that he found the body lying near a cellar door back of a store in the town of McLoud; that he found tracks of two men, who had apparently run off from where the deceased was lying; that these tracks first went west, and then a little south, and then went west again; that one of the tracks was a small track, and the other was tolerably large; that the witness did not take the measurements of the tracks, but in his judgment the small track was made by a No. 5 shoe, and the larger track was made by a No. 8 shoe; that they went from where the body of Arnett lay about 20 steps to an alley, and then they went south one-half block, and then west again, then went north one-half block, and then turned west again; that the witness followed these tracks to the edge of town, and they went north of town toward the town of Harrah, which is about five miles distant from there; that the body of the deceased, when found by the witness, was about three or four feet from the cellar door; that the cellar door was in the back and under John Seikel’s store; that there was a safe in the office of this store; that from the trap door of the cellar you go down steps, and then come to another door that goes into the cellar; that after entering the cellar door are steps going up into the store near the office. The witness described minutely the course taken by the persons leaving the body of the deceased, and testified that they passed through a number of alleys. The witness said this was a starlight night, but didn’t think the moon was shining, and that the parties who were at the body of the deceased had lanterns and waited until daylight, and that guards were stationed to keep persons away from the tracks. Witness also testified that the tracks leaving the body of the deceased followed the alleys described pretty clearly. Witness also produced and identified the bullet which was cut from the head of the deceased. He testified further that he was not a judge of such matters, and that he could not tell what the caliber of the bullet was.
    Jerry Spann testified that he was assistant chief of police of Shawnee, and that he knew the deceased, who was city marshal of McLoud; that he saw him a little while after he was killed; that the deceased was shot through the head, and had one shot across the neck, which was a flesh wound. The witness testified as to the tracks going from the body of the deceased substantially as the preceding witness had testified, except that he followed the tracks to within 1 mile or 1J4 miles of Harrah. He also minutely described the measurements taken of both of the tracks. The small track was about a 5 or 5% shoe. The large track was about an 8 or 8% shoe. He had seen tracks reputed to be the tracks made by both of the petitioners. The tracks reputed to be tracks made by Edgar Harry White showed exactly the size of shoe-of one of the tracks from the body of the deceased at McLoud. The measurements of the tracks which were reputed to be the tracks of Paul Playes were but a very little longer than the tracks which went from the body of Arnett; that the witness followed the tracks leaving the body of the deceased four or five miles, and upon a careful observation from all appearances they were the same tracks that were reputed to have been made by the petitioners. The tracks leading from the dead body of Ar-■nett appeared to be made by men running for about two miles, and after that they got close together, as though they had slowed down.
    Thomas Hayes testified that he went to the body of the deceased shortly after he was killed; that he found him lying back of John Seikel-’s store in McLoud; that he found on or near the body deceased’s pistol, two or three lead pencils, and his hat. He also testified with reference to the tracks substantially as the other witness had testified, except that he did not measure them; that-witness was acquainted with the defendant White, and knew him when he lived in McLoud; that defendant White lived in McLoud several years, but left there several years-before the killing.
    A. A. Gordon testified that he lived in Oklahoma City, and was a member of the police department; that he was acquainted with both of the petitioners; that he knew the defendant White by the name of Harry White; that he arrested the defendant Hayes at his home in Oklahoma City; that he took several books which he found in the residence of defendant Hayes; that one was a large book, like a -ledger, and that there were three or four small dayboqks; that the large book contained combinations to different safes — that is, the figures and letters of combinations of safes, by,which they could be opened; that in his judgment there were 150 combinations of safes in the book, and possibly inore; that he examined one of the little books taken, from the home of Hayes, and on page 190 he found the combination to a Mosler safe, with the name of John Seikel, McLoud, Olcla; that the books which he got from the house of Hayes were taken from under ‘a sanitary 'couch or cot; that the defendant Hayes was present at the time, but that witness did not have any conversation with the petitionér; that the petitioner Hayes was lying there on the ’couch; that witness had several' time's seéñ the petitioners together in’Oklahoma City’around on the streets, but does not remember whether he saw them together on the 21st ’day of April or not, but remembered seeing them together, both day and night; that .the'petitioner Paul Hayes worked for the Conger Safe Company. ,

      Joe Palmer, testified that he was present when the petitioner Hayes was arrested by policeman Gordon, and that he saw Gordon get one large ledger and a number of small daybooks; that these books were full of combinations for opening safes; that while the witness and Gordon were searching Playes’ house he saw Mrs. Playes, wife of petitioner Playes, with her hand upon the end of a shelf; that she took her hand away, and witness went to where she was and picked up a letter, which was crumpled. This letter was then introduced in evidence, and is as follows:
    “Oklahoma, Okla. Sept. 10 — 1911. Dear Harry: Your letter came to hand today and .was glad to heard from you. If this safe has a combination to the inside door, it certainly must have a chest on the inside of it yet and if it is made with a chest it would take nearly two days to drill it as it is made of the hardest of the hardest of steel and it is mighty hard to drill. See if there is not some good fireproof safe in a mercantile house or office there that you think will be pretty, good or locate two or three and we can do them all in one night if things are as you say, no difference. Also there might be something good in some adjoining town that will be'easy to get. Look around good and then write me a letter and tell me the name of the places and it may be that I have the dope on it and will not have to make any noise at all until after we have got the cail. Write me at number 134 West Fifth street,, and I will get it without any one else handling it. Plow big is Wanette and what towns are close around there, also try and give the make' of any safe that you think looks good so I will know just what to bring with me. Hoping this reaches you all O. K., I am.’’
    1 That witness was partially acquainted with the handwriting of petitioner Playes and recognized it in several books which were taken from his house. The witness had' had no conversation with either of the petitioners.
    George Bowman testified that he had lived in McLoucl for about three or four years. That he was a cab driver-. Witness was acquainted with the deceased, Arnett, who lived in the town of McLoucl, and was city marshal of said town. That he worked at night. That witness was with deceased about 2 o’clock, when deceased went to the rear of Seikel’s store for the purpose-,of registering as night watchman. That he then noticed that the door coming out of the basement under the store was about one-half open, and witness asked deceased if it was open that way all night, and deceased answered, “It isn’t.” At this time the door moved a little, and deceased said: “There is somebody in there; bring a light up.” That witness came up with a light. That just at the time two men walked out of the door, and deceased said, “What are you doing in there?” They replied that they were hunting a bed. Deceased said to them, “Come out of there, and go with me.” One man came out just ahead of the other and faced northeast; the other came out facing west, and turned around facing east, and began firing. The deceased was standing at the northeast corner of the door. The witness was near enough deceased to touch him with his hand. The night was dark. Witness had a little railroad lantern with him. When the firing began, witness ran. He afterwards went back and found Arnett lying on the ground, dead. His gun was lying by his side. The first man who came out weighed from 125 to 130 pounds. The second man weighed probably 135 or 140 pounds. They both looked to be 25 or 30 years of age. Both were smooth-shaved. The first man who came up straightened himself up well quick. The large man did the shooting. The witness had seen the petitioner Paul Hayes at Tecumseh since his arrest, probably two or three weeks before the trial. He says he cannot recognize petitioner Hayes thoroughly as one of the parties there that night. Witness saw Paul Hayes, in Tecumseh, straighten himself up just as the first man did who came out of the cellar. The petitioner Hayes is about the same height. Witness had never seen another man make movement just like that made by the man who came out of the cellar, and by petitioner Hayes at Tecumseh. Petitioner White is about the same size and height of the second man who came out of the cellar, and the man who did the firing.
    Charles W. Friend testified that he saw the two petitioners make the tracks at Tecumseh which were measured by the witness Spann, and pointed them out to said witness Spann. It was stipulated by and between the county attorney and counsel for petitioner White that said witness resides in the town of Wanette, Pottawatomie county, Okla.
    John Seikel testified that he resided in McLoud on the 21st •day of April of the present year, and that he conducted a general merchandise business there; that Arnett was killed about 20 feet from the rear of his building; that at this time the witness had a Mosler safe in his store, and had had it for about three years; that he bought this safe from the Conger. Safe Company of Oklahoma City; that he understood that petitioner Hayes worked-for this safe company.
    A. J. Herring testified for the petitioner that on the 21st day of April of the present year he was running the Agnes Hotel at Norman, Okla.; that the name P. K. Hayes was registered as a guest of said hotel on the 21st day of April of the present year. He recognized petitioner Hayes as the party who wrote the signature on the hotel register.

      Moman Pruiett, Edzvard E. Reardon, and G. W. Jenkins, for petitioners.

      Smith C. Matson, Asst. Atty. Gen., and C. P. Holt, County Atty., for the State.
   FURMAN, P. J.

(after stating the facts as above). Upon the trial of this cause, counsel for the petitioners objected to the introduction of the letter testified to by the witness Palmer as having been found at the house of the petitioner Playes, upon the ground that it could not in any event be considered as evidence against the petitioner White. It was insisted in argument by the Assistant Attorney General that this letter was competent evidence against both of the petitioners, upon the ground that the evidence in the case established the fact that this crime of murder was not committed alone in a conspiracy to rob the mercantile establishment of Seikel at McLoud, but that the robbing of such establishment was only one act in a general conspiracy to rob similar establishments all over the state of Oklahoma, and that such gfeñeral'conspiracy, formed prior to the attempted fobbing of the McL/Oud mercantile establishment, did not cease with the killing of Arnett, but continued in the minds of these defendants up to the very hour of their arrest, and that this letter was clearly admissible for that reason against noth. In other words, the conspiracy formed between Hayes and White and those who may have operated with them was general in its nature, extremely comprehensive in its scope, of which general conspiracy the robbing of the Seikel mercantile establishm'ent at 'McRoud was only an incidental part, and that the letter was also admissible as showing the intimate relationship existing between petitioners.

We think that the position assumed by the Assistant Attorney General is sound in law. Where two or more persons combine together for the purpose of accomplishing some unlawful act, every act and declaration of each of such persons in pursuance of the original concerted plan and with reference to the common object is, in contemplation of law, the act.and declaration of them all,' and is therefore original evidence against each one of them. In other words,, every person who' enters into a common purpose or design is in Jaw held to be a party to every act which may be done by any of the others in furtherance of such common design. See volume 1, Greenleaf on Evi. (16th Ed.) § 1 S'4.

“A conspiracy makes each conspirator liable under the criminal law for the act of each other conspirator done in pursuance of such conspiracy.” (.Volume 2, Wigmore on Evh.s.ec. 1079.).

The only cpiestion as to the admissibility of this evidence against petitioner White is as to whether or not there is any evidence in the record tending to show a conspiracy between the two petitioners to rob safes, as contended for by the Assistant Attorney General. In volume 2, W.harton on Evi. § 1205, we find the following:

“When a conspiracy is shown to exist, which is usually inr ductively from circumstances, then the declarations of one conspirator in furtherance of the common design, as long as the conspiracy continues, are admissible against his associates, though made in the absence of the latter. The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all.”

See, also, Phillips v. State, 6 Tex. App. 380; Hannon v. State, 5 Tex. 549.

In the case of Starr v. State, 5 Okla. Cr. 460, 115 Pac. 356, this question was passed upon by this court as follows:

“Slight evidence of collusion is all that is required. 2 Rice on Evd. 865, § 333; 1 Greenleaf on Evi. (13th Ed.) § 111; Anarchist’s Case, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447.”

While there is no direct testimony of the existence of a conspiracy between petitioners as contended for by the Assistant Attorney General, and while it is true that the circumstances testified to in behalf of the state, if taken alone and simply by themselves, would have but little strength, yet, when all these circumstances are taken together, we are satisfied that this letter is admissible in evidence as against both of the petitioners. It has been expressly decided that written correspondence and entries made in'books and other documents by one conspirator, having reference to the common design of the conspirators, are admissible in evidence against a co-conspirator. See Carter v. State, 106 Ga. 376, 32 S. E. 345, 71 Am. St. Rep. 262; State v. Cardoza, 11 S. C. 195; Bloomer v. State, 48 Md. 524. The conspiracy between petitioners would constitute one of the strongest possible motives Ifor the killing of Arnett.

It is the theory of the state that this murder was committed in pursuance of a system or scheme of the petitioners to rob various' safes in the state of Oklahoma, and especially in Pottawatomie county. In support of this theory, the state has introduced in evidence the fact that one of the petitioners, Hayes, was, at the time of the commission of this crime, and had been for some time prior thereto, an employee of the firm known as the Conger Safe Company, of Oklahoma City, Okla.; that said Hayes was an expert as to the combinations of safes; that as such employee he had obtained possession of a description of the combinations of numerous safes throughout the state of Oklahoma,which had been disposed of to merchants and bankers by said safe company during the time of said Hayes’ emloymerit. This is a legitimate inference to be drawn from the fact that Hayes had in his possession, at the time of his arrest, a large ledger containing the combinations of over 150 safes; also concealed on his premises in Oklahoma, at the time of his arrest, were found some memorandum books, and in one of these the combination to the safe of the Seikel Mercantile Company, at McLoud, which safe had been bought from the Conger Safe Company, at Oklahoma, and which safe was in the building to which an entrance had been attempted by the men who murdered Ar-nett. In connection with this, it is well to note that the petitioner White had been repeatedly seen in Hayes’ company on the streets of Oklahoma City at various times prior to his arrest in the month of September, 1911.

There can be no doubt that the purpose of the men who committed this crime was to burglarize the store of the Seikel Mercantile Company, at McLoud. ' At the time that they were discovered, this purpose had not been accomplished. It was therefore not necessary that the men who murdered Arnett, the night marshal, should do it for the purpose of concealing a crime, so some other motive must have been controlling. To our minds, the motive is apparent from this record. It will be noted that the accused White had been a resident of the town of McLoud, well knowing its places of business, and doubtless acquainted with its citizens. It also appears from the record that the town marshal, Arnett, had for several years been a resident of McLoud, and was well and widely known to all the people of that community. The accused White was the only person who did the shooting, and that this shooting did not occur until after the accused Hayes had passed out of the building in front of him. It is therefore reasonable to infer that as soon as the lantern was brought up, as the witness Bowman testified it was, to a position where the features of White could be seen that they would have been recognized by thé deceased. The deceased was standing in the light of the lantern, and therefore could be recognized by a person coming from the cellar before the deceased could distinguish the features of such person. The testimony shows that the last man who came out of the cellar had his face turned from the deceased as he came up, looking west, and that as soon as he got out of the cellar he immediately turned toward deceased and began firing. This is a most significant circumstance. It shows that this man recognized deceased, and avoided recognition by the deceased until he was ready to fire the fatal shot. The excuse that they were in the building hunting for a place to sleep, given by Hayes as he stepped' out, would not be believed by Ar-nett, who knew White, and knew that he had a home in that county and did not need a place to sleep. The inference, therefore, is that White, having been discovered by Arnett in the act of burglarizing a store in a community where he was well known, found that the only means of escape was to kill the night marshal, and thereby forever close the mouth of the only man, except Hayes, his companion in crime, who could ever produce evidence of positive identity against him. The record shows that both men were strangers to the witness Bowman, who had moved to McLoud after White had left there.

The only eyewitness to this tragedy yet produced is‘Bowman, and his testimony, taken in connection with the inferences legitimately to be drawn from the other facts and circumstances surrounding this case, points directly to the guilt of Hayes and White. He describes the men that were seen by him there that night. In height and age, and practically as to weight and features, his description tallies with the description of Hayes and White. He says that he cannot positively identify them as the men he saw there that night. It would seem preposterous that any man could positively identify two total strangers, and the fact that he does say that he cannot positively identify them adds weight to his testimony, instead of detracting therefrom. It is also in evidence that the tracks of these two men leading away from the place of the crime were accurately measured, and that the tracks of White and Hayes made in the soil at Tecumseh after their arrest were also measured. The larger footprints at the scene of the crime and leading away therefrom tally exactly, perfectly, with the measurement of the footprints' of White as he made them-in the'soil'at Tecumseh. As to Hayes, the'witness •testified that as to general appearance of tracks they were similar, but that from the measurement made, from the best of his opinion, there was a slight difference in the length, less than a quarter of an inch. The tracks at the scene of the' crime were followed for fivé miles through the alleys and streets to the edge of the town, and then along highways and through the fields of cotton, etc., onto a highway crossing a railroad, where they disappeared entirely, and right along this highway was noticed the track of an automobile; and these tracks that led away from the scene of 'the crime led in the general direction of ■ Oklahoma 'City,' the • home of Hayes, and the place where White had been seen frequently in Hayes’ company on several occasions' prior to'his arrest.' ■

■ It is also in evidence iri this case that the man who came up out the basement first had a very peculiar shrug or affection of the shoulders, which was described by 'the witness Bowman' he saying that he had never noticed any' action similar to that in any man; and this same witness' sáys that when he noticed Hayés after his arrest at Tecumseh that' he noticed' a shrug or affection of the shoulder, and straightening up, that' impressed itself upon his mind'-at the'time this man cante out of the'basement. ' He says that these actions were alike.

Besides that', there is evidence in this case that was found at the home of Hayes at the time of his arrest (the record disclosing that Hayes'and his wife lived-at 135 West Fifth street, in Oklahoma City); this evidence being a letter, which is quoted in, full in the-synopsis of the testimony, supra. The letter was typewritten and unsigned. ' It was addressed to somebody by the name of Harry, "as it starts out, “Dear Harry,’’ and'whoever that Harry was must have lived at Wanette, because' at the bottom of the'letter appeared the following: “Flow big is Wanette, and what towns are close around there?” This, taken in connection with the stipulation that White lived at Wanette, leads to the legitimate inference that Hayes was addressing White, and especially is this true since they had been seen together on various occasions in Oklahoma City, and the letter itself is unexplained. The entire testimony in this case sustains this view.

The state omitted to prove on the examining trial just when the arrest of ITayes was made, which should by all means have been proved, as it is a material fact in the case in connection with the letter which was offered in evidence; but this omission has been largely cured by the evidence of George Bowman to the effect that two or three weeks before the trial he saw the petitioners at Tecumseh, after their arrest. This trial began in the justice court on the 9th day of October, and if for the three weeks preceding this time they were in jail at Tecumseh then Hayes’ arrest must have taken place about the date of the letter found in his home, which strongly indicates that it had just been written, but that Hayes had not had time to mail it. As before stated in this opinion, no one circumstance testified to by the witnesses against the petitioners would be sufficient to prove their guilt. In fact, each of these circumstances standing alone might be entirely consistent with innocence, but when they are all taken and combined together' the conclusion is irresistible, to our minds, that these petitioners are not entitled to be discharged. While to a very limited-extent a-false consistency of-circumstances may be constructed, yet experience teaches. that this is almost impossible where there are a considerable number- of circumstances involved, ' ■. -

We think that th'e application of the chain theory to circumstantial evidence is improper. No chain is stronger- than its weakest link, and will never pull or hind more than its weakest link will.-stand. With its weakest link -broken, the power of the chain is gone; hut it is altogether different with a cable. Its strength does not depend upon one strand, hut is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight,, but when these different strands are all combined together they support a structure which is capable of sustaining the weight of the heaviest • engines and trains. We therefore think that it is erroneous to speak of circumstantial evidence as depending upon links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands, and all of the facts relied upon should be treated as a cable. Taking all the circumstances in this case in connection with the variety of sources from which they are derived, we do not see how they can be harmonized upon any other theory, save that petitioners are guilty of the crime charged. Petitioners are therefore remanded to the custody of the sheriff of Pottawatomie county to await trial on the charge now pending against them.

ARMSTRONG and DOYRE, JJ., concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    AARON THOMPSON v. STATE.
    No. A-847.
    Opinion Filed November 10, 1911.
    (118 Pac. 614.)
    1. SHERIFFS AND CONSTABLES — Compensation—Service of Subpoena. There is no provision of law in this state requiring the payment of fees in advance to an officer for serving subpoena upon witnesses in a criminal case.
    2. CONTINUANCE — Absence of Witnesses. Where an application for a continuance shows that the defendant has had process for his witnesses issued in due time, and that such process has been placed in the hands of the sheriff, and the sheriff has refused to serve such process because his fees for so doing were not paid in advance, and where the testimony of such witnesses set out in the application for continuance is material to the defendant, it is error for the trial court to overrule such application for continuance, and force the defendant into trial. But the court should postpone the case to such time as would enable such witnesses to be served, and issue a mandatory order requiring the sheriff to serve the witnesses.
    (Syllabus by the Court.)

      Appeal from District Court, Cherokee County; John H. Pitch-ford, Judge.

      Aaron Thompson was convicted of murder, and sentenced to the penitentiary for the term of his natural life, and appeals.
    Reversed and remanded.

      Geo. K. Powell and George Paschal, for appellant.

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

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

“The record shows that on the 8th day of March, 1910, plaintiff in error filed with the clerk of the trial court a praecipe for certain witnesses, and that on the 9th day of March, 1910, seven days before the day set for trial of the case, the clerk issued such subpoena and placed it in the hands of the sheriff. The witnesses were residents of that county, and the affidavit for continuance shows that their testimony was material to his defense. The sheriff refused to serve such subpoena because no fees for so doing were advanced by plaintiff in error (see affidavit of continuance and testimony of sheriff on pages 87 to 89, inclusive), and notified the attorney for plaintiff in error that the subpoena would not be served until the fees were advanced. -Counsel for plaintiff in error received this notice two days before the case was set for trial, but failed to advance such fees as requested. On the day set for trial no effort had been made by the sheriff to serve such witnesses, and it was for the purpose of securing their attendance and the benefit of their testimony that the motion for continuance was filed. Plaintiff in error signified his willingness to make a cash deposit to the sheriff to procure the service of the. subpoena on such witnesses, if the court would grant a short continuance for such purpose, stating to the court that it was only on the 13th day of March, 1910, that his counsel had learned that such cash deposit was required.
“The court overruled the motion for continuance (Record, page 10), to which ruling defendant excepted. Our state Constitution (article 2, § 20) in part provides: ‘The accused shall have compulsory process for obtaining witnesses in his behalf.’ Section 1754, Comp. Laws of Okla. 1909, provides: ‘The sheriff in person, or by his undersheriff or deputy, shall serve and execute according to law, all process, writs, precepts and orders issued or made by lawful authorities, and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.’ Section 6254, Id., provides: ‘He shall execute every summons, 'order or other • process, and return the same as required, by law; and if he fail to do so, unless he make it appear to the satisfaction of the court that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, upon motion and ten days’ notice, and shall be liable to the action of any person aggrieved by 'sucli failure.’ Section 3418, Id., provides: Tn all cases where the fees prescribed by this act in criminal cases, except misdemeanors, for the constable and justices of the peace are not paid by the defendant or prosecuting witness, one-half of the amount of the fee allowed by law shall be paid by the county: Provided, that in no case shall the county pay any fees to 'any of the above-named officers for services rendered in any case where the offense charged is less than a 'felony: And, provided further, that no such fees shall be allowed by the board of county commissioners until the sheriff, constable or justice of the peace shall have filed his affidavit that said fees cannot be collected from any other source; Provided, further, that the total amount of the fees paid by the county to any justice of the peace or constable shall not exceed fifty dollars per quarter.
“It will thus be seen that it is the duty of the sheriff to serve process of this kind, and that, where the fees cannot be collected from the accused, one-half of such amount shall be paid by the county.. This was the law at the time of this application, but some material changes have been made since. We are aware of the decisions holding that compulsory process for witnesses does not mean process served at the. expense of the county or state, but we find no provision of law requiring the payment of fees in advance.
“The law requires the - sheriff to serve such process, and he is permitted to charge the fees allowed for such service which he may collect from the accused. If he cannot collect such fees from the accused, then the county agrees to pay him one-half of said amount in felony cases. We do not think it is necessary to decide in this instance whether the refusal of the sheriff to serve the subpoena without an advance payment of the fees being made deprives the accused of the compulsory- process for his witnesses guaranteed to -him by the Constitution, although we believe our Constitution and laws do not even suggest the payment of fees of this character in advance of the service,'but where it- is shown, as we believe it to be shown in this case, that the accused acted in- good faith and procured a subpoena to be issued in ample time to be served before trial, and that this subpoena was placed in the hands of the sheriff in ample time to be served by him, and that no demand was made upon the accused for a cash deposit to secure service thereof, and counsel for the accused, living in am other county, was notified that such cash deposit • would be required only two days before the trial, and where it further appears that if the court so ordered a cash deposit would be made,' and the accused only asked for a continuance for a sufficient length of time to secure service of such subpoena, and that the witnesses all resided within such county and were material to his defense, we think 'it wás an abuse of discretion on the part of the trial judge to deny to one accused of murder an opportunity to procure such evidence.
“There are other alleged errors argued in the brief of counsel for plaintiff in error, but we shall not discuss them here. If this court upon an examination of this record is convinced, as we have been convinced, that the trial court has deprived this accused of procuring certain material evidence in his behalf by overruling his motion for a continuance upon a sufficient showing to entitle him to such continuance, thereby abusing the sound discretion reposed in the court, then the other errors are inconsequential. We realize that most applications for continuances are made merely for the purposes of vexation and delay, but we do not consider this one of that class, as the record shows that the accused did everything required of him by the statute to procure the attendance of his witnesses and they were not present through any fault of his, but by reason of the rule of the sheriff, established without statutory enactment, to serve no process without the advancement of the fees for such service, of which rule the accused never received notice, and his counsel, residing in another county, only two days before the date set for trial. We think that a reasonable opportunity should have been granted the accused to comply with such arbitrary rule established by the sheriff or else make an affidavit of pauperism.
“If the sheriffs of this state are to be permitted by our courts to establish such rules as this, and by means thereof prevent the attendance of the accused’s witnesses without at least giving the accused a reasonable opportunity to comply therewith, then certainty justice is a mockery in this enlightened commonwealth, and one on trial for his life, is left to the mercy of a selfish officer, who, in the exercise of his discretion, may either demand the advancement df fees or' not' as he sees fit, thereby giving one defendant the service denied to another.
“We think that this record discloses that this plaintiff in error was entitled to a reasonable continuance and to have his subpoena served upon the showing.made.
“Respectfully submitted,
“Charles West, Atty. Gen.
“Smith C. Matson, Asst. Atty. Gen.
“E. G. Spilman, Asst. Atty. Gen.”

We fully indorse the confession of error assigned filed in behalf of the state, and adopt it as our opinion in this case.

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

ARMSTRONG and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    LAURA HYNEMAN v. STATE. FRANK BORNHEIM v. STATE. MARION HAGELMAN v. STATE. O. T. WRIGHT v. STATE. W. R. MAGILL v. STATE. J. C. STEWART v. STATE. H. RIGGERT v. STATE.
    No. A-842.
    No. A-843.
    No. A-844.
    No. A-845.
    No. A-846.
    Nos. A-852, 853.
    No. A-861.
    Opinion Filed November 10, 1911.
    (118 Pac. 616.)
    APPEAL — Conviction of Misdemeanor — Time of Taking Appeal. Comp. Laws 1909, see. 6948, nrovides that appeals from misdemeanor cases must be taken within 60 days after judgment rendered, but that the court may, for good cause, extend the time, not exceeding 60 days. Held, where, for good cause shown, the statutory time is extended, the record must affirmatively show such extension, and tha* the order was made before the expiration of 60 days after judgment rendered.
    (Syllabus by the Court.)
    Laura Hyneman, Marion Hagelman, O. T. Wright, W. R. Magill, J. C. Stewart (in two cases), and H. Riggert, were convicted of violations of the prohibitory law, and Frank Bornheim was convicted of keeping a disorderly house, and they all separately appeal.
    Dismissed.

      Andrews Jr Day, for plaintiff in error Bornheim. Stanfield & Rutherford, for plaintiffs in error Hagelman and Magill. Stanfield & Cochran, for plaintiff in error Wright. Castleman & Lawson, for plaintiff in error Stewart. Jennings & Levy, for plaintiff in error Riggert.

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

The plaintiff in error, Laura Hyneman, was convicted in the county court of Pittsburg county of a violation of the prohibition law, and was on May 26, 1910, sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50. An appeal was attempted to be taken by filing in this court on July 26, 1910, a petition in error with case-made; this being 61 days after the judgment was rendered.

The plaintiff in error, Frank Bornheim, was convicted in the county court of Pittsburg county of the crime of keeping a bawdy-house, and was on May 26, 1910, sentenced to pay a fine of $250, and that he be confined in the'county jail until such fine is paid or satisfied according to law. An appeal was attempted to be taken by filing in this court on July 26, 1910, a petition in error with case-made; this being 61 days after the judgment was rendered.

The plaintiff in error, Marion Hagelman, was convicted in the county court of Creek county of a violation of the prohibition law, and was on March 28, 1910, sentenced to serve a term of 60 days in the county jail, and to pay a fine of $200. An appeal was attempted to be taken by filing in this- court on July 27, 1910, a petition in error with case-made; this being 121 days after the judgment was rendered.

The plaintiff in error, O. T.- Wright, was convicted in the county court of Creek county of a violation of the prohibition law, and was on March 28, 1910, sentenced to serve a term of 30 days in the county jail, and to pay a fine of $150. An appeal was attempted to be taken by filing in this court on July 27, 1910, a petition in error with case-made; this being 121 days after the judgment was rendered.

The plaintiff in error, W. R. Magill, was convicted in the county court of Creek county of a violation of the prohibition law, and was on March 28, 1910, sentenced to serve'a term of 60 days in. the county jail, and to pay a fine .of $200.- An appeal was attempted to be taken' by filing in this court on July 27', 1910, a petition in error with case-made; this being 121 days after the judgment was rendered.

The plaintiff in error, J. C. Stewart, was convicted in the county court of Jackson county of a violation of the prohibition law, and was on June 6, 1910, sentenced to serve a term of 30 days in the county jail, and to pay a fine of $50,, An appeal was attempted to be taken by filing in this court on August 6, 1910, a petition in error with case-made; this being 61 days after the judgment was rendered.

The plaintiff in error, j. C. Stewart,'was convicted in the county court of Jackson county of a violation of the prohibition law, and was on Jun'e 6, 1910, sentenced to serve a term of 60 days'in the county jail, and to pay a fine of $300. An appeal was attempted to be taken by filing in this court on August 6, 1910, á petition in error with case-made; this being 61 days after the judgment, was rendered.

The plaintiff in error, H. Riggert, was convicted in the county court of Oklahoma county of a violation of the prohibition law, and 'was on April 21, 1910, sentenced to serve á term of 60 days in the county jail, and to pay a fine of $200. An appeal was attempted to be taken by filing in. this court on August 15, 1910, a petition in error with case-made.

The aforesaid causes were assigned for hearing and final submission at this term of court on November 8th. No appearance was at that time made on behalf of the- plaintiffs in error. In each of said causes the Attorney General has filed a motion to dismiss the appeal for the reason that the appeal was not taken within the limit of time prescribed by the statute, and for the further reason that no specific order of the trial court or judge thereof extending the statutory time for taking the appeal is shown in’ any of the case-mades. The statute provides (section 6948, Snyder’s) :’ ■

“In misdemeanor cases the áppeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the-time in which such appeal may be taken not exceeding sixty days. * * * ”

Under this section the appeal must be taken within 60 days after the judgment is rendered, but for good cause shown the trial court or judge thereof may extend the statutory time not exceeding 60 days additional, thus fixing 120 days as the maximum limit of time for taking an appeal in misdemeanor cases. Where, for good cause shown, the statutory time is extended by the trial court or judge thereof, the record must affirmatively show such order of extension, 'and that the same was made before the expiration of 60 days after the judgment was rendered.

In the case of Stumpf v. State, infra, 117 Pac. 648, it is said:

“Under this statute an appeal must be taken in this court within 60 days from the date of judgment by the trial court, unless the time is for good cause shown extended by the trial court. In this, case the court extended the time within which to make and serve a case-made, but made no order relative to the time within which the appeal should be perfected. The court could not limit the time to less- than 60 days within which to take the appeal, but could extend it for good cause shown, not to exceed 120 days. This it was not asked to do, and did not do. * * * These two provisions (section 6948 and section 6951) are in separate sections of the statute, neither making any reference to the other. This court has repeatedly held that these are plain mandatory provisions, and must be complied with before this court acquires jurisdiction to review the judgment of the trial court on appeal. Plaintiff in error secured the order provided for in section 6951, but failed to secure that provided for in section 6948. It is just as essential to have the order of the trial court extending the time within which to perfect the appeal as it is to have the time extended within which to make and serve case-made.”

From a careful examination of the record in each of the foregoing causes, we are clearly of the opinion that this court for the reasons stated is without jurisdiction thereof.

The motions to dismiss are sustained. It is therefore ordered that said attempted appeals be, and the same are hereby, dismissed.


author: DOYLE, J.

text:
    WILEY BRASWELL v. STATE.
    No. A-862.
    Opinion Filed November 11, 1911.
    APPEAL — Escape of Accused. — Dismissal. The Criminal Court of Appeals -will not determine an appeal where the plaintiff in error is not within the control of the court either actually, by being in custody, or constructively, by being enlarged on bail, and where the plaintiff in error has broken jail and absconded, the court will, on motion, dismiss his appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Haskell County; Malcolm R. Rosser, Judge.

    Wiley Braswell was convicted of the crime of rape, and appeals.
    Appeal dismissed.

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

The plaintiff in error, Wiley Braswell, was convicted in the district court of Haskell county of the crime of rape, and was sentenced to imprisonment in the state penitentiary for a term of ten years. The judgment and sentence was rendered and entered on June 16; 1910. An appeal was perfected by filing 'in this court on August 19, 1910, a petition in error with case-made.

On November 11, 1911, the cause coming on to be heard by the court on the regular call of the assignment of the November term, no appearance was made for plaintiff in error. The Attorney General presented a motion to dismiss the appeal for the reason that on December 17, 1910, the plaintiff in error, having failed to give an appeal bond, and committed to the county jail pending his appeal, broke jail and absconded, and is now at large a fugitive from justice, all of which appears from the affidavits of L. D. Allen, sheriff of Haskell county, J. M. Iiickman, jailor, and John Bailey, jail guard of said county.

The motion to dismiss was filed February 10, 1911, and no response has been made.

The rule is well settled that an appellate court will refuse to determine a criminal cause on appeal where the plaintiff in error has broken jail and absconded and is not within the control of the court, either actually, by being in custody, or constructively, by being out on bail.

In the case of Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921, it was held that:

“Sl. 1. Where a defendant has been convicted and sentenced to serve a term in state prison, and perfects an appeal to this court, it is essential that he should be in custody pending his appeal, by being confined in the county jail or state prison, as may be provided by law, or constructively in custody by being admitted to bail; otherwise he waives his right of having his conviction reviewed by this court.
“Sl. 2. The Criminal Court of Appeals will not consider an appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case: And where the defendant makes his escape from the custody of the law, and is at large as a fugitive from justice, this court will dismiss the appeal.”

The plaintiff in error, will not be heard to question the correctness of the judgment of conviction, where in flagrant violation of the authority of .the court and of the law, he has chosen to undertake to relieve himself by breaking jail and absconding.

The motion of the Attorney General to dismiss the appeal is sustained, and the cause remanded to the district court of Haskell county, with direction to enforce its judgment therein.

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


text:
    ABE GREEN v. STATE.
    No. A-749.
    Opinion Filed November 11, 1911.
    (118 Pac. 815.)
    INTOXICATING LIQUORS — Criminal Prosecutions — Sufficiency of Evidence. A conviction for a violation of the prohibition law upon the finding of the judge upon the facts, the parties' having waived a jury, is reversed in this case, as not justified by the evidence.
    (Syllabus by the Court.)

      Appeal from Custer County Court; A. H. Latimer, Judge.

    Abe Green was convicted of violation of the prohibition law, and appeals.
    Reversed and remanded, with direction to dismiss the prosecution.

      Le Roy Jones and Chas. D. Peck, for plaintiff in error.

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

Plaintiff in error was convicted in the county court of Custer county, on an information wherein it was alleged that Abe Green, on the 2d day of September, 1909, sold one pint of whisky to Bill Howell for the price of one dollar. The information was filed on the 2d day of September, 1909. January 20, 1910, the case was' called for trial, and was tried without a jury; both parties having expressly waived a trial by jury- ’

The information,' verified by the oath of the prosecuting witness, Bill Howell, laid the selling of the whisky on the 2d day of September, 1909. As a witness, he testified that he and a friend of his, Otis Murphy, went into Marriott’s pool hall, and there met Abe Green, and he bought a pint of whisky of him; that this was on the evening of June 18, 1909. He also produced and identified a pint bottle of whisky as the one he purchased. On cross-examination, he stated that when they went into Marriott’s pool hall Green went with them into a back room, and he there received and paid for the whisky, and he'and Murphy drank some of it; that he was a .deputy sheriff for the purpose of acting as a spotter on whisky sellers, and had received’ $5 as a reward from one Ed Thomas for making the complaint in this case; that he asked Murphy to go with him, because they had been boys together in Texas; that he had drunk some whisky that day, but was sober.

Otis Murphy was then called as .a witness for the prosecution, and testified that he went in Marriott’s pool hall with Bill Howell, and there met the defendant, Abe Green; that when they went there Bill. Howell had. three bottles of whisky in hA pocket, and they had taken áeveral drinks.from one of the bottles; that there was something said, about taking a drink, and all three went into the back room of the pool hall, Bill Howell leading, witness following, and Green following him; that Bill Howell took a bottle out of his pocket, and offered Abe Green a drink, and Abe said that he did not care for any, and refused to drink; that Howell then handed witness the bottle, and he took a drink, and handed it back to Howell, .and ho took a drink, and put the bottle back into his pocket; that he then left the pool hall with Bill Howell; that he did not see the defendant give Bill Howell any whisky, nor did he see Bill Howell give Green any money; that if Howell had given Green any money he would have seen it. He'further testified that after he was subpoenaed, that Bill Howell told him that “he could do him good,” and that if witness would stick Green he would see that witness got one-half of the fine. ' ' ’

The state rested, and the defendant demurred, on the ground that the evidence was, insufficient to support a conviction, and moved that the defendant be discharged. The court ruled as follows: ■

“It seems to me that the evidence has positively proven that the defendant did sell intoxicating liquor. That is the only evidence in the case. If the defendant had gone on the stand, or any other witness, and discredited the fact, or proven that he did not sell the liquor, it would have raised a probable doubt in the mind of the court. He has not done that. This court cannot look’at it in any other way only to find that the defendant did sell the liquor to the man on that occasion. I shall certainly have to find the defendant guilty.”

Whereupon counsel for the defendant announced that he had not rested his case, and was merely requesting a ruling on his demurrer. The court overruled the demurrer. The defendant was then examined as a witness on his own behalf.

He testified that he was acquainted with Bill Howell; that he never did sell any whisky to him; that he met Bill Howell and Otis Murphy in Clinton, and they went into Marriott’s pool hall; that Howell said something about drinking, and went into the back room, Murphy and witness following him; that Howell pulled a bottle out of his pocket, and Murphy took a drink; that Howell then offered witness a drink, and he refused to drink, because he had just eaten; that Howell was somewhat intoxicated; that Howell then said, “We are going to leave on the 5 o’clock train, and I would like to have a quart,” “and I told him I was not in that business.”

After hearing the argument of counsel, the court rendered its decision, finding defendant guilty as charged.

It is assigned as error that:

“The decision and finding of the court that the defendant was guilty was not sustained by sufficient evidence, and is con-' trary to the evidence.”

We are clearly of opinion that this assignment is well founded. If the testimony of the state’s witness Murphy is to be given any credit, then the complaining witness is wholly discredited. There is nothing shown to discredit the witness Murphy, yet the court, it would seem, for no apparent reason, gave full credence to the testimony of the complaining witness, although impeached, not only as already suggested, but also by every other fact and circumstance in evidence in the case. Considering the direct contradiction in the testimony of the two witnesses for the prosecution, and the admitted fact that the complaining witness, as deputy sheriff, in violation of law, received a reward for doing what was his official duty to do, and that he did not perform his duty as such officer by arresting the defendant then and there, without' a warrant, as provided by section 4189, Snyder’s Stat., when, as he testifies, a violation of the prohibition law occurred in his presence, and the further fact that he was giving drinks and drinking whisky while in the performance of his duty as an officer, also the variance in the date alleged in the information and his testimony, and giving the weight which ordinarily should be given to the testimony of the othey witness for the prosecution, we do not believe that the complaining witness was worthy of credence. At least, a reasonable doubt is raised as to defendant’s guilt.

For this reason, even without considering the denial of the defendant, we are of opinion that the finding of the judge upon the facts, and his decision in the case, is clearly contrary to the evidence.

The judgment of the county court of Custer county is therefore reversed, and the cause remanded, with direction to dismiss the prosecution.

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


text:
    ARTHUR DREW v. STATE.
    No. A-858.
    Opinion Filed November 11, 1911.
    (118 Pac. 677.)
    NEW TRIAL — Appeal—Review—Discretion of Trial Court. A motion for a new trial upon the ground of newly discovered evidence, made before judgment, or after the term at which the judgment was rendered and sentence pronounced, is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised.
    (Syllabus by the Court.)

      Appeal from Wagoner County Court; John H. King, Judge.

    Arthur Drew was convicted of larceny, and was sentenced to the penitentiary for three years. From an order denying a new trial, he appeals.
    Affirmed.

      Watts & Watts, for plaintiff in error.

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

The plaintiff in error, Arthur Drew, was, jointly with Pompey Drew and Butler Shannon, charged by information with the larceny of a cow, the property of one Mose Burkley. When the case was called for trial, the defendant Pompey Drew had not been- apprehended, and the case was dismissed as to the-defendant Butler Shannon.

The evidence on the part of the prosecution tends to prove the following facts: That Mose Burkley and the defendant were neighbors, living about two miles south of Tullahassee; that Burkley missed his red and white speckled cow, branded 5 and 8 on the right hip, about July 1, 1909. When looking for the cow, he met the defendant Arthur Drew, who told him that the cow had passed his house that day. Burkley went to a butcher shop at Porter, and found the hide of his cow there. The defendants Arthur,Drew and Pompey Drew were seen leading a cow on the road to Porter on the night of July 1st.

The defendant Arthur Drew, testifying on his own behalf, stated:

“That on July 1st his brother, Pompey Drew, asked him to drive him out on the prairie near Porter; that Pompey had a gun, and-they drove to the slaughter pen near Porter; that Pompey ■got out and talked with a fellow, and they went and got a cow; that he did not know what kind of a cow they got; that they left at sundown for home; that he knew that Burkley had lost a cow; that on Saturday morning, the day after they were at the slaughter pen, Pompey gave him the check that he received for the cow; that the check was made payable to the defendant, and that he cashed the check, but <Jid not know whether it was for that cow or some other cow; that Pompey gave him $5 of the money; that he cashed the check, because Pompey told him that he owed some money to some fellows in Porter, and if he went there and cashed the check they would take the money; that Pompey then left the country, and he did not know where he was.”

The only assignment of error argued is, “The court erred in not granting a new trial dri 'the ground of newly discovered evidence.”

The judgment and sentence was entered on February 9, 1910. The motion for a new trial was made after the term at which he was convicted, and the judgment rendered and sentence pronounced.

The only ground in the motion for a new trial is newly discovered evidence, which he could not with reasonable diligence have discovered and produced at the trial. Attached thereto as exhibits are the affidavits of three persons, who state that on July 1, 1909, they met Pompey Drew going in the direction of the town of Porter, driving a red and white speckled cow, and that Arthur Drew was not with him. A motion for a new trial on the ground of newly discovered evidence, made before judgment, or after the term at which the defendant was convicted, is addressed to the sound discretion of the tidal court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being ■ that The -discretion was properly exercised. The motion here is ■ wholly without merit, and was properly overruled. The improbable statement of the defendant that he did not know the check he received and cashed was in payment for the stolen cow, as might be supposed, was not credited by the jury or the court. Upon his own testimony, there can be no doubt that the defendant is guilty.

The judgment of the district court of Wagoner county is ' therefore affirmed, and the cause remanded, with direction to enforce its judgment therein.

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


text:
    JOHN W. SHARP v. UNITED STATES.
    No. A-859.
    Opinion Filed November 11, 1911.
    (118 Pac. 675.)
    1. HOMICIDE — Justification—Homicide in Making Arrest. A peace officer has no lawful right to shoot and kill a person that is attempting to escape arrest for a minor offense, by running away, and, if he does so, he will be guilty of murder or manslaughter as the case may be.
    2. HOMICIDE — Justification—Homicide in Making Arrest. A peace officer in attempting to arrest a person for an offense less than a felony cannot shoot or kill, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.
    (Syllabus by the Court.)

      Appeal from District Court, Adair County; John H. King, Judge.

    John W. Sharp was convicted of manslaughter, and appeals.
    Affirmed.
    See, also, 3 Okla. Cr. 24, 104 Pac. 71.

      J. H. Huckleberry, Wm. Cravens, and O. L. Rider, for plaintiff in error.

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

On December 12, 1906, the plaintiff in error, John W. Sharp, was indicted in the United States Court for the Northern District of the Indian Territory at Sallisaw for the murder of one William Powell on the 28th day of November, 1906, at Tahlequah, within said Northern district. Upon the admission of Oklahoma as a state the cause was duly transferred to the district court of Cherokee county. On the application of the defendant for a change of venue, said cause was transferred for trial to the district court of Adair county. Upon his trial the defendant was convicted of manslaughter. From this judgment he appealed, and on September 27, 1909, the cause was reversed and remanded. The opinion of the court in the former appeal of this case will be found in 3 Okla. Cr. 24, 104 Pac. 71.

On his second trial he was again convicted of the crime of manslaughter and sentenced to serve a term of 10 years in the penitentiary. The judgment and sentence was pronounced and entered on February 19, 1910. To reverse this judgment an appeal was taken by filing in this court on August 13, 1910, a petition in error with case-made. No briefs have been filed. The cause coming on to be heard on the regular assignment, November 10th, and no appearance being made for plaintiff in error, the Attorney General moved that the cause be affirmed for failure to prosecute the appeal. Without a brief being filed or oral argument made, we are not advised as to what the plaintiff in error relies on for a reversal of this judgment, and, while we do not consider it a necessary duty of the court to review a cause under these conditions, nevertheless, in view of the grave character of the case, we have' carefully examined the entire record.

The undisputed facts of the case are that the defendant, in the presence of several persons, shot and killed William Powell, on the streets of Tahlequah about 11 o’clock p. m. on the day charged in the indictment.

The proof on the part of the prosecution shows that the deceased, a school boy about 16 years of age, attended a show in the opera house that evening, and after it was over, together with two or three other boys, was standing on Main street talking. The defendant, a police officer of the city of Tahlequah, passing by, made some remark. The deceased answered saying that he believed he was a very poor policeman and started to run across the street toward his home. He was pursued by the defendant, who called upon him to halt and fired a shot. The deceased still continued to run. The defendant paused for a moment and fired another shot, which struck the deceased. The ball entered .a little to the right of the - spine, just below the shoulder blade, passing out on the right edge of the sternum, and almost immediately produced the death of the deceased. The defendant, coming up to where the deceased fell, said: “Get up from there!” And the boy answered: “I cannot. You shot me, and you shot me for nothing.” The defendant then said: “God damn you! If you had stopped when I told you to I would not have shot you.” There was evidence ■ tending to show that the defendant was under the influence of whisky at the time he did the shooting.

The defendant, testifying as a witness on his own behalf, stated: That he was a deputy city marshal of Tahlequah. That on the night in question he heard some fellows blackguarding and swearing. He walked up the street to where they were standing in front of Scott’s restaurant and said to them: '“Boys, I am getting tired tonight. I am pretty near worn out, and, if you' don’t go in, I will lock you all up.” Defendant further testified that: “This young man I didn’t know was standing 10' feet from me and turned to me afad says, ‘Who' aré you?’ and I-says, ‘Ram the city marshal, here,’ and he says, ‘Who are you city marshal for?’ and I says, ‘For this town dnd everybody that comes here.’ I-says, ‘What kind-of a marshal did you think I would be?’ and he says, T think you are a God damned poor one,’ and he struck a run, and F started and took after him,’ and commenced hollowing halt at him and got abóut middle ways: of the street. I was running and jerked my gun and fired right up in the air. - I-run on about — -Just before I got to the alley,. I had my gun in this hand, and stumbled, and then the gun fired.' I had no idea of hurting the boy at all. I- had no idea of doing it, and went on, and walked on. down there close to him, .pretty close to him, and stopped and asked him— I says, ‘Get up!’.and he spoke and says, T can’t/ or something to that amount.” He further testified that he was not drunk that night, athough he had tasted some whisky; that when he was running after the boy he was attempting to arrest him for what he had said.

His defense was a denial of any intent to hit the deceased when he fired the fatal shot and the improbable statement that the fatal shot was fired accidentally. On the testimony of the defendant alone there can be no doubt of his guilt of the crime of which he stands convicted.

The defendant doubtless acted under the erroneous belief that as a peace officer he had a lawful right to shoot and kill the deceased when he failed to obey his commands to halt. It is a common belief that erroneously prevails among petty peace officers that, if an' offender runs from an officer attempting his arrest for a misdemeanor and does not stop on being commanded to halt, the officer may lawfully shoot him. Officers should know and understand that they have no authority to resort to the use of firearms or dangerous weapons in making arrests for offenses other than felonies, unless the offender resists the arresting officer. In that event all force necessary to overcome his resistance may be employed. Peace officers should always use great caution and prudence in the performance of their duties, and should never forget that it is only extreme necessity that will justify the taking of 'human life.

Mr. Bishop says:

“If one committing a felony flies from an officer attempting his arrest, and will not stop on being commanded, the latter to enforce compliance may shoot him; but, if the offense is a misdemeanor, he has no right to take this extreme measure.” (Bish. New Cr. Pro. sec. 159, par. 3).
“Generally speaking, in misdemeanors it will be murder to kill the party accused, for flying from the arrest, though he can-' not otherwise be overtaken, and though there be a warrant to apprehend him; but under circumstances it may amount only to manslaughter, if it appear that death was not intended.” (Bish. New Cr. Law, sec. 649).

Under the testimony of'numerous witnesses that the defendant paused and deliberately fired the fatal shot, the defendant is guilty of the wanton and brutal murder of an inoffensive boy. Fortunately for the defendant, however, the jury in mercy, or in a mistaken view of the law, or of the facts, found the defendant guilty of the lesser crime of manslaughter. This it had a right to do.

An examination of the instructions shows that they fully and fairly state the law of the case.

From a careful examination and consideration of the entire record we are clearly of the opinion that no prejudicial error was committed by the trial court.

The judgment of the district court of Adair county is therefore affirmed, and the cause remanded thereto, with direction to enforce its judgment therein.

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


text:
    G. A. JOHNSTON v. STATE.
    No. A-856.
    Opinion Filed November 11, 1911.
    (118 Pac. 674,)
    APPEAL AND ERROR — Case-Made—Extension of Time. A special judge at the time of entering judgment is authorized to extend the statutory time of 30 days for making and serving a ease-made, but, after he has fixed such time and has vacated the bench, he is without authority to extend the time.
    (Syllabus by the Court.)

      Appeal from Coal County Court; D. D. Brunson, Special Judge.

    G. A. Johnston was convicted of violating the prohibitory law, and appeals.
    Dismissed.

      C. T. Gibson, for plaintiff in error.

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

The plaintiff i-n error was convicted of a violation of the prohibition law, and was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $100. The judgment and sentence was entered on May 21, 1910.

The trial was had before D. D. Brunson, special judge. At the time of entering judgment, the court notified the defendant of his right to appeal, and fixed the amount of his bail bond pending appeal, as well as the time in which such bond should be given and a petition in error filed in this court; and also made an order fixing 40 days as the time for making and serving a case-made, and 10 days to suggest amendments, to be signed and settled on five days’ notice. Subsequently, on July 2, 1910, said special judge granted an extension of 15 days within which to make and serve a case-made in said cause. The record shows that the case-made was not served until July 12, 1910; this being 52 days after the judgment was rendered.

A special judge at the time of entering judgment is authorized by our statutes to extend the statutory time of 30 days for making and serving a case-made by fixing the time in which such case-made may be served, but, after he has fixed such time and has vacated the bench, such special judge is without authority to extend the time for making and serving such case-made. Rasberry v. State, 4 Okla. Cr. 613, 103 Pac. 865; Id., 4 Okla. Cr. 634, 112 Pac. 759; Steen v. State, 5 Okla. Cr. 295, 114 Pac. 343. If an extension of time within which to make and serve a case-made became necessary, the plaintiff in error should have made application to said county court, or the regular judge thereof, for such extension. The order granting the extension of time within which to make and serve a case-made by the special judge herein was therefore void.

There is no transcript of the record, properly certified, contained in the record. On July 22, 1910, there was a further order of the special judge, purporting to extend the time until August 12, 1910, for filing the petition in error in the Court of Appeals. The special judge was without authority to make this order, and the same is therefore void.

For the reasons stated, the Attorney General has filed a motion to dismiss the pretended appeal. The motion is sustained. The attempted appeal is therefore dismissed, and the cause remanded to the county court of Coal county, with direction to enforce its judgment therein.


author: ARMSTRONG, J.

text:
    RICHARD MADISON v. STATE.
    No. A-627.
    Opinion Filed November 11, 1911.
    (118 Pac. 617.)
    1. CONTINUANCE — Absence of Witnesses. The provision of our statute to the effect that the adverse party may consent to the reading of the affidavits for continuance as the deposition of absent witnesses is a provision of the Civil Code, and has no application to criminal cases.
    2. SAME, (a) When a person accused of crime in this state makes out a clear case for continuance owing to the absence of material witnesses, and makes a reasonable showing that he is likely to secure the attendance of such witnesses at the next term of the court, the cause should be continued, notwithstanding counsel for the state may offer tq admit the application for continuance as the deposition of the absent witnesses.
    (b) If, however, the state is willing to admit the statements set. out in the affidavits for continuance to be absolutely true, the trial court may, in its discretion, if it can see the accused will not be prejudiced thereby, refuse a continuance.
    3. TEIAXi — Instructions-—-Credibility of Defendant. It is error for a trial court in its instructions to point out to the jury the interest of the defendant in the result of the trial, and give special instructions on his credibility as a witness in his own behalf, over his objection and exceptions.
    (Syllabus by the Court.)

      Appeal from District Court, Oklahoma County; John J. Carney, Judge.

    Richard Madison was convicted of manslaughter, and appeals.
    Reversed and remanded.

      Giddings & Giddings, for plaintiff in error.

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

Plaintiff in error was tried in the district court of Oklahoma county at the March, 1909, term, on a charge of murder, and convicted of manslaughter in the first degree, and sentenced to confinement in the state penitentiary for 15 years.

He now seeks a reversal of the judgment in this court for errors assigned to the trial court. A statement of facts is not necessary for the determination of the legal questions involved in this appeal.

The first proposition relied upon by plaintiff in error is based upon the contention that the trial court erred in overruling his motion for continuance on account of the absence of certain material witnesses. It appears that a motion for continuance in due form was filed, setting out the materiality of testimony of witnesses for the plaintiff in error. One of the witnesses was sick in bed. The county attorney agreed to admit the statements set up in the motion for continuance and supported by affidavits as the testimony of the absent witnesses, but not the truth of the statements. The plaintiff in error insisted upon his right to have the witnesses present, and sought to have the case passed for this purpose. The trial court overruled the motion for continuance upon the agreement of the county attorney to permit the application for continuance to be read as the deposition of the absent witnesses, and the plaintiff in error excepted.

Counsel contend that the statute authorizing the admission of the application for continuance in a criminal case as the deposition of the'absent witness is unconstitutional, when the application shows diligence and materiality of the evidence. The effect of their contention is that, if the application for continuance is such as would entitle them to a continuance, an offer by the county attorney to admit the affidavits as the deposition of the absent witnesses would be of no avail, and that the action of the court in forcing the trial upon the admission in effect deprives them of a constitutional right. Our Constitution provides that the accused in a criminal trial shall have compulsory process for the attendance of his witnesses.

The statute under which the trial court based the right of the state to insist upon a trial upon the admission of the application for continuance as the deposition of the absent witness is Comp. Laws 1909, § 5836, is a provision of the Civil Code, and has no application to criminal trials. It has been almost, if not universally held that such provisions cannot be construed to govern the trial of criminal cases. A strong case supporting this doctrine is Dominges v. State, 7 Smedes & M. (Miss.) 475, 45 Am. Dec. 315. The court in that case says:

“The substitution of depositions for oral testimony belongs to civil trials. In no state of circumstances, under our Constitution, can a deposition of a witness be used against the accused in a criminal prosecution, and a similar rule seems to hold as to depositions of witnesses in his favor, unless by his consent. The system of criminal jurisprudence appears to require the presence of the witnesses, both for' and against the accused. Very often, in such prosecutions, much depends upon the appearance, manner, and mode of testifying of' a witness, and it is this that adds the superior character and importance to oral testimony. The practice in criminal cases of proposing to admit what was expected to be proved by absent witnesses is not calculated to advance the ends of public justice; and if, indeed, regular and competent, should not be allowed or encouraged except in very extreme cases. But, when such an admission has been once made, it constitutes an admission not merely that the absent witnesses would have sworn to certain alleged facts, but also that the facts alleged are absolutely true. Such an admission is an absolute concession of the facts stated by the accused upon his part, because that alone would be a fair substitute for what might have been the result of the evidence upon an oral examination of the witnesses whose actual presence was sought to be obtained.”

The Supreme Court of Nevada in the case of State v. Salge, 2 Nev. 321, in reversing a judgment'of conviction upon the ground that the court permitted the application to be read in evidence as the deposition of absent witnesses, says:

“The court ruled that a continuance would be granted unless the state would admit that the absent witnesses, if present, would swear to the facts as alleged in the affidavit. Upon the state making this admission, the defendant was forced to go to trial without his witnesses. Respondent now contends, and we think rightfully, that, if he made out a case for continuance, it was error to compel him to go to trial on such admissions. An admission that, if a witness were present, he would swear to certain facts, is not calculated to have the same effect as if a respectable witness were present in court,, swearing to the same state of facts. We think that where a defendant makes out a clear case for a continuance, owing to the absence of a witness, and shows that he is likely to obtain the testimony of that witness by the next term of court, he is entitled to the continuance, notwithstanding the state may be willing to admit that the witness, if present, would swear as claimed by the defendant.”

The Supreme Court of’ Illinois discusses this proposition in the case of Van Meter v. People, 60 Ill. 168, and lays down what we think is the correct rule. The court in part says:

“The act of 1867 [Sess. haws, p. 157], under which this admission was made, is simply an amendment of the practice act, and does not apply to the trial of criminal cases. The original act in regard to the admission of affidavits was not designed to apply to criminal proceedings. * * * We see, however, no objection to such practice, in the discretion of the circuit judge, even in criminal cases, but it must be the old practice of admitting the statements of the affidavits to be absolutely true, and not the rule established by the law of 1867 for civil cases, permitting the affidavit to be contradicted. This would take from the accused what might be of the greatest importance, if his affidavit might be contradicted — the right to have his witnesses seen and heard by the jury. If the court refuses a continuance because the prosecuting attorney offers to admit the truth of the affidavit, and not to contradict it, it must do "so, not by virtue of the practice act, but because, independently of that act, it can see the accused would not be prejudiced by the refusal of a continuance on such terms.”

The Texas courts appear to hold to the same rule as that announced by the Illinois Supreme Court in the case of Van Meter v. People, supra. In the case of De Warren v. State, 29 Tex. 465, this issue was squarely raised. That court in part says:

“If the order for continuance was properly made, was it competent for the court to set aside the continuance and require the defendant to go to trial on the admission of the district attorney that, if the witnesses named in the affidavit were present, they would testify to the facts stated in the affidavit, without requiring of the attorney representing the state the further admission that the facts stated in the affidavit for a continuance were true? Article 518, Code of Criminal Procedure [Paschal’s Dig. art. 2987], provides that it shall be sufficient, on the first application for a continuance, that the facts expected to be proved by a witness shall be stated, and that it must appear that the facts are material. There is no provision in the statute that, if the applicant shall state facts which entitle him to a continuance, he may be required to be placed upon his trial, if the admission be made that the witness, if present, would testify as stated in the affidavit, leaving the truth of the statement to be controverted by other testimony, or by such means as the party opposing the continuance may be able to bring to bear on the question involved. * * * In the case now being considered, the ruling of the court deprived the defendant of the benefit of having the witnesses before the jury.”

This doctrine is still adhered to in that state. See Francis v. State (Tex. Cr. App.) 55 S. W. 488; Davis v. State, 52 Tex. Cr. R. 332, 107 S. W. 855.

In the case of People v. Vermilyea et al., 7 Cow. 369, the. Supreme Court of New York, discussing this- identical proposition in an opinion by Chief Justice Savage, in part says:

“If it be admitted that the defendants were entitled to the testimony of the witnesses, then the only question is, Had they the benefit of his testimony? In my judgment most clearly they had not. When testimony was given showing, prima facie, that the witness could not swear as it was admitted he would, without being guilty of a contradiction, could the jury shut their eyes to the fact -which was staring them in the face, • that Gen. Swift had not sworn anything about it? It is true that, had the witness been examined on commission (and this is all the testimony the defendants are sure of obtaining), his testimony might still have been attacked in the same way. But they will then, at least, have the oath of the witness; and such interrogatories may be put as will lead to a full disclosure of all the facts necessary to every explanation. But should the defendants procure the personal attendance of the witness, and this does not seen? to have been thought improbable at the circuit, then it cannot be pretended but that the defendants would be in a much better situation than with the stipulation of the district attorney. The practice of requiring concessions in such cases is novel, and I apprehend not well calculated to advance justice. But, if to be encouraged, it seems to me that the prosecutor should admit all that the defendant can possibly obtain by the witness, which is the truth of the facts proposed to be proved. Such seems to have been the opinion of this court in Brill v. Lord, 14 John's. 341. That cause came up on a certiorari from a justice’s court. The defendant below wanted an adjournment on the ground of the absence of a material witness. The plaintiff proposed to admit what was expected to be proved by the absent witness, and’ the cause proceeded to trial. This court held the proceeding regular. They said the object of the adjournment, as avowed, was to procure the testimony of a certain witness; and the plaintiff offered to admit, and did admit, what it was alleged the witness would prove. If the plaintiff will admit the testimony, no time can be wanted for that purpose. Besides, it is added, in this case the defendant agreed to go to trial upon such admissions, and he ought not afterwards be permitted to violate such agreement. In that case the court did not place the regularity entirely upon the admission of the testimony by the plaintiff; but they say emphatically that the defendant had agreed to go to trial upon such admissions. Had the justice then refused the adjournment on the plaintiffs admitting that the defendant’s witness would swear as the defendant alleged, and he had protested against going to trial, upon such admission, there cannot be a doubt that this court would have reversed the judgment. Though this is comparing small things with great, still the principle is the same. The defendant before the justice by his oath was entitled to an adjournment. So were these defendants. The right of the defendant before the justice arose under the statute, and the right of these defendants by virtue of the common law. Both laws are of equal obligation. .When the defendants here and before the justice had, by their affidavits, brought themselves within the provisions of the law, there was no more discretion in the one case than in the other. The discretion of both was' a legal discretion, the very same discretion which we are now called upon to exercise in deciding the present motion. Under these views of the rights of the parties, and the power and discretion of the court, I feel bound to say that an error was committed in compelling the defendants to accept of the offered stipulation, and, of course, that a new trial must be granted.”

We are of the opinion that in cases where an accused makes out a clear case for a continuance owing to the absence of a maierial witness, and shows that he is likely to obtain the testimony of such witness at- the next term df the court, he is entitled to a continuance notwithstanding the state may be willing to admit that the witness, if present, would swear as claimed by the defendant. But, if the state is willing to admit the statements contained in the affidavits for continuance to be absolutely true, the trial court, if it can see the accused will not be prejudiced thereby, may in its discretion refuse a continuance. We are aware of the fact that the authorities are not entirely harmonious on this question, but we think the rule here announced is sustained by the weight of authority, and is just and reasonable.

The Supreme Court of Missouri in the case of State v. Berkley, 92 Mo. 41, 4 S. W. 24, goes so far as to hold unconstitutional a statute providing that the adverse party in a criminal action may admit on the trial the facts set out in the affidavit for continuance as the testimony of the absent witness. The same rule is followed in the case of State v. Neiderer, 94 Mo. 79, 6 S. W. 708. The Supreme Court of Arkansas in the case of Graham v. State, 50 Ark. 161, 6 S. W. 721, adheres to the rule announced in the Missouri cases in a very strong opinion, and holds unconstitutional a statute similar to the Missouri statute. It will be observed that the Missouri and Arkansas statutes referred to require only the admission of the state that the absent witness desired would testify as set out in the affidavit, and not the truth of the statements. The reasoning in these cases appears to be sound.

It is not necessary for us to say here that it is not in'the power of the Legislature of this state to enact a statute that would, in effect, deprive an accused of the right to compulsory process of witnesses, as that question is not raised.- We think, however, it is extremely doubtful. The Legislature of Mississippi following the opinion in the case of Dominges v. State, supra, enacted a statute conforming to the views expressed by the court there, and this is probably as far as legislation should go. We think the court erred in overruling the application of plaintiff in error for continuance in the case at bar upon the offer of the county attorney of Oklahoma county to permit the application for continuance to be read as a deposition of the absent witnesses. The truth of the statements contained should have been admitted or the case continued. There are other instructive cases involving this question, among them the following: Wassels v. State, 26 Ind. 30; Wheeler v. State, 8 Ind. 113; People v. Bossert, 14 Cal. App. 111, 111 Pac. 15; State v. Warden, 94 Mo. 648, 8 S. W. 233; Goodman v. State, Meigs (Tenn.) 195; State v. Twiggs, 60 N. C. 142, and many others.

The accused next urges that the court erred in giving the following instruction, which was excepted to at the time:

“The defendant is a competent witness in his own behalf, and his testimony is to.be weighed by the same rules that govern the testimony of other witnesses; but in weighing his testimony the jury may take into consideration the fact that he is the defendant in this case and his interest in the result of the trial.”

Similar instructions have been repeatedly condemned by this court, and, if the rule is to be followed, this case would have to be reversed on this ground alone. See Banks v. State, 2 Okla. Cr. 339, 101 Pac. 610; Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Green v. United States, 2 Okla. Cr. 55, 101 Pac. 112, and a great many others.

Many other errors are assigned involving questions that have been determined heretofore, which appear to have been incidental to the trial, and are not likely to occur again on a retrial of this cause, and for that reason further time will not be consumed in reviewing them.

For the errors indicated, this cause is reversed, and remanded for a new trial.

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


text:
    MYRTLE SMITH v. STATE.
    No. A-763.
    Opinion Filed November 16, 1911.
    (118 Pac. 676.)
    BAIL — Criminal Prosecutions — Right of Defendant. Where an appeal is pending in this court, and the appellant has not given bond, but is confined in jail pending the termination of said appeal, and it is made to appear to the satisfaction of the court that the health of the appellant is such that further confinement will endanger the life of the appellant, and that the appellant is unable to give bond, and that the ends of public justice will not be endangered thereby, this court will .admit the appellant to bail upon his or her own recognizance.'
    (Syllabus by the Court.)

      Appeal from Superior Court, Pittsburg County.

    Myrtle Smith was convicted of manslaughter, and appeals. Heard on motion for bail.
    Granted.
    /. H. Wilkins, for the motion.

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

The appellant is now confined in the county jail of Pittsburg county, Okla., pending an appeal to this court from a conviction for manslaughter rendered against her in the superior court of Pittsburg county. She now applies to be admitted to bail upon her own recognizance, upon the ground that she is a pauper and is unable to give any bond at all; that she is now a confirmed invalid, suffering from cancer of the uterus; that she is confined to her bed and in a critical condition, and is advised by her physicians that she can live but a short time; that while she is unable to give bond yet she has some friends who are willing to care for her.

In support of this motion the following certificates have been filed:

“After several examinations and observations of Myrtle Smith, who is now in the county jail, at McAlester, pending the action of the Criminal Court of Appeals in her case, I feel confident that she has a cancer of the uterus. Her condition is such that humanity demands that she should be released. It is my opinion that she has only a short time to live. I feel that if she was released on her own recognizance that she could not get away if she tried, and I am certain that she would return if commanded to do so by the court. Yours truly, [Signed] W. C. Graves, M. D.”
“I have been treating the above prisoner for the last two years, and I fully concur in the above certificate. Yours truly, [Signed] J. A. Smith, M. D., County Jail Physician.”
“To the Criminal Court of Appeals, Oklahoma — I have carefully read the motion of Myrtle Smith, a prisoner now sick and confined to her bed in the Pittsburg county jail, asking to be released upon her own recognizance pending her appeal from a conviction for manslaughter in the superior court of Pittsburg county, and I have also examined the certificates of Drs. Graves and Smith, who are reputable physicians of this city as to her present condition; I have also talked with the county sheriff and jailer as to her condition and from all these sources and my own observations and for humanity’s sake I suggest there is no objection here to the granting of such order as that prayed for. I feel sure that defendant’s condition is serious and if not relieved soon that she will only live a short time. Respectfully, [Signed] Robert Tarter, County Attorney.”
“I hereby concur with Mr. Tarter, county attorney, in the above suggestions, this 13th day of November, 1911. [Signed] D. J. Tatum, Sheriff Pittsburg County.”
“Plon. Henry M. Furman, Oklahoma, Okla. — My Dear Judge: Mr. J. H. Wilkins, an attorney at this bar, who represents Myrtle Smith, convicted in this- court of manslaughter, and sentenced to a term of eight years in the penitentiary, and who lias an appeal pending in the Criminal Court of Appeals of this state, has requested that I write you relative to the motion he has filed in the Criminal Court of Appeals to allow her to be discharged from jail on her own recognizance. The physicians who make affidavit as to the physical condition of Myrtle Smith are reputable physicians of this city. On account of the condition óf the appellant in this case I feel that in making this statement to you I am not overstepping the line of my duty, and am writing this letter simply for the purpose of calling the matter to your attention. With kindest personal regards, I am, yours respectfully, [Signed] W. C. Liedtke, Superior Judge Pittsburg County.”

Upon this showing humanity calls for the release of appellant and, as it is clear that public justice will not be endangered thereby, it is ordered by the court that the sheriff of Pittsburg county admit the appellant to bail in the sum of $2,500 upon her own recognizance, pending the termination of this appeal.

ARMSTRONG and DOYLE, JJ., concur.


text:
    WILL REA v. STATE.
    No. A-824.
    Opinion Filed November 21, 1911.
    (118 Pac. 815.)
    TRIAL — Verdict—Sufficiency. Under Snyder’s Stat., section 6878, where the jury returns an informal verdict of guilty, it is the duty of the court with proper instructions as to the law to direct them to reconsider it, and it cannot be recorded until it be rendered in proper form. The jury returned the following verdict: “AVe, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant guilty as charged in the indictment herein, and impose a fine of $50.00, and recommend that the court suspend the jail sentence.” The court overruled defendant’s motion to direct the jury with proper instructions to reconsider this informal verdict. Held, that the verdict returned is insufficient to support a judgment of conviction and sentence.
    (Syllabus by the Court.)

      Appeal from Pontotoc County Court; Joel Terrell, Judge.

    Will Rea was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      Bullock & Kerr, for plaintiff in error.

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

The plaintiff in error was indicted in the district court of Pontotoc county for a violation of the prohibition law. The case was transferred to the county court of said county. Upon a trial there had the jury returned a verdict, which reads as follows:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the indictment herein and impose a fine of $50.00, and recommend that the court suspend the jail sentence.”

Upon returning into court the above verdict, the attention of the court was by the plaintiff in error called to its informality and he moved the court to direct the jury with proper instructions to return and reconsider the verdict, which was by the court overruled.

This action of the court is assigned as error, and the Attorney General by a confession of error concedes that the assignment is well taken. The verdict in form returned is insufficient to support a judgment of conviction and sentence. Under the law, in a verdict of guilty, the jury may assess and declare the punishment which must in cases of this kind be both fine and imprisonment, or if they fail to agree on the punishment, or do riot assess the punishment, the court shall assess the punishment. Having returned an erroneous and informal verdict, it was the duty of the court to direct them to reconsider their verdict as provided by section 6878, Snyder’s Stat.:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

For the reason stated, the judgment of the county court of Pontotoc county is hereby reversed, and the cause remanded.

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