text:
    OSCAR NEIGHBORS et al. v. STATE.
    No. A-2520.
    Opinion Filed May 26, 1917.
    (164 Pac. 1355.)
    APPEAL AND ERROR — Conclusiveness of Verdict. When tlie facte disclosed by tbe proof in a criminal case clearly warrant a verdict of conviction, a reversal will not be granted by this court on the ground that the verdict and- judgment are contrary to the evidence.

      Appeal from District Court, Comanche County; Cham Jones, Judge.

    Oscar Neighbors and James Hourigan were convicted of larceny, and they bring error.
    Affirmed.

      J. F. Thomas, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, Oscar Neighbors and James Hourigan, were convicted in the district court of Comanche county on a charge of larceny of domestic animals, a!nd their punishment fixed at two years in the state penitentiary.

The proof offered on behalf of the state tends to show that W. T. Dunn' lived in Comanche county, near Indiahoma; that on the night of July 28, 1914, three cows were stolen from him. One was a brown milk cow about three years old, and was expected to become fresh in about ten days. The day before the cattle were stolen the plaintiffs in error were at Dunn’s place trying to buy fat cattle,' and were shown the cattle. The stolen cattle were in. the bunch at the time, but were not specifically pointed out. After the cattle were stolen, Dunn made a search and got information that the thieves had driven the cattle north. In his search he found the hide of the brown cow at the home of Lem Wise several miles away. The cow was marked, but was not branded. The plaintiffs in error were seen in the vicinity of Indiahoma late in the evening of the night upon which the thefts were committed. Early on the morning of July 29th two persons riding horses answering the description of those of the plaintiffs in error were seen driving three cattle north from the direction of the home of the witness Dunn. The brown cow in question gave out on the road, and was sold by these plaintiffs in error to Lem Wise. She died the next day after he purchased her, and was skinned by him and an Indian, and the hide turned over to Mr. Dunn. The Indian, Lomeck, testified that he helped skin the cow; that she had been freshly marked; that the cow was with calf fully developed. It appears that the cow died immediately after having been rapidly driven some 25 miles, probably further, in the middle of July, -and that she died- from exhaustion.

The plaintiffs in error relied on an alibi as a defense, and offered a number of witnesses to establish the fact that they were not in the vicinity of the Dunn home on the night the theft was committed. They offered other testimony tending to establish that the cow they sold to Lem Wise, was one they had owned for some time. A number of witnesses testified that a cow somewhat similar to the one sold Wise was owned by the plaintiffs in error, but there is no witness who testified positively that this was the identical cow. Testimony as to the alibi was given by neighbors of the plaintiffs in error. This proof tended to establish the fact that it was 40 miles from the home of the plaintiffs in error -to the home of Dunn, and that these plaintiffs in error were each at their respective homes on the night of the theft, as alleged and proved by the state,

The issues of fact were clearly for the jury. There is sharp conflict in the evidence as to the whereabouts of the plaintiffs in error on the night of ■ the theft and the early morning following. The jury is impaneled for - the purpose of determining the issues of fact, and it is exclusively their prerogative, as well as duty, so to do. They found against the plaintiffs in error, and the finding is duly supported by ample facts. The verdict cannot be' disturbed.

Upon the proposition of ownership of the cow the proof offered by the state to the effect that this was the cow of witness Dunn is clear-cut and convincing. There is not a doubt after reading this record but that the cow sold to Wise by these plaintiffs in error was the cow which belonged to the witness Dunn. Nor is there a doubt about the guilt of the plaintiffs in error of the crime charged.

That the verdict is contrary to the evidence is the principal proposition urged by counsel for the plaintiffs in error. A five-line paragraph at the close of the brief refers to argument of the county attorney in his closing remarks to the jury, which it is contended were prejudicial. The page in the record where these remarks could be found is not set forth. The index to the case-made does not disclose the page upon which the remarks complained of could be readily discovered. We will therefore not undertake to discuss the assignment further than to say that the remarks, although constituting im-» proper conduct, do not necessarily constitute reversible error in the case at bar. It should be at least probable upon the examination of the record that prejudice resulted by reason of the unwarranted remarks complained of. The record discloses no prejudice. No prejudicial error having been pointed out by counsel and none having been discovered by the court upon a review of the record, the judgment will be affirmed.

Affirmed.

DOYLE, P. J., and MATSON, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BEN BEAUBEIN v. STATE.
    No. A-2603.
    Opinon Filed May 26, 1917.
    (165 Pac. 213.)
    1. APPEAL AND ERROR — Admission of Evidence — Assignment of Error — Review. Where tlie record does not show that counsel for appellant objected or excepted to the admission of the evidence complained of, his assignment of error thereon is not reviewable, because not properly preserved.
    2. JUDGMENT AND SENTENCE — Entry of Judgment — Term of Court — Statute. Rev. Laws, 1910, sec. 5943, providing that the time appointed for judgment must be at least two days after verdict if the court intends to remain in session so long, or if not, at as remote a time as can reasonably be allowed, does not require that a judgment must be pronounced at the term at which a conviction is had; and, if the court is unable to render judgment at such term, it may be rendered at a subsequent term.
    3. APPEAL AND ERROR — Modification of Judgment. Where the evidence in a prosecution for selling intoxicating liquor did not warrant a fine of $283 and an imprisonment for 115 days, the appellate court, in furtherance of justice, would modify the judgment to impose a fine of $50 and an imprisonment for 80 days.

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge. ■

    Ben Beaubein was convicted of selling intoxicating liquor, and he brings error.
    Modified and affirmed.

      G. A. Outcelt, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

It is alleged that the evidence is insufficient to sustain the conviction. We have examined the record, and find that the evidence on the part of the state, both direct and circumstantial, if believed by the jury, was sufficient to sustain the judgment.

It-is also contended that the court erred in admitting improper and prejudicial evidence, but the record. does not show that counsel for the appellant made any objections or took any exceptions to the admission of the evidence complained of. This assignment of error is not subject to review, under previous decisions of this court, because not properly preserved.

It is also contended that the court was without jurisdiction to pronounce judgment and sentence at the time that sentence and judgment were rendered. The verdict was returned on the 2d day of September, 1915, and thereupon the court appointed the 13th day of September, 1915, at the hour of 8:30 a. m. as a time for pronouncing judgment and sentence. On the 4th day of September, 1915, the defendant filed a motion for a new trial, which was pending in said court until the 25th day of October, 1915, when the same was overruled and the sentence pronounced and judgment rendered. The appellant at that time objecting to the jurisdiction of the court to pronounce sentence and render judgment because- the term of court at which the verdict was returned had expired by operation of law, the court did' not pronounce judgment upon the date fixed. There is a recital in the case-made to the effect that on the 13th day of September, 1915, the day fixed for pronouncing judgment, the appellant was a fugitive. However, counsel for appellant contend that the court could have pronounced judgment in this casé in his absence, it being a misdemeanor, and his failure to do so deprived the court of jurisdiction to pronounce judgment at a later date. Section 5944, Rev. Laws 1910, provides:

“For the purpose of judgment, if the conviction is for misdemeanor, judgment may be pronounced in the defendant’s absence.”

Section 5943, Rev. Laws 1910, provides :

“The time appointed [for judgment] must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.”

It is discretionary' with the court in misdemeanor, cases to pronounce judgment in the absence of the defendant, but it is not mandatory that the court do so. Therefore the holding of this court in the case of Ex parte Sparks, 9 Okla. Cr. 665, 132 Pac. 1118, is controlling in this instance. In that case it was held:

“The statute does not require that a judgment mu&t of necessity be pronounced at the same term of the court at which a verdict of guity in a criminal case is rendered. If the court is unable to render judgment at such term, it may be rendered at a subsequent tepm.”

We find no reversible error in the record. The punishment imposed was a fine of $283 and imprisonment for 115 days. The evidence does not warrant the imposition of this extreme penalty in this case. This court, therefore, in furtherance of justice, will modify the judgment to the extent of imposing a fine of $50 and imprisonment in the county jail for 30 days, and the judgment, as thus modified, is affirmed.


text:
    M. G. COLLINGWOOD v. STATE.
    No. A-2608.
    Opinion Filed May 26, 1917.
    (164 Pac. 1154.)
    1. INTOXICATING LIQUORS — Sale—Sufficiency of Evidence. Evidence in a prosecution for selling whisky held sufficient to sustain a conviction.
    2. EVIDENCE — Demonstrative Evidence. In such prosecution, a., certain pint of whisky which the prosecuting witness identified as that bought from the defendant, and which the sheriff testified was the whisky he got from the prosecuting witness, was sufficiently identified to authorize its admission in evidence.
    3. WITNESSES — Impeaching Testimony. In such prosecution, the court should have permitted a witness called to impeach the prosecuting witness to answer a question as to whether the prosecuting witness in a conversation with him stated that he did not get the whisky from defendant.
    4. * APPEAL AND ERROR — Exclusion of Evidence — Record. Where the trial court refuses to permit a question to be answered, the record must show' what the answer would have been, so that the appellate court can determine whether it wurs material and proper and whether defendant was injured by its exclusion.
    5. SAME — Prejudice—Burden of Proof. Before a judgment of conviction based on competent and credible evidence can be reversed on the ground of refusal to permit an impeaching witness to answer, defendant must affirmatively show that he has been prejudiced by the court’s action.

      Appeal from, County Court, Woods County; Gus Hadwiger, Judge.

    M. G. Collingwood was convicted of selling . whisky, and he brings error.
    Judgment affirmed.

      L. T. Wilson, for plaintiff in error.
    . S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Several assignments of error are relied upon for reversal of this judgment.

First. That the evidence on the part of the state is not of that credible character upon which the accused should be convicted.

We have carefully examined the record and find that the prosecuting witness, a farmer who had lived in Woods county for 18 years, testified positively that he bought a pint of whisky from the appellant in the city of Alva and paid him $1 for it. Counsel for the defendant contend that, because a prosecution was lodged against the prosecuting witness for conveying the whisky that he alleged he bought from this defendant, and the sheriff had told said prosecuting witness that if he told the truth in this 'case it would go lighter with him in his own case, therefore he should not be believed. The jury had all the witnesses before them and are the sole judges of the weight to be given to their testimony and of their credibility. The testimony of the prosecuting witnesses, corroborated as it was to some extent by the sheriff, if believed, is amply sufficient to sustain the judgment.

It is also contended that the court erred in admitting in evidence a certain pint of whisky which the prosecuting witness identified and alleged he bought from the defendant. . The. identification was sufficient To authorize the introduction of this evidence. The prosecuting witness testified that that was the identical 'whisky he bought from the defendant, and the sheriff testified that it was the whisky he got from the possession of the prosecuting witness at that time.

It is also contended that the court erred in refusing to permit the witness Tidwell, who was called for the purpose of impeaching the prosecuting witness, to answer the following question:

“I will ask you whether or not in that conversation (referring to a conversation which the prosecuting witness admitted that’ he had had with Tidwell) he stated that he did not. get it (referring to the whisky) from Mr. Collingwood?”.

An- objection was sustained to the question on the ground that it was incompetent, irrelevant, and immaterial, and not binding on the state. Counsel for the defendant took an exception to this ruling. The court should have permitted the witness to answer this question, but we cannot determine whether the action of the court was prejudicial to the defendant, unless we know what the -answer of the witness would have been if he had been permitted to answer. The witness might have testified that the prosecuting witness made no such statement. Such an answer would not have been prejudicial. Again, he might have testified that the prosecuting witness did make such.a statement, and the exclusion-of that answer would have been prejudicial. It must affirmatively appear, before a judgment of conviction based on competent and credible evidence will be reversed on this ground, that the defendant has been prejudiced by the action of the court. The burden is upon the appellant to show prejudice. The court can only guess that he was-prejudiced in this instance. If counsel had made an offer of proof of what the testimony of the witness Tidwell would have been if he had been permitted to answer, and if it were shown by said offer that his testimony would have been favorable to the defendant and contradictory of the prosecuting witness, then this court could determine that the defendant was prejudiced.

This court has heretofore repeatedly indicated that,, where the trial court excludes or refuses to admit evidence offered, the record must show what this evidence was, so that this court can determine whether or not it: was material and proper testimony, and as tó whether oír not the defendant was injured by its exclusion. Warren v. State, 6 Okla. Cr. 2, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Stone et al. v. State, 6 Okla. Cr. 415, 119 Pac. 271; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010.

‘We cannot, therefore, determine from this record that the defendant was injured by reason of the action of the trial court in "refusing to allow the witness TidwelL to answer the- question as propounded.

The judgment of the trial court is affirmed.


text:
    JOHN SCOFIELD v. STATE.
    No. A-2610.
    Opinion Filed May 26, 1917.
    (165 Pac. 210.)
    "WITNESSES — Impeachment of Witness. In a prosecution for selling liquor where the ease was closely contested, the refusal to allow defendant to impeach employed detectives by showing that they had made statements out of court, as to who had made a sale, contradictory to their testimony in court was reversible error.

      Error from County Court, Woods County; Gus Hadwiger, Judge.

    John Scofield was convicted of selling one pint of whisky to one Ralph McAfee, and sentenced to pay a fine of $50, and to imprisonment for 30 days, and he brings •error.
    Reversed.

      L. T. Wilson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. .Átty. Gen., for the State.
   PER CURIAM.

The appellant was convicted of selling one pint of whisky to one Ralph McAfee for the price •of $1. The transaction is alleged to have occurred in a barn in the town of Waynoka. Ralph McAfee, the prosecuting witness, 17 years of age, together with Ralph Trull, a young man 21 years of age, had come from Texas to Woods county a short time before this transaction, and testify that they met this defendant, a total .stranger to them, on the streets of Waynoka, and asked him if he knew where they could get some whisky, and he told them that he had some or could get some. The defendant then went away, according to their testimony, and returned within a short time with a bundle under Lis arm, and directed them to this barn where the alleged sale is said to have .taken place. The prosecuting witnesses and a man by the name of Cham Beeman preceded the defendant to the barn. Beeman was not a witness in the case. McAfee and Trull both testify that the defendant appeared at the barn with a quart of whisky wrapped up in an old pair of trousers and emptied out a pint of whisky into another quart bottle and sold it to McAfee for the sum of $1. The defendant testified that he saw these people going to the barn, and was suspicious and followed them up there in- order to get • a drink, and that when he got there they were just opening a quart of whisky which Beeman had at that time; that he did not sell any whisky on that occasion to anybody. Several citizens of Waynoka testify to the' good reputation ’ of the. defendant for peace and as a law-abiding citizen. Upon the trial, the court, over the objection and exception of defendant’s counsel, limited the cross-examination of these prosecuting witnesses in an endeavor on the part of said counsel to show their interest in the matter — that they were employed detectives of the sheriff and were to receive money for giving evidence in the case. The objections to such questions were sustained to such an extent that counsel for defendant made an effort to withdraw from the case. However, the court thereafter permitted a limited cross-examination along this line, but an effort was made by counsel for the defendant to impeach the prosecuting witness Ralph Trull, it being the theory of .the defendant that if the prosecuting witnesses bought any liquor on that occasion it was sold to them by Beeman, and not by him. Counsel for defendant asked the witness Trull if he did not state, in the presence of one Homer Davidson, in the town of Way-noka, on the 23d day of September before the trial, to Mr. Scofield, that he did not see how he could he convicted, as he did not make the sale, to which question an objection upon the part of the state’s counsel was sustained, and to which ruling the defendant’s counsel excepted; and also in the same conversation if he did not say that Mr. Scofield, the defendant, took no money, but that Cham Beeman took the money, to which he answered,' “I don’t think I did.” Homer Davidson was then placed upon the stand in behalf of the defendant, and was asked whether or not Trull had stated, in substance, the impeaching matters inquired about, to the first of which the court sustained an objection and refused to permit the witness to answer, and as to that part of the conversation in which Trull had said that he did not say that Beeman took the money, the impeaching witness, Davidson, testified that he did so state, which answer, upon objection by the state’s counsel, was stricken out, and the jury instructed not to consider it, on the ground that the testimony was without weight in the case and was to be given no credence as to Cham Beeman.

There is no question in the minds of the members of this court that the rulings of the trial court relative to this impeaching evidence were erroneous, and in view of the fact that this is a closely contested case in which the defendant, a farmer .of good reputation as a law-abiding citizen, was convicted on the evidence of total strangers to him, who did not live in that community and were, as the record clearly discloses, employed detectives, it was competent for the defendant to impeach these witnesses by showing that they had made statements out of court relative to who made this sale contradictory to their testimony in court. Why the state did not call Beeman as a witness in this case does not appear from the record, although he was present during all the time that the other state witnesses testify they had their dealings with the defendant, and as Beeman had an equal opportunity to make the sale, if one was made, the defendant had a right to impeach one of the prosecuting witnesses by showing that he did state, out of court, that Beeman was the man who did make the sale and receive the money. After an examination of the entire record we are convinced that this defendant was not accorded that fair and impartial trial to which he was entitled under our Constitution and státute. The judgment is therefore reversed.


text:
    R. M. WALLER v. STATE.
    No. A-2634.
    Opinion Filed May 26, 1917.
    (164 Pac. 1151.)
    TRIAL — Indorsing Names of Witnesses. Where a county attorney, after trial began, showed that he had learned of another witness whom he did not know of before, leave to -indorse the name of such witness on the information and to permit him to testify ■ might be granted by the court in its discretion.

      Appeal from County -Court, Oklahoma County; Wm. H. Zwick, Judge.

    R. W. Waller was convicted of selling a half pint of ■whisky, to one Glen Cowden, and sentenced to pay a fine of $100 and imprisonment in the county jail for 60 days, and appeals.
    Affirmed.

      Ledrue Guthrie, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Att'y. Gen., for the State.
   PER CURIAM.

Two alleged errors are relied upon for reversal of this judgment: First, that the court erred in permitting the county attorney to indorse the name of the witness Bocock on the indictment after the case was called for trial; and, second, that the evidence is insufficient to sustain a conviction.

We have carefully examined this record, and find that the evidence, although conflicting, is sufficient to sustain the conviction if the jury believed the evidence of the prosecuting witness and that of the sheriff, irrespective of the evidence of the witness Bocock, whose name was indorsed on the information after the case had been called for trial. , The prosecuting^ witness and sheriff, M. C. Binion, were both unimpeached and appeared to be credible witnesses. The prosecuting witness was a chiropractic doctor living in Oklahoma City, who apparently had no malice or ill will against the defendant, but was, as he admitted, interested in the enforcement of the prohibitory liquor laws of this state. We also find from an examination of the record that, before the court permitted the county attorney to indorse the name of the witness Bocock upon the information and to use him upon the trial of the case, the county attorney disclosed facts sufficient to put himself within the holding of this court in the case of Steen v. State, 4 Okla. Cr. 309, 111 Pac. 1097, and other cases to the same effect.

The judgment is affirmed.


author: ARMSTRONG, J.

text:
    E. L. LEMLEY v. STATE.
    No. A-2485.
    Opinion Filed May 26, 1917.
    (164 Pac. 1152.)
    APPEAL AND ERROR — Fundamental Error. When, in the trial of a criminal ease, the proof introduced on behalf of the state overwhelmingly establishes the guilt of the accused, and when the testimony of the accused himself is insufficient to justify the-criminal conduct complained of, only fundamental error will be considered on appeal.

      Error from District Court, Sequoyah County; John H. Pitchford, Judge.

    E. L. Lemley was convicted of an assault with a dangerous weapon with intent to do bodily harm, without justifiable cause, and he brings error.
    Affirmed.

      Frye & Frye, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, E. L. Lem-ley, was tried at the December, 1914, term of the district court of Sequoyah county, upon a charge of assault with intent to kill, and convicted of assault with a sharp and dangerous weapon, Avith intent' to do bodily harm, without justifiable or excusable cause, and his punishment fixed at imprisonment in the state penitentiáry for one year.

The information charges E. L. Lemley with committing an assault with intent to kill Ora Green. . The trouble occurred at a neighborhood schoolhouse near Pawpaw, in Sequoyah county,* It appears that the building was used jointly for school and church purposes; that various religious denominations used the building as a church; that in September, 1914, a Christian preacher, who is referred to in the testimony as a “Campbellite,” was conducting services at this schoolhouse. Plaintiff in error, Lemley, appears to be a member of some other church which promulgates the doctrine of Holy Santification. The Camp-bellite preacher had announced that he would deliver a sermon on “Holy Sanctification,” and apparently was proceeding to do so in first-class order, when' Lemley interrupted the proceedings and began to criticize the preacher’s conduct. The preacher informed Lemley that if he did not behave himself he would have him taken out of the house. Lemley’s 17-year-old son joined in the controversy and told the preacher that he would take him out. Neighbors counseled with the Lemleys, and the boy finally got up and left the house. On the outside Ora Green was taking care of his small children, when young Lemley came out and began to curse the ’ Campbéllites in general and the preacher conducting the services in particular. The testimony shows that Green is not a member of any church, but “leans towards the Campbellites,” as he puts it. His wife also is inclined towards the Camp-bellites. Following some remarks made by young Lem-ley, Green knocked him down with his fist. The older Lemley learned of the trouble and came on to the scene, used some rough language, and threatened to kill Green and approached him with an open knife. Green says that he asked Lemley to fight fair; that Lemley approached with his knife open and a “business-like look” in his eye, whereupon Green started to run; that the two Lemleys followed him; that they ran around the house rapidly. Other witnesses testified to the same facts; that he (Green) stepped into a hole and fell; that the older Lem-ley got on him and cut him severely with the knife. A young man named Cherry pulled Lemley off of Green. Considerable language was used in connection with the trouble. Young Lemley, it is charged, holloed to his father to catch Green and he would cut his throat. Green seems to have called for help. When young Cherry pulled Lemley off of Green, Lemley stuck his knife into him (Cherry), but the wound was not serious.

. Dr. T. W. Collins, a local physician, testified that he attended Green after the trouble for several weeks; that there were two wounds; one was six or eight inches long, and cut very deep into the muscles of the arm, and barely missed severing an artery; that there was another wound about five inches long and an inch deep in the leg.

Lemley himself testified that he was. a farmer and had a wife and six children; that he went to church on the night of the difficulty, and that the preacher was ridiculing holiness and read certain Scriptures and skipped verses, and that he asked him to read all of. it, and the preacher advised him to shut his mouth and called him a liar and vilified him; that Tom Walls made a statement that if there were those in the house who did not want to hear this preacher for them to go outside; that he started out, and when he got out he heard the boy hollo, “Hurrah for the Campbellites,” "and that a man hit him, and he ran around the house after the man, and the boy holloed, “Catch him, Papa”; that he fell on the man, and that the man kicked at him and struck the knife; that he had nothing against Green, and had been his friend; that Green threw up his arm, and he struck him in the arm with his knife; that Elmer Cherry ran up and said, “I want to see the son of a bitch that will just jump on one”; that he punched Cherry with his knife. He also said that he never swore at all that night, and that Ora Green never spoke a word; that just before the difficulty he had testified that he was sanctified, but he was in a passion at the time of the trouble; that he was a larger man than Green.

Upon this testimony, in fact upon the testimony of the plaintiff in error himself, the jury was warranted in finding him guilty of assault with a sharp and dangerous weapon with intent to do bodily harm, without justifiable or excusable cause. The court instructed the jury to take into consideration the fact that the son of the plaintiff in error had been assaulted in his presence, in the matter of mitigation of punishment or as a defense.

A careful consideration of the record impels us to the conclusion that the jury made no mistake in this case. This is a country wherein each and every person is entitled to his own religious belief, and if one does not agree with the views of others, he is not bound to attend their church or participate in their religious exercises. No one has any right whatever to go into any religious meeting of any kind and create a disturbance. The law protects the most humble congregation from rowdyism, and rowdyism would be a mild designation of the disturbance precipitated at this meeting, out of which this criminal charge finally grew.

The record discloses no error prejudicial to the rights of the plaintiff in error.

The judgment of the trial court is therefore affirmed.

DOYLE, P. J„ and BRETT, J., concur.


text:
      Ex parte L. B. CAMPBELL.
    No. A-3201.
    Opinion Filed May 29, 1917.
    (164 Pac. 1156.)
    HABEAS CORPUS — Dismissal on Motion. Where the petitioner, immediately after filing his petition for habeas corpus, filed a motion to dismiss the cause, the petition woiild be dismissed.
    Petition of L. B. Campbell for writ of habeas corpus.

    Petition dismissed.

      W. F. Wilson and L. T. Cook, for petitioner.

      R. McMillan, Asst. Atty. Gen., and J. E. Crowder, Co. Atty., for the State.
   PER CURIAM.

On this day a petition for writ of habeas corpus was filed in this court. The petition avers that L. B. Campbell, is unlawfully restrained of his liberty by Hugh Boone, sheriff of McClain county, upon a warrant issued upon an information filed in the county court of said county. The said restraint, is illegal and unauthorized because said information does not state facts sufficient to constitute an offense under the Constitution and laws of the State of Oklahoma. Immediately after filing said petition counsel for petitioner filed a motion to. dismiss the cause. The application is therefore dismissed.


text:
      Ex parte T. J. MONROE.
    No. A-3022.
    Opinion Filed May 29, 1917.
    (165 Pac. 741.)

      Habeas corpus by T. J. Monroe against W. B. Nichols, Chief of Police of Oklahma City.
    Writ denied.

      J. T. Michael, for petitioner.

      Frank Watson, for respondent.
   PER CURIAM.

On this day a petition for writ of habeas corpus on behalf of T. J. Monroe was filed in this court, averring in substance that petitioner is unlawfully restrained of his liberty and illegally imprisoned in the city jail of Oklahoma City by W. B. Nichols, chief of police of said city.

It appearing that said petitioner is held in custody under and by virtue of a commitment issued by the municipal judge of said city, in pursuance of the judgment and sentence of said court, wherein said petitioner was adjudged guilty upon a charge of vagrancy and was sentenced to pay a fine of $19 and $1 costs, the writ of habeas corpus will be denied.


text:
    C. A. BELVIN et al. v. STATE.
    No. A-2211.
    Opinion Filed June 2, 1917.
    (165 Pac. 617.)
    ASSAULT AND BATTERY — Question for Jury — Principal. Whether a defendant jointly convicted with another encouraged and aided such other in an assault and battery held, on the evidence, a question for the jury.

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

    C. A. Belvin and Arthur Inman were convicted of assault and battery, and they appeal.
    Modified and affirmed.

      Carr & Field, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, C. A. Bel-vin and Arthur Inman, were jointly informed against and tried for the crime of assault with intent to kill one C. M. Wall, and were convicted of assault and battery, and their punishment fixed each at a fine of $100 and 30 days' confinément in the county jail. From the judgments rendered on. the verdict, they appeal.

It appears that the plaintiffs in error were farmers, residing seven or eight miles east of Pauls Valley; that Belvin was a man with a large family, consisting of his wife and seven. or eight children; that he had lived in that community for more than 30 years; that he is an uncle of the defendant Inman; that the complaining wit-* ness, C. M. Wall, also lived in the same neighborhood; that on the day on which the assault occurred the defendant Inman and the complaining witness Wall had an altercation; that evening Inman went over to Belvin’s house; from there the two got on Belvin’s horse and rode over across the farm to where Belvin’s brother lived; on , the way over they passed by Wall’s home; in a short time they returned and met Wall and his wife at the well by the roadside, where they were watering the horses; Inman made some remark to Wall about the trouble they had that day and got off the horse and assaulted Wall.

The evidence for the state tends to show that Belvin encouraged and aided Inman in the assault.

The only question in the case is the sufficiency of the evidence to sustain- the verdict against the defendant Belvin. Upon the record before us, the question was one of fact for the jury to determine; however, upon the suggestion of the Attorney General, the judgment and sentence of 30 days’ confinement and $100 fine imposed on the defendant Belvin will be modified to the payment of a fine of $100 and the costs. As thus modified, the judgment as to the defendant is affirmed. . The judgment and sentence against the defendant Arthur Inman is affirmed.


text:
    HARRY PARKER v. STATE.
    No. A-2611.
    Opinion Filed June 2, 1917.
    (165 Pac. 622.)
    BURGLARY — Indictment—Sufficiency. The information in the case at bar does not state a public offense under the doctrine announced by this court in Sullivan v. State of Oklahoma, 7 Okla. Or. 307, 123 Pac. 569.

      Appeal from, District Court, Marshall County; George C. Crump, Assigned Judge.

    Harry Parker was convicted of burglary, and appeals.
    Reversed.

      Rider & Hurt, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Harry Parker, was convicted in the district court of Marshall county on a charge of burglary, and his punishment fixed at imprisonment in the state penitentiary for two years.

The charging part of the information upon which the conviction is based is as follows:

“That * * * the said defendant did, * * * unlawfully, wrongfully, fraudulently, burglariously and feloniously break into and enter by breaking the seal upon and opening a certain freight car, the same being the property of the St. Louis & San Francisco Railroad and in which there was stored and kept certain- persbnal property, with the unlawful, burglarious and felonious intent then and there on the part of him, the said Harry Parker, to commit larceny therein, contrary to the form of the statute in such case made and provided, etc.”

The sufficiency of this information was raised by informal demurrer and by proper motion in arrest of judgment.

The objections to this information are discussed at length in the opinion of this court in the case of Sullivan v. State, 7 Okla. Cr. 307, 123 Pac. 569. We deem it unnecessary to consider them again. County attorneys will experience no difficulty in following the doctrine in the Sullivan Case.

The judgment- is reversed, and the cause remanded, with directions to sustain the demurrer, with leave to the county attorney to file a proper information.

DOYLE, P. J., concurs. .


author: DOYLE, P. J.

text:
    BUD CHILDS v. STATE.
    No. A-2622.
    Opinion Filed June 2, 1917.
    (165 Pac. 622.)
    1. TRIAL — Argument of Prosecuting Attorney — New Trial. A prosecuting attorney should confine his argument before the jury to a •fair discussion of the issues in the case, and improper remarks objected to at the time will be considered -and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted.
    2. SAME. In his argument to the jury, the assistant county attorney said, “The county attorney of this county knew tills defendant was guilty before he filed this information, or this case would never have been brought.” Evidence considered, and held, that such statement was prejudicial to- the. substantial, rights of the defendant, for which a new trial should be granted. „

      Appeal from County Court, Logan County; John D. Chappelle, Judge.

      Bud Childs was convicted of. a violation of the prohibitory law, and appeals.
    Reversed.

      John A. Remy and James Hepburn, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information charged that in the county of Logan, on the 9th day of October, 1915, Bud Childs did then and there unlawfully have in his possession “42 quarters of beer, V/2 quarts of whisky, and 1 quart of gin, with the intent then and there to barter, sell, give away, and furnish said intoxicating liquors.” Upon his trial the jury returned a verdict of guilty, .and he was sentenced to pay a fine of $100 and be confined for 30 days in the county jail. To reverse the judgment an appeal by case-made was duly perfected.

The plaintiff in error, a negro, with his wife and five or six children, lived on a farm owned by him in the southern part of Logan county.

The testimony of the sheriff and one of his deputies shows that on the day alleged they went to his farm, and there in executing a search warrant found at his home intoxicating liquors as described in the information.

Arthur McKee testified that he went to the defendant’s place to buy some cows of him, could not make a deal, and asked him if he had anything to drink, and defendant said he had a well of water, and witness said he ■wanted something stronger, and the defendant said he would try to find something, and he put a bottle in his automobile, for which he 1 gave him $1.50. Witness was then asked to tell the jury what was it he bought and paid for. He answered:

“I don’t know exactly what it was. I lost it before I got home. ' When I went to get it from the back of the car, it was gone. I don’t know whether I lost it or not. It was not in the car when I went to get it, and I did not taste it. I had been drinking some before I went there.”

Sam Rooker testified that he went with Arthur McKee to the defendant’s place; did not get any whisky or beer himself, but saw McKee come from the house with a whisky bottle in his hand; did not see McKee with a bottle prior to that time, and did not think McKee was drinking that day; that he was at the defendant’s place another time and asked the defendant if he had anything cold to drink, and the defendant gave him a cold- bottle, for which he paid 20 cents. The attorney for the state then asked him:

“Q. I will ask you if he did not say he had some cold beer? A. Don’t remember. Q. I will ask you if you didn’t ask him if he had some cold beer? (Objection by the court overruled.) A. Don’t remember whether I. asked him that or not. Q. To refresh your recollection again, I will ask you if, when you were called before the county attorney, you said in that examination you testified that you asked for a cold bottle of beer, didn’t you? (The defendant’s objections overruled. Exception. No answer.) Q. Tell the jury whether it was beer or not? A. It tasted like beer.”

Cecil Harpster testified that he was at the defendant’s place some time in the summer and bought two or three cold bottles and drank them, for which he paid 20 cents apiece; that he was unable to say what the stuff was.' The assistant county attorney asked thé following question":

“.Q. ■ Tell the jury whether it was beer or not'? (Defendant objects to the question.) By the Court: Objection overruled. He can tell what it was. (Exception reserved.) A. I called for a cold drink. Asst. County Attorney: I know that the witness knows what he got there, and I want the court to compel the witness to purge himself of contempt of court. By Mr. Remy: To the statement of the assistant county attorney defendant objects, on the ground that said statement was made for the purpose of prejudicing the minds of the jurors against the defendant. By the Court: Objection overruled. (Defendant excepts.) By the Court: Gentlemen of the jury, no evidence of what somebody said or done is to be considered by you in the trial of this case. Consider just what the witness said; that is what you are to consider, not the remarks of counsel.”

Two or three other witnesses testified that they had bought something that tasted like beer at the defendant’s place, but refused to definitely fix the time.

As a witness in his own behalf, the defendant testified that he lived on his own farm consisting of 240 acres; that he had the liquor in question for his own personal use; that he had received four or five shipments of liquor in as many years for his own personal use, and the liquor in question was a part of one or two shipments that he had received in the last six months. He denied that he had ever sold any intoxicating liquor to any person.

James Stewart testified that he lived on the defendant’s place, in a seperate house for more than a year last past, and never knew of any person going there to buy liquor of h'm.

Will Carter testified that he had been working for the defendant for about eight months, and never knew of him selling or furnishing liquor to any one.

Three or four farmer neighbors testified that they had known the defendant for from seven to 15 years. They qualified as character witnesses, and testified that the- defendant’s reputation for, truth and veracity and as to being an honest, law-abiding citizen was good.

Two bankers and two merchants of Guthrie testified that they had known the defendant for several years and knew his genera] reputation for truth and veracity and as being an honest, law-abiding citizen, and that such reputation was good.

Of the various errors assigned, we deem it only necessary to consider those relating to the charge Of misconduct on the part of the assistant county attorney. The record discloses that the assistant county attorney in his argument to the jury made the following statement:

“The county attorney of this county "knew this defendant was guilty before he. filed this information, or this case would never have been brought.”

To which statement the defendant objected and excepted at the time on the ground and for the reason that said statement was prejudicial and made for the purpose of prejudicing the minds of the jury against the’ defendant. The court at the time instructed the jury not to consider anything outside the record in the case.

Considering the fact that there is a direct conflict in the evidence as to the guilt of the defendant, we think that the statement complained of could not be otherwise than prejudicial to the defendant.

It would seem from the record that the. witnesses for. the state had testified before a court of inquiry conducted by the county attorney, who did not personally appear in the trial of the cause. The statement was, under the circumstances, highly improper and well calculated to bolster up the unsatisfactory testimony of the witnesses for the state. If, as his assistant stated, the. county' attorney knew that. the defendant was guilty, he' should have been called as a witness so that the defendant could have the benefit of confrontation and cross-examination. A prosecuting attorney should confine his. argument before the jury to a fair discussion of the issues-in the case, and improper remarks objected to at the time will be considered and construed * in reference to the evidence. If' it appears that the improper argument may have determined the verdict, a new trial should be granted. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 533.

There were other improper statements made by the assistant county attorney during the progress of the trial which we think tended to deprive the defendant of a fair and impartial trial upon the law and the evidence in the case. ,

For the reasons indicated, the judgment is reversed, and the cause remanded for a new trial.

ARMSTRONG and MATSON, JJ., concur.


text:
    GEORGE ROBINSON v. STATE.
    No. A-2643.
    Opinion Filed June 2, 1917.
    (165 Pac. 616.)
    APPEAL AND ERROR — 'Reduction of Sentence. Under Broc. Crim., section 6003, Rev. Laws 1910, this court in the furtherance of justice' has the power to modify, any judgment appealed from by reducing the sentence.

      t Appeal' from County Court, Oklahoma‘County; .• William H: Z'wiek, Judge. \

      George Robinson was convicted of a violation of the. prohibitory law, and he appeals.
    Modified and affirmed.
    O. L. Price and Homer Hurst, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error,,George Robin-. ;son, was tried and convicted in the county court of Oklahoma county upon an information charging that he did have in his possession 12 bottles of beer with intent to .transport the same in violation of law. The jury failed to fix the punishment, and- he was by the court sentenced to be confined in the county jail for 60 days and to pay a .fine of $100. No brief has been filed and no appearance made for the plaintiff in error.

The evidence for the state shows that two police' officers arrested the defendant in the city of Oklahoma City and that he had in his possession twelve bottles of beer. As a witness in his own behalf, he testified that the beer was given to him by Frank Marvin, ■ and that it was for his own use;. that his parents died while he was young; that he spent about six years at an orphans’ home in Oklahoma City, and then went to work; that he was injured and was then sent, to the county poor farm. It further appears that he was tried and convicted in the municipal court for the same act- charged in the information. No material error appears in the record; but, in view of the facts disclosed, we are of the opinion that substantial justice requires a modification of the punishment imposed.

It is therefore ordered that the judgment and sentence be modified to 30 days’ confinement and a fine of $50. and thus modified the judgment is affirmed..

ARMSTRONG and MATSON,. JJ„ concur.


text:
    O. E. BANDY v. STATE.
    No. A-2661.
    Opinion Filed June 2, 1917.
    (165 Pac. 616.)
    1. INDICTMENT AND INFORMATION — Variance—Preliminary Complaint — Time of Offense. A prosecution in a felony charge is begun with the filing of 'the preliminary complaint before the committing magistrate. The proof introduced by the state must therefore establish the commission of the offense prior to the filing of this preliminary complaint. Proof tending to show the commission of the offense subsequent to the filing of the same would not be admissible. It therefore follows, that a criminal action begun on the 25th day of June by filing the charges before the committing magistrate cannot be sustained by proof that the offense was committed on the 25th day of July thereafter.
    2. PRELIMINARY EXAMINATION — Information — Jurisdiction. Under the law, the accused is entitled to an examining trial before a committing magistrate; and an information thereafter filed in the district court must be based upon thié’ examining trial; otherwise the district court acquires no jurisdiction.

      Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.

      0. E. Bandy was convicted of a felony, and appeals.
    Reversed.

      Kennamer & Coakley, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

0. E. Bandy was convicted in the district court of Marshall county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the state penitentiary for three years and a fine of $1,000.

Numerous assignments of error are brought. We find it necessary, however, To consider only one.

The preliminary complaint upon which the examin- • ing trial was held was filed June 25, 1915-, and the warrant was issued on that day. The crime was alleged to have been committed on the 25th day of June, 1915. An examining trial was held and the accused held by the magistrate for trial before the district court. The testimony introduced on behalf of the state fixes the date of the sale of the whisky as in July, long after the complaint was filed with, the magistrate. The witness who is alleged to have purchased the whisky says it was the 25th day of July, 1915.

The information charges the sale as having been made on the 25th day of June. This cause was begun June 26th. This is fatal to the conviction. Proof of the commission of the offense at any time within the statute of limitations prior to the filing of the preliminary complaint is ordinarily sufficient to warrant a conviction, but proof that the offense was committed after the filing of the preliminary complaint would not warrant a conviction. Testimony showing the latter would not be admissible. The Constitution and statute provides for a preliminary examining trial where prosecution is to be had by information in the district court. The accused is entitled to an examination and trial on the charge laid prior to the beginning of the proceedings, and not subsequent to the beginning thereof. If this plaintiff in error is to be prosecuted for selling whisky in July, the preliminary should not have been held in June. This proposition is too patent to require discussion.

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

DOYLE, P. J., and MATSON, J„ concur.


text:
    VIRGIL WILSON v. STATE.
    No. A-2666.
    Opinion Filed June 2, 1917.
    (165 Pac. 618.)
    APPEAL AND ERROR — Conflicting Evidence. When there is a clear conflict of testimony introduced in the trial court by the state and the accused, an appeal to this court on the ground that the verdict is contrary to the evidence is useless. It is the duty of this court to uphold the judgment of the .trial court when the evidence tends reasonably to support the verdict of the jury and the judgment rendered.

      Appeal from District Court, Carter County; W.- F. Freeman, Judge.

    Virgil Wilson was convicted of assault with intent to kill, and appeals.

      Brown & Brown, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was convicted in the district court of Carter county on th» charge of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for one year and one day.

The only assignment urged in the brief is based upon the proposition that the verdict is contrary to the evidence.

The proof introduced on behalf of the state tends to show that the' plaintiff in error shot Clarence Bracheen with a pistol; that the parties had been attending a dance near Wirt, in Carter county, and had .been drinking. Three witnesses on behalf of the state testified that the plaintiff in error shot Bracheen without provocation or justification; that afterwards Bracheen shot the plaintiff: in error. Three witnesses testified on behalf of the plaintiff in error that Bracheen shot him first and without-reasonable cause; that he shot Bracheen in self-defense. Other testimony was offered by the plaintiff in error tending to suppsrt his contention.

The question of fact thus raised was for the jury to determine.

If the plaintiff in error was acting in self-defense when he shot Bracheen, he should have been acquitted. If, on the other hand, he assaulted Bracheen without justifiable or excusable cause and shot him, then he should have been convicted. The jury was impaneled to determine this particular proposition, and it -was within its exclusive province to so do. After the jury had made its findings, the verdict was approved by the trial court and a new trial denied. Under the law in this state, it is not only within the province of the trial court, but it is his duty, to set aside a verdict which is unjust. He is on the ground, hears all of the witnesses, sees them and observes their demeanor, supervises the trial, and is minutely.familiar with every detail of the same. He not only has the power to set aside an improper verdict, but it is his absolute duty to do so. It is not so on appeal. The functions of the appellate court are in this respect limited.

The law is such that, upon appeal, this court is not warranted in disturbing a judgment of the trial court be-, cause the verdict is against the weight of the evidence as it appears in the record. It is our duty to uphold the judgment if there' is competent testimony tending reasonably to support the finding of the jury and the judgment rendered. This has been held in almost innumerable cases, and a contrary doctrine has never been announced in any case by this court.

This record presents, as aforesaid, the sole proposition that the verdict is contrary to the evidence. The contention is without merit. It may be that the verdict is contrary to the weight of the evidence considering the number of witnesses who testified and the manner in which they are supported. Upon ■ that proposition we are not called upon to pass. There is ample testimony in the record, however, from which a legitimate conclusion of guilt could be drawn. There is, therefore, nothing for us to review.

The judgment is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
      Ex parte RAYMOND HIGHTOWER.
    No. A-2879.
    Opinion Filed June 6, 1917.
    (165 Pac. 624.)
    1. HABEAS CORPUS — Grounds—Jurisdiction of Court or Judge. The jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus.
    2. COURTS — Juvenile Courts — Statutory Provisions. Act of March 24, 1909, to establish juvenile courts and to regulate the jurisdiction and control of delinquent children, provides (section 4413, Rev. Laws 1910) that county courts shall have jurisdiction of- all oases coming within -the provisions of the act, and that a special record book shall be kept by 'the court for all cases coming within the provisions of the act to be known as the “juvenile record,” also a “juvenile docket,” and for convenience the court in the control and disposition of such cases shall be called the “juvenile court.”
    3. INFANTS — Liability for Crime — Juvenile Court Act — Jurisdic-diction of District Court, Under the provisions of this act a child under 16 years of age cannot be guilty of the commission of a crime except in cases wherein .it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committee! that such child knew the wrongfulness of his acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony.
    4. SAME — This act contemplates an investigation by the juvenile court of complaints against children under 16 years of age with the view of determining whether or not the child committed the acts charged, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And if, upon such investigation,' . the juvenile court finds affirmatively, it is then within its discretion to hold said child to be proceeded with in the manner provided by law in the court having competent jurisdiction of the offense, certifying to such court both finding as to probable cause, and that the child knew the wrongfulness of the acts complained of.
    5. SAME — Finding of Juvenile Court — Effect. The finding of the juvenile court that the child knew the wrongfulness of his acts, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving upon the trial that the child knew the wrongfulness thereof, as provided in Penal Code, subdivision 2, sec. 2094, Rev. Laws 1910. The only effect the act in question has on said subdivision is to change the word “fourteen’’ to “sixteen,” subsequent to’’ the action of .the juvenile court.

      Habeas corpus by Sarah Hightower, mother of Raymond Hightower, a minor, against the Warden of the State Prison.
    Writ allowed.
    On November 28, 1916, there was filed in this court a duly verified petition for writ of habeas corpus, which, omitting title and verification, reads as follows:
    “Your petitioner, Sarah Hightower, mother of Raymond Hightower, a minor, represents and states to this honorable court that he is restrained of his liberty and is unlawfully imprisoned and restrained at Granite, by the warden of the state prison at said place. The cause of said restraint according to the best knowledge and belief of your petitioner is: That at the time of the arrest, trial, and conviction of said Raymond Hightower, on the charge of the murder of one Proctor Green on the 23d day of September, 1912, he was arraigned before .the Hon. Frank M. Bailey, and entered a plea of not guilty, as is shown by the record of the district court of Grady county, a copy of which is here attached and is marked Exhibit A as a part of this petition. That on the - day of--, your petitioner, Raymond Hightower, without the advice of a legal counsel, entered a plea of guilty, and that on said plea was sentenced to serve in the county jail of Grady county, Okla., until he arrived at the age of 16 years, and that he thereafter be. confined in the state prison at Granite until he reaches the age of 21 years. That for some reason unknown to petitioner, said petitioner, Raymond Hightower, was not kept in said county jail, as is shown by the record of the district court, a copy of which is here attached, marked Exhibit B, and is made a part of this petition.' That during the month of January said petitioner was brought before the district court without advice of legal counsel and entered a plea of guilty to manslaughter, and on said plea was sentenced to serve seven years at hard labor in the state penitentiary, as is shown' by the record of the district court, a copy of which is here attached, marked Exhibit C, and is made a part of. this petition. But your petitioner alleges that said restraint is illegal and unauthorized, because at the - time of said sentence said petitioner was under the age of 14 years, as is shown by affidavits Nos. 1, 2, 3, 4, marked Exhibit D a part of this petition. Your petitioner further alleges that said restraint is illegal for the reason that tne district court had no jurisdiction at the time said sentence was imposed on the said Raymond High-tower. That if any court had jurisdiction it would have been the juvenile court of Grady county as shown in section 4412 of the Statutes of 1910 of the State of Oklahoma.
    “Wherefore your petitioner prays your’ honorable court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment.
    “Sarah Hightower, Petitioner.”

    Omitting certificates and seal of the court clerk that the same are true copies, Exhibits A, B, and C read as. follows:
    “Exhibit A.
    “Page 263, Journal F.
    “2982. Filed Sept. 23, 1912. J. R. Callaham, Cleric of District Court, Grady County, Okla.

    “State of Oklahoma v. Raymond Hightower.
    “Now at this time comes into open court the above-named defendant Raymond Hightower, in custody of the sheriff. And plaintiff, State of Oklahoma, being present by its attorney, John H. Venable, and defendant being present in person, and being duly arraigned and information read in open court, said defendant is given 24 hours in which to plead. Said defendant is thereupon remanded to the' custody of the sheriff to await the further action of the court.”
    “Exhibit B.
    “Page 271, Journal 5.
    “District Court, 15th Judicial District, Grady County, Oklá.
    “Now .at this time comes into open court the above-named defendant Raymond Hightower, in custody of the sheriff. And plaintiff State of Oklahoma, being present by its attorney, Oscar Simpson, and defendant being present in person and having been arraigned herein on a former day and having at this time entered his plea of not guilty herein, said defendant now withdraws his plea not guilty and enters a plea of guilty herein. Whereupon it is by the court ordered that he be confined in the county jail of Grady county, Oklahoma, until he arrives at the age of 16, and that he thereafter be confined in the state prison at Granite until .he reaches the age of 21 years. Whereupon said defendant is notified of his right of appeal herein and is remanded to the custody of the sheriff.”
    “Exhibit C.
    “The' prisoner, the above-named Raymond Hightower, defendant, being personally present in open court, and having been legally presented by information for the crime of murder and arraigned, and said defendant having entered herein his plea of guilty to manslaughter, and bemg asked by the court if he had any legal cause why judgment and sentence should not be pronounced against him, and he giving no good reason in bar thereof:
    “It is therefore considered, ordered, adjudged and decreed by the court that the said Raymond Hightower be confined in the state penitentiary at McAlester, in the State of Oklahoma, for the term of seven years at hard labor, for said crime by him committed, said term of sentence to begin at and from the day of delivery to the warden, and that said defendant pay the costs of this prosecution taxed at $-, for which execution is awarded.
    “It is further ordered, adjudged and decreed by the court that the sheriff of Grady county, State of Oklahoma, transport said Raymond Hightower to the said penitentiary at McAlester in the State of Oklahoma, and that the warden of said building do confine and imprison the said Raymond Hightower in accordance with this judgment, and that the clerk of this court do immediately certify under the seal of the court and deliver to the sheriff aforesaid two copies of this judgment, one of said copies to accompany the body of said defendant to the said penitentiary and to be left therewith at said penitentiary, said copy to be warrant and authority for the imprisonment of said defendant in said penitentiary, and the other copy to be the warrant and. authority of said sheriff for the transportation and imprisonment of. the said defendant as hereinbefore provided. Said last-named copy to be returned to the clerk of said court with the proceedings of said sheriff thereunder indorsed thereon. And thereupon the court notified the defendant of his right of appeal.
    “Done in open court on this 11th day of January, 1918.
    “[Signed] Frank M. Bailey, Judge.”

    Indorsed:
    “No. 1465. In District Court. Judgment and sentence on plea of guilty. The State of Oklahoma v. Raymond Hightower, Defendant. Filed March 1, 1913.
    “S. L. Newman, District Clerk.” ■ ....

    Omitting situs and jurat of each, the affidavits attached are as follows:
    “Sarah Hightower, of lawful age, being first duly sworn, deposes and says as follows: I am the mother of Raymond Hightower, who was born December 28, 1899, as shown on the family record of births; and that on the 23d day of September, 1912, the date of the charge against him for the murder of Proctor Green, the said Raymond Hightower’s age was 12 years, 8 months and 25 days. That on the 11th day of January, 1913, he, the said Raymond Hightower, was sentenced for manslaughter to the state penitentiary at McAlester for the term of seven years at hard labor at the age of 13 years and 13 days.”
    “Millie Hightower, of lawful age, being first duly sworn, deposes and says as follows: I am the grandmother of Raymond Hightower, who was born on the 28th day of December, 1899, as shown on the family record of births; and that on the 23d day of September, 1912, the date of the charge against him for the murder of Proctor Green, the said Raymond- Hightower’s age was 12 years, 8 months, and 25 days. That on the 11th day of January, 1913, Raymond Hightower was sentenced for manslaughter to the state penitentiary at McAlester for the term of seven years at hard labor at the age of 13 years and' 13 days.”

      “Mrs. Laura Roberson, a white woman, of lawful age, being first duly sworn, deposes and says as follows: I was, on or about the 23d day of September, 1912, in charge of our grocery on the corner of First and Idaho at Chickasha, Okla., and witnessed a fight between Proctor Green and Raymond Hightower, when seemingly Raymond was whipped and ran to my store, the Green boy chasing him with an iron something like a car pin. I pushed Raymond in and kept Proctor out. Proctor said to Raymond, ‘I’ll get you out after while, and when I get you out I’ll kill you.’ But Raymond stayed in, and after a while Proctor went away, making threats. Raymond scouted out of the back door, and I did not see either of them until after the shooting. I was subpoenaed in the case, and would have made this statement in the court, but the case was dismissed without trial.”
    A writ of habeas corpus issuéd, directed to the respondent, Hon. Boone Williams, 'warden of the state reformatory at Granite, who on December 7th, the day it was returnable, through Sam Everett, assistant warden, produced petitioner in court, and at the same time filed his return thereto. The return shows that the petitioner is held by said warden on a commitment issued upon the judgment set forth in the petition. The material facts averred in the petition are undisputed therein. After hearing the evidence the decision of the court was announced by the Presiding Judge, wherein the writ was allowed and respondent was directed to deliver the petitioner into the custody of the sheriff of Grady county, who was directed to hold him in custody until discharged, or his custody changed by due course of law.

      Robert L. Fortune, for petitioner.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

(after stating the facts as above). Counsel for petitioner contends that upon the record showing that no preliminary complaint against him was ever filed in the county court of Grady county, and that no investigation was ever had before said court or the judge thereof sitting as a juvenile court concerning the charge of murder before the filing of the information in the district court of said county charging the petitioner with said crime, said district court was without power or jurisdiction to arraign him upon said information or require him to plead thereto, and was without jurisdiction to render the judgment and sentence in execution of which, under the commitment issued thereon, the petitioner has since been and is now held in custody by the warden of the state reformatory. The act of March 24, 1909, creating juvenile courts, in part provides as follows:

“The words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of the United States, or of this-state, or any city .or town ordinance.” (Section 4412, Rev. Laws 1910.)-
“The county courts of the several counties of this state shall have jurisdiction in all cases coming within the terms and provisions of this article.” (Section 4418, Rev. Laws 1910.)
“In all counties a special record book shall be kept by the court for all cases coming within the provisions of .this article, to be known as the ‘juvenile record’ and the docket or calendar of the court upon which shall appear the case or cases under the provisions of this article, shall be known as the ‘juvenile docket’ and for convenience, the court in the' trial and disposition of such cases, shall be called the ‘juvenile court.’ ” (Section 4414, Rev. Laws 1910.)
“Every child who shall have been adjudged delinquent, whether allowed to remain at home, or placed in a home, or committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of court, or shall have reached the age of twenty-one years, and such court may, during the period of wardship, cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution: Provided, however, that notice of all applications to the court for such parole or release shall be given to the superintendent of such institution at least ten days before the time set for the hearing thereof, or the consent, in writing, of such superintendent to such parole or release shall be filed. The court may, however, in its discretion cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime.”. (Section 4424, Rev. Laws 1910.)

In the case of In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022, this act is construed. Upon the question here presented it was said by this court, speaking through Armstrong, J.:

“The Legislature in its wisdom by this law says that a child under sixteen years of age cannot be guilty of the commission of a crime, except in cases where it is shown that such child knew the wrongfulness of his. acts at the time they were committed. The acts committed by such' child, which in an adult would be a crime, under this statute, constitute juvenile delinquency only, except in cases of a serious character, when the juvenile court is authorized by the act, supra, in its discretion, to causé such child to be proceeded against -in' accordance with the law that may be in force governing the commission of crime. Prior to the enactment of the law in question, the statutes provided: ‘All persons are capable of committing crimes, except those belonging to the following classes: First, Children under the age of seven years. Second. Children over the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.’ (Section 2034, Snyder’s Stat.) The juvenile court law under consideration, in effect, provides that children under the age of sixteen are incapable of committing crime. But, in order that no great wrong should be done to society, the Legislature took the precaution to provide that a child brought before the juvenile court on a charge of delinquency, such court might, in its discretion, cause such child to be proceeded against in accordance with the law governing the commission of crime. (See last clause in section 4414, supra.) This provision contemplates an investigation by the juvenile court of the acts complained of with the view of determining whether or not the child committed them, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And should the court -find affirmatively, it is then within its discretion, under the law, to hold such child to be proceeded with in the manner provided by law in a court having competent jurisdiction of the offense committed, certifying to such court both its finding as to probable cause, and that the child knew the wrongfulness thereof. The finding of the juvenile court, or the county judge sitting as such, that the child knew the wrongfulness of his act, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving that the child knew the wrongfulness of his act at the time of the commission thereof, upon the trial before a jury in a court of competent jurisdiction, as provided in subdivision 2 of section 2034, Snyder’s Statutes. The effect the juvenile court law under consideration has on said subdivision is simply to change the word ‘fourteen’ to ‘sixteen,’ subsequent to the foregoing proceedings.”

This is not a new provision. By the ancient Saxon law the age of 12 years was established for the age of possible discretion, when first the understanding might open; and from thence until the offender was 14, it was a etas pubertati próxima, in which the child might or might not be guilty of a crime, according to his natural capacity or incapacity. By the common law as it has stood at least ever since the time of Edward III, the capacity for committing a crime within certain limits of age is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment. Bl. Comm. 23. In all such cases the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction. 4 Bl. Comm. 24. Under the provisions of this act, a child under 16 years of age cannot be guilty of the commission of a crime, except in cases where it is shown and determined by the juvenile court of the county wherein the crime is alleged to have' been committed that such child knew the wrongfulness of its acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of a district court to try a child under the age of 16 years upon an information charging a felony, and in addition thereto the child so charged must have been by the judge of said court, sitting as an examining and committing magistrate, held to answer before the district court. The return in this case shows that no such proceedings were had before the juvenile court of Grady county, and that no evidence was taken before said court or the judge thereof as to the petitioner’s'capacity to commit the crime charged in the information which was filed in the district court of Grady county charging the petitioner with the crime of murder. It follows that the district court of Grady county was without jurisdiction of said information, and was without jurisdiction to render the judgment and sentence under which the petitioner is now held in custody. It further appears from the record that the petitioner was convicted of the crime of manslaughter under said information upon his plea of guilty; that he did not have the benefit of counsel, and ho evidence was taken as to the petitioner’s capacity to commit the crime charged in the information, or the degree of said crime to which he entered his plea of guilty.' The child’s plea of guilty might be evidence that the petitioner committed the act charged, but was no proof of the capacity of the petitioner to understand the wrongfulness of the act charged at the time it .was committed. The presumption of incapacity can only be rebutted by affirmative proof that the child had capacity to understand the wrongfulness of the act charged against him.

By numerous decisions of this court it is held that the jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus, and where it is shown by the return that the petitioner is detained by virtue of a committment issued upon a' judgment of a court of competent jurisdiction, such showing is prima facie only of the fact, and may be impeached by the record of the case, for the purpose of showing that the court or judge was without jurisdiction or power to render the judgment or issue the commitment, and where the record shows want of jurisdiction to render the judgment or issue the commitment, the petitioner under - such showing is entitled to his discharge.

For the reasons stated, we are of the opinion that the judgment and sentence of the district court of Grady county in this case is illegal and void, and that the execution of said judgment deprives the petitioner of his liberty without due process of law. It is therefore ordered that the petitioner be discharged from imprisonment under said judgment and commitment, and that he be remanded to the custody of the sheriff of Grady county to abide the further action of the juvenile court of said county.

ARMSTRONG and BRETT, JJ., concur.