author: FTJBMAN, Presiding Judge, PEE CURIAM.

text:
    CYRUS RASBERRY v. STATE.
    No. A-115.
    Opinion Filed September 9, 1909.
    Rehearing Denied January 9, 1911.
    (103 Pac. 865.)
    1. APPEAL — Judge Pro Tempore — Case-Made—Extension of Time —Record—Dismissal—Transcript, (a) A judge pro tempore may fix the time within which a case-made may be prepared and served; but after he has fixed such time he cannot extend the time for preparing and serving such case-made.
    (b) If a judge pro tempore has tried a case, and has fixed the time within which a case-made may be prepared and served, and it is desired to secure an extension of time to prepare and serve such case-made, such extension of time may be granted by the regular judge of the district in which the case was tried, or it may be granted 'by any judge who may be presiding in said court; but, if granted by the judge presiding in said court, the record must show that court was actually in session at the time that the extension -was granted by the court.
    (c) If the time fixed has expired within which a case-made may be prepared and served, no judge has power to extend such time.
    (d) If it appears in the record that a judge pro tempore has fixed the time within which a case-made may be prepared and served, and that subsequently the judge pro tempore granted a further extension of time, nothing contained in the case-made filed after the expiration of the time first fixed will be considered on appeal.
    (e) Our statute provides for two methods of prosecuting an appeal, viz: Upon the transcript of the record, accompanied by a case-made; or upon transcript of the record alone. If the first/ method is pursued, and for any reason the case-ma'de is fatally defective, the appeal will not be dismissed, but will be considered upon the transcript of the record alone.
    2. INDICTMENT AND INFORMATION — Robbery—Sufficiency of Allegations, (a) Every felonious act is necessarily a wrongful act. Therefore, in an information or indictment for robbery, when it is alleged that the act was feloniously done, this in substance and effect charges that it was wrongfully done, and it is not necessary to go further and allege that such act was wrongful.
    (b) It is not necessary to allege in an information or indictment conclusions of law, or any fact of the existence of which the courts take judicial notice.
    (c) In an indmtment for robbery, when it is alleged that the property was taken from the person robbed, it is not necessary to allege that such property was in the possession of such person.
    (d) Repetition of substantially the same allegation in an indictment or information is ba'd practice, and" is condemned by our statute; but it does not necessarily follow that such repetition will 'constitute reversible error.
    (e) For an indictment for conjoint robbery, which is held to be sufficient, see opinion.
    3. ROBBERY — Verdict—Degree of Crime, (a) It is not necessary for) a verdict of guilty of conjoint robbery to state the degree of which the defendant is convicted; for there are no degrees in this offense, an'd but one punishment is prescribed therefor by the statute.
    4. APPEAL — Instructions—Harmless Error, (a) If an instruction given is inaccurate, and the evidence in the case is not before the court, such inaccuracy in the instruction, unless fundamental, will not constitute reversible error, if from any testimony which could have been introduced such error could not deprive the defendant of some substantial right.
    (Syllabus by the Court)

      Appeal from District Court, Lincoln County; B. II. Gaylen, Judge, pro tern.

    Cyrus Kasberry was convicted of burglary, and he appeals.
    Affirmed.

      On the 11th day of February, 1908, the grand jury of Lincoln county returned into court an indictment for conjoint robbery against Cyrus Basberry and others (hereinafter called defendants), which indictment is as follows:
    “State of Oklahoma, County of Lincoln — ss.:
    “State of Oklahoma, Plaintiff, v. Cyrus Basberry, George Askins, and J. W. Lilly, Defendants.
    “In the District Court of Lincoln County, Tenth Judicial District, Feb. Term, A. D. 1908.
    “Indictment for Conjoint Bobbery.
    “The grand jurors of the state of Oklahoma, within and for the county of Lincoln, of the February term of the district court of the Tenth judicial district of the state of Oklahoma, in the year of our Lord one thousand nine hundred and eight, duly and legally chosen, selected, Impaneled, sworn, and charged according to law, in the name and by the authority of the state of Oklahoma, upon their oaths present: That Cyrus Basberry, George Askins, and J. W. Lilly, late of the county aforesaid, on the nineteenth day of January in the year of our Lord one thousand nine hundred and eight, in the county of Lincoln and state of Oklahoma aforesaid then and there being, did then and there wilfully, unlawfully, and feloniously make an assault upon the person of one Natcho Deneff, and did then and there wilfully, unlawfully, and. feloniously, wrongfully, forcibly, and conjointly, against the will and consent of him, the said Natcho Deneff, and by means of force and fear of immediate and unlawful injury to the person of him, the said Natcho Deneff, said fear being brought about in the mind of him, the said Natcho Deneff, by said defendant, with force and violence, by striking" the said Natcho Deneff on the head with a revolver, a deadly weapon, and threatening to shoot him, the said Natcho Deneff, with said revolver, if he resisted, thereby and by means of such force did then and there produce in the mind of him, the said Natcho Deneff, fear of immediate and great injury to the person of him, the said Natcho Deneff, sufficient to overcome the resistance of him the said Natcho Deneff, and while he, the said Natcho Deneff, was under the influence of such fear, so produced as aforesaid, said defendants did feloniously take, steal, and carry away from the person of him, the said Natcho Deneff, the sum of one hundred dollars, lawful money of the United States, of the value of one hundred dollars, and one leather pocketbook, all the property of the said Natcho Deneff, with the felonious intent, then and there, of the said Cyrus Basberry, George Asbins, and J. W. Lilly, to convert the said one hundred dollars, lawful money of the United States, and the said leather1 pocketbook, to their own use, and to deprive the owner, the said Natcho Deneff, permanently thereof. This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.
    “Dated at Chandler, Lincoln county, state of Oklahoma, this 11th day of February, A. D. 1908. J. M. Gardner,
    “Foreman of the Grand Jury.
    “John J. Davis, County Attorney.”
    The defendant filed a motion to quash the indictment, which was by the court overruled, and the defendant reserved an exception.
    The defendant was placed upon trial, and was found guilty by the jury of conjoint robbery. A motion for new trial was made and overruled, and judgment of the court was pronounced and entered of record. The defendant, expressing a desire to appeal, was granted 90 days in which to make and serve a case-made. On the 28th day of May, 1908, an extension of 60 days, in addition to the 90 days theretofore granted to make and serve a case-made, was granted to the defendant by the judge pro tempore who presided at the trial; but as to whether or not the said judge pro tempore was 'then presiding over a legal term of the district court of Lincoln county the record is silent. The case-made was served on the county attorney on the 21st day of August, 1908. The case-made was signed and settled by Judge W. N. Maben, the regular judge of that district, on the 19th day of December, 1908, and was also duly signed and settled by Special Judge Pro Tempore B. H. Gaylen on the 25th day of February, 1909, and was filed in this court on the 12th day of March, 1909. The case is brought before us on petition in error.

      Emery A. Foster, for appellant.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.
    No briefs reached the reporter.
   FTJBMAN, Presiding Judge,

(after stating the facts as above). First. On the 3d day of February, 1908, a motion for a new trial and a motion in arrest of judgment were overruled by the court, the defendant was duly sentenced, and upon application of the defendant 90 days was granted him in which to make and serve a ease-made. Afterwards, on the 28th day of May, 1908, the said judge pro tempore granted an extension to the defendant of 60 days in which to make and serve a case-made, in addition to the 90 days previously granted. The Attorney General moves the court to dismiss the appeal upon the ground that the judge pro tempore was without power to grant this extension of time, and that the case-made was not served until after the expiration of the 90 days, originally granted, in which the case-made should be prepared and served.

The judge pro tempore did have pow?r to make the original order granting 90 days in which to make and serve the case-made; but did he have power to grant the extension of time in which this might be done? The Attorney General contends that he did not have such power, and that the extension could only have been granted by the regular judge of the district. Section 4742, Wilson’s Bev. & Ann. St. 1903, upon the subject of extending the'time within which the case-made may be prepared and served, is as follows:

“The court or judge may, upon good cause shown, extend the time for making a case and the time in which the case may be served; and may also direct notice to be given of the time when a case may be presented for settlement after the same has been made and served, and amendments suggested, which when so made and presented shall be settled, certified, and signed by the judge who tried the cause, and the case so settled and made shall thereupon be filed with the papers in the cause; and in all cases heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and sighing a case, it shall be his duty to certify, sign, or settle the case in all respects, as if his term had not expired; and if no amendments are suggested by the opposing party, as above provided, said case shall be taken as true and containing a full record of the cause and certified accordingly.”

What court? What judge? This power is confined to the court in which the case was tried, or to the judge of the district in which such court is held. No other court or judge has such power. From this we understand that, if the particular court in which the defendant was convicted was in session before the expiration of the time originally allowed, then whosoever might be presiding as judge at such session would have the power to make the order extending the time, or the regular judge of that district might make the order, whether his court was in session or not, provided the order is made before the expiration of the time granted in the original order. After the time allowed for making and serving a case-made has expired, no court or judge has the power to extend the time for so doing. Abel v. Blair, 3 Okla. 399, 41 Pac. 342; Polson v. Purcell, 4 Okla. 93, 46 Pac. 578; Sigman v. Poole, 5 Okla. 677, 49 Pac. 944; and Commissioners v. Hubble, 8 Okla. 209, 57 Pac. 163.

Our statute upon the subject of extending the time for preparing and serving a case-made was taken from the Kansas statute. Therefore it is important to find out how this statute was construed in that state. In Hulme v. Diffenbacher, 53 Kan. 182, 36 Pac. 60, the Supreme Court said:

“The point is also made that the ease-made was not served within the time fixed by the judge who tried the case, and that the extension of time made by his successor in office is invalid. On the 27th day of November, 1889, the motion for a new- trial was heard and overruled by the court, and the defendants were given 90 days to make and serve a case. After the term of. office of Hon. Ansel B. Clark, the judge before whom such case was tried, had expired, his successor in office, Hon. J. H. Bailey, made an order granting an extension of time of 30 days in which to- make and serve the case. Section 549 of the Code provides: 'The- court or judge may, upon good cause shown, extend the time for making a case, and the time within which the case may be served. * * * And in all causes, heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.’ It will be noticed that the first part of the section gives authority to the court or judge to grant an extension of time. The last part gives authority to the judge who tried the case to sign and settle, notwithstanding the fact that his term of office may have expired. The reason for granting this power to the individual who has ceased to be an officer is perfectly apparent. He has knowledge of what occurred at the trial, while Ms successor in office may know nothing about it. The authority granted by tlje terms of the statute is limited to this necessity. 'Whether an order for extending the time for making and serving a case should be granted depends on circumstances arising after the trial and having no necessary connection with it. As to these circumstances, and as to the propriety of making such an order, the new judge has substantially as good opportunities for deciding understandingly as the old. In the absence of any strong reason for holding otherwise, we think the language used by the Legislature should be given its usual and ordinary meaning, and that in terms it gives the court, or the judge of the court, power to grant the extension. That means the court in session, or -the judge who is in fact in possession of the office. This disposes of the preliminary questions, and requires a consideration of the record before us.”

In Railway Co. v. Leeman, 5 Kan. App. 804, 48 Pac. 932, that court said:

“On October 8, 1895, the jury in this case returned a verdict in favor of the defendant in error. Hon. A. J. Abbott was then the regular judge of the Twenty-seventh judicial district, which embraced Kearney county, and presided at the trial. In view of the fact that said county would, on October 15, 1895, become a part of the Thirty-second judicial district, according to the provision of chapter 106, laws of 1895, after which date the Twenty-seventh district would cease to exist, it was then agreed by counsel that the case should be continued for further proceedings until November 27th, that court should adjourn until said date, and that Judge Abbott should sit in the case to its conclusion as judge pro tern., and do and perform all acts in said cause, including the settling and signing of the case-made, which he could do if the Twenty-seventh district should not have been abolished, ‘and all and singular the things that the regular judge of the district court could do and perform.’ On November 27th the court convened pursuant to the adjournment which had been made according to the said agreement, and the case was concluded by Judge Abbott as judge pro Lem. The time for making and serving a case-made by defendant was thereupon extendea oy me court until January 27, 1896. On the latter date Judge Abbott further extended the time for making and serving the ease-made for 30 days from that date. Defendant in error has moved to dismiss these proceedings; the principal ground of his motion being that a judge pro tem. has no power to extend the time for making and' serving a case-made, except while he is holding court. We think this motion must be sustained, in view of the construction of section 549 of the Code given by our Supreme Court in Hulme v. Diffenbacher, 53 Kan. 181, 36 Pac. 60. The power to extend the time for making and serving a case-made resides with the court when in session, whether presided over by the regular district judge or by a judge pro tem., and with the district judge who is in fact in possession of 'the office. While holding court the powers of the judge pro tem. are as ample as those of the regular judge when sitting as a court; but when the court has finally adjourned the judge pro tem. is shorn of nearly all of his judicial powers. Oh January 27, 1896, Judge Abbott had no connection with the office of district judge. Another person held that office and was exercising its functions. The latter alone possessed the power, under the statute, to make the order which Judge Abbott then attempted to make. The case-made cannot therefore, be considered as such by us. We find, however, that it is certified as a transcript, and we shall not dismiss the proceedings, but will permit the plaintiff in error to treat the purported case-made as a transcript. Dodge v. Hamburg-Breman Ins. Co., 4 Kan. App. 415, 46 Pac. 25. It is so ordered.”

This construction was approved by the Supreme Court of Oklahoma Territory in Whiteacre v. Nichols, 17 Okla. 388, 87 Pac. 865. That court said:

“The record shows that the case was tried at May, 1905, term of the district court of the First judicial district in and for Lincoln county, before Hon. Bayard T. Hainer, presiding judge, and that the time to make and serve a case-made was by the court extended 90 days; that thereafter, on the 9th day of August, 1905, at his chambers, the time was further extended 50 days by Hon. John II. Burford, judge of that district. Objection is raised to the consideration of this case by this court upon the ground that Hon. John H. Burford, the regular presiding judge of said district, not being the trial judge, did not have power to extend the time for making and serving case-made. Section 544, Wilson’s Bev. & Ann. St-. 1903, provides: ‘The court or judge may upon good cause -shown extend the time for making a case and the time in which the case may be served. * * * ’ The above section gives the court, while in session, or the judge of the court, power to grant the extension. In this case Hon. Bayard T. Hainer was the trial judge, while Hon. John H. Burford was the judge of the court, the regular appointed and acting judge of the district court of that county, and in possession of the office, and as such he had power to grant the extension at chambers. Hulme et al. v. Diffenbacher, 53 Kan. 181, 36 Pac. 60; Railroad Co. v. Leeman, 5 Kan. App. 804, 48 Pac. 932; Wallace v. Caldwell, 9 Kan. App. 538, 59 Pac. 379.”

This question came before the Supreme Court of this state in City of Shawnee v. Farrell, 22 Okla. 652, 98 Pac. 942. The opinion is by Justice Nane. He cites and approves the above authorities, as follows:

“The motion to strike the case-made from the files and dismiss the appeal in the above-entitled cause must be sustained. The cause was tried in the district court of Pottawatomie county before Hon. J. H. Wahl, acting as judge pro tempore. On the 4th day of January, 1908, judgment was rendered therein in favor of the defendant in error, plaintiff below, a motion for a new trial overruled, and the plaintiff in error, defendant below, was allowed 30 days in which to make and serve a case-made for the Supreme Court. Ten days were allowed to suggest amendments, case-made to be settled and signed upon 5 days’ written notice by either party. On the 27th day of January, 1908, Hon. J. H. Wahl, the former judge pro tempore, made an order extending the period for making the case-made for 30 days from and after the time first allowed, and giving the plaintiff 30 days thereafter in which to suggest amendments thereto, the same to be signed and settled on 5 days’ written notice by either party. The case-made was signed and settled by ‘J. H. Wahl, Special Judge,’ on the 28th day -of February, 1908, which would be out of time unless the former judge pro tempore had authority to make the order granting the extension. The authorities seem to be uniformly to the effect that a judge pro tempore is without power to enter an order extending the time to make and serve a case-made for the Supreme Court after he has ceased to sit as a court. A., T. & S. F. Ry. Co. v. Leeman, 5 Kan. App. 804, 48 Pac. 932; A., T. & S. F. Ry. Co. v. McClure, 5 Kan. App. 882, 48 Pac. 1117; Hulme et al. v. Diffenbacher, 53 Kan. 181, 56 Pac. 60; Wallace v. Caldwell, 9 Kan. App. 538, 59 Pac. 379.
“The first paragraph of the syllabus in the case of A., T. & S. F. Ry. Co. v. Leeman, supra, reads as follows: ‘After he has ceased to sit as a court, a judge pro tem. has no power to extend the time for making and serving a case-made in an action tried before him. Such an extension can only be granted by the regular district judge, who is in fact in possession of the office.’
‘¿In Wallace v. Caldwell, supra, Dennison, P. J., states the rule as follows: ‘Slight diligence in examining the authorities would have shown that the judge in possession of the office, or the court, at the .time the extension was made, was the proper person or tribunal to extend the time, and that a judge pro tem., after his term of office has expired, cannot extend the time for making and serving a case-made.’
“Section 4742, Wilson’s Eev. & Ann. St. 1903, provides that ‘the court or judge may, upon good cause shown, extend the time for making a case and the time in which the case may be served. * * * ’ This court will take judicial notice of the fact that Hon. W. N. Maben was the regular judge of the district court in which the order extending the time was made. This being so, he, or the district court of Lincoln county, alone, were authorized by statute to make the order.
“The case of Whiteacre v. Nichols, 17 Okla. 387, 87 Pac. 865, is in point on the question. In that case the cause was tried before Hon. Bayard T. Hainer, while Hon. John H. Burford was judge of the court. Judge Burford made the order extending the time. Mr. Justice Garber, who wrote the opinion of the court, sa3rs: ‘In this case Hon. Bayard T. Hainer was the trial judge, while Hon. John H. Burford was the judge of the court, the regular appointed and acting judge of the district court of that county, and in possession of the office, and as such he had power to grant the extension at chambers.’
“Upon the authority of the foregoing cases, the case-made must be held to have been signed and settled out of time; and, as there are no questions presented for review, except those which must be brought into the record by a case-made or bill of excep-lions, the appeal is dismissed without prejudice. All the Justices concur.”

This question again came before our Supreme Court in Horner v. Goltry & Sons, 23 Okla. 905, 101 Pac. 1111. Justice Dunn, in rendering the opinion of the court, said:

“Two questions are presented in the motion to dismiss the petition in error in this case. The first is: May a special judge, or a judge pro tempore, after he has ceased to sit in the case, extend the time for making and serving a case-made? The facts out of which this question arises are as follows: On May 12, 1908, the motion for new trial in the above-entitled cause was by Winfield Scott, the special judge who tried the same, overruled, and 60 days given to plaintiff in error within which to prepare and serve a case-made preparatory to appealing the case to this court. On July 10, 1908, on the application of plaintiffs in error, the said special judge granted an order extending the time for making and serving the case to August 12, 1908. The case-made was served August 11, 1908. Defendants in error filed their motion in this court, moving the dismissal of the cause, urging the contention that the special judge was without authority to grant such extension of time; that this power is vested alone in the regular court or judge, who may, upon good cause shown, extend the time for making a case, and fix the time within which the same shall be served. In our judgment defendant’s motion is well taken, and should be sustained.
“Section 544, art. 22, c. 66 (section 4742) Wilson’s- Eev. & Ann. St. 1903, provides: ‘The court or judge may, upon good cause shown, extend the time for making a case, and the time within which the ease may be served. * * * And in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the ease in all respects as if his term had not expired.’ The power of a judge pro imipore to act under the foregoing statute has already been determined by this court in the case of City of Shawnee v. Farrell, 22 Okla. 652, 98 Pac. 942, wherein we held: ‘After he has ceased to sit as a court, a judge pro tempore has no power to extend the time for making and serving a case-made in an action tried before him. Such an extension can only be granted by the regular district judge, who is, in fact, in possession of the office.’ ”

The above authorities appear to us to be' conclusive of the question that a judge pro iem.j, it matters not how he was acting as such, has no1 power to grant an extension of the time within which a bill of exceptions may be prepared and served. After he has passed sentence on the defendant, and has fixed the time within which the ease-made should be prepared and served, the power of the pro tem. judge to make any further orders in the case ceases, except to certify the case-made, if prepared and served within the time allowed in the original order, unless such judge pro tem. iu still presiding over and has charge of the docket of the court. Under such conditions the judge pro tem. may lawfully make any order that the judge of the district court could make. If any further extension of time to prepare and serve a ease-made had been desired, application should have been made to the regular judge of the district, or the judge presiding at a session of the district court of Lincoln county, for such extension, while such court was in session. If Judge Gaylen had been presiding at a legal term of the district court of Lincoln county at the time when he granted the extension of time, and had charge of the docket, this fact, should have been made to appear in the record of this case. This court will take judicial notice of the fact that Hon. W. N. Maben was then the regular judge of the district court of Lincoln comity, and this presumption must control our action, unless record evidence to the contrary is produced and legally presented to us. Therefore the order made by Pro Tem. Judge Gaylen, extending the time for preparing and serving the case-made, must be treated by this court as a nullity, and any pretended case-made prepared and served after the expiration of the 90 days originally granted cannot be considered by us.

But from this it does not necessarily follow that we should dismiss the appeal. Section 5606, Wilson’s Rev. & Ann. St. 1903, is as follows:

“(5606) See. 470. An appeal to the Supreme Court may be taken by the defendant, as a matter of right,' from any judgment against him; and, upon the appeal, any decision of the court, or intermediate order made in the progress of the case, may be' reviewed.”

Section 5612, Wilson’s Bev. & Ann. St. 1903, among other things, says:

“The plaintiff in error shall file with his petition in error a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified, or the original ease-made, as hereinafter provided, or a copy thereof. The plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court, and in no- such action hereafter instituted in the Supreme Court shall any charge, fees, or costs be taxed or allowed for making any copy of any paper filed in said action, except for one copy of said petition in error and case-made, or transcript, when such copy shall be ordered by the court for its use, and the same has not been furnished by the plaintiff in error thirty days before the first day of the term at which the case shall stand for hearing, and no costs or fees shall be taxed for making a complete record in such case, except when the same-shall be made at the request of a party to the suit at his own-costs. A party, desiring to have any judgment or order of the district or probate court or a judge thereof reversed by the Supreme Court, may make a ease containing a statement of so much of' the proceedings and evidence, or other matters in the action as. may be necessary to present the errors complained of', to the Supreme Court.”

So it is seen that an appeal may be taken to this court,, either by a case-made accompanied by a certified transcript of the record, or on such certified transcript of the record alone,, as the party appealing may elect. In this case the defendant attempted to appeal both upon a case-made and a certified transcript of the record. For the reasons hereinbefore given, this appeal must fail so far as the case-made is concerned. We .are without power to consider anything that appears alone in the case-made. But we find that the record contains a properly certified transcript of the record. This we must consider, under the plain mandatory language of the statute. The motion to dismiss the appeal is therefore overruled, and the appeal will be treated as having been made upon the transcript of the record alone.

The first question which presents itself is as to what constitutes the record. Under the common law the record proper was the indictment, the plea of the defendant, the verdict of the jury, and the sentence of the court. But our statute has enlarged this rule. In this state the instructions of the court to the jury, as well as instructions requested by the defendant and refused by the court, and a copy of the clerk’s minutes of the trial, are all incorporated in and become a part of the record. Wilson’s Rev. & Ann. St. 1903, §§ 5484, 5580. See, also, Jesse Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371. We find the indictment, the plea of the defendant, the clerk’s minutes of the trial, and the instructions given and refused, and the judgment incorporated in and properly certified to by the clerk in the transcript of the record before us. The petition for the writ of error complains of alleged errors appearing in the record, and we are therefore required to consider them on this appeal.

The question we are now considering Avas passed upon by the Supreme Court of Oklahoma Territory in Lee v. United States, 7 Okla. 558, 54 Pac. 792. The court there said:

“It is admitted by plaintiif in error that no case-made is attached to the petition in error, or filed in this court; but this is not ground for dismissing the appeal, as under our statute (section 5324, St. 1893) two methods aré provided for bringing a judgment of the district court in a criminal case to this court for review, viz., by petition in error, with the original case-made or a certified transcript of the record attached thereto. By section 5292, St. Okla. 1893, it is proAuded: ‘When a judgment upon a conviction has been had, the clerk must enter the same upon the minutes, stating briefly the oifense for which the comdction has been had, and must immediately annex together and file the following papers, which constitute a record of the action: (1) The indictment and a copy of the minutes of the pleas or demurrers; (2) a copy of the minutes of the trial; (3) the charges given or refused, and the indorsements, if any, thereon; and (4) a copy of the judgment.’ Attached to the petition in error in this cause are papers which the clerk of the district court certifies to be true, full, and complete copies of the indictment, demurrer, order overruling demurrer, plea, proceedings of trial, instructions, verdict, judgment, and sentence in the cause. While the certificate of the clerk does not, in exact words, recite that these papers contain a full, true, and complete transcript of the record in the cause, yet as they are certified to be true, full, and complete copies of everything which the said section 5292 of the Code makes a part of the record of the cause, they must be held to be a transcript of the record, and properly presenting for our consideration and review any question upon the face of the record. Therefore the motion to dismiss appeal is overruled.
“A motion for a new trial and bill of exceptions are essential only for the purpose of saving and presenting such errors occur-ing during the progress of the trial as do not appear on the face of the record; but where the errors complained of appear on the face of the record proper, although they may be errors occurring during the progress of the trial, no motion for new trial or bill of exceptions is necessary for their preservation or review. 16 Am. & Eng. Enc. Law, 610, and cases cited. By the record proper is meant that which it is the duty of the court to order, or that which the law makes a part of the judgment roll, without special acts or requests from the parties. Elliot, Gen. Prac. § 190. Under cur Code of Criminal Procedure (section 5292, St. 1893) the instructions of the court and the indorsements thereon arc a part of the record proper, and any errors therein, if apparent upon the face of the whole of such record, may be reviewed by this court, if the indorsement on said instructions show that exceptions were duly taken, although there be no bill of exceptions or motion for ■new trial. It is a settled rule that, where the evidence is not in the record upon appeal, a judgment will not be reversed on account of instructions given by the trial court, if on any supposable state of facts, relevant to the issues, the instructions might have been correct. It is equally well settled that, though the evidence is not in the record, a judgment will be reversed if any instruction complained of would not have been correct under any evidence that might have been given under the issues. If, then, the record proper or judgment roll in this case, which contains the ehakge of the court shows that such charge, could not have been correct under any evidence that might have been given under the issues, and that the giving of such charge was excepted to, we may review the same, although the evidence is not in the record.”

We indorse the conclusions announced in the above case as being a sound statement of the law, with the further statement that errors appearing in the record, which affect the jurisdiction of the court as to the subject-matter of the offense, are ground for a new trial, whether excepted to or not, and that in felony-cases errors appearing upon the face of the record, which deprived the defendant of a substantial right, may be ground for a reversal, although not excepted to upon the trial. See Vickers v. United States, 1 Okla. Cr. 542, 98 Pac. 467.

Second. Upon the face of the record it appears that the defendant filed a motion .to quash the indictment. Among other objections, it is claimed that the indictment is fatally defective, because it does not allege that the property was wrongfully taken. Section 2208, Wilson’s Rev. & Ann. St. 1903, is as follows:

“Robbery is a wrongful taking of personal property, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

Section 5364, Wilson’s Rev. & Ann. St. 1903, is as follows:

“Words used in a statute to define a public offense need not be strictly pursued in the indictment, but other words conveying the same meaning may be used.”

Every wrongful act is not felonious, but every felonious act is wrongful. The Supreme Court of Alabama, in Holt v. State, 86 Ala. 600, 5 South. 793, correctly states the rule as follows:

* * * If the indictment is framed under a statute which defines the offense created and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning. * * * ”

This is in harmony with common sense and with section 5364 of our statute. We therefore hold that, as applied to this case, the allegation that the acts done were feloniously committed necessarily includes the idea that they were wrongfully done. We do not blame lawyers for making technical defenses; but appellate courts are to blame for sustaining them, when the technicalities relied upon do not involve some substantial right of the defendant. At the same time we desire to admonish county attorneys that the safe course to pursue in charging offenses is to follow the exact language of the statute in defining the offense.

Counsel in their brief say:

“The statute provides that the Tear’ must be of an unlawful injury. The court will notice that the Tear’ produced in the mind of Natcho Deneff was a Tear’ of immediate and ‘great’ injury to his person. The use of the word ‘great’ is certainly insufficient. The pleader should have used the word ‘unlawful.’ ”

Section 2211, Wilson’s Bev. & Ann. St. 1903, is as follows:

“The fear which constitutes robbery may be either, first, the fear of an unlawful injury, immediate or future, to the person or property of the person robbed or of any relative of his, or member of his family; or, second, the fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed, at the time of the robbery.”

The indictment charged that the defendant and those acting with him “did then and there wilfully, unlawfully and feloniously make an assault upon the person of one Natcho Deneff, and did then and there willfully, unlawfully, and feloniously; wrongfully, forcibly, and conjointly, against the will and consent of him, the said Natcho Deneff, and by means of force and fear of immediate and unlawful injury to the person of him, the said Natcho Deneff. said fear being brought about in the mind of him, the said Natcho Deneff, by said defendant, with force and violence, by striking the said Natcho Deneff on the head with a revolver, a deadly weapon, and threatening to shoot him, the said Natcho Deneff, with said revolver if he resisted, thereby and by means of force did then and there produce in the mind of him, the said Natcho Deneff, fear of immediate and great injury to the person of him, the said Natcho Deneff, sufficient to overcome the resistance of him, the said Natcho Deneff, and while he, the said Natcho Deneff, was under the influence of such fear, so produced as aforesaid, said defendant did feloniously take, steal, and carry away from the person of him, the said Natcho Deneff, the sum of one hundred dollars.” The indictment does charge that the assault was unlawful, and that the robbery was accomplished by means of force and fear of immediate and unlawful injury to the person robbed. It might have been better to haye used the words “unlawful injury,” instead of “great injur}'/5 when this matter is' referred to in a subsequent portion of the indictment; but after this expression is used the indictment proceeds, and alleges that while the party robbed “was under the influence of such fear, produced as aforesaid/5 etc., the robbery was completed. The words “produced as aforesaid55 included all the means used in accomplishing the robbery. We therefore hold that the point made was properly over-rnled by the trial court.

The next objection urged to the indictment is that it does not allege that the property taken was in the possession of the person robbed. It is true that our statute defines robbery to be a “wrongful taking of personal property in the possession of another, from Iris person or immediate presence/5 etc. Section 5355, Wilson5s Rev. & Ann. St. 1903, is as follows:

“All forms of pleading in criminal actions, and rules by which the sufficiency of ^headings is to be determined are those prescribed by this chapter.55 .

Section 5367, Wilson’s Rev. & Ann. St. 1903, is a§ follows:

“Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.55

Prom these sections we understand three things: (1) There can be no robbery, unless the personal property taken was in the possession of the person robbed. (2) All common-law forms of pleading in criminal cases have been abolished in this state, and only those forms prescribed by the statute are to govern our courts in such matters. (3) That presumptions of law and matters of which judicial notice is taken need not be stated in an indictment. Property may be in the possession of a person and still not be on his person; but it is impossible for property to be on the person without also being in the possession of such person. Therefore it is a necessary presumption, and this court takes judicial notice of the fact, that property is in the possession of the person who has it on his person. In cases when property is taken in the immediate presence of its owner, it must be alleged that he was also in possession of such property, or the offense of robbery will not be charged. But, when the allegation is that the property was taken from the person of another, it will be but an unnecessary repetition to allege that such property was in the possesson of such person, for the first allegation necessarily includes the latter. This would not only be bad pleading, but it is expressly forbidden by statute. Section 5365, Wilson’s Bev. & Ann. St. 1903, defines the rules of pleading in an indictment. Paragraph 6 of this statute is as follows:

“That the act of omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”

We therefore hold that the trial court did not err in overruling this objection to the indictment. The indictment in this case was not artistically drawn, and is subject to criticism in some respects; but, taken as an entirety, it is good under our statutes. We therefore sustain the action of the trial court in overruling the motion to quash the indictment.

Third. .The defendant complains that the verdict of the jury finding the defendant guilty is void for uncertainty, because it does not find the degree for which he was convicted. The answer to this objection is found in the fact that there are no degrees in conjoint robbery, and but one punishment can be inflicted.

Fourth. There are some inaccuracies in the instructions given; but, taken as a whole, the instructions are correct, and favorable to the defendant. The evidence not being before us in such a manner as would authorize us to act upon it officially, and the inaccuracies in the instructions, being formal, rather than fundamental, and as they are not presented or complained of in the brief of counsel for the defendant, we are not at' liberty to consider them. The correct rule in such cases is stated by Judge Tarsney in Lee v. State, 7 Okla. 565, 54 Pac. 793, as follows:

“It is a settled rule that, where the evidence is not. in the record upon appeal, a judgment will not be reversed on account of instructions given by the trial court, if on any supposable state of fact, relevant to the issues, the instructions might have been correct.”

In Brooks v. State, 2 Tex. App. 1, the objection to what purported to be a statement of facts having been sustained, the court said:

“We must presume that the charge of the court presented the law applicable to the facts, and we must further presume that the verdict and judgment were fully warranted by the evidence.”

In Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004, the court said

“Where the charge is applicable to any state of facts that might be made by the testimony under the allegations of the instrument, this court will assume that the court below submitted to the jury the law of the case, and all of the law required by the testimony, or any portion of the same. In the absence of a statement of facts, we cannot assume that the testimony presented certain defenses, and reverse the judgment because the court did not charge thereon. Should we consider the statement of facts in the record, we think the evidence supports the verdict; but this we cannot do. We assume the verdict was supported by the testimony, and the judgment is affirmed.”

The doctrine that where a defendant has been convicted, and appeals, and the evidence is not properly before the court, unless it appears from the record that fundamental error has been committed, the court will not reverse the conviction, is sustained by the following Texas cases: Chandler v. State, 2 Tex. 306-308; Barrett v. State, 25 Tex. 605-610; Kindred v. State, 32 Tex. 609; Henrie v. State, 41 Tex. 575-577; Washington v. State, 41 Tex. 583-584; Keef v. State, 44 Tex. 584; Branch v. State, 1 Tex. App. 99, 100; Trammell v. State, 1 Tex. App. 121-124; Mahl v. State, 1 Tex. App. 127-129; Ferrell v. State, 2 Tex. App. 399-402; Mitchell v. State, 2 Tex. App. 404, 405; Edwards v. State, 2 Tex. App. 525, 526; Booker v. State, 3 Tex. App. 227; Robinson v. State, 3 Tex. App. 487; Owens v. State, 4 Tex. App. 153, 154; Carter v. State, 5 Tex. App. 458-462; Lawrence v. State, 7 Tex. App. 192; White v. State, 9 Tex. App. 41-43; Thompson v. State, 9 Tex. App. 649-666; Lynn v. State, 28 Tex. App. 515-516, 13 S. W. 867; Alstrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989; Kutch v. State, 32 Tex. Cr. R. 184, 185, 22 S. W. 594; Hall v. State, 33 Tex. Cr. R. 537, 28 S. W. 200; Mootry v. State, 35 Tex. Cr. R. 450-455, 33 S. W. 877, 34 S. W. 126; Green v. State (Cr. App.) 20 S. W. 366; Bailey v. State, (Cr. App.) 20 S. W. 1102; Day v. State (Cr. App.) 21 S. W. 370; Goodson v. State (Cr. App.) 22 S. W. 20; Barnett v. State (Cr. App.) 29 S. W. 43; Burbank v. State (Cr. App.) 29 S. W. 383; Nichols v. State (Cr. App.) 29 S. W. 385; Oates v. State (Cr. App.) 30 S. W. 554; Jones v. State (Cr. App.) 31 S. W. 644; Seidel v. State (Cr. App.) 41 S. W. 607; White v. State (Cr. App.) 42 S. W. 303; Moss v. State, 39 Tex. Cr. R. 3, 43 S. W. 983; Sanchez v. State, 39 Tex. Cr. R. 389, 46 S. W. 249; Saragosa v. State, 40 Tex. Cr. R. 64, 48 S. W. 190; Moore v. State (Cr. App.) 53 S. W. 862. These cases are too numerous, and the propositions which they, assert are too well settled, to require that we discuss them in detail, or that we cite additional authorities in support of this rule of law.

Section 21, art. 11, c. 14, p. 173, of the Session Laws of 1909, is as follows:

“In all criminal eases wherein any person has been convicted of crime in any court in this state prior to the date of the passage and approval of this act, and in all other criminal cases wherein the state of Oklahoma is required by law to assume the care control, custody and jurisdiction of persons convicted of crime, in any court in Indian or Oklahoma Territories, prior to statehood, and in any of the eases hereinbefore enumerated, wherein any person has been convicted and sentenced by any of the aforementioned courts to any prison, or penitentiary, situated outside of the territory now comprising the state of Oklahoma, and any such person so convicted and senfenped having heretofore taken an appeal from such conviction and sentence, which appeal is now pending before the Criminal Court of Appeals ox this state; and upon the hearing of such appeals, should the Criminal Court of Appeals be of opinion that the conviction and sentence in such case should be affirmed, said court shall have the power to modify the sentence of the trial court in said case, to the extent of changing the place of confinement of the appellant, or appellants, from the prison or -penitentiary situate without the state of Oklahoma designated in the judgment of said trial court, to such other place of confinement within the state as may be provided by law for persons convicted' of crime.”

APPEAL — Change of Judge During Trial — Time to Object. An objection that there was a change in the presiding judge during the trial of a cause comes too late when this objection is urged for ,the first time after the cause has been affirmed and upon motion for rehearing, and when the appellate court has judicial knowledge that the judge presiding during such change was the regular judge of the court in which the trial was had.

(Syllabus by the Court.)

John Embry, for the motion.

Charles L. Moore, Asst. Atty, Gen., for the State.

This case was tried before the penitentiary of Oklahoma was established at South MeAlester, and under the law then in force the defendant was sentenced to imprisonment in the state penitentiary of Oklahoma, which was then the state penitentiary at Lansing, Kan., and that he be confined therein for life-at hard labor, from the date of such sentence. In conformity with the statute above quoted, said sentence and judgment is modified, and the place of his confinement is changed to the state penitentiary of Oklahoma, located at South MeAlester, ■ Okla., and upon receipt of this opinion the clerk of the district court of Lincoln county is directed to issue an order to the sheriff of Lincoln county, in conformity with the judgment of the district court of Lincoln county as above modified.

Affirmed.

DOYLE and OWEN, Judges, concur.

ON MOTION FOE REHEARING.

Denied January 9, 1911.

PEE CURIAM.

One of the grounds relied upon in the motion for a rehearing is that the record discloses the fact that the Hon. W. N. Maben presided over the court in which appellant was tried during part of the time when the testimony was being received and also at the time the verdict was rendered. This objection was not relied upon in the motion for a new trial, and was not incorporated in the petition in error, and was not presented upon appeal when the case was first submitted to this court, and the record fails to show that an objection was made in the lower court upon the part of appellant to the fact that Judge Maben presided over any part of his trial. The great weight of authorities is to the effect that there can not lawfully be a change of the presiding judge .during the trial of a cause, but the authorities are not all to this effect.

“A change of the presiding judge during the trial of a cause is not necessarily a cause for reversal, unless some special harm or prejudice has resulted by reason of such change.” (Ency. PL & Pr., vol. 21, p. 1002.)

See, also, Hendrix v. Bell, 84 Ill. App. 523; Pegalow v. State, 20 Wis, 61; Lamphere v. State, 114 Wis. 193; Bullock v. Neal, 42 Ark. 279.

We take judicial notice of the fact that Judge Maben was the regular judge of the district court of Lincoln county, and as such he had authority to preside over the trial of all cases therein pending.- In view of the fact .that the objection now urged was made for the first time upon motion for rehearing, we are of'the opinion that it comes too late. The other grounds relied upon in the motion for rehearing were all fully considered in the original opinion of this court.

Motion for rehearing is denied.


source: Caselaw Access Project

author: EURMAN, Presiding Judge.

license: Public Domain

text:
    T. L. O’BRYAN v. STATE.
    No. A-381.
    Opinion Filed January 9, 1911.
    APPEAL — Officers—Removal—Jurisdiction. The Supreme Court has jurisdiction of appeals in prosecutions for the removal of officers.
    (Syllabus by the Court.)

      Appeal from District Court, Woodward County; B. H. Loofiour-row, Judge.

    This was a proceeding against Hon. T. L. O’Bryan, County Judge of Woodward county. He was removed from office, and he appealed.
    Appeal dismissed.

      C. W. Herod, S. M. Smith, and D. P. Ma^'um, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   EURMAN, Presiding Judge.

This case has been passed upon by the Supreme-Court (26 Okla. 407). There being doubt as to which court had appellate jurisdiction of this class of cases, an appeal was prosecuted to both courts. The Supreme Court took jurisdiction of the case and reversed the judgment of conviction upon the merits. We concur in the opinion that the Criminal Court of Appeals has no jurisdiction in this class of eases. See State v. Alexander, ante. This appeal 'is therefore dismissed.

DOYLE and RICHARDSON, Judges, concur.


author: FURMAN, Presiding Judge.

text:
    A. J. BUTLER v. STATE.
    No. A-402.
    Opinion Filed January 9, 1911.
    APPEAL — Abandonment—Application for Pardon. Where an appeal is pending in this court and the appellant applies to the Governor of the state for a pardon, commutation, or parole, such application amounts to an abandonment of the appeal, and this fact being shown to the court the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from Distñct Cowl, Choctaw County; I). A. Richardson, Judge.

    The defendant was convicted of the crime of murder, and was sentenced to imprisonment in the penitentiary for the period of his natural life, and he appeals.
    Appeal dismissed.
   FURMAN, Presiding Judge.

It has been made known to this court that appellant has applied to the Governor of the state for a pardon, commutation, or parole. Such action upon the part of appellant amounts to an abandonment of the appeal. An appellant cannot invoke the judgment of this court upon the merits of hi& appeal, and while such appeal is pending apply to the Governor of the state for a pardon, commutation, or parole; such action is simply trifling with this court and will not be permitted. It having been made known to us that the appellant in this case has applied to the Governor of the state for a pardon, commutation, or parole, the appeal is dismissed.

DOYLE, Judge, concurs.

Judge Richardson presided at the trial of this case in the court below, and took no part in the 'Consideration or disposition of the case in this court.


author: PER CURIAM.

text:
    JOE BARNARD v. UNITED STATES.
    No. A-275.
    Opinion Filed January 9, 1911.
    APPEAL — Abandonment—Application for Pardon. Where an appeal in a criminal case is pending in this court and the appellant applies to the Governor of the state for a pardon, commutation, or parole, such action on the part of appellant amounts to an abandonment of the appeal and the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Marshall Qohmiy; D. A. Richardson, Judge.

    Appellant was convicted of assault with intent to commit rape and sentenced to three years’ imprisonment in the penitentiary, and he appeals.
    Appeal dismissed.
   PER CURIAM.

It has been made known to this court that the appellant in this case has applied to the Governor of the state of Oklahoma for a pardon, commutation, or parole. Such action on his part amounts to an abandonment of the, appeal. See Butler v. State (ante), decided at the present term.

The appeal is therefore dismissed.

Judge Richardson presided at the trial of this case in the court below, and took no part in the consideration or disposition of the case in this court.


author: DOYLE, Judge.

text:
    JOHN BONNER v. STATE.
    No. A-369.
    Opinion Filed November 22, 1910.
    APPEAL — Review — Failure to File Briefs. Where a plaintiff in error appeals from a judgment of conviction and no briefs are filed, or oral argument made, this court will make an examination of the indictment, the instructions given and the judgment and sentence, and if no error prejudicial to the substantial rights of the plaintiff in error appears, the judgment will be affirmed-
    (Syllabus by the Court.)

      Appeal from District Court, Carter County; S. II. Bussell, Judge.

    John Bonner was convicted of larceny and appeals.
    Affirmed.

      Champion ’& Champion, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

John Bonner was indicted in the district court of Carter county, at the November, 1908, term of the district court of Carter county, which indictment charged the larceny of two horses. On the 26th day of February, 1909, the- case was tried, and the jury returned a verdict finding the defendant guilty as charged, and assessed his punishment at four years in the penitentiary. Motion for new trial having been filed, the samé was on March 1,-1909, overruled, and judgment was rendered by the court in accordance with the verdict, from which judgment an appeal was properly perfected by filing in this court on October 15, 1909, a petition in error with case-made attached, and proof of service of notices of appeal.

On March 26, 1910, the Attorney General filed a motion to dismiss for want of prosecution. At the May, 1910, term, thirty days’ additional time was granted to file briefs. No brief has been filed and no appearance made on behalf of plaintiff in error, when the case was called for oral argument. On August 29, 1910, the Attorney General filed a motion to affirm for want of proseeution, which motion has not been resisted. Upon this condition of the record we do not consider it the duty of this court to go into a careful examination of the record; however, we have examined the indictment, the instructions of the court, and the judgment and sentence, and we have discovered no error prejudicial to the substantial rights of plaintiff in error.

The motion to affirm will therefore be sustained, and the judgment of the district court of Carter county is in all things affirmed. The mandate of this court is ordered issued directing the district court of Carter county to cause the judgment and sentence to be enforced.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


text:
    A. E. PERKY v. STATE.
    No. A-665.
    Opinion Filed November 23, 1910.

      Appeal from District Court, Comanche County; J. T. Johnson, Judge.

    Defendant was convicted of the crime of grand larceny and sentenced to one 3rear’s imprisonment in the state penitentianr, and appealed.
    Appeal dismissed.

      J. F. Thomas, for plaintiff in error.

      Charles L. Moore, Asst. Atty, Gen., for the State.
   PER CURIAM.

The record in this case is in precisely the same condition as case No. A-664, A. E. Perky v. State, ante, and for the reasons therein stated, the appeal is dismissed.


author: FURMAN Presiding Judge.

text:
    LEE LAMM et al. v. STATE.
    No. A-298.
    Opinion Filed November 28, 1910.
    1. TRIAL — Statements by Party — Incorporation in -Record. (a) Section 1 of art. 1 of the Session Laws of Oklahoma, 1905, page 326, gives to either party to a trial the right to demand of the court that the -court stenographer shall take down in shorthand any statement made b-y any party to such trial which might properly be a part of the ease-made for appeal or proceeding in error; and if the court refuses to comply with such demand, the 'matter may ¡be preserved in the record by affidavits or by any other competent evidence, and such refusal upon the part of the trial court will be ground for reversal, without regard to the merits thereof.
    (b) Any party to a cause has the right to demand that the court stenographer shall be required to take down any matter which may transpire at the trial, when such matter, if objected to, is such that it may properly he made a part of a case-made for appeal or proceeding in error.
    2. APPEAL — -Review—Improper Argument — Reservation of Grounds of Review, (a) When any objection is made to the argument of the county attorney and no exception is reserved to the action of the court in overruling said objection, improper remarks made by the county attorney in his argument will not be ground for a new trial unless they were of such a character that the injurious effect -cause-d thereby could not ¡be withdrawn from the-minds of the jurorf.
    (b) Improper remarks made by a county attorney in his-argument to the jury must be incorporated in the case-made and certified to by the trial judge before they can be considered upon appeal. Such remarks -can not be presented by affidavits unless it appears from the record that counsel for the defendant requested the trial judge to have such remarks taken down by the stenographer, in order that he might incorporate such remarks and his objections thereto in the record; and the court had refused to have this done. In that event only can such remarks be presented to this -court upon appeal by affidavit.
    3. INTOXICATING LIQUORS — Parties to Offenses — Agency. (a) The -law of agency governing civil cases has no application to the criminal law.of this- state; and when -a party assists in the commission of a crime he .can not screen himself upon the ground that he was simply acting as agent.
    (b) Where a defendant in a prosecution for violation of the prohibitory! liquor law claims that he simply acted as the agent of the purchaser in procuring prohibited liquor, such claim will not constitute a defense. It rather shows that he is guilty upon his own testimony.
    (Syllabus by the 'Court.)

      Appeal from Washita County Court; L. R. Shem, Judge.

    Appellants were convicted of a violation of the prohibitory liquor law, and were each sentenced to pay a fine of $50 and to be imprisoned for 30 days in the county jail, and they appealed.
    Affirmed.

      Smith & Wagner, for appellants.

      Fred 8. Caldwell, for the state.
   FURMAN Presiding Judge.

First. It is contended that the court erred in refusing appellants’ motion to require the court stenographer to take down in shorthand all of the statements made by the court and attorneys in the presence and hearing of the jury. In support of this motion appellants’ counsel rely on sec. 1 of art. 7, Session Laws of 1905, page 326, which is as follows:

“It shall be the duty of the court reporter to take down in shorthand, and to correctly transcribe, when required, all the proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses or the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attorney, shall be tallen and transcribed. A refusal of the court to permit, or. when requested, to require any statement to De taken down by the stenographer, or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

The record in this case shows that when the motion was made the court ruled that the court stenographer must take down all that occurred during the trial except arguments of counsel, and that the attorney for the state and counsel for the defendant would each be entitled to have the court reporter take down in shorthand, any statement’made in 'the argument to which either of them desired to object, and either party would be allowed to preserve their exceptions to the same in the record; We think that this order of the court was all that the defendants had a right to demand under the statute above quoted. It will be observed that in the express language of the statute the refusal of the court to permit, or when requested, to require, any matters that might properly be a part of a case-made for appeal or proceeding in error to be taken down by the stenographer and transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof. We think the object of this statute was simply to enable the parties to a trial to secure a record upon appeal, and that it does not force the judge to have the stenographer taire down any statement that would not be subject to review upon appeal. It does not mean that the court stenographer should be required to take down the entire speeches ■ of counsel for both sides of the case where no objection is made to such speeches. It gives the counsel the right to have' any given statement to which they object, and which they desire to incorporate in a case-made, taken down by the stenographer, and, upon refusal of the court to have this done, reversible error is committed, without regare! to the merits thereof. Indeed, it would be a needless and senseless thing to require a stenographer to take down everything said by counsel to which no objection was made. It would greatly encumber the record and force this court to waste a great deal of time in reading absolutely useless matter. We therefore hold that the ruling of the trial court upon this question was proper.

Second. Counsel for the defendants complain of statements alleged to have been made by the county attorney in his closing argument to the jury. The record, however, shows that no objection was made to any statement in the closing argument of the county attorney, or that any request was made to the court to have such statements so objected to taken down by the stenographer. Under these conditions we can' not consider the 'affidavits filed by counsel for the defendants as to the remarks of the county attorney. See Colon Cochran v. State. No. A-269, ante, decided at this session of the court. The court did not err in refusing to grant the defendants a new trial upon the' ground of improper arguments made by the county attorney.

Third. The defendants complain of the action of the court in refusing to give to the jury a number of special instructions requested by the defendants. There is but one question involved in this contention, and that is as to whether or not defendants were the agents of the purchaser of the liquor. The court properly refused to give these instructions. The law of agency governing civil cases does not apply to the criminal law of this state, and when a party knowingly assists in the commission of a crime, he can not screen himself from punishment upon the ground that he was simply acting as an agent. See Buchanan v. State, No. A,217, post, decided at the present term of this court.

The other assignments' of error are either immaterial or not supported by the record.

The judgment of the lower court is therefore affirmed, with directions to the sheriff of Washita county to proceed with the execution of such judgment.

DOYLE and BICHABDSON, Judges, concur.


author: FUKMAN, Presiding Judge.

text:
      W. A. BUCHANAN v. STATE
    No. A-217.
    Opinion Filed November 30, 1910.
    (112 Pac. 32.)
    1. PARTIES TO OFFENSES — “Principals”—Who Are. All persons who take part, participate, or engage in an offense are guilty as principals. It is immaterial as to whether they have any interest in or receive any financial gain from the commission of such crime.
    2. PARTIES TO OFFENSES — Defenses—Agency. The law of agency asi applied in civil cases has no application in criminal cases, and no man can escape punishment when toe participates in the commission of a crime upon the ground that he simply acted as agent for any party.
    3. INTOXICATING LIQUORS — Illegal Sale-Purchase by Agent. Any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby aiding and assisting in The sale of such liquors, and may be prosecuted and convicted for such sale. Reed v. State, 3 Okla. Cr. 17, 103 Pac. 1070, 24 L. R. A. (N. S.) 268, overruled.
    (Syllabus by the 'Court.)

      Appeal from Gander County Court; 1. B. Mason, Judge.

      W. A. Buchanan was found guilty of violating the prohibitory law, and appeals.
    Affirmed.

      Champion '& Champion and Hcerreld & Wan'd, for appellant.

      Fred 8. Caldwell, for the State.
   FUKMAN, Presiding Judge.

The defendant resided at Durwood, in Carter county, Okla. At the time of the trial of this case he was a notary public and clerk of the township in which he resided. He maintained an office in Durwood, in which he kept some books and stationery and such other things as are used in notaries’ or township clerks’ offices.

Lee York, a witness for the state, testified: That some time in November or December, 1908, one evening he met the defendant and asked him if he knew where the witness could get some whisky. The defendant replied that he did not know for certain, but that he would go and see. The witness handed the defendant SO cents. This occurred in front of the defendant’s building in the town of Durwood. The defendant went into his house and was gone three or four minutes. Soon afterwards some one came around from the back end of the building and handed the witness a one-half pint bottle of whisky. In about an hour after this the witness went to see the defendant again to get some more whisky, lie gave the defendant $2, and the defendant went off after the whisky. That the witness waited as before. In three or four minutes some one came and handed two bottles of whisky to the witness. Chas. Vernon testified, on behalf of the state, that some time during November, 1908, the witness was at Durwood painting a schoolhouse; that one night he was with the witness York when some one whom he did not know and whom he did not recognize came and handed York and himself two bottles of whisky; that the arrangements to get the whisky had been made by York; that they received the whisky at the door of the defendant’s place of business.

Defendant testified: That York asked him if he knew where he (York) could get some whisky; that he replied that he did not know where; but that he (defendant) might be able to get it for him. The witness York then gave the defendant 50 cents. That defendant went out and met a man who was in the habit of handling whisky and gave him the money and took the whisky and laid it on the counter of his (defendant’s) store, and defendant did not know whether York received the whisky or not. The defendant denied absolutely that he had gotten any more whisky for York that night, as was testified to by the'witness York. The defendant then requested the following Instruction to be given the jury:

“The court instructs the jury that if they believe from the testimony that the defendant was only assisting the, buyer of the whisky ,in procuring the liquor, and acted only as the messenger and agent of the buyer in going and bringing back the liquor, and they further believe that the defendant had no interest in the liquor or in the price paid, aud that he was in no way the agent or intermediary of the seller, then in that case he is not guilty, and your verdict should find him not guilty.”

The court refused to give this instruction, and the defendant excepted.

So far as numbers are concerned, the overwhelming majority of the adjudicated cases sustain the position taken by counsel for. the appellant. In fact, so great is the unanimity among the appellate' courts of the states to this effect that, when this question was first presented to us, we adopted the view that where the evidence shows that a defendant charged with the sale of liquor had no interest in the liquor sold or the money paid for it, but acted as a friend or agent of the person purchasing the-liquor, he was not guilty under our statutes of selling intoxicating liquor. See Reed v. State, 3 Okla. Cr. 17, 103 Pac. 1070, 24 L. R. A. (N. S.) 268. Upon more mature reflection we have become satisfied that this court erred in the doctrine contained in Reed’s Case. Section 2027, Snyder’s Comp. Laws Okla., is as follows:

“The, rule of common law that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”

Under this provision of our statutes it is the paramount duty of the courts of Oklahoma to so construe the penal laws of the state as will most effectively secure their enforcement, where this can be done consistently with reason and justice. Section 4180, Snyder’s Comp. Laws Okla., makes it unlawful for any person to sell, ’ barter, g*ive away, or furnish intoxicating liquor, except as provided for in said act. Section 2045, Snyder’s Comp. Laws Okla., classifying parties to crimes, is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Under, the plain import of this statute all persons who aid and abet -in the commission of a crime, or who in any manner are concerned in its commission, are principals, and may - be prosecuted and convicted as such. Any person who is concerned in the commission of a crime, 'or who aJids or abets in its commission, should not be permitted to screen himself from the penalties of the law upon the ground that he had acted as agent for another. If this were permitted, the law would become practically a dead letter, and it would be almost impossible to protect society against the devices and subterfuges of the “bootlegger,” because each “bootlegger” could have first one and then another “go-between” who could successfully defend himself upon the theory that he was -acting for the purchaser and not the seller. It is no answer to this to say that in such cases the question could be submitted to the jury that, if they found that this was simply a subterfuge, they could convict the defendant, because when this defense is made the jury oculd not arbitrarily pronounce it to be a subterfuge. The burden of proving beyond a reasonable doubt that it was a subterfuge would rest upon the state, and the cases would be few indeed in which such evidence could be obtained. It is therefore seen that to hold that a party charged with- the sale of liquor can escape upon the ground that he was an agent of the purchaser would tend to defeat the law, rather than to secure its enforcement. Our law makes the sale of prohibited liquor illegal in the state of Oklahoma, except for certain specific purposes and in a certain clearly specified manner. It does not, however, affix any penalty to the purchaser at an illegal sale, and confines its penalties to the seller. ,, When a person acts as the agent for another in purchasing prohibited liquor in Oklahoma, while such purchase is illegal, he does not thereby render himself liable to the penalties of the law; but when he goes further and aids and abets the seller by delivering or assisting to deliver such liquor, under section 2045, above quoted, he thereby assists in the commission of a crime and renders himself just as amenable to the law as the person who actually made the sale, upon the ground that he has aided and abetted in the commission of a crime. It is true that he may not himself have made a sale of liquor to the purchaser, but lie has made himself a principal offender by participating in and having a guilty connection with the commission of the offense.

We are sustained in this by the Supreme Court of Mississippi in the case of Wortham v. State, 80 Miss. 212, 32 South. 50, in which that court said:

“The appellant was indicted in the circuit court of Harrison county for the unlawful sale of whisky, and convicted. The facts were agreed to be that ‘Charles Thames met the defendant in Mc-Henry, in Harrison county, and asked him if he could get him a pint of whisky, and defendant told him that he could, and thereupon took 50 cents and went off and bought a pint of whisky from another person, not authorized by law to sell same, paying therefor the 50 cents given him by Thames, and that said liquor, so bought and delivered to Thames, was not the property of defendant, who was not interested therein, but was the sole property of the person from whom defendant bought same/ This instruction was given to the jury on the part of the state: ‘The court instructs the jury that, if they believe the facts set out in the agreed statement, beyond a reasonable doubt, they Will find defendant guilty/ This conviction is assailed upon the grounds: (1) Because the evidence, it is said, will not support a conviction: (2) the instruction is said to be erroneous. 1. The case here made by the agreed statement of facts is substantially the same as Wiley v. State, 74 Miss. 727 (21 South. 797). In every case there is a seller as well as a buyer, and a delivery of the whisky sold is an essential and necessary act of the seller to constitute criminality. The seller here, whoever he was, took the hand of Wortham to make a delivery of the whisky to Thames, and Wort-ham, whatever his intention was, and however his connection with the matter arose, became a participant with the owner of the whisky in the sale of it to Thames. The essential fact of delivery was the sole act of Wortham. And as in misdemeanors all persons who participate in doing any of the acts constituting elements of crime are, in law, guilty as principals, Wortham may not deny responsibility for his part in this transaction. Wortham was not the agent of Thames in the purchase of the whisky. There are no agents in the violation of law. Whatever acts, being the elements of crime, are done by any one, are done by such one as principal, and not as agent. No one of the participants in crime is guilty because of a relation of agency to any of the other persons, but each is guilty because his act is a necessary part of the whole crime. Wortham was not the agent of Thames, because agency is not predicable of crime; but his act, in respect to both the seller and Thames, is that of a principal actor. In respect to what was done at the instances of Thames, there is no culpability; but, in respect to the delivery of the whisky for the seller to Thames, the act was that of Wortham as a principal.”

We regal'd the argument of the Supreme Court of Arkansas,, in the case of Foster v. State, 45 Ark. 364, as unanswerable upon this question. The opinion is by Chief Justice Cockrill, and is as follows:

“The appellant was indicted for selling liquor to a minor and was convicted. The proof was that the minor, not wishing to involve the whisky seller in trouble by making a purchase directly from one of them, gave the appellant, whom he met on the street in the town of Malvern, 50 cents and requested him to go and purchase the whisky for him. He took the money, purchased the liquor for the minor with it at a saloon in which he was not employed or interested, returned, and delivered it to the minor. The appellant was an old acquaintance of the minor, and was himself an employee in a saloon. The court refused to charge the jury as follows: Tf the jury believe from the evidence that Ward, the minor, gave the defendant 50 cents and requested him to buy its worth of whisky, and that defendant tooK me money and went ,to Taylor & Peyton’s saloon, it not being the saloon at which the defendant was a salesman, and purchased the whisky and gave it to Ward, it is not such a sale as is contemplated by the statute, and the jury will find .for defendant.’
“It is apparent that the real seller of the liquor in this case was the dealer of whom the whisky was bought. The minor was the purchaser, and the appellant was his agent to make the purchase. The appellant was not the actor in making the sale to the minor, and to this extent he is not within the words of the statute, which inhibits the sale of liquor to minors. Mansf. Bev. St. § 1878; Young v. State, 58 Ala. 358. The statute makes no mention of persons who aid, abet, or procure the sale of liquor to minors, but the rule of construction requires that the common law be taken into account in ascertaining the meaning of the act. State v. Pierson, 44 Ark. 265. The rule of the common law is that all persons concerned in the commission of a crime, less than a felony, if guilty at all, are principals. 4 Black. Com. 36; Hub bard v. State, 10 Ark. 378; Sanders v. State, 18 Ark. 198; Freel v. State, 21 Ark. 219. Hubbard v. State, supra, was a case of an indictment against one for trespass on the sixteenth section lands, a statutory offense. There was no evidence that the person indicted had ever been upon the lands; but the acts of his slave, done under such circumstances as warranted the inference that they were done by his command or procurement, were held to be sufficient to establish his guilt. .In Sander’s Case, supra, a. conviction was upheld upon proof that a public highway had been obstructed, not by the defendant in person, but by another who was not indicted; the court, through English, C. J., saying: ‘It was not necessary for the defendant to have felled the timber across the road himself, or for it to have been done by his immediate direction, to make him responsible for the offense. In misdemeanors all persons, who procure, participate in, or assent to the commission of a crime, are regarded as principals, and are indicted as sueh.’ This was the rule applicable to statutory offenses, prior to the enactment of the prohibitory liquor law, and one may incur the guilt of a principal in this, as-in other misdemeanors, by aiding in or procuring the violation of the law. Walton v. State, 62 Ala. 197; State v. Munson, 25 Ohio St. 381; State v. Rand, 51 N. H. 361 [12 Am. Rep. 127]; Johnson v. People, 83 Ill. 431; Bish. St. Cr. §1029. The buyer of liquor, however, is guilty of no offense under this act, although he aids in and procures the making of the sale. The statute has marked the seller as the only criminal. ‘In cases of mala proMbita, the fact that the penalty is imposed on only one of two parties whose concurrence is requisite to the commission of the offense, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for giving the statute a construction exempting the party not named for criminal liability.’ State v. Rand, supra. See, too, 1 Bish. Cr; Law, § 657, and note 4; Harney v. State, 8 Lea (Tenn.) 113.
“As the minor was' guilty of no offense, the appellant cannot be punished for his complicity in the minor’s act of purchase. If he had done nothing more than counsel and advise the minor in getting the whisky, he would not have violated the terms of the statute and could not be held to criminal responsibility. One cannot be punished for violating only the spirit of a penal law. But he has done more. He aided and abetted the liquor seller, and procured him to make the sale to the minor. This is the offense the statute is aimed at. The essence of the offense is a sale to a minor if -the transaction showed a sale of liquor to the appellant and a subsequent gift of- it by him to the minor, no offense would have been committed, because there would have been no sale to the minor, and giving liquor to a minor is not inhibited by the statute. That was the case in Ward v. State [45 Ark. 351], ante, where it was held that a dealer, who sold liquor to one treating a m'inor, could not be convicted of selling to a minor. But the court is careful to say in that case that there was nothing to indicate that the person, who treated the minor, acted as his agent in the transaction. If he had acted as the minor's agent, and the liquor dealer had been apprised of that fact, the latter would have been guilty of selling to the minor (Young v. State, 58 Ala. 379, supra, Siegel v. People, 106 Ill. 89), and the agent would have been guilty as an aider and procurer of the sale.
“The fact that the minor was absent when the sale was effected cannot alter the case. One may buy through an agent, and when there is no question of agency, although the dealing is- with and the delivery to the agent, in legal effect the sale is to the principal. It is true that when the agency is undisclosed the seller may treat the transaction as a sale to the agent, and the ágent will be estopped from showing for Iris benefit a state of facts different from what he has made to appear in the transaction. The principal, in such case is still bound as such, however, if the agent acted within his authority, and, as between agent and principal, the principal is always the contractor and purchaser. Siegel v. People, 106 Ill. 89 supra;; Wharton, Agency, 496, 431; 2 Kent's Com. 631; Winchester v. Howard, 97 Mass. 303, [93-Am. Dec. 93]; Caldwell v. Mesherd, 44 Ark. 564. That the state, in a criminal prosecution, can select to treat it as a -sale to the principal, instead of a sale to the agent who actually procured the liquor, is sustained by adjudicated cases. See Com. v. McGuire, 11 Gray [Mass.] 460; Com. v. Very, 12 Gray [Mass.] 124; Com. v. Lattinville, 120 Mass. 385. Tayler & Peyton's guilt is immaterial. The guilt or innocence of the act or principal in the first degree, even in felonies, does not affect the guilt of the principals in the second degree, to make use of a common-law term (Mansi. Rev. St. § 1511), and it is immaterial whether the person who was the chief actor in making the sale might or might not have been convicted. ‘However men combine, each one is criminally responsible for what he personally does, * * * for the whole of what he assists others in doing, and for all that the others do through his procurement.’ Bish. St. Cr. § 1024. The appellant had the evil design of procuring a sale of liquor to a minor, and his act directly and immediately led to the commission of the offense. This made him a principal in the offense. The instruction asked by the appellant would have authorized his acquittal, if he did not sell, although he may have aided and abetted and procured the sale to be made, and was properly refused.
“The court’s charge to the jury was not inconsistent with thg vie-ws here expressed, and the judgment is affirmed.”

We could cite additional authorities to the same effect, but regard these as sufficient. We think that precedents should be weighed and not counted.- In the language of Chief Justice Cock-rill :

“The appellant had the evil design of procuring a sale of liquor, and his act directly and immediately led to the commission of the offense. This made him a principal in the offense. The instruction asked by the appellant would have authorized his acquittal, if he did not sell, although he may have aided and abetted and procured the sale to be made, and was properly refused.”

Even if the sale of the whisky in this case was not made to York, but was made to the defendant, ’and the defendant was simply acting as the agent of York in making such purchase, the state can elect to treat the sale as having been made to York; and, as the defendant assisted in the delivery of the whisky, he thereby aided in the. commission of the offense and is guilty as a principal.

The judgment of the lower court is therefore affirmed, and the sheriff of Carter county is directed to proceed with the execution of the judgment.

DOYLE and KICHABDSON, Judges, concur.


text:
    JOHN PORTER v. STATE.
    No. A-83.
    Opinion Filed December 1, 1910.
    1. INTOXICATING LIQUORS — Conveying Within State — Information. The information alleged that the defendant, “did wilfully and unlawfully convey intoxicating liquors from one place within the state to another place therein.” Held, insufficient on demurrer, for not stating the acts claimed to constitute the offense, and' for not alleging the particular circumstances of the offense charged.
    2. . INFORMATION — Words of Statute — Sufficiency. The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute when the particular circumstances of the offense charged are necessary to constitute a complete offense.
    3. INTOXICATING LIQUORS — Conveying Within State — Information. An information charging a shipment or conveyance of intoxicating liquor from one place within the state to another place therein must allege the place from and to which such liquors were so shipped or conveyed, if they are known, and if unknown, it must be so alleged.
    (Syllabus by the -Court.)

      Appeal from Jefferson GovmÉy Gourtj G. M. Bond, Judge.

    John Porter was convicted of violating the prohibition law, and appeals.
    Eeversed and remanded.
    John Porter was tried and convicted on an information which charged as follows:
    “That the said John Porter and Bob Edwards then and there being, did then and there on the day and date aforesaid, wilfully and unlawfully convey intoxicating liquors from one place within the state to another place therein, contrary to the prohibition laws of the state made and provided and against the peace and dignity of the state.”
    The defendants objected to the sufficiency of the information, among other grounds, as follows: That the same “is insufficient, vague, indefinite and uncertain, and does not charge a public offense” — which was overruled by the court, and exception allowed. •

      TJpon the trial the jury returned the following verdict: “We the jury find the defendants guilty as charged in the information.” The defendant Porter filed a motion for a new trial, which motion was overruled and exception allowed. On February 3, 1908, he was sentenced to pay a fine of $100 and to be confined for thirty days in the county jail. From such judgment and sentence he appealed by filing in this court on January 30, 1909, his petition in error "with case-made attached, together with proof of service of notices of appeal.

      J. H. Harper, for plaintiff in error.
   DOYLE, Judge.

Several assignments of error are presented by the petition; however, to determine this cause, it is only necessary to consider the first — “That the information is insufficient.”

While as a general rule it is sufficient to charge a statutory offense in the language of the statute, there.are exceptions to the rule.' The information must fully state the offense, and if the statutory words are not sufficient, it must be expanded beyond them.

“The criminal nature and degree of the offense 'must appear in allegation/ also the particular facts and circumstances which render the defendant guilty of! that offense.” (Bishop’s New Criminal Procedure, vol. 1, par. 625.)

Whether an information in the words of the statute is sufficient or not, depends on the manner of stating the offense in the statute; if every fact necessary to eonsttiute the offense is charged, or necessarily implied by following the language of the statute, the information in the words of the statute is sufficient.; otherwise not. The statute in question here is that clause of the prohibition ordinance which reads: “Or to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein • authorized.” An information in these words only is not sufficient. Our criminal code requires that the information must contain a statement of the acts constituting the offense, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. The defendant has the right to have the charge against him thus stated to enable him to make his defense and in order that he may decide whether he should present his defense by a motion to quash, demurrer or plea, and that the court may determine whether the acts stated would constitute a crime or not. Under the decisions of this court the information is clearly insufficient.

“The allegation as to the shipment or conveying of the liquor is defective in not stating the place in this state from which it was so shipped or conveyed, and the place in the state to which it was so shipped or conveyed. This is a descriptive averment which is necessary for the purpose of Identifying the transaction and offense.” (Sturgis v. State, 2 Okla. Cr. 363.)
“The information must, upon its face, show that such a removal has been made, or no public offense will be charged. If the different localities are known, they should be alleged as descriptive averments. If they are not known, then enough should be stated in the information to show that the removal came within the purpose of the law.” (De Graff v. State, 2 Okla. Cr. 519.)

Therefore the defendants’ demurrer should have ¡been sustained.

The record discloses that there was no evidence offered in the case to show the commission of the offense sought to be charged, or any other offense. The undisputed facts are that the defendants left their home in Oklahoma on the day charged, crossing Red river at the ferry near Petersburg into Texas. Returning that evening, they were ferried across the river, their hack on one end of the ferry boat and this defendant holding the team on the other end, and they landed on a sand bar. The hack, which had some whisky in it, was taken charge of by a deputy sheriff and pushed off the’ ferry boat. The defendant was then ordered to bring his team and hitch on to it. There was not a scintilla of evidence showing that the defendant conveyed intoxicating liquors from one place within the state to another place therein.

The judgment of the. lower court is therefore reversed, and the cause remanded, with directions to dismiss.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


author: RICHARDSON, Judge.

text:
    W. P. SCOTT v. STATE.
    No. A-528.
    Opinion Filed January 5, 1911.
    1. APPEAL — Time of Taking — Extension. When the time fixed by statute or designated by the court for taking an appeal has expired, the court or judge has no power thereafter to extend the same.
    2. APPEAL Case-Made — Settlement—Judges. A case-made cannot be settled and signed by a judge who did not try the ease.
    (Syllabus by the 'Court.)

      Appeal from County Court, Washita Countyj J. A. Duff, Special Judge.

      W. P. Scott was convicted of a misdemeanor, and he appeals.
    Appeal dismissed.

      Burnette '& Beets, for plaintiif in error.

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

This cause was tried by a special judge, and judgment was rendered on October 27, 1909. No extension of the time for serving a case and for taking the appeal was requested and none was made at that time; but on November 6, 1909, the court made an order giving plaintiff in error 50 days to make and serve a case, the county attorney 10 days to suggest amendments thereto, and requiring that the same be settled and .signed within five days thereafter. The time for taking the appeal was not extended. On December 27, 1909, plaintiff in error applied to L. R. Sheaa, the regular judge of the county-court, for an extension of time in which to file his petition in error and case-made in this court, alleging that on December 24, 1909, within the time theretofore fixed by the court, he had attempted to present his case to the regular judge for settlement and signing, but on account of the absence of said.judge from his office it was impossible to have the same settled and signed within the time fixed. Thereupon, on December 27, 1909, the regular judge made an order extending the time for filing the petition in error and case-made in this, court to January 7, 1910. The regular judge, L. B. Shean, settled and signed the case-made, stating in his certificate,'which'is dated December 24, 1909, that it contains a true and correct statement of all the evidence, findings and proceedings had in said cause. It was not settled and signed by the special judge who tried the cause. The appeal was filed in this court on January 6, 1910.

The appeal must be dismissed for two reasons. The court not having extended the time within which the appeal could be taken before the expiration of the statutory period, under section 6948 of Snyder’s Comp. L. Okla., requiring appeals in misdemeanor cases to be taken within 60 days after rendition of judgment unless the time be extended, it was imperative that the appeal be filed in this court within 60 days from October 27, 1909; and said 60 daj^s expired on December 26, 1909. After the same had expired, the court or judge could not on December 27, 1909, extend the time for taking the appeal. In the next place the case-made is not certified by the judge who tried the cause. The regular judge of the county court, who did not try the case, could not officially know, and had no power to certify to this court, what the evidence and proceedings in said cause were. It was necessary that the case-made be settled and signed by the special judge who tried the cause.

The appeal is therefore dismissed, and a mandate will issue directing the county court of Washita county to enforce its judgment herein.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    WALTER TYDINGS v. STATE.
    No. A-706.
    Opinion Filed January 5, 1911.
    APPEAL — Fugitives From Justice — Dismissal. Where a plaintiff in error in a criminal case becomes a fugitive from justice, and puts himself in such place or condition that he cannot be made to respond to any order or judgment of the appellate court made in his case on appeal, -his appeal will be dismissed.
    (Syllabus by the Court....

      Appeal from Ottaiva County Cowgt; W. Y. Quigley, Judge.

    Walter Tydings was convicted of violating the prohibition law and sentenced to pay a fine of $500 and to be imprisoned in the county jail for a term of 180 days, and he appeals.
    Appeal dismissed.

      O. L. Bider, for plaintiff in error.

      Fred 8. Caldwell and Yern E. Thompson, for the State.
   RICHARDSON, Judge.

The state has filed a motion to dismiss this appeal on the ground that plaintiff in error is a fugitive from justice, and is not now where he can be made to respond to any order or judgment which may be made or rendered in this court. In support of this motion a certified copy of the journal entry of the District Court of Mayes County has been introduced showing that plaintiff in error stands charged with robbery in that court upon a change of venue from Ottawa County; and that on the 14th day of June, 1910, the case being called, plaintiff in error made default and a forfeiture was talcen on his bond. The affidavit of one of his bondsmen in that case has also been filed, showing that plaintiff in error is a fugitive from justice; that diligent search has been macFe for him, that his bondsmen have offered a reward for his apprehension, and that all efforts to apprehend him and to ascertain his whereabouts have proved futiler No response to the motion has been filed and no counter showing has been made.

It was held in Jacobs v. State, 3 Okla. Cr. 648, (108 Pac. 429, and in Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, that where a plaintiff in error becomes' a fugitive from justice, and puts himself in such place or condition that he cannot he made.to respond to any order or judgment of this court made in his case on appeal, his appeal will be dismissed. It therefore follows that the motion in this case should be sustained. Further, an examination of the ease-made discloses no proof of notice of appeal, and this also is fatal to the appeal. The appeal is therefore dismissed.

FUBMAN, Presiding Judge, and DOYLE, Judge, concur.