text:
    GEO. CRUMP et al. v. STATE.
    No. A-1239.
    Opinion Filed June 22, 1912.
    (124 Pac. 632.)
    1. WITNESSES — Courts — Privilege of Accused — Appeal—Jurisdiction — Objections—Exceptions, (a) It is improper for the prosecuting attorney to make a demand upon the defendant or bis attorneys in a criminal case, in the presence of a jury who are trying him, to produce a deed or any document referred to containing evidence tending to incriminate the defendant. Gillespie v. State, 5 Okla. Cr. 547, 115 Pae. 620, 35 L. E. A. (N. S.) 1171, reaffirmed.
    (b) To bring before this court on appeal errors of law occurring during the trial, unless they be jurisdictional, they must be objected to when made and incorporated in the motion for a new trial and thereby submitted to the determination of the trial court, and the action of the trial court thereon must be excepted to and brought before us by proper assignments in the petition in error.
    (e) Except in eases of habeas corpus and other special proceedings authorized by statute, the jurisdiction of this court is appellate only.
    2. TRIAL — Argument—Failure to Produce Evidence. Upon the trial of a criminal ease, where it is shown that material evidence is
    „ within the control of or accessible to a defendant and which is not accessible to the state, and such defendant fails to produce such evidence or to account for its nonproduction, the presumption is that the evidence, if produced, would have incriminated the defendant, and this is a proper subject for argument on the part of the prosecution.
    3. FORGERY — Evidence—Sufficiency. For evidence which fully sustains a conviction for forgery, see opinion.
    (Syllabus by the Court.)

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

    George Crump and Thomas Wright were convicted of forgery, and appeal.
    Affirmed.

      A. M. Powler and 6\ P. Freeling, for appellants.

      'Smith C. Matson, Asst. Atty. Gen., C. P. Holt, Co. Atty., and Hunter Johnson, Asst. Co. Atty., for the State.
   FURMAN, P. J.

First. When the witness Rachel Barnett was upon the stand, and after she had testified that she had never sold the land in question or executed a deed of any kind to Claud Gallagher or any person to said land, the record then proceeds as follows:

“Mr. Holt: Counsel for the state at this time request coun- . sel for the defendant to produce for the use of the state in this case the original deed made to Claud Gallagher, purported to be made by Rachel Barnett to the land just described in the last question, and also the deed purported to have been made by Claud Gallagher to George Crump, Jr., covering the same land. I mean the original deeds. The Court: Have you these deeds in your possession? Mr. Freeling: We have not. The Court: Proceed. Mr. Holt: The state offers in evidence Exhibit A, and also the state offers in evidence Exhibit B, after both have been examined by counsel for the defendant.”

It is insisted in the brief of counsel for appellants that this conduct of the county attorney was equivalent to demanding in the presence of the jury that the appellants should furnish the deed in question, and that it was an attempt on the part of the state to force the appellants to furnish testimony against themselves, and they rely upon the case of Gillespie v. State, 5 Okla. Cr. 54-6, 115 Pac. 620, 35 L. R. A. (N. S.) 1171, to sustain their contention. We still adhere to the views expressed in the Gillespie case, and if counsel for appellants had objected to this demand at the time it was made and had incorporated this matter in their motion for a new trial, so as to give the trial court an opportunity to correct the error, we would feel compelled to set aside this verdict and grant appellants a new trial. But the record shows that counsel for appellants did not complain to the trial court or preserve this question in the record for presentation to this court. In Gillespie’s case the rights of the defendant were all preserved by'proper objections and exceptions at the time and also in the motion for a new trial. Counsel for appellants at the trial of this case evidently did not regard this as a serious matter. They not only did not obj ect and except to this demand, and thereby reserve it for review by this court, but they disclaimed having the deed in their possession, and the matter was passed as being of no importance. Errors which go to the jurisdiction of the court may be raised for the first time upon appeal, or in fact at any time by habeas corpus proceedings before the final completion of execution of the judgment and sentence of the trial court.

In the case of Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202, this court said:

“But, in order to bring before us on appeal errors of law alleged to have occurred during the trial, they must be incorporated in the motion for a new trial, and thereby submitted to the determination of the trial court, and the action of the trial court thereon excepted to and then brought before us by proper assignments in the petition in'error. As we understand the law, the correct rule of procedure in matters of this kind is stated by Mr. Justice Kane of our Supreme Court in the case of Stinchcomb v. Myers, 28 Okla. 597, 115 Pac. 602, which is as follows: 'It has long been the settled rule of practice in this court that errors occurring during the trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court. Beall v. Mutual Life Ins. Co. of N. Y., 7 Okla. 285, 54 Pac. 474; Glaser et al. v. Glaser et al., 13 Okla. 389, 74 Pac. 944; Bradford v. Brennan et al., 15 Okla. 47, 78 Pac. 387.’

In the case of Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669, this court held that, where evidence was admitted upon the trial without objection, it is too late upon appeal to complain of the introduction of such evidence.

We are therefore of the opinion that by failing to object and except at the proper time, and by failing to incorporate this matter in the motion for a new trial, and thereby submit it to the determination of the trial court, appellants have waived their rights in the premises, and it is now too late for them to invoke the aid of this court. Our jurisdiction is appellate only, except in cases of habeas corpus and other special proceedings authorized by law.

Second. It is made to appear in the record that, during the closing argument, the county attorney called attention to the fact that appellants did not introduce the original deed which was alleged to be forged, and claimed, in substance, that if the deed had been produced by the appellants, personal examination would have enabled the jury to determine as to whether or not it was genuine or was a forgery. We think that this argument on the part of the county attorney was proper. The deed had been traced to the possession of the appellants. It was proven upon the trial that the state’s witness Rachel Barnett could write, and if this deed had been produced, the signature to the deed could have been compared with the signature of the-said Rachel Barnett. If genuine, this controversy would have been settled there; but appellants did not see fit to produce this deed or make any explanation of its nonproduction. Where the record shows that a defendant upon trial has access to or control of testimony, which, if true, would be beneficial to him, and he fails to produce such testimony or to account for its nonproduction, such failure is a proper subject for argument on the'part of the prosecution, and if inferences unfavorable to the defendant arise from such nonproduction, the defendant has no one but himself to blame. See Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314. See, also, Hampton v. State, infra, 123 Pac. 571.

Third. We have carefully examined all of the propositions submitted in the brief of counsel for’ appellants in connection with the record, and we fail to find where any material error was committed. A careful examination of all of the evidence in the case leaves no room to doubt the guilt of these appellants of the 'crime of forgery as charged. The offense occurred in the city of Shawnee, in Pottawatomie county, upon Saturday, June 26, 1909. The persons involved in the immediate occurrence were the two defendants, a notary public by the name of Walter Gray, a negro man named Sanders Sanko, and an unknown negro woman. At about dusk of the day of the offense, the notary, Walter Gray, was stopped upon the corner of Main street and Union avenue in the city of Shawnee, and introduced by one Hutchinson, a pool hall man, to the appellants, and informed that the appellants wanted some notary work done. The notary crossed the street to his (office, accompanied by the two appellants and the two negroes, none-of whom he had ever seen before. At the office the lights were turned on, and the appellant Wright introduced the negro woman to the notary as Rachel Barnett, with the request that he take the acknowledgment of the woman to a deed. The woman then signed the name of Rachel Barnett to the deed alleged in the indictment to have been forged, and acknowledged it before the notary; and the appellants and the negroes left the office. No money passed in the presence of the notary, and nothing was said in his hearing about the details of the transaction. These things occurred upon Satlirday, and upon the following Monday the white people for whom Rachel Barnett at the time was working as a domestic discovered that the deed had been filed of record in Seminole county, and immediately and upon that day' took Rachel Barnett before the notary, Gray. With the occurrence fresh in his mind, Gray was positive that Rachel Barnett was not the woman who had appeared before him .on Saturday night and executed the deed. Gray immediately got in touch with the appellants and wrote the appellant Wright at Wewoka, telling him that something was wrong about the deal, and that he had better come up and straighten it up. Within the week Wright went to Shawnee, and was taken by Gray to see Messrs. Chisum and Longmire, the white employers of Rachel Barnett, and was then told by Gray that it was not Rachel Barnett who had appeared before him and executed the deed. The white friends of Rachel Barnett demanded of Wright a quitclaim to the land involved, which Wright then promised. Chisum prepared - the quitclaim deed, which Wright promised to have executed and returned to Chisum that afternoon, and which he did not do. Not only was the land not quitclaimed to Rachel Barnett, but on July 12, 1909, sixteen days after the alleged forgery and within a few days of the above conversation with Chisum, the grantee in the forged deed, Claud Gallagher, executed his deed to the appellant Crum.p, conveying to Crump the land involved in this case, and in Crump that title rested at the time of the trial so far as this record is concerned. The appellants had full ability to right the wrong that had been done, if the deed was a forgery, and if they were innocent participants. They did nothing. They were indicted upon July 20, 1909. The deed from Gallagher to Crump was not filed of record until November 5, 1909, more than four months after the forgery and nearly as long after their indictment. They still claimed the fruits of the wrong that had been done, and at a former trial of this case these appellants both took the stand in their own behalf and testified that the deed was a valid transaction, and that Rachel Barnett did appear before Gray and execute it, and that she was the same woman who testified against them. This was on June 21, 1910. This attitude of the appellants, there being no scintillh of evidence of a contrary tendency in this record, the appellant Crump having testified at the former trial that he was acquainted with Rachel Barnett, removes all reasonable possibility of an innocent participation by these appellants in the forgery, if forgery there was. Was there a forgery? The prosecuting witness, Rachel Barnett, testified that she did not execute the deed in question; that she never had any transaction with either of the appellants, or with Gallagher, or with Sanko, with ^reference to her land; that she never appeared before the notary on June 26, 1909, and signed or acknowledged the deed in question, and did not appear before Gray for any other purpose, and never saw Gray until after the deed was made; and that she was the owner of the land in question, which had been allotted to her as a freedwoman citizen of the Seminole Tribe of Indians, by the United States.

The notary, Gray, testified that Rachel Barnett was not the woman who appeared before him with these appellants and executed and acknowledged the deed as Rachel Barnett on June 26, 1909; and that the woman who did so appear before him was a woman of an entirely different description. This witness, who was an important witness for the state, and who had testified for the state in the first trial of this case on June 21, 1910, testified that, after the first trial and prior to the last trial of this case, he (witness) had a conversation with appellant Crump in the town of Wewoka, in which witness told Crump that he was thinking of leaving Shawnee, and that the state was about to put him under bond to appear as a witness for the state in this case, and the appellant Crump said to witness that that would be all right, that they would make witness a straw bond so that he need not appear.

The state also introduced in evidence certified copies of the two deeds already mentioned, as well as of the record of the receipt of these deeds in the office of the register of deeds of Seminole county. The deed, alleged to have been forged, purported to be from Rachel Barnett, as grantor, to Claud Gallagher,' as grantee, for a consideration of $.2,000, and to convey the 120-acre allotment of Rachel Barnett, was filed for record on June 28, 1909, and was received from the appellant Crump, and later was delivered to the appellant Wright. The deed from Gallagher to Crump purported to convey by warranty deed the allotment of Rachel Barnett for a consideration of $2,250, under date of July 12, 1909, and was filed for record by the defendant Crump on November 5, 1909, and later was delivered to him. The original of the deed alleged to have been forged was not in evidence. It was shown by the evidence to have been in possession of the appellants. That possession is presumed to continue till the contrary is shown. Its absence was not accounted for. The signature of the woman who executed the forged deed was in her own handwriting. Rachel Barnett signed her own name. She was on the witness stand at the tidal. If the original deed had been produced, if the deed were not a forgery, a comparison of the signature to it with the handwriting of Rachel Barnett would have been the best proof of either its genuineness or falsity, as the case might have been. The bringing of this proof into the case was in the power of the appellants, and, when they failed to avail themselves of it, a strong presumption of fact arose that, if it had been produced, the comparison would have been unfavorable to the appellants; in other words, that the comparison would have been even stronger proof for the state than the already strong proof introduced. The very laws of nature, which prompt even the worm in the dust to fight back, would have impelled these defendants to produce this evidence, and they have written their condemnation into this record by their failure so to do.

The above statement of facts is taken from the evidence of the state. The evidence of the defense shows hardly an attempt at successful contradiction of the facts shown by the state. The defense placed upon the stand only two witnesses, A. M. Fowler and M. D. Boyd. The first of these testified that there was no pool hall man in the town of Wewoka by the name of Clark. This had small bearing upon the case. The second, Boyd, testified that during the month of December, 1909, six months after •the alleged forgery, and nearly six months after Rachel Barnett had gone before the grand jury of Pottawatomie county and procured the indictment of these appellants for the forgery, and started proceedings to recover her land, Rachel Barnett told witness that she had sold her land to the defendant Crump, that he had not paid her for it, that she could not lease the land to witness because of the sale to Crump, and that if Crump did not jpay her she would lease to witness. This testimony bears upon its face a contradiction to human nature. The idea1 that the prosecuting witness, while seeking to recover her land and while prosecuting these appellants for the forgery of the deed of June 26, 1909, would make a statement of this kind in reference to her land, is not logical; it would cause one to stop and consider this testimony, and then reconsider it, and to regard it with suspicion. The witness was shown to have been well acquainted with both appellants and to have been a business partner of one of the appellants. His cross-examination, followed by his contrary testimony as given at the former trial of this case, as testified to by the court stenographer, was a successful impeachment, and would be so received by any reasonable jury. Rachel Barnett testified that she made no such statement to Boyd. The testimony of Boyd was in no way a successful impeachment of the testimony of Rachel Barnett; and this was the only evidence offered by the appellants to contradict the case made by the state. Another strong circumstance against appellants is their failure to place Claud Gallagher, the grantee in the deed alleged to have been forged, upon the witness stand, or to account for their failure to do so. If Gallagher was a bona fide person and this was an honest transaction, his testimony would have materially assisted appellants.

The state proved every material allegation in the indictment by the direct positive testimony of 'two witnesses, Rachel Barnett and Walter Gray, the latter of whom is wholly disinterested. This testimony is corroborated by every circumstance, presumption, and probability.of the case, as gathered from the other evidence. It is not impeached. The actual events of the case are undisputed. The result already attained is the only one that could come from the honest deliberations of reasonable men. The jury could not have reasonably reached any other verdict than the one rendered. The verdict is the conclusion of reason, and, with or without any imperfection that may exist in the record, could not have been otherwise. While the appellants themselves did not forge the deed in question, yet they evidently procured it to be done. Our statute makes all persons who are concerned in the commission of an offense equally guilty as principals. See section 2045, Comp. Laws 1909.

With such a record as this we would not be justified in reversing a conviction except for the most serious errors. We find none such in the record. The judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ.. concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
      Ex parte H. O. JEFFERIES.
    No. A-1749.
    Opinion Filed July 9, 1912.
    (124 Pac. 924.)
    1. EVIDENCE — Circumstantial Evidence. All evidence is largely circumstantial, and evidence, when most direct, depends upon circumstances for its credibility, weight, and effect.
    2. SAME. In cases depending upon circumstantial evidence, where the circumstances proven are not only consistent with the guilt of a defendant, but are also inconsistent with his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the court or jury.
    3. SAME. A single circumstance standing by itself may be of no value as evidence. Two, or three, or more circumstances taken together might not be sufficient to justify a conviction; but, where a multitude of circumstances are proven and are considered together, they may irresistibly establish the guilt of a defendant.
    4. SAME. The link and chain theory with reference to circumstantial evidence is rejected, and the rope or cable theory is adopted. Ex parte Hayes et al., 6 Okla. Cr. 321, 118 Pac. 609, and Ex parte Harkins, ante, 124 Pae. 931, approved and reaffirmed.
    (Syllabus by the Court.)
    Application of FI. O. Jefferies for a writ of habeas corpus.

    Writ discharged.
    On the 25th day of April, 1912, a preliminary trial was commenced before F. L. Hill, a justice of the peace in and for Nowata county, in a case then pending before said justice, wherein the petitioner was charged with the offense of murder. When said trial was completed, said justice ordered that petitioner be committed to jail without bail to answer said charge before the district court of said county. Petitioner obtained a writ of habeas corpus. Writ discharged.

      Bert Van Leuven and O. L. Rider, for petitioner.

      Smith C. Matson, Asst. Atty. Gen., W. V. Thraves, Co. Atty., Walter D. Humphrey, and /. A. Tillotson, for the State..
   FURMAN, P. J.

(after stating the facts as above). This is a case depending entirely upon what is known as “circumstantial evidence.” It is therefore proper for us to consider the value of such evidence. Some courts hold that circumstantial evidence is of secondary importance and is inferior to what is called “direct or positive evidence.” Our investigation and reflections have caused us to reach a different conclusion. All evidence is largely circumstantial, and even when most direct it depends upon circumstances for its credibility, weight, and efr feet. By way of illustration, suppose that a number of persons witness a homicide, and all testify that they saw A. point a rifle at B., who was standing some fifty yards away; that they saw a flash and heard the report of an explosion; that they saw B. fall to the ground, and upon going to his body found a small hole in his forehead and a similar hole in the back of his head; and that B. immediately died. This would be called a case of direct and positive evidence. The evidence would be direct and positive only to the extent that they saw A. point a rifle at B., that they saw a flash and heard the report of an explosion, that they saw B. fall to the ground, that upon examination they found a hole through his .head, and that he died immediately. No witness could testify as a matter of fact that he saw the bullet come out of the gun and pass through the head of B. That the witnesses saw a flash and heard the report of an explosion, based upon past experiences — that is, circumstances — would prove that A. had fired the gun. Yet it would be possible that A. may have missed B., and another may have fired the fatal shot. To carry this illustration further, suppose that half of the witnesses who-saw the homicide testified that B. was not attempting to make an assault on A. at the time of this occurrence, and the other half of the witnesses testified that before A. fired his gun B. had fired at A. This would present an issue of fact to be settled by the jury, and the determination of this question would depend upon a great variety of circumstances, among which might be mentioned the interest or want of interest, bias or want of bias, of each witness in the case, the intelligence of the witnesses, the question as to whether or not they or any of them were suffering from any such physical or mental defect as would impair their sight, hearing, or memory, the viewpoint from which each witness saw the homicide, and the reputation of each witness for truth and veracity. Many other circumstances might be mentioned. All such circumstances must be considered by a jury in weighing the credibility of the witnesses in every case, whether it be of direct or circumstantial evidence. Suppose, for further illustration, we take the case of a contested will, where a number of witnesses testify that they were present and saw the testator execute the will and they signed the same as witnesses at his request, and their evidence is not disputed so far as human testimony is concerned; but, upon an examination of the paper on which the will was written, it is found that the date of the watermark in the paper was several years subsequent to the time of the death of the deceased, which would be the more satisfactory and therefore the best evidence, the direct testimony of these witnesses, or the circumstance of the date of the watermark in the paper? Suppose a number of witnesses testify that they saw a man thrust his hand into a bucket of water, and on taking it out a hole remained in the water where the man’s hand had been. It matters not how positive and direct such testimony was, no sane jury would accept it. Why? Because their past experience, based upon circumstances, teaches them that it is contrary to the laws of nature for a hole to remain in water when a solid object is taken therefrom. This knowledge of the laws of nature and this past experience rest upon a great variety of circumstances too numerous to mention. A thousand different illustrations could be made to the same effect.

From these and other reflections we have come to the conclusion, that it is a mistake to say that “circumstantial evidence” is inferior to what is commonly called “positive and direct testimony.” The truth is that no human' testimony is superior to doubt even in cases of the most direct proof. It is always possible that witnesses may err unintentionally or may corruptly falsify their testimony for reasons which are at the time not apparent and not known. If the law required mathematical certainty either as to matters of fact or as to the conclusions drawn by the courts and juries, the enforcement of law would be impossible.

In Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, this court said:

“Law is not based upon fixed and unchangeable facts, and therefore is not, and cannot become, an exact science. It never has required mathematical certainty either on the part of courts or juries.. In the very nature of things, more should not be required than moral certainty of the guilt of a defendant before inflicting legal punishment, and moral certainty admits the possibility of error in every case. It is largely on this ground that the pardoning power is placed in the hands of the Governor. This is done principally to enable him to give a prisoner the benefit of any new discoveries that may be made favorable to him after his conviction. It is manifest that no one can say as a matter of knowledge that any given person is guilty of a crime for which he has been convicted. It is always possible in any case that the witnesses for the prosecution may have committed perjury or they may have been mistaken as to the facts with reference to which they have testified; and it is also always possible that jurors may have been influenced by improper motives or they may have misunderstood and misapplied the law and the evidence in the case; and it is also always possible that in any case the appellate court may be mistaken as to the law or mistaken as to its application to the facts of the case. If knowledge was required of courts or juries, it would be impossible to have society, government, and law. Matters of knowledge relate to commonplace things of life. The most of the things we believe are spiritual. Herein lies the true distinction between brutes and human beings. The brute knows; the human being not only knows, but also believes and exercises faith. Experience shows that a man is far more apt to be right when he places his belief and faith and action upon a reasonable basis than he is apt to be right ■ when he thinks that he is acting upon his personal knowledge. Of necessity nearly all of our acts are based upon belief, and but few of them are based upon knowledge. If we only acted on knowledge, we would not accomplish much in life. There are very few things we know for certain. No man knows as a fact •that his wife loves -and is faithful to him; but most men would stake their lives upon their faith in their wives. Without this faith the marital relation would not be endurable, and would soon cease to exist, and society itself would crumble to pieces, and the world would relapse into the darkness of barbarism. Our everyday experience confirms the statement. of inspiration that ‘by faith we live, move and have our being.’ The truth is that the only possible standard of action for the enforcement of law is that we must believe to the same degree of moral certainty that we act upon in matters of the gravest concern to ourselves, and, when we so believe and act, we meet the full measure of our duty.”

We feel justified in saying that, in cases of circumstantial evidence, where the facts or circumstances which are proven are not only consistent with the guilt of the defendant, but are also inconsistent with his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the jury.

A single fact standing by itself may be of no value as evidence; two or three or more facts or circumstances taken together might not be sufficient to justify a conviction; but where a multitude of facts ■ or circumstances, some of which may be slight, are taken together and proven to be true, they may irresistibly compel the jury to return a verdict of guilt in a case of the most serious moment. In cases depending upon direct testimony, where but few facts are involved, it is a very easy matter to fabricate the evidence in such a manner as to make detection almost impossible. Herein lies the greatest danger in cases depending upon direct evidence. In cases depending upon circumstantial evidence, witnesses may swear falsely as to the circumstances relied upon; but experience shows that it is impos-. ' sible to fabricate consistency in the circumstances themselves, where many facts are involved. As the law requires, in cases of circumstantial evidence, that the facts or circumstances proven to be true must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, the impossibility of fabricating consistency in the circumstances makes this class of evidence as safe and reliable as human testimony can become.

Suppose for a moment that it was the rule of our being, and * that we were so constituted, that we could not believe anything unless it were demonstrated to us by our own senses, or was testified to by the direct evidence of an eyewitness. What would then be our condition? We would only be able to punish such ■crimes as were perpetrated in the presence of. spectators. All secret murders, arsons, burglaries, forgeries, and other offenses ■could be committed with absolute impunity. Nor would the mischief stop there. New civil controversies could be settled by juries. No book of original entries could be received in evidence; no note or obligation would avail, unless there was a subscribing witness. Indeed, this would not be sufficient, for if he died before trial, the claim would expire with him. An insurance on the life of the witness would not even avoid the difficulty, for the policy would die with its attesting witness. For the same reason, all receipts would perish with those who saw them signed, and all our deeds and muniments of title would be swept away by the death of the subscribing witnesses and the magistrates before whom they were acknowledged. All proof ■of handwriting by comparison being annihilated, commerce would be destroyed, or remitted to its infancy in barbarous ages. With the abolition of legal punishment for crime, mob laws and vigilance committees would supersede the use of courts and juries, and the whole framework of society would be impaired, if not ■destroyed. Not only do business men answer letters, pay drafts, and credit others to the extent of millions daily upon the testimony of circumstances alone, but they commendably carry this faith, as the evidence of things unseen, into the reasoning which ■connects them with the world beyond our own. A trifling circumstance — the fall of an apple — has proved to the satisfaction of philosophers the great laws of gravitation which control the motions of the universe. The same kind of testimony is the prop of our belief in all the great truths of revelation. If we turn from the world without, to the great mechanism within us, we see again that no rational man pauses for one instant to doubt the force of circumstantial testimony. What evidence have we that it is a heart that beats or a brain that throbs within us, except from the fact that those organs exist in all similarly constituted beings? And we accept remedies for “all the ills that flesh is heir to, “upon precisely the same faith in circumstantial evidence. See. Com. v. Twitchell, 1 Brewst. (Pa.) 551.

In the case of Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170, the trial court, in referring to- the necessity of determining the condition of the mind of the accused, said:

“Some say we cannot do it by circumstantial evidence, because it is cruel and criminal, they say,, to convict a man upon circumstantial evidence. This is a declaration of either fools or knaves, sympathetic criminals, or men who have not ability enough to know what circumstantial evidence is, or to perform the ordinary duties of citizenship. When you consider that these two mental conditions, the fact that the act was done willfully, and done with malice aforethought, can never in aiiy case be found in any other way than by circumstantial evidence, you can see the potency in every case of that class of testimony. Circumstantial evidence means simply that you take one fact that has been seen, that is produced before you by evidence, and from that fact you reason to a conclusion.”

An exception was reserved to this instruction; but Chief Justice Fuller, in delivering the opinion of the court, without discussion declared that the objection was without merit.

.There is a deep-rooted and widespread feeling, not only on the part of the public, but among many members of the legal profession and many courts, that circumstantial evidence is to be considered as a chain, of which each circumstance relied upon constitutes a separate and distinct link, and that each such circumstance or link must be proven by the same weight and force of evidence and must be as convincing in its conclusiveness of guilt as though it was the main issue in the case. The fallacy of this theory lies in the fact that it makes every such circumstance or link stand by itself and depend alone upon its own strength. It matters not how strong some links in a chain may be; the weaker links will not gain strength by being connected with the stronger links-. It is manifest that no chain can be stronger than its weakest link. It is utterly impracticable to apply the chain theory to matters of belief. The man who would apply this theory to his private affairs would never accomplish anything. He would be everywhere looked upon as a self-confessed fool. Why should we apply a theory to the administration of justice in ■o.ur courts which we repudiate in every other transaction of life? It is an accepted maxim that straws floating on the surface prove the way that the current is flowing. Every man’s experience demonstrates that his beliefs are based upon a great number of •circumstances, many of which standing by themselves are not fully proven and would amount to nothing, but which, when combined together, give strength to each other and constitute proof as strong as holy writ. From these and other reasons this court has repudiated the chain theory with reference to circumstantial evidence, and has adopted in its place the rope or cable theory as being more in harmony with reason and human experience, and therefore more efficacious in the administration of justice. For further discussion of this matterj see Ex parte Hayes et al., 6 Okla. Cr. 321, 118 Pac. 609, and also Ex parte Harkins, ante, 124 Pac. 931.

The chain theory is largely responsible for the misconception and consequent prejudice which exists in the minds of so many persons against circumstantial evidence. When we start •out with false premises, we are sure to arrive at an unsound conelusion. It may be stated as an axiom that truth is never derived from or will seek companionship with error. It is therefore of the utmost importance that we base our conclusions not only on sound reasoning, but also upon true premises. Instances have been industriously collected in which persons have been wrongfully convicted upon circumstantial evidence which are invariably used for the purpose of intimidating courts and juries and preventing them from enforcing the law upon this class of testimony. But a fair investigation will show that these instances are rare when compared with the great volume of business transacted, and that they have occurred at times and places remote from each other. An investigation will show that a much larger per cent, of persons have been convicted improperly upon direct and positive evidence. The Savior of mankind was crucified upon direct and false testimony. In the first and second verses, twenty-third chapter of St. Luke, we find the following:

“1. And the whole multitude of them arose and led him unto Pilate.

“2. And they began to accuse him, saying, We found this, fellow perverting the nation, and forbidding to give tribute to Caesar.”

Plere was direct and positive testimony which Pilate himself did not believe, but upon which he acted on account of the clamor of the rabble. Stephen, the first martyr in behalf of Christianity after the crucifixion of Christ, was convicted and executed upon direct and perjured testimony. In the sixth chapter of Acts, tenth, eleventh, twelfth, and thirteenth Verses, we have a statement of the testimony upon which he was condemned. It is as follows:

“10. And they were not able to resist the wisdom and the spirit by which he spake.

“11. Then they suborned men, which said, We have heard him speak blasphemous words against Moses, and against God.

“12. And they stirred up the people, and the elders, and the scribes, and came upon him, and caught him, and brought him to the council.

“13. And set up false witnesses, which said, This man ceaseth not to speak blasphemous words against this holy place, and the law.”

If we are going to reject circumstantial evidence because at some remote time and in distant localities some few persons-may have been unjustly convicted thereon, we should be consistent, and we must also reject all testimony, because a great many more persons have been unjustly convicted on direct testimony than have ever been convicted on circumstantial testimony.

The record in this case contains something like 1,000 pages. In it we find the testimony given upon the preliminary examination and also the testimony given upon the examining inquest,, and also a great number of affidavits and counter affidavits filed by the petitioner and also by the state. When the argument was finished, we requested counsel on each side to file a synopsis of the testimony upon which they relied. This was done to prevent the members of this court from overlooking any fact which either side thought was material to its case. Realizing the importance of this case to petitioner and to the state, we have laboriously, and carefully read every word in this record and have endeavored to classify this testimony and to give to each fact or circumstance, whether proven by the state or by petitioner, its due weight in our consideration of the case. To make a complete written review of all this testimony would more than fill a volume of our reports, and we see no good that could be accomplished by so doing, for our decision is only preliminary, and a jury with the witnesses before them must finally pass on the truthfulness of the testimony:

We do not deem it necessary to do more than say that, applying the principles of law hereinbefore discussed to this testimony and considering it all together, we have reached the conclusion that bail should be denied petitioner pending the final hearing. For the conditions under which bail should be either granted or refused in a capital case, see Ex parte Harkins, ante, 124 Pac. 931.

The writ of habeas corpus is discharged, and petitioner is remanded to the custody of the sheriff of Nowata county to await "trial on the accusation pending against him.

ARMSTRONG and DOYLE, JJ., concur.


text:
    ARTHUR McKINLEY v. STATE.
    No. A-1030.
    Opinion Filed July 9, 1912.
    (124 Pac. 929.)
    EAPE — Evidence. For evidence which sustains a conviction for rape in the second degree, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Coal County; A. T. West, Judge.

    Arthur McKinley was convicted of rape, and appeals.
    Affirmed,

      J. W. Johnson and P. B. Wilhelm, for appellant.

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

But one question was submitted in the argument of counsel for appellant, and that was as to the sufficiency of the testimony to ■ sustain the verdict.

The defendant admits that he was a married man at the time of this offense, that he took the prosecutrix driving in the evening, and that when they reached a place suitable for his purpose he got out of the buggy and invited her to get out. On his story on the witness stand and the admission of his counsel before this court, he deliberately and premeditatedly committed an act of adultery. His defense is that the girl consented, and that the jury could not have believed her story or they would have found him guilty -of rape in the first degree. It appears, however, that the evidence of the girl was such that, although believed by the jury, as it evidently was, two different conclusions of fact might be drawn from it. One was that the girl’s physical resistance was overcome by physical force; this would constitute rape in the first degree. The other was that she was prevented from making any effectual resistance' by fear of a pistol presented at her head; and that, although she still made some resistance, she stopped screaming at his threats, and thereafter made only such resistance as would not cause him to execute his threats! The jury drew the latter conclusion, which was most favorable to the defendant as it constituted rape in the second degree. Of this he cannot complain.

She testifies both on direct and cross-examination that the defendant ordered her out of the buggy, and, upon her refusal to get out, he seized her under the arms and dragged her out. That first she pleaded with him, and, finding that of no avail, began to scream for help. This caused him to clasp his hand over her nose and mouth to-stifle the screams. The corroboration of this feature of her story is found in the testimony of Ada Glazier and Drs. Sadler and Clark, who spoke of the girl’s lip being cut and her nose swollen; also,- of bruises on the neck. Failing to stop her cries in this manner, she testifies that he drew a revolver from his pocket, and, pressing it to her temple, threatened .to shoot if she did not stop screaming. Then and only until then did she stop. The defendant does not deny that he had a revolver with him on this trip, although • he states that he did not notice that he had it until after they were started on the drive. Another witness saw him with the revolver on the same evening after his return from the ride, and noticed that he seemed to have been drinking, although not drunk. Although prosecutrix stopped screaming because of his threats, she did not cease all resistance until overpowered. She does not state specifically just what kind of resistance she made after the pistol was drawn; as a matter of fact, it would be difficult for her to remember exactly what she did, except the general consciousness of resistance. It is fair to assume, in view of the testimony, that the pistol made her stop screaming; that it also caused her to make a less effectual resistance than she would otherwise have made. At least, it certainly does not impeach her testimony that the jury should have drawn this conclusion in favor of the defendant and thus have reduced the degree of the crime.

Prosecutrix made complaint immediately after the crime, and witness Ada Glazier testified as follows:

“Q. I will ask you to state when you saw Lizzie Slicker again? Tell when you saw her again? A. When she. arrived home, she had been home fifteen minutes, so they said, when I saw her, after Arthur had left her. Q. Where did you find her? A. In the hall at Mrs. Burtner’s. Q. What was her condition? (Defendant objects as incompetent and immaterial. Objection overruled, to which the defendant excepts.) Q. Where was she and what was her condition ? A. She was in the hall. (Defendant objects as incompetent and immaterial. Objection overruled, to which defendant excepts.) A. Her hair was down, and her lips were slashed, and nose was slashed, and her throat had red streaks on it. Q. What was the condition of her clothing, if anything? A. She had no dress on when I saw her. Q. Do you know anything about what the condition of her underclothing was? (Defendant objects as leading and suggestive. Objection overruled, to which defendant excepts.) A. I can’t say. Q. Answer the question as to whether or not you know what the condition of her underclothing was? A. I don’t know. Q. Who was with Lizzie, if any one? A. At the house when I arrived? Q. Yes. A. Mrs. Burtner. Q. I don’t know whether you have told the jury what Miss Lizzie was doing when you arrived at the house? A. She was laying in the hall. Q. Was she on the couch? A. She was laying on the floor.”

A doctor was called that evening, who testified to a bruise on the neck and swelling of the nose and a cut on one lip. An examination of her person by two witnesses, doctors, the next morning, showed a condition of her body and stains upon her garments consistent with the perpetration of rape. The condition of the girl after the alleged rape, her prompt complaint, the calling of a doctor, her disheveled appearance upon her return, cut lips and swollen face, the fact of lying down upon the floor as as soon as she entered the house — all corroborated the girl’s story and refuted that of the defendant.

We think this evidence fully sustains the verdict. Rape is one of the most brutal, cowardly, and detestible crimes that a man can commit, and when the record shows, as it does in this case, that a defendant is guilty, he need not expect any leniency at the hands of this court. The evidence in this case fills us with loathing and horror, and we deeply regret that the jury did not convict appellant of rape in the first degree and inflict the full penalty of the law upon appellant. The people of Coal county are to be complimented upon their self control and regard for law, as is evidenced by the fact that the3r did not inflict summary punishment upon appellant, without waiting for the law to take its course. The honor of woman is the most sacred thing on earth, and juries and courts cannot be too vigilant and severe in-punishing men who violate it. The fact that this unfortunate girl was a waitress in a hotel calls more strongly for protection. Lecherous brutes who try to take advantage of such girls should be taught that their virtue is as sacred in the eyes of the law as. the virtue of the most popular society favorite.

The jury saw the witnesses and heard them testify, and we see no reason for disturbing their verdict.

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

ARMSTRONG and DOYLE, JJ., concur.


text:
    WILLIAM PALMER v. STATE
    No. A-1217.
    Opinion Filed July 13, 1912.
    (124 Pac. 928.)
    RAPE — Evidence—Sufficiency. Where the testimony of the prosecuting witness is self-contradictory and was obtained through fear, threats, coercion, or duress, and where such testimony is not corroborated by other material evidence as to the commission of the offense, coming from an unquestioned source, a conviction for rape will not be sustained.
    (Syllabus by the Court.)

      Appeal from District Court, Caddo County; Frank M. Bailey, Judge.

    William Palmer was convicted of the crime of rape, and appeals.
    Reversed and remanded.

      Robinson & Johnson, for appellant.

      Charles West, Atty. Gen., for the State.
   FURMAN, P. J.

A number of questions are presented by the brief of the counsel for appellant; but, owing to the disposition which we think should be made of the case, it is only necessary to discuss one question, and that is the sufficiency of the evidence.

When the prosecuting witness, Lucile Jackson, was upon the stand, she was examined through an interpreter, and testified that she was a Kiowa Indian; that appellant, William Palmer, married one of her sisters. She further testified as follows:

“Q. About a month ago didn’t William Palmer come to the camp where you were and get you to get out of bed and go with him? A. No, sir. Mr. Morris: I would like to have her mother brought in here. These people .have been influencing and intimidating this girl, and if her mother is present I think she will tell the truth about it.”

The mother of the girl was brought into court and remained in the courtroom. The examination of the witness then proceeded, as follows:

“Q. Go ahead now, and tell the interpreter, in the presence of the jury, just where William Palmer got you and where he took you to? A.' She says the way I got started to going with him — late in the evening? Q. Was it after dark or before dark? A. Just getting dark. We was getting supper. I was getting out the dishes for supper. I was already engaged with him to go out somewhere.”

She said she asked him if he would take her to his mother’s house, and he said he could not take her to his mother’s house, as he was horseback; and she went to the house and got her clothes and shawl and went back to him, and they went to some oak trees, “and we stood there and talked together awhile, and then went to Mr. Zumalt’s house, and then we talked awhile there; not in the house, but close to the house, and talked while there together” ; and then he said for her to go home, and she went home, and when she got there it was late at night, and her mother whipped her. She was mad.—

“When he took you out in the timber and you sat down, the first time, did he have you lie down and get on you? A. No. Q. Pie got on top of you out there in the timber where you stopped, got on top of you? William Palmer, when he took you out in the timber that night, he had you lay down and he got on top of you, didn’t he: Mr. Robinson: Objected to as leading. By the Court: It seems to be necessary in order to get any answers. Q. William Palmer can’t hurt you a bit in the world. You told your mother, when you went back to the tent, what he had done. You told your mother that Will got on .you, and she whipped you for it, didn’t she? Will Palmer had you lie down when you got out in the timber, didn’t he, Lucile? When you got out in the timber and sat down and talked awhile, that night, you and Will Palmer were out there in the timber together — are you afraid to answer it? Afraid Will will hurt you? A. No, sir. Q.. Did you and Will sit down in the timber that night? (Witness hesitated a minute or two between each question.) A. Yes, sir. Q. And while you were sitting there he had you lay down, and he got on top of you, didn’t he? Explain to her Mr. Interpreter, that she won’t be hurt, and that she must tell the truth about it. A. She says they did not lay down together; that they talked a long time there together. Mr. Morris: I ask that this witness be sent to jail until she will testify and tell the truth. It has not been fifteen minutes since I talked to this witness and she told me the truth about it. By the Court: I suggest that you take witness in the room there and talk to her again. (Whereupon the witness is carried into adjoining room and is consulted with by the county attorney. Being brought back and placed on the witness stand. Continuing then as follows:) Q. Now, Lucile, you and Will Palmer went out and sat down together, by some oak trees that night he took you out? A. Yes, sir. Q. And while you were sitting there by the oak trees he laid you down? A. Yes, sir. Q. And got on you? A. Yes, sir. Q. Put his person into your pe'rson, too, didn’t he? A. Yes, sir. Q. And after you got through, then did you get up? A. Yes, sir. Q. How long did you stay there? A. I don’t know how long. Q. Did you hear your mother calling you when you were there? A. Yes, sir. Q. What did you do when you heard her calling you? A. Went back home. Q. Who took you home? Did William Palmer go back home with you on his horse? A.. Yes, sir. Q. Did he take you clear home, or drop you before you got there? A. He took me back home. Q. How close to your home did he get with you ?. Did he go into the camp with you ? A. No, sir; he stopped a little ways away. Q. Do you know where he went then? A. No, sir. Q. You are not his wife, are you? A. No, sir. Q. Your sister is his wife? A. Yes, sir. Q. You say you don’t know how old you are? A. No, sir.”

On cross-examination said witness testified as follows:

“Q. What did Mr. Morris say to you when he took you in that room there awhile ago? A. He asked me what to do with'my sister’s husband. Q. Didn’t he tell you when he went back there that you need not be afraid to go ahead and tell it on Bill? A. Yes, sir. Q. Didn’t he tell you that you had made a complaint in the county court about this matter, and that you must swear here what you swore there? A. Yes. Q. Didn’t he tell you in that room there a short time ago that, if you did not swear to here what you swore to in that complaint in the county court, you would be guilty of perjury and would be punished for it? A. Yes, sir. * * * Q. Didn’t you state on last Saturday, in this room, in the law office of Robinson & Johnson, in the presence of Mr. Charles Canon, Arch Stroud, and Berthan Jackson, C. R. Johnson, and R. K. Robertson that your mother was the cause of you coming and making a complaint and had you to. swear falsely about this matter? A. Yes, sir, I said that. Q. Was that true or not? Mr. Morris: Objected to as calling for a conclusion of the witness; it is for the jury to determine. By the Court: Overruled. Q. Was that true or not? A. Yes, sir; I told the truth. Q. Ask her if she did not also state, at the same time and place, and in the presence and hearing of the same parties I have just named, that her mother made her come here and make the complaint? A. Yes. Q. Is that true; that your mother forced you to make this complaint? A. Yes.”

The witnesses in this case, with one exception, were Mexican and Indians. Their testimony as a whole is a vague and ■confused mess, relating to many immaterial matters. There is not one word of testimony in the record which in any manner tends to prove that the appellant is guilty of the offense of which he was convicted, except the evidence of the prosecuting witness. We are not unmindful of the difficulties which arise in the prosecution of such cases as this, and, where the testimony of the prosecuting witness is consistent in its details and free from suspicion of being manufactured or of being influenced by improper motives, we would not disturb the verdict of a jury simply upon the ground that her testimony was not corroborated. The .settled rule of this court is that, where there is any evidence in the case from which the jury could reasonably believe that the defendant is guilty of the offense of which he has been convicted, their verdict will not be disturbed on the ground of the insufficiency of the evidence. We do not think that this case comes within this rule. In the first place, this young woman when placed upon the witness stand positively denied that appellant had been guilty of any improper conduct with her. The prosecuting attorney requested the court to send her to jail until she would testify according to statements which she had previously made to him. The prosecuting attorney was then permitted to take the witness into an adjoining room. Upon her return to the courtroom she affirmatively answered the questions asked her. ■On cross-examination she stated that she was informed in this room that, unless she swore on the witness stand to what she had testified to in her complaint in the county court, she would be guilty of perjury and would be punished for it. So it appears from the record that her testimony was obtained through threats, fear, coercion, and duress. We do not believe that any man should be deprived of his liberty on such testimony as this, unless it is corroborated by other material testimony coming from an unquestioned source. It is true that appellant is only a poor ignorant Indian, and it is possible he may be guilty of this offense; but we cannot understand how a jury could reasonably find from the evidence in this case beyond a reasonable doubt that he was guilty. We are aware of the horror and detestation with which all good men look upon the crime of rape, and we think that this had more to do with the conviction of appellant than the testimony in the record. The enormity of the crime with which a defendant is charged should never be allowed to supply a want of credible testimony to support such accusation. Courts and juries should act alone upon testimony, and not upon sympathy or prejudice. In fact, the more our sympathies and prejudices are aroused, the more careful we should be in considering the testimony in a case. We believe that it would be an exceedingly dangerous precedent to allow a conviction to stand based upon the testimony in this record. This court is far more interested in the administration of justice than we are in maintaining technical regularity.

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

ARMSTRONG and DOYLE, JJ., concur,


text:
      Ex parte JACK WHEELER.
    No. A-1785.
    Opinion Filed July 13, 1912.
    (124 Pac. 764.)
    FALSE PRETENSES — Obtaining Professional Services — Collection of Debts. The criminal laws of Oklahoma eannot be used for the purpose of collecting debts created for any kind of professional or personal service.
    (Syllabus by the Court.)
    Petition of Jack Wheeler for writ of habeas corpus.

    Petitioner discharged.

      Winn & Brill, for petitioner.

      E. G. Spilman, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

The petitioner, Jack Wheeler, is confined in the jail of Oklahoma county to await final trial in the district court upon the charge of having obtained professional services of the value of $100 from Dr. R. S. McCabe by means of certain alleged false representations.

The Attorney General suggests to the qourt that there is no statute under which this prosecution can be maintained. In this opinion we concur. The criminal laws of Oklahoma cannot be used for the collection of debts created for any kind of professional or personal service.

It is therefore ordered that the petitioner be discharged from custody, and that the prosecution against him be dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    J. ORLANDO MITCHELL v. STATE.
    No. A-958.
    Opinion Filed July 18, 1912.
    (124 Pac. 1112.)
    1. APPEAL — Review—Presenting Question in Trial Court, (a) Where the record shows that the regular judge is disqualified and that a special judge has been selected by the parties and sworn and has presided at the trial, the form of the oath administered to such special judge cannot for the first time be questioned upon appeal. (b) Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court.
    2. SAME — Construction of Penal Statutes — Presumptions on Appeal — Duties of Prosecuting Officers, (a) The common-law doctrines of a strict construction of penal statutes and that error presumes injury have no place in the criminal jurisprudence of Oklahoma. On the contrary, penal statutes in this state are liberally construed in furtherance of justice and for the purpose of enabling them to reach and destroy the evils at which they are aimed, and no ease should be reversed upon appeal on any technicality or exception unless it appears from the record that thereby the appellant was deprived of a substantial right to his injury.
    (b) County attorneys and all other officers of the state of Oklahoma should exercise the utmost diligence in the prosecution of persons who commit perjury, in order that it may become as dangerous to criminals as it is odious to reason and ruinous to justice.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; W. J. Sullivan, Special Judge.

    J. Orlando Mitchell was convicted of perjury, and appeals.
    Affirmed.
    Appellant was convicted in the district court of Muskogee county for the offense of perjury, and his punishment was assessed by the jury at confinement - in the penitentiary for the period of ten years.
    In substance and effect the information in this case charged that appellant had testified falsely in a civil suit pending in the district court of Muskogee county as to the execution of a certain deed to a tract of land described in said deed. The charging part of the information touching this matter is as follows:
    “The said J. Orlando Mitchell did then and there, on his oath so as aforesaid taken, falsely, corruptly, knowingly, willfully, feloniously, and contrary to such oath, state and testify in substance that the deed exhibited to him was the deed executed by Tony Harred and Mary Harred to Maud Mitchell and which was acknowledged by the said Tony Harred and Mary Harred before J. M. Morton as notary public. And that the said Toney Harred and Mary Harred did sign said deed and did acknowledge the same before the said J. M. Morton as notary public. And that said deed was delivered to him by the said Tony ITarred and Mary Harred for the said Maud Mitchell. Whereas, in truth and in fact the said Tony Harred and Mary Harred had not signed or executed said deed, and said Tony Harred and Mary Harred had not in fact acknowledged the execution of said deed before said J. M. Morton as notary public or any other officer, and that said J. Orlando Mitchell then and there well knew that the said Tony Harred and Mary Harred had not signed or executed said deed before J. M. Morton as notary public. And the said false statements so upon oath made by him, the said J. Orlando Mitchell, were material to the questions and matters then and there in issue before the said court and jury.”
    Omitting mere formal matters, the testimony relating directly to the guilt of appellant may be stated as follows:
    George IT. Leslie testified that he was the official stenographer of the district court of Muskogee county and held this position in June, 1909; that he acted as such stenographer in the trial of the case of Tony ITarred et al. v. Maud Mitchell et al.; that appellant was one of the defendants and testified at the trial of said cause that Tony Harred and his wife executed the deed in question in his presence; that appellant was sworn as a witness at the time by the deputy district clerk.
    Ross Houck testified that he was deputy clerk of the district court of Muskogee county; that he was present at the trial of the case in which the perjury is alleged to have been committed; that he swore the witnesses in the case; and that appellant testified as one of the witnesses, and he heard appellant testify that the deed in question was executed in his presence by the parties whose names were attached thereto.

      Hon. John H. King testified that he was judge of the district court of Muskogee county; that he presided at the trial of the case in said court in which it is alleged the perjury charged in this case was-committed; that appellant was a witness on said trial and testified that the deed in question was executed in his presence by the parties whose names were signed thereto.
    Toney Harred testified,that he was a freedman citizen of the Creek Nation, and as such freedman citizen he owned certain lands in said Nation; that the witness had not executed the deed which was charged to have been forged, and did not authorize any other person to sign his name to said deed; that the witness, could not write and never signed his name in his life; that he did! not touch the pen and make a mark when any other person signed! said deed; that the witness had had a lawsuit about some land with Maud Mitchell and appellant in the district court of Muskogee county; that witness had never leased his land to appellant. One of the jurors interrogated the witness as follows:
    “Q. Tony, did you ever touch the pen for any paper for Mitchell? A. No, sir; never did. Q. Neither at your home nor in town? A. No, sir. Juror: That is all.”
    Mary Harred testified that she was the wife of Tony Harred; that appellant came to her house and talked about buying, the land in question, and her husband told appellant he did not want to sell it; that the papers were fixed up and no sale was ■made; witness did not sign any paper for Mitchell or for any one else; that witness cannot write; that witness knows nothing about the deed in question; that she never signed it or authorized any one to sign it for her either at this time or anywhere else; witness was never in the office of appellant; that witness, never saw appellant from the time appellant was at her house-until she saw him in court when they had the trial about the-matter.
    George K. Davidson testified that he lives in Muskogee;, that he is acquainted with the appellant and also with the state’s-witness, Tony Harred; that he went with appellant to the house-of Tony Harred; that appellant desired to purchase some land from Tony Harred, but no sale was made; that Tony Harred! and his wife refused to sell the land and no deed was executed. The witness then testified as follows:
    “Q. I hand you an instrument marked ‘State Exhibit C. No. 649,’ and ask you to look at that. Can you read and write? A. Yes, sir. Q. Is your name signed to that deed? A. Yes, sir. Q. As a witness? A. Yes, sir. Q. Did you ever see that deed before? A. Yes, sir. Q. Where was the first time you saw it? A. The first time I saw it when I signed as a witness. Q. The first time you ever saw that instrument? A. It was in Mitchell’sj office the first time I ever saw it. Q. J. Orlando Mitchell’s office? A. Yes, sir. Q. George, did Tony Harred sign that deed you have there in your hand? A. No, sir. Mr. Haskell: We object. By the Court: Objection overruled. Mr. Haskell: The defendant excepts. Q. Were you present when that deed was executed? A. I was present when we signed as witnesses, but they were not there. Q. Who was not there? A. Tony Harred and Mary Harred. Q. Who was there? A. Morton, Mitchell and myself. Q. Where was that deed signed? A. In Mitchell’s office. Mr. Haskell: If the court please, Mr. Owen is trying to avoid the ruling of the court, he is trying to prove it was a forgery. Mr. De Graffenreid: The purpose of this testimony is to corroborate the statements of old man Harred and his wife that they never signed this deed, and we are permitted certainly to show by this witness that he saw the deed executed, saw the deed signed with Mary Harred and Tony Iiarred’s name to it; that they didn’t sign it, and that Mitchell knew they didn’t sign it; that is the material issue in this case, and that Mitchell knew that fact when he testified to it in the district court. Now, if Mitchell was present and saw it signed, then he knew it was not signed by them. By the Court: I will say by the way I think we can save time, my understanding of this line of questions is not on the question ■ of the forgery by Mitchell but on the question of Mitchell’s perjury as to the signature of the deed. Mr. Owen: Yes, sir; and, before the jury is authorized to convict, we must first prove he really saw the deed executed, then we must prove that the deed was not executed, and then that Mitchell knew when he swore it that it was not executed. By the Court: I will overrule the obj ection, and if it doesn’t come up' to the information I will so instruct the jury. Q. George, name all the persons present when that deed was executed. Mr. Haskell: We object. By the Court: Objection overruled. Mr. Haskell: The defendant excepts. A. Morton, Mitchell, and myself. Q. You mean J. i Orlando Mitchell. A. Yes, sir. Q. Was Tony Harred and Mary Harred either there? A. No, sir. Mr. Haskell: We object. By the Court: Objection overruled. Mr. Haskell: The defendant excepts. Q. Who signed Tony Harred and Mary Harred’s names to the deed? Mr. Haskell: We object. By the Court: Objection overruled. Mr. Haskell: The defendant excepts. A. Mr. Morton. Q. Was J. Orlando Mitchell present? A. Yes, sir. Q. At the time Morton signed Tony Harred and Mary Harred’s names in the presence of Mitchell, was Tony and Mary there? A. No, sir. Q. So far as you know they authorized or directed that their names be signed to that deed? A. Not as I know of. Q. Were you present at Tony’s house when he and J. Orlando Mitchell talked about the land? A. Yes, sir. Q. Did he at that time, or did Mary at that time, agree or authorize that their names be signed to any deed? A. No, sir. Q. Were you present when the civil suit was brought to cancel that deed? A. Yes, sir; I was present. Q. Were you in the court room? A. Yes, sir. Q. Was J. Orlando Mitchell a witness at that trial? A. Yes, sir. Q. Did you hear what he said about the execution of that deed as to who executed it? A. I think I did. Q. What did he say about it? A. Why he said we were out there twice, and that he paid them some money. Q. Out where? A. Out to Tony Harred’s house. Q. Who did he say was out there? A. Mr. Morton and he and myself. Q. Did you hear him testify that? A. Yes, sir. 'Q. Was that true or not? A. It was not true. Q. Who was the judge at the trial of that case? A. Judge King. Q. Where was that, in what county did he testify to that? A. Muskogee county. Q. That is all.’*
    The appellant offered no testimony.

      Kistler & Haskell, for appellant.

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

(after stating the facts as above). The first proposition submitted in the brief of counsel for appellant is that the oath administered to the special judge who presided at the trial of this, cause is not in compliance with the Constitution and laws of the United States, which requires all state judges to be sworn to support the Constitution of the United States. Our Constitution is to-the same effect. See Williams’ Const, sec. 315.

The record upon this subject is as follows:

“State of Oklahoma v. J. Orlando Mitchell. No. 649.

“Now on this day comes the state by its attorney, and comes also the defendant in person and by his attorney, and said defendant being arraigned is served with a copy of the information and list of witnesses indorsed thereon, and says his correct name is J. Orlando Mitchell, and now said defendant waives time to plead and for his plea herein says that he is not guilty, as charged in the information, and the presiding judge being disqualified, by agreement of parties W. J. Sullivan, Esq., an attorney at this bar, is selected to preside as judge at the trial of this case. And now said W. J. Sullivan is now duly sworn in open court. Said oath, together with the indorsement therein, is in words and figures as follows, to wit:

“In the District Court for the Third Judicial District of Oklahoma, Muskogee County.

■“State of Oklahoma, Plaintiff, v. J. Orlando Mitchell, Defendant. No. 649.

“I, W. J.. Sullivan, do solemnly swear that I will well and faithfully perform the duties of special judge in the above entitled and numbered cause to the best of my ability, so help me God. W. J. Sullivan.

“Subscribed and sworn to before me this 23d day of May, 1910.

[Seal] W. P. Miller,

“Clerk District Court.

“By Ross Houck, Deputy.

“Endorsed: No. 649. State of Oklahoma v. Orlando Mitchell. Oath of Special Judge. State of Oklahoma, County of Muskogee. Filed May 23, 1910. W. P. Miller, District Clerk.

“Said oath having been taken in the presence of the defendant.

. “And this cause being now called for trial, and both sides having announced ready for trial, a jury is called to try this case and comes as follows; the defendant being present in person.”

A further examination of the record discloses the fact that appellant did not attempt to raise this question in the court below. He was present in open court and was represented by able and experienced counsel who were also present when the ■oath was administered, and they knew exactly what it contained and did not interpose any objection to it at any time during the trial. An elaborate motion for a ne'w trial was filed in which 22 grounds were urged upon which the judgment of the court should be set aside. This motion for a new trial does not contain any reference to the question now presented. In their brief, counsel have not cited a single authority holding that the omission of which they now complain constitutes reversible error. Knowing as we do the- industry, learning, zeal and ability of counsel for appellant, we would be disposed to regard this failure on their part to cite authority in support of their contention as an admission that no such authority exists. But we will not act upon this assumption. The question now presented raises the issue of the sufficiency of the oath administered. We do not deem it necessary at this time to discuss this question, because the record affirmatively shows that the trial judge was both selected and sworn. We do not think that the form of the oath administered to a special judge is a jurisdictional question and can therefore be raised for the first time upon appeal. Whatever objections appellant may have been able to offer to the form of this oath were waived by his failure to present them at the proper time. Except in matters specially provided for by statute, our jurisdiction is appellate, only, and we cannot pass upon irregularities which are not jurisdictional unless they were first presented in the trial court. Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court. It would be fatal to the administration of'justice if we were to permit counsel for a defendant to acquiesce in an irregularity occurring during the trial when a timely objection would have cured the irregularity and prevented the possibility of injury, and raise such question for the first time in this court.

Second. Appellant’s counsel have displayed great learning and industry in the brief which they have filed in this court, covering as it does 61 pages. In this brief they discuss a number of questions and cite innumerable authorities to sustain their contention. It is unfortunate for appellant that a purely technical defense is not available in this state. From the day of its creation, this court has refused to recognize and follow the common-law doctrines that error presumes injury and that penal statutes are to be strictly construed. On the contrary, it is now settled in this state that, where the record shows that an appellant has been fairly tried and his guilt is clearly made out by the testimony, a verdict of conviction will not be set aside upon any technicality or exception which did not deprive the appellant of a substantial right to his injury, and that such injury will not be presumed but must reasonably appear from the record. It is also equally well established that penal statutes should be liberally construed in the furtherance of justice and for the purpose of enabling them to reach and destroy the evils at which they are aimed. It is therefore a waste of time for counsel to cite authorities from states which differ so radically from the fundamental principles upon which our system of criminal jurisprudence is based. This court has not undertaken any radical innovation upon the law, but is simply carrying out in good faith the statute law of this state, which we are sworn to enforce. We have quoted these statutes so often that it should be unnecessary to refer to them again, but as attorneys for appellants persist in filing briefs in this court which directly ignore the law of the state, we will call the attention of the bar to these statutes again.

Section 6487, Comp. Laws 1909, is as follows:

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

Section 6957 is as follows:

“On an appeal the court must give judgment without regard to' technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

If- attorneys, in preparing their cases for appeal, would keep these two statutes constantly in mind, they would save themselves a great deal of unnecessary labor, and their services would be more valuable to their clients. It is simply a waste of time and ■ labor to discuss questions on appeal which do not go to the substantial merits of a case, and the overcrowded condition of our docket prohibits us from taking part in such discussions. Nothing can be gained thereby. We already have more work on our hands than we can possibly do in deciding questions which involve substantial merit. In the case at bar the state’s testimony made out a plain and direct case of perjury, to which no meritorious defense has been made. The jury accepted the testimony of the state as true. This was their exclusive prerogative. So far as the merits of the case are concerned, appellant might just as well have pleaded guilty. Even if we were to sustain all of the contentions of counsel for appellant, it could do him no possible good, because there are no fundamental errors in this record.

As the verdict rendered is the only one which could have been rendered by the jury, we cannot say that the appellant has been deprived of any substantial right to his injury. Our views on the subject of perjury are fully expressed in.the case of Coleman v. State, 6 Okla. Or. 252, 118 Pac. 594, and it is not necessary that we should repeat here what we said there, as we have no desire to recall or modify the views then expressed. We again call upon county attorneys and all other officers of the state to exercise the utmost diligence in prosecuting persons for perjury, in order that it may become as dangerous to criminals as it is odious to reason and ruinous to justice.

We find no material error in the record, and, as the testimony clearly established the guilt of appellant, the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
      Ex parte JOE B. HARDWICK.
    No. A-1784.
    Opinion Filed July 16, 1912.
    (124 Pac. 947.)
    1. BAIL — Determination of Application for Bail — Feature of Self-Defense. Ordinarily it is not necessary to discuss the law of self-defense on an application for bail in a murder case, because under our Constitution a party so charged is entitled to bail as a matter of right, unless the proof is evident or the presumption is great that he is guilty of a capital offense.
    2. SAME — Evidence. See opinion for statement under which applicant could not be legally convicted for a greater offense than manslaughter in the first degree.
    (Syllabus by the Court.)
    Application by Joe B. Hardwick, confined in the jail of Marshall county on a charge of murder, for writ of habeas corpus.

    Writ granted, and bail fixed at $15,000.

      Kennamer & Coakley„ for petitioner.

      J. O. Minter, Co. Atty., for the State.
   FURMAN, P. J.

The homicide in this case occurred on the 29th day of June, 1912, at a picnic near the town of Madill, in Marshall county, Okla. Petitioner is city marshal of the town of Kingston, in Marshall county.

The evidence in the case is voluminous, but it may be summarized as follows: There had been bad blood between petitioner and deceased for some time. Deceased was drinking on the day of the homicide. In fact, one of the state’s witnesses testified that deceased was very drunk, and that on this account said witness shunned him. A number of witnesses testified that at different times during the day deceased was heard to express hostile feelings toward petitioner and threatened to kill petitioner ; that deceased had with him a knife which he carried open in his hand. -Petitioner was informed of these threats. The affidavits of nine persons, some of whom are known to members of this court as being entirely worthy of credit, were filed. They swore that deceaséd when drinking was a very quarrelsome, dangerous man. After the homicide was committed, when the body of deceased was examined, a knife with the blade open was found in the pants pocket of deceased. There is practically no dispute as to the above matters. There is a conflict, however, in the testimony as to the circumstances immediately attending the killing.

In view of the reputation of deceased as being a dangerous man when drinking, of the threats which he had made against petitioner, the fact that he had been following petitioner around with an open knife in his hand, and the fact that his knife was found open in his pants pocket after the killing, we do not believe that, taking the strongest view of the credible testimony for the state, petitioner could be legally convicted of more than manslaughter. Petitioner testified that at the time of the shooting deceased was coming toward him with his hand in his pants pocket, looking at the petitioner in a very angry manner. In a negative manner this testimony was contradicted by the evidence for the state. In fact, the testimony as to just what • occurred at the time of the homicide is by no means clear. We base our order allowing bail upon the other facts in connection with the uncertainty as to what did occur at the time of the killing. It is true that there is an affidavit in the record to the effect that petitioner had made threats against the deceased; but, in view of the entire evidence in the record, the statements contained in this affidavit do not commend themselves to the court.

It is not necessary to discuss the law of self-defense, because under our Constitution petitioner is entitled to bail as a matter of right, unless the proof is evident or the presumption is great that he is guilty of a capital offense. We express no opinion as to the question of justification.

It is ordered by the court that petitioner be admitted to bail in the sum of $15,000, to be approved by the clerk of the district court of Marshall county, Okla., to await final trial on the charge pending against him.

ARMSTRONG and-DOYLE, JJ., concur. .


text:
    S. S. STARR v. STATE.
    No. A-1355.
    Opinion Filed July 20, 1912.
    (124 Pac. 1104.)
    1. APPEAL — Reception of Incompetent Evidence. As a general rule, a defendant is entitled to be tried on legal evidence alone, but this does not mean that a conviction will be necessarily reversed because of the reception of incompetent testimony.
    2. SAME — Harmless Error. The admission of hearsay evidence as to the possession of property alleged to have been stolen in a larceny case is harmless error, where the defense is that such property was honestly in possession of the defendant in good faith, and as the result of a legal purchase.
    3. EVIDENCE — Res Gestae — Other Crimes. In a prosecution for larceny of two cows, evidence that other cattle were taken from the same range at the same time is proxierly admitted as a part of the res gestae to negative the idea of mistake and to show the intent with which the cattle were taken.
    4. APPEAL — Harmless Error. Under the plain mandates of the statutes of this state, judgments of trial courts should not be reversed upon appeal on any technicality or exception, unless it appears from the record that appellant was thereby deprived of some substantial right, to his injury.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; R. C. Allen, Judge.

    S. S. Starr was convicted of grand larceny, and appeals.
    Affirmed.

      S. M. Rutherford, for appellant.

      Smith C. Matson and Joseph L: Hull, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

This is a companion case to that of Davis v. State, ante, 123 Pac. 560.

The facts of this case are the same as the facts stated in Davis’ case, except that a number of additional witnesses testified against appellant whose testimony was not available when Davis was on trial.

Clifford Sellers testified for the state that, at the request of appellant, Starr, he assisted appellant and Bob Davis in driving the cattle in question from the Briartown range in Muskogee county on June 14, 1910; that among them were the two head of cattle belonging to T. J. Jemison alleged to have been stolen; that Leonard McCullough assisted them in driving these cattle from their range to Checotah, where they were shipped by Davis and Starr to a commission house in Kansas City and sold; that on Saturday, a week after the theft was committed, witness was informed that warrants were out for the arrest of the parties above named, and for several days they hid out in the mountains near Porum; that in a few days appellant and Davis decided to surrender themselves; that, after giving up and giving bond, they met witness at the house of one Sis Stan-, and told witness he must leave the country; that, if he and a man named H. L. Foster would leave, appellant and Davis could beat the case, and that they never permitted any person to testify in court against them; that they told witness to meet them in Tahlequah; that witness and Foster went to Tahlequah and stayed at the house of one Carlyle until Starr and Davis came; that Starr and Davis then gave witness and Foster each $100 with which to leave the state; that witness and Foster then went to Montana. H. L. Foster corroborated the statement of the witness Sellers. There is testimony in the record from which it appears that Foster was also an accomplice in the theft committed. A number of other witnesses were sworn whose testimony corroborated the testimony of Sellers and Foster.

In view of the full statement of the evidence in the case of Davis v. State above referred to, it is not necessary that we should incumber the record by stating the evidence in detail. The evidence for the state, if believed by the jury, made out a plain, straight case of cow stealing. We see nothing in the record to cause us to believe that the jury was not fully justified in accepting the testimony for the state and in rejecting the testimony for the defense. It is insisted, however, in the brief of counsel for appellant that this conviction should be reversed because of some hearsay evidence which is alleged to have been improperly admitted as to the possession of the stolen property.

It is not necessary for us to discuss this question, because, even if the evidence was improperly admitted, it was harmless. The defense is that appellant’s codefendant Davis was honestly in the possession of the cattle, having purchased them in good faith. Therefore the question of possession of this property was not in issue. Appellant could not possibly have been injured by evidence which was in harmony with his own defense.

In the case of Rhea v. Territory, 3 Okla. Cr. 230, 10.5 Pac 314, this court said:

“It is true as a general rule a defendant is entitled to be tried on legal evidence alone, but from this it does not necessarily result that a reversal should follow the reception of incompetent testimony in every case. The Court of Criminal Appeals of Texas has time and again decided that the admission of incompetent evidence, which could not have prejudiced the defendant, is not cause for reversal. Avery v. State, 10 Tex. App. 199-212; Post v. State, 10 Tex. App. 579-595; Logan v, State, 17 Tex. App. 50-57; Bond v. State, 20 Tex. App. 421; Hooper v. State, 29 Tex. App. 614, 616, 16 S. W. 655; Sargent v. State, 35 Tex. Cr. R. 325-337, 33 S. W. 364; Shaw v. State, 39 Tex. Cr. R. 162, 45 S. W. 597; Roberts v. State [Tex. App.] 16 S. W. 255; Lettz v. State [Tex. Cr. App.] 21 S. W. 371. In the case of Stephens v. State [Tex. Cr. App.] 26 S. W. 728, it is held that, although evidence may be improperly admitted against a defendant, if he takes the stand and testifies to the same thing, the error is harmless.”

The twelfth ground relied upon for a reversal of this conviction is presented in the brief of counsel for appellant, as follows:

“Because the court erred in permitting the county attorney to prove by the witness J. W. Jemison, being one of the men from whom cattle were alleged to have been stolen, the following: ‘Direct examination by the county attorney: Q. Did you lose any cattle at that time? A. Yes, sir. By Mr. Rutherford: We object to the question, and ask that it be stricken. By the Court: Overruled. . By Mr. Rutherford: To which we except as incompetent, irrelevant, and immaterial, and as improper testimony. Q. How many did you lose? A. Two. Q. Did your brother lose any? By Mr. Rutherford: We object to that question. By the Court: Objection overruled. By Mr. Rutherford: Exception. A. Yes, sir. Q. How many? A. Two. Q. Do you know of any of your neighbors there losing any cattle at the same time ? By Mr. Rutherford: We object to that question. By the Court: Overruled. By Mr. Rutherford: To which we except. A. Yes, sir. Q. AVell, name them, and tell how many they lost, if you know. By Mr. Rutherford: We object to that question as incompetent, irrelevant and immaterial. By the Court: Objection overruled. By Mr. Rutherford: Exception. A. Brashears lost two, Jim McClure lost one; old man Wilcox lost one; Mullens lost one. I don’t know whether I can call all of them. There were several.”

It was shown that these cattle all ran together on the same range, and were all taken at the same time. The evidence objected to was a part of the res gestae, and was admissible to negative the idea of a mistake and to prove the intent with which the cattle were taken.

Every inch of ground in this case was ably and stubbornly contested in the court below by counsel for appellant, and exceptions were reserved to nearly everything done during the trial. That appellant was convicted was in no manner due tO' want of zeal and ability on the part of his counsel. A most elaborate brief of 50 printed pages has been filed in this court in which every possible objection is presented that could be thought of to' the proceedings in the court below. In every hotly contested case irregularities are likely to occur; but under the plain mandates of the statutes which we are sworn to enforce we cannot set aside judgments of trial courts upon any technicality or exception, unless -it appears from the record that appellant was thereby deprived of some substantial right, to his injury. We find no such error in this record.

Appellate courts should never forget that laws are enacted and courts are established at great expense to the state for the sole and exclusive purpose of enforcing justice, suppressing crime, and protecting society. All of their decisions should make these objects the paramount consideration to be consulted. It would be a gross abuse of our power' if we were to ignore the statutes of this state, and attempt to build up a technical system in Oklahoma which would result in encouraging crime- and in protecting criminals, to the injury of society.

From the record it appears that appellant has been fairly tried and justly convicted. The judgment of the lower court is therefore in all things affirmed.

DOYLE, J., concurs; ARMSTRONG, J., not participating.


text:
    FRANK BLACKBURN v. STATE.
    No. A-1236.
    Opinion Filed July 20, 1912.
    (124 Pac. 1111.)
    1. OBSCENITY — Evidence—Sufficiency. For evidence which did not warrant a verdict of guilty for using obscene language in the presence of females, see opinion.
    2. EVIDENCE — Identification. Before a witness can be permitted to identify another person by his voice, he must testify that he has heard such person speak, and knows the voice of the party so identified.
    (Syllabus by the Court.)

      Appeal from Pottawatomie Coimty Court; Ross F. Lockridge, Judge.

    Frank Blackburn was convicted of using improper language in the presence of females, and appeals.
    Reversed and remanded.

      J. T. Williams, for appellant.

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

Appellant was prosecuted for having uttered and spoken obscene language in the presence of Mrs. Alex Shipley, in Pottawatomie county, Okla., on the night of the 5th day of September,' 1910. The specific language alleged to have been used is set out in the information, but it is of too vile a nature to be reproduced here.

This prosecution was ♦instituted under section 2056, Comp. Laws, 1909, which is as follows:

“If any person shall utter or speak any obscene or lascivious language or word in any public place, or in the presence of females, or in the presence of children under ten years of age, he shall be deemed guilty of a misdemeanor, and upon conviction therefor before any justice of the peace of this state, he shall be liable to a fine of not more than one hundred dollars, or imprisonment for not more than thirty days, or both, at the discretion of said justice.”

The evidence discloses the fact that the .appellant, in company with three other young men, viz., Joe Cline, John Newport, and Lex Sane, on the night of September 5,'1910, were traveling on the public road, going from the city of Shawnee to their homes in Pottawatomie county, and that while so doing they passed .near the house of Mr. Alex’Shipley, when some one of them used the language charged in this prosecution, within the hearing of Mr. and Mrs. Alex Shipley, who were sitting on their front porch about three rods from the public road. As the information states the exact language alleged to have been used, and states the female in whose presence it was spoken, the state is confined in its proof to the specific charges therein under the statute.

Alex Shipley testified that he lived two and one-half miles west of Shawnee, in Pottawatomie county; that on the night of the 5th day of September, 1910, in company with his wife, he was sitting on his front porch; that the public road ran right in front of his house; that four men passed this road on horseback, two riding one horse, the other two riding one horse each; that these men were making a lot of racket, one of them was preaching and others- were calling on persons to join the church; that one of them said, “Come on boys and hush, and let’s go home,” and one of them replied, using the language set out in the information; that witness and his wife were sitting on the porch about three rods from the road; that witness could not recognize either one of the parties on horseback passing his house. Witness was asked this question:

“I will ask you, Mr, Shipley, if in your judgment whether you noticed the voice of the man using that obscene language as to it being Frank Blackburn? A. Yes, sir; it was Frank Blackburn to the best of my knowledge.”

On cross-examination he testified he could not say that this was true, except it was his best judgment. There was no dispute as to the use of the language as testified to by the witness Shipley.

Joe Cline testified on behalf of the defendant that he was one of the boys who passed the house of the state’s witness Shipley on the night of the 5th day of September, 1910. This witness corroborated the statement of Alex Shipley as to the conduct of the young men when passing his house. He swore that the specific language complained of was used by John Newport. He acknowledged his participation in the disorderly conduct complained of, and stated he had pleaded guilty and paid a fine of $63.60 on account of his conduct, and that John Newport had left the country, and had not been seen since. He denied that appellant used the language attributed to him. He testified that he and John Newport were the only persons who were drinking and conducting themselves in a disorderly manner, and that the witness and said John Newport were the men who made the disturbance, and that appellant had taken no part in it.

Appellant testified that he was seventeen years old, and was present on the occasion referred to. He denied using the language attributed to him, or that he took part in the disturbance, except that he tried to keep the boys quiet.

It is not necessary to discuss the questions of law raised in this case, as we think upon the whole testimony the verdict, is contrary to the evidence.

Testimony identifying the voice or handwriting of another is necessarily a matter of opinion. While it is permitted by law, yet it should not be received, unless the witness first states facts which qualify him to form and express a reasonably reliable opinion. In the case before us the state’s witness Shipley did not state any facts which would qualify him to swear to the voice of appellant. He did not state that he had ever heard appellant speak, or that appellant’s voice possessed any peculiarities or characteristics by means of which it could be identified. In fact, the witness himself was by no means certain as to the identity of appellant. His testimony on this question is therefore not suffi■cient to support the verdict, in view of the testimony offered by •appellant, and which appears to be entirely reliable. This case reminds us of the story of old dog Tray, who was innocent, but who was condemned and severely beaten for being caught in bad ■company. That Joe Cline and John Newport were guilty and should be severely punished there is no question.

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

ARMSTRONG and DOYEE, JJ„ concur.