text:
    R. L. WATSON v. STATE.
    No. A-4923.
    Opinion Filed May 23, 1925.
    (236 Pac. 60.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree.

      Appeal from District 'Court, Oklahoma County; Wm. H. Zwick, Judge.
    R. L. Watson, alias Bob Watson, was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    H. C. Hurst, E. J. Giddings, and Wm. Pfeiffer, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, R. L. Watson, alias Bob Watson, was informed against for the killing of one J. W. Graif, alleged to have been committed February 25, 1923, by cutting and stabbing- said Graif with a butcher knife. On the trial the jury returned a verdict finding him guilty of manslaughter in the first degree and assessing his punishment at imprisonment in the penitentiary for a term of ten years.

From the judgment rendered in pursuance of the verdict, the defendant was permitted to perfect an appeal as a poor person, and the petition in error with case-made was filed in this court November 21, 1923.

The defendant is not represented in this court, and no brief in support of the assignments of error has been filed. Hpon an examination of the whole record, we find only one question presented which seems of sufficient importance to require discussion in an opinion; that is, the sufficiency of the evidence to support the verdict.

The facts and circumstances preceding the homicide are not greatly in dispute. It appears that the deceased, J. W. Graif and his wife, Floyd Miller, and Mrs. Lola France were joy-riding in a Ford sedan, driven by Mrs. France; about 9 o’clock in the evening, they stopped at the defendant’s place on South Walker street, Oklahoma City; there had been some drinking before they stopped at the defendant’s place; there Mrs. Graif gave the defendant $5 for a bottle of whisky; they all took a drink, and the bottle was left on the ice box in the kitchen; they played, the phonograph and there was some dancing; Miller and Mrs. France got into an argument, and the deceased and his wife went to the kitchen; he reached for the bottle, and as he did so shoved his wife out of the way and she fell over a chair; then a fight started between the defendant and the deceased. Mrs. Graif testified that she did not see any knife; they were on the floor, and she went back to the other room and asked Mr. Miller to separate them. Mrs. Lola France testified:

“I was sitting in the front room, and the first thing I knew about the fight Mrs. Graif ran in from the kitchen and said: Go in and separate them; they are fighting.’ Floyd Miller went in and separated them. I saw Mr. Graif lying on the floor. The defendant said: Get him out of here. The law will be here in a little while.’ They carried him to my car and after they put him in I felt of his pulse and said, T believe the man is dead.’ ”

R. A. McGill, interne at the University Hospital, testified that he was there when the body of J. W. Graif was taken there; that his examination disclosed that the wound was in the back, just below the costal margin, about an inch to the right of the spinal column; that it was a stab wound, about an inch and a half long; that he pronounced him dead, and within 10 minutes the body was taken by the undertaker.

The testimony of the defendant in his own behalf is as follows:

They came in and had some choc beer with them and wanted me to drink some. I would not drink any; I don’t drink. They were all pretty full, and they started the Victrola and wanted to dance. Floyd Miller and Mrs. France finally got into an argument, and he slapped her. Then Mr. Graif said, “Let me hit her,” and Mrs. Graif got hold of him and says: “Come on now, and let’s go home; you stay out of their trouble.” And they went into the kitchen. I went in there, and she was talking to him; and I tried to tell him that she was telling him right, and he hit her and pushed her back over a chair. I said: “Don’t do that. The lady has not done anything to you.”' I did not know whether she was his wife or not. I had met Mr. Graif once before that, three or four days previous, but I did not know his name. Then he hit me, and I knocked him back against the wall. Then he ran at me again, and I shoved him back. There' was a little knife that we cooks and waiters call a French knife — we use it for a carving knife— on the ice box. He grabbed that, and then I grabbed his hand, and in the scuffle I tried to jerk loose from him. I was holding his wrist trying to keep him from cutting me, and in the fracas he fell on the knife and I fell on top of him. I had him clinched. When he fell he kind of relaxed and didn’t make any fight, so I got up and he got up, and I grabbed the knife. It was sticking in his back, and I grabbed it and threw it out the door. He took about three or four steps and fell. Mr. Miller said: “He is hurt pretty bad. Let’s put him in the car and take him to the hospital.” So we put him in the car. They all left, and in the excitement I left too and went to Healdton. I was under federal bond of a thousand dollars, and on March 13th I returned, .and my bondsmen surrendered me to the federal officers, and they turned me over to the state officers.

On cross-examination he stated that his only business for six or seven years previous was selling whisky and beer; that Mrs. Graif gave him a $5 bill for a bottle of whisky that evening.

From the testimony it appears that the deceased was very drunk, and that while he may have assaulted or attempted to assault the defendant, the jury did not believe the defendant’s story that the assault was committed with the knife in question, and evidently the jury did not believe the defendant’s story that the deceased stabbed himself in the back accidentally or otherwise.

As to the character of the homicide, there can be but little doubt; it was a cruel cold-blooded killing.

As shown by the record, the defendant has had a fair and impartial trial.

In our view the verdict rendered was exceedingly lenient under the circumstances; and, there appearing no error in the record, the judgment herein is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    GENTRY VIADOCK v. STATE.
    No. A-4813.
    Opinion Filed May 23, 1925.
    (236 Pac. 56.)
    (Syllabus.)
    1. Appeal and Error — Evidence—Error not Presumed — Burden on Accused to Establish, Defect in Search Warrant. Error is not presumed, but must be made to affirmatively appear in order to avail a defendant. Where a defendant contends that a search warrant is invalid, the burden is on him to establish the defect complained of.
    2. Searches and Seizures — Search Warrant not Rendered Invalid by Failure to Make Return A search warrant, otherwise valid, which has been executed within ten days from the time, it was issued, is not rendered invalid by failure of the officer to make return thereon.
    3. Trial — Statements by Court Concerning Giult of Accused in Presence of Jury Held Reversible Error. It is the duty of a trial court, in making any order or ruling in the presence of the jury, to refrain from intimating or expressing an opinion as to the credibility of the witnesses, the weight and value to be given to their testimony, the facts proven, or guilt of the defendant, and the expression or intimation of such opinion is prejudicial error.
    4. Trial — In Felony Case Less Than Capital, Names of Omitted Witnesses Properly Indorsed on Information During Trial. In a felony case, less than capital, the names of witnesses may be indorsed on the information during the trial, where it appears they were inadvertently omitted, and there was no bad faith in failing to have them indorsed prior to the trial.

      Appeal from District Court, Pittsburg County; A. C. Brewster, Judge.
    Gentry Viadock was convicted of violating the liquor laws as a second offense, and appeals.
    Reversed and remanded.
    Hulsey, Null & Hulsey, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. ■ Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant. Defendant was convicted in the district court of Pittsburg county for a felony as a second conviction under the liquor laws of the state, and sentenced to a term of 5 years in the penitentiary, and to pay a fine of $2,000, and appeals.

The record discloses that the defendant is a Lithuanian, a widow with 8 children, the oldest 14 years of age. Apparently she is a persistent offender against the liquor laws. Counsel for defendant assigns error, first, in admitting evidence obtained by an illegal search warrant; second, error in statements made by the county attorney and the trial judge in the presence of the jury; third, error in permitting indorsement of the name of an additional witness in the course of the trial.

Upon the first assignment of error it appears that a deputy sheriff and a federal raiding officer searched the residence of defendant, and found concealed under the floor 14 gallons of choc beer, which was shown by analysis to contain 4.1 per cent, of alcohol, measured by volume. There was proof of other convictions of defendant in the police, county, and federal courts for violations of the liquor law. The evidence discloses that the deputy sheriff at the time of search had a search warrant and was acting under it. Neither the state nor the defendant offered the search warrant nor the affidavit on which it was based in evidence.

Error will not be presumed. If the search warrant or affidavit on which it was issued was insufficient, such fact should be proven by the introduction of the instruments in evidence, or by some proper showing why this was not done, with secondary evidence of their contents. It is also contended, that inasmuch as no return was made on the search warrant, that it is void under the provisions of section 2886, Comp. St. 1921, which reads:

“A search warrant must be executed and returned to the magistrate by whom it is issued within ten days. After the expiration of these times respectively, the warrant, unless executed, is void.”

It will be observed that the statute makes the warrant void if not executed in 10 days, this being for the purpose of prohibiting promiscuous search on stale warrants, and limits validity to a period of 10 days. However, the statute does not make void such warrants as have been executed by failure of the officers to make return thereon. It is the duty of the officer serving- the search warrant to make due return when the same is served, but the failure to do this does not invalidate and make void what was legally done under the authority of the search warrant.

Considering the second assignment, it appears that during the course of the trial and in the presence of the jury, while the defendant was on the stand, the following took place between the court, the county attorney, and assistant county attorney:

“The Court. Gentlemen, I think these children ought to be looked after. I want to say this; it may be wrong. What use would it be to send this woman to the penitentiary or send her to jail? I do not think there would be any question about her guilt. I think the county judge ought to take hold of these children.
“Mr. Gotcher: This woman has been tried repeatedly.
“The Court: Yes, I say, there is no use to try her.
“Mr. Gotcher: We have tried before a jury to take these children away from this woman, and the jury refuses to do it. We proved everything, from selling whisky, down,
“The Court: I think the county judge has full authority, as I understand the. law. * * *
“Mr._Whitt: This is the only way we can get those children, is to convict this woman. * * * ((Objections.)
“The Court: All right; that will be withdrawn. I am trying to do this in the interest of humanity. If you are going to make these objections, it is a different proposition. I was trying to do something to protect the children. If this woman is not willing for the children to be properly taken care of, that is a different proposition. * * * If this woman is not willing for these children to be taken care of and put under proper influences, then we will stay here all summer and put them where they ought to be.”

Upon objection the court withdrew and struck out these statements of the county attorney and assistant county attorney, and the court, and instructed the jury not to consider them. That these statements clearly violate the rule announced by this court in the following cases is evident: Hicks v. U. S., 2 Okla. Cr. 626, 103 P. 873; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Westfall v. State, 30 Okla. Cr. 15, 235 P. 270.

The substance of the rule is to the effect that the trial court should refrain from allowing their actions or words to indicate to the jury their opinion of the guilt or innocence of the defendant, the credibility of any witness, or the weight to be given any testimony, and whatever the motive of the court in so doing does not affect the impropriety of the remarks in question. The withdrawal of the same in this case does not cure the error.

During the course of the trial the deputy court clerk was called as a witness to prove the prior conviction of the defendant, and the county attorney asked leave to indorse his name on the information stating that it had been omitted by oversight, and to the order of the court permitting the indorsement the defendant excepted. It is discretionary with a trial court to permit the indorsement of the names of witneses, where the same appear not to have been withheld through any intent or any ulterior purpose. Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026; Hawkins v. State, 7 Okla. Cr. 385, 123 P. 1024; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Grayson v. State, 12 Okla. Cr. 226, 154 P. 334; Ghormley v. State, 11 Okla. Cr. 532, 148 P. 1057; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102.

No abuse of discretion is shown. No other assignments of error call for comment.

For the reasons assigned, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    LEONARD CROOKSHANK v. STATE.
    No. A-4945.
    Opinion Filed May 23, 1925.
    (236 Pac. 61.)
    (Syllabus.)
    Intoxicating' Liquors — Evidence of Unlawful Possession Insufficient to Sustain Conviction. 'In a prosecution for unlawful possession of intoxicating liquor, evidence considered, and beld insufficient to sustain a verdict and judgment of conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Leonard Crookshank was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed, and accused discharged.
    Brown, Brown & Williams, for plaintiff in error.

      George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Carter county, on the 29th day of May, 1923, the defendant, Leonard Crookshank, then and there did “have in his possession certain intoxicating liquor, to wit, twenty gab Ions of Choctaw beer,” with the unlawful intent to sell the same. On the trial the jury found the defendant guilty and fixed his punishment at confinement in jail for 30 days and a fine of $50. To reverse the judgment he appeals.

The record shows that the defendant, a colored man, had lived on a farm near Woodford for more than 20 years. On the date alleged two deputy sheriffs visited his home and searched the premises, without a warrant. Carl Holden, testified:

“We had information that he had beer, and we found 2 ten gallon cans of Choc, an empty barrel, a few bottles, and a few fruit jars in the kitchen. The defendant was plowing cotton right up close to the house. We poured the stuff into the hog pen.”

He further testified as follows:

“Q. Did you taste this Choc too? A. Yes, sir; I did.
“Q. State to the jury whether it was regular Choctaw beer? A. Pure Choc; just like any Choc you get.
“Q. Would that have made a man intoxicated, Carl? A. You bet you; shore would.”

Con Kiersey testified that he assisted Carl Holden in searching Crookshank’s place, and they found about 20 gallons of Choc. His further testimony is as follows:

“J. Did you taste this Choc too? A. Yes, sir.
“Q. Would it have intoxicated a man who drank much of it? A. I don’t know. I did not drink enough for that.”

The state rested. Counsel for the defendant moved for a directed verdict on the ground that the evidence was insufficient to warrant a conviction; which motion was denied. For the defense four witnesses testified that they had known the defendant from 15 to 20 years, and that his reputation as a peaceable, law-abiding citizen was always good; that he had been a deacon of the church, superintendent of and teacher in the Sunday school for more than 15 years.

The testimony of the defendant in his own behalf is is as follows:

“I am a farmer; have lived in that neighborhood with my wife and five children since 1902, when the officers searched my place. I had one sow with nine pigs that I was feeding swill made from chopped corn; I had two 45-pound lard cans; the slop was in one can, and the other contained just corn chop and water; the barrel in the kitchen had contained sorghum molasses that I made last year. I never bought a package of hops, and I never made, sold, or handled any Choctaw beer or any intoxicating liquor. I was never before arrested.”

Counsel for the defendant contend that the evidence is insufficient to support the verdict, and particularly that there is no proof that the liquid found upon the premises contained more than one-half of 1 per cent, of alcohol, measured by volume, or that it was fit for use for beverage ■purposes, or that it was intoxicating liquor.

The statute prohibits the possession of any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor, or of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of 1 per cent, of alcohol, measured by volume, with the intention of violating any of the provisions of the prohibition enforcement act. Chapter 52, art. 2, C. S. 1921.

It seems clear that two classes of liquors are dealt with in said act; the first class includes alcohol and other enumerated liquors, commonly known to be used for beverage ■purposes, and the second class includes any liquors or compounds which contain as much as one-half of 1 per cent, of alcohol, measured by volume, which may be presumed to be intoxicating only when capable of being used as a beverage. In this case there is a total failure of proof that the liquid found contained more than the minimum alcoholic content allowed by law, or that it was capable of being used as a beverage.

One of the witnesses for the state testified that he tasted the liquid, but did not know whether or not it was intoxicating. The statement of the other witness for the state scarcely rises to the dignity of testimony, and his surmise is offset by the positive denial of the defendant, which is supplemented by the proof of at least four witnesses as to his good character and reputation as a law-abiding citizen.

When we recall the presumption that the law always indulges in as to the innocence of one accused, the necessity of establishing the guilt of the defendant beyond a reasonable doubt, the force and effect which, in a case of this kind should have been given to the evidence of good character, and there being no proof tending to support the charge except that obtained in an illegal way, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant upon the ground that the evidence was insufficient to warrant a conviction.

In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused, and permitting the subversion of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand.

The judgment of conviction is accordingly reversed and the defendant discharged.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    WINFIELD SCOTT MORRIS v. STATE.
    No. A-4710.
    Opinion Filed May 29, 1925.
    (236 Pac. 443.)
    (Syllabus.)
    1. Appeal and Error — Wien Conviction Reversed for Insufficiency of Evidence. This court is reluctant to reverse a case on the ground of insufficiency of the evidence, and it is only where it is clearly against the weight of the. evidence, appears to have been influenced by passion, prejudice, or by reason of some error or is insufficient to establish guilt beyond a reasonable doubt that a case, will be reversed for this reason.
    2. Witnesses — Impeachment by Showing Contradictory Statements Made Outside Court — Laying Predicate. For the purpose of affecting! his credibility, a witness may be impeached by proving that he has made contradictory statements of a material matter outside of court, but before such impeachment is admissible the attention of the witness must .first be called to the time, place, person, and circumstances of the supposed contradictory statements as a predicate or foundation.
    3. Same — Erroneous Exclusion of Testimony for Laying Predicate for Impeachment. When questions touching a material part of the testimony of a witness are propounded for the purpose of laying a predicate or foundation for impeachment, it is error for the court to exclude, such proffered testimony.
    4. Evidence — When Evidence of Other Offenses Admissible. Evidence is properly admitted which tends to throw light on the matter at issue, or which tends to show motive or the intent of the witness, or the relation of the parties, even though it may tend to show the commission of some other offense or otherwise reflect on the defendant. But this class of evidence, should not be prolonged further than necessary to develop the purpose for which it is admissible.
    Appeal from District Court, Woodward County; James B. Cullison, Judge.
    Winfield Scott Morris was convicted of manslaughter in the second degree, and appeals.
    Reversed.
    L. F. Robertson, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant. Four assignments of error are presented by the defendant. First, the insufficiency of the evidence; second, error of the court in excluding impeaching evidence on the part of the defendant; third, error of the court in admitting incompetent evidence prejudicial to the defendant; fourth, error in the court’s charge on circumstantial evidence.

Upon the first assignment, i. e., insufficiency of the evidence, the record discloses a state of facts about as follows: The defendant was a man about 37 years of age, and the deceased, Jennie Longfellow, a woman of mature years. The defendant had roomed at a boarding house kept by the deceased and for more than a year they had been keeping company, • were at one time engaged to be married, and their relations apparently had been meretricious. Both were divorced persons; the defendant having one child and the deceased two. Some months prior to the occasion in question the defendant had ceased paying attention to deceased and had avoided her. She remained, however, deeply infatuated with him, pursued him with her attentions, appeared to be jealous, was on occasions hysterical, and had threatened to take her own life. The principal witness for the state was one Rufus Ring, a young man about 21 years of age, who was keeping company with the deceased and seemed to be much enamoured of and under her influence. At the time of the occurrence the defendant had an engagement to meet another woman some three or four miles in the country from the city of Woodward. The deceased was riding with the witness Ring, seeking the defendant, and, observing him drive away from the city, prevailed on Ring to follow the car of the defendant. Ring did so reluctantly, and in doing so attempted to avoid or lose the pursuit of defendant, and on two occasions deceased got out of Ring’s car and attempted to follow on foot, and by that means prevailed on Ring to continue to follow the defendant. At the place on the highway where defendant was to meet the other woman he turned his car and stopped. The deceased and Ring there came up and also stopped. The cars were facing in opposite directions, slightly overlapping. Deceased got out of the car in which she was riding, went to the car of defendant, and demanded that he take her back to town. The defendant refused to have anything to do with her, telling her to return the way she came, and a bitter quarrel and scuffle took place; the deceased clinging to defendant, declaring she would hold on to him and that he must take her back. At one time during the quarrel defendant asked Ring to crank his car so that he could leave, which the deceased forbade him doing. Finally the deceased appeared to realize that defendant did not intend to take her back to Woodward, nor to have anything further to do with her, and she sat down upon the running board of his car, cried and appeared to be thinking deeply. The deceased got up from the running board, walked to the rear of the car of. the witness Ring, at which point a shot was fired, and the deceased fell and died immediately. Both the defendant and Ring ran to the body, and both made an exclamation in substance that “Jennie” had killed herself. The entrance wound that caused death was in the temple above the eye, at the hair line, smooth on one side, with a groove where it had cut the flesh, and jagged on the other, about the size of a 25-cent piece, passing through the brain and making an exit through the skull on the opposite side and lodged under the skin. Brain matter from the entrance wound was on several parts of the body. The weapon used was a 32-caliber pistol, shooting fine black powder and a soft nosed bullet. There were no powder marks or powder burns. The exit wound was the size of the bullet as “mushroomed.” Very soon after the shot was fired, another car came along driven by the witness Williams, with his wife and the other woman defendant had arranged to meet. Williams and Ring remained with the body while defendant went to the city of Woodward, notified the officers, a physician, and an undertaker, and at that time delivered to the undertaker the pistol from which the shot was fired. On the return of the defendant with the officers, the defendant and Ring were both held; one confined in the city jail and one in the county jail, a coroner’s inquest was had, and both testified. There was very little, if any, material discrepancy in their testimony before the coroner’s inquest. At the preliminary and on the final trial there was considerable discrepancy between the evidence of the witness Ring and that given by him at the coroner’s inquest.

The witness Williams, who came to the scene shortly after the shooting, gave in detail a statement made by the witness Ring while they waited at the body during the time that defendant had gone to the city of Woodward, which statement was in several particulars contradictory of the testimony of this witness at the final trial.

The theory of the state is that the defendant fired the shot which caused the death of the deceased. The theory of the defense is that during the course of the altercation the deceased took the pistol out of the pocket of the car of the defendant where it was habitually carried, and the evidence shows that she was in a position to have done so, and after she realized that her associations with defendant were terminated killed herself. If the theory of the state is true, the crime was murder, and conviction and a verdict for second degree manslaughter wholly unwarranted. If the theory of the defense is correct, the defendant should have been acquitted.

The testimony of the defendant impresses us as being candid. That of the witness, Ring, not entirely disinterested, and in several particulars contradictory or impeached by his own statement. No reason or motive is apparent why the defendant should slay the deceased. All relations between them had been broken for some time, and he was Seeking to avoid her. He went to the place to meet another woman who was in fact in the car with the witness Williams. At the time the shot was fired the quarrel had terminated and he was ready to leave the scene, and according to the evidence of both himself and Ring, he turned on the switch of his car preparatory to leaving.

This court is reluctant to disturb a verdict on the insufficiency of the evidence, and will do so only when it appears that the state’s evidence fails to establish guilt to the certainty required by law. The jury must have had serious doubt, for no other explanation can be made of their verdict of manslaughter in the second degree. Bryan v. State, 11 Okla. Cr. 180, 144 P. 393; Jackson v. State, 12 Okla. Cr. 446, 158 p. 292; Davis v. State, 18 Okla. Cr. 112, 193 P. 754; Teague v. State, 10 Okla. Cr. 43, 133 P. 1134; Temple v. State, 15 Okla. Cr. 176, 175 P. 733; Sies v. State, 6 Okla. Cr. 142, 117 P. 504; Nash v. State, 8 Okla. Cr. 1, 126 P. 260.

Considering the second assignment, i. e., exclusion of evidence offered by the defendant, while the witness Ring was on the stand, he was asked on cross-examination the following questions:

“Q. Do you remember of having a conversation with me on Friday morning while you were in the custody of the deputy sheriff in the hall downstairs; I came to you or your father and your father came with me, and I asked to talk to you, A. Ytes, sir; I do. * * *
“Q. I will ask you if at that time I didn’t ask you the question: ‘Did Scotty kill that girl?’ and if you didn’t look me in the eye, if you didn’t look me squarely in the eye, and say to me: ‘Mr. Briggs, he couldn’t possibly have done it?’
“Mr. Swindall: To which the state objects for the reason it is incompetent, irrelevant, and immaterial.
“The Court: Objections sustained. Exceptions noted.
* * *
“Q. I will ask you in answer to my question at that time you did not say to me: -‘They are trying to make me swear Scotty shot that girl?”
“Mr. Swindall: To which the state objects for the reason that it is incompetent, irrelevant, and immaterial.
“The Court. The objections of the state to that are sustained.”

The defendant contended that the witness Ring had made contradictory statements at the coroner’s inquest andi was here seeking to show that he also made statements at other places at variance with his testimony at the preliminary and at the final trial. The question was material. It was admissible as affecting his credibility. The proof of contradictory or inconsistent statements is one of the recognized methods of impeaching a witness. Before the impeaching evidence is admissible, a predicate or foundation must be laid by calling the attention of the witness to the time, place, person, and circumstances of the supposed contradictory statement, so the witness will not be entrapped and may deny or explain it. The question clearly sought to lay a predicate or foundation and the exclusion of the evidence offered was erroneous. Smith v. State, 3 Okla. Cr. 629, 108 P. 418; Gibbons v. Ter., 5 Okla. Cr. 212, 115 P. 130; Hartwell v. State, 15 Okla. Cr. 416, 177 P. 383; Jones on Evidence, par. 845.

Upon the third assignment, i. e., the admission of incompetent evidence prejudicial to defendant, it appears that, as before stated, the defendant on the occasion had arranged to meet another woman. The other woman was married but at the time separated from her husband. It is contended that this was prejudicial to defendant. It wás, no doubt, prejudicial, but was admissible as explaining the presence of defendant at the scene of the occurrence and as explaining the appearance of the witness Williams and his relation to the defendant and his interest in the ■case, but beyond that it was not relevant. The trial court permitted development of this matter further than the importance of the evidence warranted, and it may have had the effect of inflaming or prejudicing the minds of the jury against the defendant.

The fourth assignment, i. e., the giving of the court’s charge on circumstantial evidence, is, we think, not tenable. The charge on circumstantial evidence was not necessary in this case; it not being a case depending wholy on circumstances. Yet it was not error to do so. The instruction given is not specific in all its parts, but it is not prejudicial. It is the safest practice for trial courts to follow the approved instructions. Carter v. State, 6 Okla. Cr. 232, 118 P. 264; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634.

For the reasons stated, the case is reversed.

BESSEY, P. J., and DOYLE, X, concur


text:
    PAUL WETTENGEL et al. v. STATE.
    No. A-4711.
    Opinion Filed May 2, 1925.
    (236 Pac. 626.)
    (Syllabus.)
    1. Intoxicating: Liquors — Evidence Sustaining Conviction for Manufacturing Liquor. Evidence examined and found to sustain tbe verdict and judgment.
    2. ¡Evidence — '“Flight” as Evidence of Guilt. “Flight” is a circumstance tending to establish guilt, and does not consist alone of an entire departure from the place of crime, but a withdrawal and concealment is a flight.
    Appeal from County Court, Dewey County; R. L. Foster, Judge.
    Paul Wettengel and Fred Fipps were convicted in the county court of Dewey county on the charge of manufacturing intoxicating liquors, and appeal.
    Affirmed.

      Jno. V. Roberts, for plaintiffs in error.
    George F. .Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity the plaintiffs in error will be referred to as defendants. The evidence is very brief, and to the following effect: The sheriff, county attorney, and a deputy went with a search warrant to the place of residence of the defendant Wettengel. Wettengel was not at home, but his wife and the defendant Fipps were there. The wife obstructed the door for some few minutes and had the search warrant read to her, and, not understanding all its legal phraseology, had it read a second time before she admitted the officers into the house. She also informed them no one except herself was in the house. The officers found some whisky in the house, and at the barn found about 50 gallons of whisky and 1,200 gallons of mash, 3 oil stoves with a pressure pump, and 3 stills connected up for operation. While the sheriff and deputy were at the barn, the county attorney decided there was some one concealed in the loft of the house, and after some considerable search located the defendant Fipps hiding in the attic. This came near being a literal hiding behind a woman’s skirts. There was a Ford car belonging to Fipps near the house with a 5-gallon bottle in it containing a little whisky. He lived some distance away from the Wettengel place.

This was the evidence of the state. Neither of the defendants took the stand nor offered any evidence. It is contended that the information is defective in failing to describe the stills, but no authorities are cited, and the contention seems not to be seriously made and is not tenable.

It is then argued that the evidence as to the defendant Fipps is insufficient. True, it is circumstantial; but it seems to us that if Fipps was not connected with the manufacture of whisky and was a mere visitor at the Wettengel place, at the time of his arrest he would have denied his connection with the manufacture of whisky. If not, then, at the trial surely he would have taken the stand and have so testified. A defendant is not required to take the stand, and upon a trial the failure to so take the stand and testify must not be mentioned; such mention constitutes per se ground for a new trial. But we know of no rule that makes it improper for this court to consider such failure under circumstances shown by the record in this case.

The hiding of the defendant Fipps in the attic at the approach of the officers is in effect a flight. It is a circumstance tending to prove his guilt.

“Flight” is not necessarily a departure from the community or place of crime. A withdrawal and concealment ■is, in effect, a flight, and is an indication or circumstance strongly tending to prove a consciousness of guilt. Pittman v. State, 8 Okla. 58, 126 P. 696; Robinson v. State, 8 Okla. Cr. 667, 130 P. 121; Jackson v. State, 12 Okla. Cr. 406, 157 P. 945.

Finding no error, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    In re B. R. GUNDY.
    No. A-5597.
    Opinion Filed May 28, 1925.
    (236 Pac. 440.)
    (Syllabus.)
    1. Extradition) — Complaint or Information in Demanding State as Basis of Extradition Proceeding. A complaint or information; duly verified, may form tbe basis of an extradition proceeding, where it is a proper method of charging crime in the state where committed.
    3. Same — Question of Authenticity of Complaint for Determination of Governor, and His Certificate to Fact Sufficient. Under the statute requiring that the Governor certify the authenticity of the complaint on which he demands extradition, without specifying how the Governor is to he satisfied that the complaint on which he acts is authentic, the. question of the authenticity of the complaint is for his own determination, and his certificate to the fact alone required.
    S.Habeas Corpus — Determination by Executive of Surrendering State that Sworn Evidence Accompanying Requisition is Sufficient to Establish Facts Upon Which it is Based Rebuttable on Habeas Corpus Proceeding. The determination by the executive of the surrendering state that the sworn evidence accompanying the requisition is sufficient to establish the facts upon which the requisition is based is not conclusive, but is a prima facie showing,' which may be rebutted on habeas corpus proceeding by admissions or other conclusive evidence.
    4. Same — Right of Person Arrested on Requisition Warrant to Have Tried the Issue of Fact Whether He Is Fugitive from Justice. It is proper for a person arrested on a requisition warrant to have tried on habeas corpus the issue of fact whether he Is a fugitive from justice.
    5. Extradition — Responsibility of Determining Whether Accused Is Fugitive from Justice on Executive of State in Which He Is Found. The responsibility in the first instance of determining whether accused is| a fugitive, from the justice of the demanding state rests upon the executive of the state in which accused is found.
    6. Habeas Corpus — Burden on Petitioner Seeking to Defeat Extradition to Establish that He is not Fugitive from Justice. The proceedings being regular in form, it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition, to establish that he is not a fugitive from justice.
    7. Extradition — Person May Be “Fugitive from Justice*” Though at Time of (Leaving State He Did not Consciously Flee to Avoid Prosecution, and Had no Belief that He Had Violated Laws. A person may be a “fugitive from justice” within the meaning of the provisions of the federal Constitution and laws concerning extradition, though at the. time he left the demanding state he had no belief that he had violated its criminal laws, and though he did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged.
    Petition by B. R. Gundy for writ of habeas corpus to be directed to the Sheriff of Tulsa County.
    Writ denied.
    Bailey E. Bell and Wyley E. Crabtree, for petitioner.

      The Attorney General and G. B. Fulton, Asst. Atty. Gen., for respondent.
   DOYLE, J.

The case of restraint as alleged is by virtue of an executive warrant issued by the Acting Governor of Oklahoma oh a requisition made by the Governor of Kansas.

It appears that petitioner was originally charged by complaint verified by Drucilla Gundy, his wife, filed in the 'city court of Wichita, Sedgwick county, Kan., with the crime of wife desertion and child abandonment, and, being found in Tulsa, Okla., was arrested as a fugitive from the justice of the state of Kansas; that petitioner made application to Edwin R. McNeill, judge of the district court within and for Tulsa county, for a writ of habeas corpus, and that, upon hearing thereof, said writ was denied and petitioner, B. R. Gundy, remanded to the custody of respondent by authority of said executive warrant with directions to hold said petitioner for a period of 48 hours to enable said petitioner to file an application for a writ of habeas corpus in this court.

It is contended the papers taken as a whole show that no crime has been committed, and also that the petitioner is shown not to be a fugitive from justice.

Section 5278 of the Revised Statutes of the United States (U. S. Comp. St. § 10126) provides that—

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory, to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured,” etc.

To what extent is the action of the executive in issuing the warrant of rendition open to review? It will be observed that the statute confers no authority upon the courts. Such authority as we exercise must be derived from our general power to protect the individual citizen from unlawful arrest. Clearly, we may not in the exercise of this restricted power enter upon a trial of the alleged offender. We cannot try the question of his guilt or innocence.

The rule appears to be that the courts may look into the papers before the 'Governor and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner’s guilt or innocence. Hurd, Habeas Corpus, § 621; Moore, Extradition, § 632.

In Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222, it was held:

“The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.”

And further that—

“Unless the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized.” Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246.

Upon a careful examination we are satisfied that the papers produced before the Acting Governor of Oklahoma fully complied with the provisions of the section above quoted.

Is the petitioner, B. R. Gundy, a fugitive from the justice of the state of Kansas? Petitioner is the husband of the woman and the father of the child mentioned in the complaint. For several years prior to March, 1924, he had been a resident and citizen of Collinsville, Okla. About April 1, 1924, he went to Wichita, Kan., and engaged in a moving picture business. He sent for his family in June, 1924, and they removed to Wichita. On March 6, 1925, he told his daughter to collect the proceeds of the business that evening, and the same day left Wichita in his automobile. His testimony discloses that he reached Collins-ville, Okla., the next day; that he had not been in Kansas since.

In the first instance the responsibility of determining whether an accused person is a fugitive from the justice of a demanding state rests upon the executive of the state in which the accused is found. In re Reggel, 114 U. S. 642, 5 S. Ct. 1148, 29 L. Ed. 250.

Independent proof, apart from the requisition papers that the accused is a fugitive, need not be demanded by the Governor of the surrendering state before issuing his warrant of arrest in extradition proceedings. Pettibone v. Nichols, 203 U. S. 192, 27 S. Ct. 111, 51 L. Ed. 148, 7 Ann Cas. 1047.

The executive of the asylum state performs his full duty when he determines that an extraditable offense has been regularly charged, and that the accused was within the jurisdiction of the demanding state when the offense charged was committed.

The determination by the executive of the surrendering state that the sworn evidence accompanying the requisition is sufficient to establish the facts upon which the requisition is based is not conclusive. The issuance of the warrant constitutes, however, a prima facie showing which “may be rebutted under a writ of habeas corpus by admissions or other conclusive evidence.” Hyatt v. N. Y., 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed. 657.

It is upon the petitioner under such circumstances to prove that he is not in fact a fugitive from justice, and the burden requires evidence which is practically conclusive. Ex parte Montgomery (D. C.) 244 F. 967; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544.

The presence of the accused in another state is sufficient, if unexplained and uncontradicted, to warrant his return to the demanding state upon formal and regular requisition, and, either upon a hearing before the Governor, which is not a constitutional right, or upon a hearing on habeas corpus, if the record presents merely contradictory evidence on the subject of presence in, or absence from, that state, a warrant properly issued. Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515.

A person cannot be a fugitive from justice for the purpose of interstate extradition unless he was in the demanding state when the crime charged was committed. State v. Wellman, 102 Kan. 504, 170 P. 1052, L. R. A. 1918D, 949 Ann. Cas. 1918D, 1006; People ex rel. v. Hyatt, 172 N. Y. 176, 64 N. E. 825, 60 L. R. A. 774, 92 Am. St. Rep. 706; Appleyard v. Mass, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1076.

To be a fugitive from justice within the meaning of the federal law it is sufficient that such person legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for said offense, has left its jurisdiction and is found within the jurisdiction of another state upon whose executive requisition is made. When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of the crime charged, it is then conclusively established that such person is a fugitive from justice within the meaning of the Constitution.

It is well settled that a person may be a fugitive from justice within the meaning of the provisions of the federal Constitution and laws concerning extradition, though at the time he left the demanding state he had no belief that he had violated its criminal laws, and though he did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged. Appleyard v. Mass, supra.

'Upon a careful consideration of the proof our conclusion is that under the undisputed facts petitioner is a fugitive from justice from the demanding state, and his arrest and detention is not in any way illegal.

The writ of habeas corpus is accordingly denied and the respondent, R. S. Sandford, sheriff of Tulsa county, is directed to surrender said petitioner, B. R. Gundy, into the custody of Frank Crow, agent of the state of Kansas for the purposes aforesaid.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    BOB GROH v. STATE.
    No. A-4781.
    Opinion Filed May 29, 1925.
    (236 Pac. 435.)
    (Syllabus.)
    Evidence — Venue not Required to be Proven Beyond Reasonable Doubt. Only those allegations in an indictment or information which involve the guilt of a defendant are required to be proven beyond a reasonable doubt. The venue of an offense is not within this class of allegations. There must be some proof of venue, hut, where facts and circumstances are proven from which reasonable and rational inferences arise that the offense was committed in the county charged, the proof of venue will be sufficient.

      Appeal from District Court, Cherokee County; J. H. Jarman, Judge.
    Bob Groh was convicted of assault with a dangerous weapon, and appeals.
    Affirmed.
    H. M. Vance, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was charged in the district court of Cherokee county with the crime of assault, with intent to kill, on the person of Joe Frick. The jury found him guilty of assault with a dangerous weapon, and the court assessed the punishment at confinement in the state penitentiary for a term of one year.

The record discloses that Frick, riding a mule, came by the house of plaintiff in error, who resided on land of Frick, and there the plaintiff in error struck him with a rock, “stomped” and otherwise maltreated him. The evidence, however, is conflicting.

Only two assignments are argued: First, that no venue is proven; second, that evidence is insufficient. Disposing of the latter first, the evidence of the state is sufficient. Its weight and credibility was for the jury, and the verdict, where the evidence, if believed, is ample, will not be disturbed. The other contention that the venue is not proven in Cherokee county is more serious. There is no direct testimony in proof of venue. The witness Frick testified that he lived two miles south of Yonkers. There was evidence that the assault was on some part of his place between his residence and Yonkers. Marie Frick, a daughter of Joe Frick, testified that they lived about a mile from Yonkers. This is the only evidence touching the matter of venue. The court will take judicial knowledge of the boundaries of the counties and the location of towns. Harvey v. Ter., 11 Okla. 157, 65 P. 837; Gritts v. State, 6 Okla. Cr. 534, 118 P. 673, 120 P. 669; Reed v. State, 1 Okla Cr. 481, 98 P. 583, 129 Am. St. Rep. 861; Brunson v. State, 4 Okla. Cr. 467, 111 P. 988.

Those allegations in an indictment or information which involve the guilt of a defendant must be proven beyond a reasonable doubt. Venue is something separate and apart from the offense. It is no part of a crime but a matter affecting jurisdiction. It need not be proven beyond a reasonable doubt. It may be proven by circumstantial evidence. Where there is absolute want of proof on the subject, a case must be reversed, but, where reasonable and rational inferences arising from the evidence show the offense to have been in the particular county charged, it will be sufficient. Fuller v. Ter., 2 Okla. Cr. 86, 99 P. 1098; Hunter v. State, 6 Okla. Cr. 446, 119 P. 445; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N. S.) 153.

This court takes judicial notice that Grand river is the south boundary line of that portion of Cherokee county, south, southwest, and west of Yonkers, and that the town of Ybnkers is about three miles north of Grand river, and that it is about two miles from the town of Yonkers to Grand river on the south and west. The facts and circumstances sufficiently show that by proper inferences the jury could reasonably conclude that the offense was committed in Cherokee county.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    E. B. CANE v. STATE
    No. A-4774.
    Opinion Filed May 29, 1925.
    (236 Pac. 438.)
    (Syllabus.)
    Appeal and Error — Trial—Jury Exclusive Judge of Weight and Credibility of Evidence — Conviction Based on Sufficient Evidence not Set Aside on Appeal. The jury is the exclusive judge of the weight and credibility of the evidence, and, when issues of fact are determined by the jury upon sufficient evidence, a judgment of conviction will not be reversed because of conflicting evidence, or because the evidence may be capable of diverse and opposing inferences. This court in such case will not substitute its judgment for that of the jury.
    Appeal from District Court, Creek County; John L. Norman, Judge.
    E. B. Cane was convicted of murder, and appeals.
    Affirmed.
    R. L. Suddath, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error was convicted of murder, and sentenced to life imprisonment. On the 10th of May, 1922, the plaintiff in error shot and killed the deceased, Willie Casteel, both of whom were negroes. The killing occurred at the house of one Johnson, and the fatal wound was inflicted with a shotgun with which deceased was shot in the side and back of the head, and death was immediate. The only eyewitness was a stepson of the plaintiff in error, a boy 16 years of age, who testified that he saw the shot fired, and that just prior to the shooting plaintiff in error called deceased a vile name, and stated to him, “You have been interfering with my business.”

The plaintiff in error testified that he was at work in the field; that he went to the house to get the gun to kill a squirrel; that he pulled the gun from behind a cot where it was sitting, threw it over his arm, and as he did so it was discharged accidentally; that he had no motive for slaying Casteel. There was some evidence of discrepancies in the explanations made by plaintiff in error and some tending to sustain him. If the evidence of the state is believed, the crime was murder. If the evidence of the defendant is believed, it is excusable homicide. The issue made by the respective theories of the state and of the plaintiff in error was fairly and fully submitted to the jury.

Questions of fact are to be decided by the jury. It is the exclusive judge of the weight and credibility of the evidence. It has a better opportunity for passing on these questions than a court far removed from the trial could have. The jury sees the witnesses, observes their appearance on the stand, and it is better able to judge their candor and frankness or the lack thereof. It has been the uniform rule of this court, where there is a clear conflict in the evidence, or where the evidence is such that different inferences may reasonably and properly be drawn from it, that the verdict of the jury will not be disturbed. Only where there are circumstances tending to show that the jury was influenced by passion or prejudice, or where the verdict is so clearly against the weight of the evidence as to lead to the inference that the jury was influenced by improper motives, or there is a lack of evidence, will the court set aside the verdict on questions of fact. So well is that rule settled that we do not attempt to collate the authorities on it. But see Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Ostendorf v. State, 8 Okla. Cr. 362, 128 P. 143; Davis v. State, 10 Okla. Cr. 169, 135 P. 438.

There being no prejudicial error, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    PAUL MENEFEE v. STATE.
    No. A-4665.
    Opinion Filed May 29, 1928.
    (236 Pac. 439.)
    (Syllabus.)
    Jury — Right to Ask Jurors on Voir Dire Whether They Are Members of Ku KIux Klan. On a trial for unlawful possession • r of intoxicating liquor, the defendant has the right to ask the jurors on their voir dire, to enable him to exercise his right of peremptory challenge, whether they are members of the Ku Klux Klan, where counsel states that that organization is taking a particular interest in| the prosecution in which they are called to sit as jurors.
    2. Appeal and Error — Refusal to Permit Jurors to Answer on Voir Dire as to Whether They Belonged to Ku Klux Klan Held Reversible Error. Refusal to permit jurors to answer the defendant’s question whether they belonged to the Ku Klux Klan, for the purpose of laying a foundation for peremptory challenge of jurors, held, reversible error.
    Appeal from County Court, Woods County; J. J. Glass-er, Judge.
    Paul Menefee was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    A. J. Stevens and C. E. Wilhite, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Paul Menefee, was convicted on a charge of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to be confined in jail for 60 days and to pay a fine of $200. To reverse the judgment he appeals.

The sheriff, a deputy sheriff, and<the city marshal of Alva testified that on March 10, 1923', under authority of a search warrant they visited the premises occupied by the defendant on the corner of Seventh and Santa Fe streets in the city of Alva, where they found and seized four or five bottles containing three quarts and three-fourths of a pint of corn whisky. The defendant was not at home. Mr. Rhodes, his brother-in-law and two sisters were there when the search was made.

At the close of the state’s evidence the defendant demurred to the evidence and moved the court to advise the jury to return a verdict of not guilty on the grounds that the evidence was insufficient to prove the commission of any offense, and that the evidence was insufficient to connect him with the alleged offense. The demurrer was overruled and the motion denied.

A number of errors are assigned. The first is as follows:

The refusal of the trial court to permit the defendant to examine the jurors on their voir dire as a basis for the intelligent exercise of his peremptory challenges. The record shows that the court refused to permit the following questions to be asked and allowed exceptions:

“Q. Are you now, or have you ever been, a member of the Ku Klux Klan, or what is more commonly known as the Invisible Empire?
“Q. Do you believe in the teachings, beliefs and practices of the Ku Klux Klan, and do you believe such organization is necessary to assist and aid the legally elected and qualified authorities in this state in enforcing the law?”

•Counsel in their brief say:

“The defendant maintains that by the refusal of the trial court to permit him to examine the jurors on these matters he was prejudiced to such an extent that he could not properly exercise his peremptory challenges. And, further, in view of the fact that immediately prior to the convening of the said county court that secret organization caused to be distributed throughout the county of Woods handbills and ‘dodgers’, on which were printed sundry things that organization stood for, and heading the list was ‘the elimination of the bootlegger,’ and third on the list was ‘trial by jury in all of the cases.’ He was denied a fair and impartial trial.”

The Constitution guarantees to every defendant in a criminal case a fair trial by an impartial jury. In order to determine whether the person called as a juror possesses the necessary qualifications, whether he has prejudged the case, whether his mind is free from prejudice or bias, the defendant has the right to ask him questions the answer to which may tend to show that he may be challenged for cause or disclose a state of facts upon which the defendant may see proper to reject such juror peremptorily.

The statute confers upon one accused of a misdemeanor the right of exercising three peremptory challenges. Section 2671, C. S. 1921.

A peremptory challenge, as defined by the statute, “is an objection to a juror for which no reason need be given, but upon which the court must excuse him.” Section 2670.

The right of challenge comes from the common law with the trial by jury itself, and has always been held essential to the fairness of trial by jury. In conferring this right the law gives effect to the natural impulse to eliminate from the jury not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the defendant may object to their service upon the jury to which the disposition of his life or liberty is submitted.

In the case of Johnson v. State, 28 Okla. Cr. 254, 230 P. 525, we decided that—

“Where an inquiry is made in good faith, predicated upon probable cause indicating that the rights of the accused may be affected, counsel for the defendant may, within reasonable bounds, limited by a fair discretion of the court, interrogate prospective jurors as to their membership in the Ku Klux Klan, in order that the accused may intelligently exercise his right to challenge jurors for cause, or peremptorily without cause, in such manner as will facilitate the selection of a jury that is in fact impartial.”

In Moore v. State, 265 S. W. 385, a conviction for possessing* intoxicating liquor for the '¡purpose of sale, was reversed; the Court of Criminal Appeals of Texas holding that—

“Refusal to permit jurors to answer defendant’s question whether they belonged to Ku Klux Klan, as basis for exercise of peremptory challenges, held reversible error, though court ashed any juror belonging to any social order, principles of which would prevent rendition of impartial verdict, or taking any oath in contravention of oath as juror, to let fact be known.”

In Bethel v. State, 162 Ark. 76, 257 S. W. 740, 31 A. L. R. 402, it was held that:

“For the purpose of laying a foundation for peremptory challenge of jurors, they may be asked if they are members of the Ku Klux Klan, where counsel states that that organization is taking a particular interest in the prosecution in which they are called to sit as jurors.”

Upon the record in this case we are not called upon to decide whether an affirmative answer to the questions propounded to the jurors would have been ground for challenge for cause. The questions were asked with a view to ascertain facts upon which to base a peremptory challenge, and for this purpose they were proper, and should have been answered.

Upon a consideration of all the testimony in the casq, we are inclined to think that the court should have sustained the defendant’s motion for a directed verdict, in that there was no evidence, direct or presumptive, tending to show an unlawful intent to dispose of the whisky found and seized at the defendant’s home.

A defendant should not be convicted upon mere suspicion, or even strong probabilities of guilt. To warrant a conviction the testimony, when all considered, should be clear and convincing, entirely satisfying the minds of the jury.

For the reasons indicated, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    WES COSBY v. STATE.
    No. A-4772.
    Opinion Filed May 29, 1925.
    (236 Pac. 906.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence held ■ insufficient to sustain a conviction.
    2. Same — Search of Private Residence Held Illegal. Search of private residence not coming within exceptions in section 7013, C. S. 1921, was illegal.
    3. Evidence — Evidence Obtained by Illegal Search of Accused’s Residence Inadmissible. Evidence obtained by a search of the defendant’s residence, in violation of the constitutional protection against unreasonable search and seizure, is inadmissible against him.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Wes Cosby was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    See, also, 30 Okla. Cr. 294, 236 P. 51.
    A. W. Turner, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Ottawa county, March 29, 1923, the defendant, Wes Cosby, “did then and there have in his possession intoxicating liquors, to wit: Whisky, with the unlawful intent” to sell the same. On the trial the jury returned a verdict finding him guilty and leaving his punishment to be fixed by the court. The court sentenced the defendant to be confined in the county jail for six months and to pay a fine of $500 and the costs. To reverse the judgment, defendant appeals.

The errors assigned relate to rulings of the court in the admission of evidence, and question the sufficiency of the evidence to sustain a conviction. The evidence shows that on the date alleged, about midnight, that the sheriff and two deputy sheriffs visited the home of the defendant under authority of a search warrant and searched the premises, finding a bottle partly filled with whisky. The evidence in the case was all admitted over the defendant’s objection on the ground that the search was made under a void search warrant; the same having been issued to search a private residence without affidavit that the same was a place of public resort.

The affidavit for the search warrant recited:

“One 4-room residence owned and occupied by Wes Cosby, about three miles S. E. of Peoria, Okla., all of which is situated in the county of Ottawa, state of Oklahoma; said residence being used as a place of storage.”

The testimony of the defendant in his own behalf is as follows:

“I am 65 years old, I came to Ottawa county in 1895, the officers came to my place about 11 o’clock at night and found a bottle of whisky that I had for my own use.”

Eight witnesses testified that they had known the defendant from 15 to 20 years, and his general reputation in that community as to being a law-abiding citizen, and that it was good.

The doctrine is well settled in this state that evidence obtained in violation of the accused’s constitutional protection against unreasonable search and seizure, under Const, art. 2, § 30, guaranteeing the security of the people in their right to be exempted in their persons, houses, papers, and effects from unreasonable search or seizure, cannot be used as evidence against the defendant on trial. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Russell v. State, 25 Okla. Cr. 123, 221 P. 113.

Assuming that the testimony was admissible, there was no direct or presumptive evidence that the defendant intended to violate provisions of the prohibitory enforcement act.

In our opinion, the search and seizure detailed in the record was an unauthorized trespass, and the evidence was insufficient to sustain a conviction.

For the reasons indicated, the judgment is reversed.

BESSEY, P. J.„ and EDWARDiS, J., concur.


author: BESSEY, P. J.

text:
    V. J. YOUNG v. STATE.
    No. A-4459.
    Opinion Filed May 29, 1925.
    (236 Pac. 67.)
    (Syllabus.)
    Appeal and Error — On Conflicting Evidence, Finding of Jury not Disturbed on Appeal. Where there is competent evidence supporting the theory of the state, and there is other evidence conflicting with the state’s contention, the issues so raised are solely for the jury, under proper instructions of the court, and the findings of the jury on such issues will not be disturbed by this court.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    V. J. Young was convicted of selling mortgaged property, and he appeals.
    Affirmed.

      Wilkinson & Saye, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

V. J. Young, plaintiff in error, defendant in the trial court, was convicted of disposing of mortgaged property], to wit, ten bales of cotton. [His punishment was assessed by the jury at confinement in the penitentiary for a year and a day.

The testimony on the part of the state shows that the defendant gave the cotton compress tickets for these ten bales of cotton to Mary Renas, the mortgagee; that some time later he came to her and requested that she deliver the tickets to him to enable him to move the cotton to a warehouse to be there held for a better market; that she complied with his request, but that, contrary to agreement, the defendant sold the cotton for- $515, and appropriated the proceeds of the sale to his own use, and that for weeks thereafter he could not be located.

The defendant, corroborated by a number of witnesses, mostly relatives, testified that the tickets were surrendered to him by the mortgagee for the purpose of enabling him to sell the cotton; that the mortgagee authorized him to make the sale and and take the proceeds and buy land, in which they were to have a joint interest; that pursuant to this agreement, he sold the cotton and spent most of the proceeds in a futile effort to get title to the land.

Both parties agree that the issue was one of fact, as stated by the defendant in his brief and approved by the Attorney General in his brief, thus:

“The theory of the state was that the defendant procured the possession of these cotton tickets upon the fraudulent representation that he would place the bales of cotton in a warehouse. The theory of the defendant was that he procured these tickets with the consent of the mortgagee to sell the cotton and apply the proceeds to the purchase of certain lands.”

As this court has so often held, where there is competent evidence supporting the theory of the state, and there is other testimony counflicting with the state’s contention, the issues so raised are solely for the jury, and the findings of the jury on such issues will not be disturbed by this court.

It would serve no good purpose to analyze the testimony; it is sufficient to say that the testimony for the state and that for the defendant, touching the understanding between the defendant and the mortgagee as to the purpose of the surrender of the compress tickets, is irreconcilably conflicting. This issue was fairly submitted to the jury in instruction No. 6, as follows:

“You are further instructed, gentlemen, that aside from the defendant’s plea of not guilty, he interposes as a defense to said information and charge contained therein that the mortgagee, Mary Renas, authorized him to sell the cotton in question, and to use the proceeds of the same to purchase certain lands for the benefit of this defendant and the mortgagee, Mary Renas, or to expend the same in an effort to procure title to said land, and that he did so expend said money in an effort to locate the allottee or owner of said land, and for the purpose of procuring the title to same, as directed and instructed by the mortgagee, Mary Renas; and in this connection you are instructed that should you believe, or should you entertain a reasonable doubt as to whether or not he was so authorized to sell the cotton and expend the money, or proceeds therefrom, in the manner as contended by the defendant, you should acquit the defendant.”

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOY)LE, J.

text:
    ED TODD v. STATE.
    No. A-5068.
    Opinion Filed June 1, 1925.
    (236 Pac. 437.)
    (Syllabus.)
    1. Evidence — When State May Attack Accused’s Character. The state cannot attack the. character or reputation of a defendant unless he first puts that in issue by introducing evidence of his good character.
    2. Same — Intoxicating Liquors — Admitting Evidence of General Reputation for Commission of Similar Crime Prejudicial Error. It is error, prejudicial to the rights of a person on trial, for the court to permit evidence of the general reputation of such person for the commission of the same or similar crimes to the one charged. And testimony as to the general reputation of a defendant as to b'eing a man who sells whisky is incompetent to impeach the credibility of the defendant as a witness in his own behalf or for any other purposes.
    Appeal from County Court, Carter County; A. J. Hardy, Judge.
    Ed Todd was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed and remanded.
    Pardue & Davis, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOY)LE, J.

The information in this case charged that in Carter county, May 26, 1923,-defendant, Ed Todd, “did unlawfully sell intoxicating liquor, to wit, one pint of whisky to A. C. Clevenger.” A trial was had thereunder, and the defendant was found guilty as charged in the information, the punishment assessed at a fine of $250 and confinement in jail for 90 days. To reverse the judgment he appeals.

A. C. Clevenger testified that he bought a pint of whisky and paid $2.00 for it from Ed Todd; that it was between 10 and 11 o’clock at night; that about 5 minutes afterwards he was arrested by D. Bell, and he told him where he got it to keep from going to jail.

W. J. Clevenger, brother of prosecuting witness, testified that he saw the defendant sell the pint of whisky to his brother, but did not know what his brother paid for it.

D. Bell testified that he saw A. C. and W. J. Clevenger and Bunk Allen get into a car and start towards Hewitt, and he followed them. Bunk Allen was driving, and they started running; that somebody in the back seat threw a pint of whisky out, and he arrested them, and then he turned them loose and went back and arrested the defendant, Ed Todd.

The testimony of the defendant in his own behalf is as follows:

“I am not acquainted with the Clevengers, but I saw them at a dance that night; I did not sell them any whisky. I went to the dance about 8 o’clock with Jim Gant, constable, and stayed there until about 12:80 and returned home with John Allen. It is about a mile and a quarter from where I live to John Savage’s where the dance was.”

Leora Todd testified in support of the defendant’s alibi, and said that Mr. Bell came there about an hour after her husband returned and arrested him.

Of the various errors assigned, we deem it only necessary to consider the one, that the court erred in permitting the state to introduce testimony to impeach the credibility of the defendant as a witness by permitting witnesses for the state to testify that the general reputation of the defendant was that of a man who sells intoxicating liquors.

In rebuttal, the state recalled D. Bell, and, against the defendant’s objections, he testified as follows:

“Q. How long have you known Mr. Todd? A. I guess something like 2 years.
“Q. Do you know his general reputation in the community in which he lives as a man who sells whisky? Are you acquainted with his reputation ? A. I am.
“Q. Good or bad? A. Bad.”

The defendant moved that the jury be instructed to disregard the testimony and the county attorney be reprimanded for asking such question.

The Court: Overruled.

Walter Holden was called, and testified as follows:

“Q:. Do you know Ed Todd? A. Yes, sir.
“Q. Do you know his general reputation in the community in which he lives as a man who sells and handles intoxicating liquors? A. Yes, sir; I know.
“Q. Is it good or bad? A. Bad.”

The defendant moved the court to strike the question and reprimand the county attorney, for the reason the defendant has not put his reputation in issue in this case.

The Court: Overruled.

By numerous decisions of this court, it is held that the state cannot attack the character of a defendant unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Sims v. State, 11 Okla. Cr. 382, 146 P. 914; Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134; Salyer v. State, 25 Okla. Cr. 443, 221 P. 118.

A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.

For the errors indicated, the judgment of the lower court is reversed, and a new trial awarded.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    C. H. COX et al. v. STATE.
    No. A-5067.
    Opinion Filed June 2, 1925.
    (236 Pac. 436.)
    (Syllabus.)
    1. Intoxicating Liquors — -Information for Unlawful Possession Held Defective — Sour Mash. An information for unlawful possession of intoxicating liquors, alleged to be “sour mash being fit and intended for the manufacture of wbisfiys,” is fatally defective in omitting to allege that tbe same contained as much as one-half of one per cent, of alcohol, measured by volume, and was capable of being used as a beverage.
    2. Same — Evidence Insufficient to Sustain Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquors, evidence held insufficient to sustain the verdict and judgment of conviction.
    Appeal from County Court, Love County; B. W. Jones, Judge.
    C. H. Cox and W. W. Mason were convicted of unlawful possession of intoxicating liquor, and they appeal.
    Reversed and remanded, with direction.
    Hays & Dixon, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Love county, December 17, 1928, “C. H. Cox and W. W. Mason, each of them acting together, did then and there willfully and unlawfully have in their possession 300 gallons of intoxicating liquor, to wit, sour mash; the said sour mash mentioned aforesaid being fit and intended for the manufacture of intoxicating whiskys, with the unlawful intent to violate the prohibitory liquor laws of the state of Oklahoma.” On the trial the jury returned a verdict, finding the defendants guilty as charged in the information, and fixed their punishment at a fine of $50 and confinement for 30 days in jail, signed by five jurors.

Charles L. Clark and John Turner, deputy sheriffs, testified that they were out in the country walking through the woods and- ran across some wagon tracks that they followed and found four barrels of mash and two empty barrels concealed in a hole in the ground and covered over with brush; that they continued to follow the wagon tracks and noticed that the team consisted of a horse and mule; that they followed the tracks about a quarter of a mile to the house of the defendant Cox; they questioned him about the mash, and he denied any knowledge of its presence; they told him where it was located, and he said he did not know whether it was on his land or not; that he had hauled a load of 'vvood from Mason’s place a few days before. They observed that Cox had a team consisting of a horse and mule, and the horse had a peculiar cleft in the right front foot and made the kind of a track that they had seen near the barrels of mash. They also followed tracks to the house occupied by the defendant Mason. They also observed that Mason had a team consisting of a horse and mule, and that Mason’s horse had a peculiar cleft in the right front foot which made the same kind of a track they found near the barrels of mash; that Mason was informed of the location of the mash and he said that he did not know whose land it was on.

At the close of the state’s evidence there was a motion by the defendants for a directed verdict in the form of a demurrer to the evidence, and on the ground that the evidence was insufficient to connect them with the alleged offense. Which motion was denied.

As witnesses.in their own behalf, defendants denied any knowledge of the mash; that their Homes were about a mile apart, with timbered land between, owned by one Miller at Ardmore and controlled by one McClusky, as agent. Each testified that they had never before been arrested.

Three neighbors testified that they visited the scene immediately after the officers had destroyed the mash and they did not see any tracks leading to and from the houses of the defendants; that they found the pasture fence out and down in two places, and there were wagon tracks from where the mash was found out to these openings; that they knew the general reputation of the defendants in the community for being law-abiding citizens, and that it was good.

The defendants interposed a demurrer to the information on the ground that it does not state facts sufficient to constitute a public offense. The overruling of the demurrer is the first error assigned.

The information was evidently drawn under section 7002, C. S. 1921, as section 1, ch. 42, Session Laws 1923-24, approved March 22, 1924, making it unlawful “to manufacture, ferment or possess, any compound mixture, mash, wort or wash, fit for distillation,” was not in effect when this prosecution was instituted.

An information based on said section 7002 should have alleged that the so-called “sour mash” contained as much •as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage. In the •absence of these essential allegations, the information is not •sufficiently definite, direct, and certain as to the offense intended to be charged. It is alleged that the said sour mash was “fit and intended for the manufacture of intoxicating whiskys.” It may be the pleader intended to charge an attempt to manufacture whisky instead of unlawful possession of intoxicating liquor. As it is the information is ¡ambiguous, uncertain, and defective in its allegations.

It follows that the court erred in overruling the demurrer thereto. Jerome v. State, 20 Okla. Cr. 131, 229 P. 527.

There being no evidence showing or tending to show these essential elements of the offense intended to be charged, the motion to direct a verdict should have been sustained. Halfmoon v. State, 28 Okla. Cr. 283, 230 P. 294.

For the reasons stated the judgment is reversed, and the cause remanded, with direction to the court below to-sustain the demurrer to the information.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    STATE v. J. C. WALTON.
    No. A-5165.
    Opinion Filed June 3, 1925.
    (236 Pac. 629.)
    (Syllabus.)
    L Judges — District Judge, Assigned to Other District to Try Criminal Case, Without Authority to Hear and Decide Matter Connected With Such Case Outside District to Which He Was Assigned. A district judge, who has been regularly assigned to a district other than his own to try a criminal case, is in effect a judge pro tempore of such district, and has no right or authority to hear and decide any motion or other matter connected with such case outside the district to which he has been assigned.

      Z. Appeal and Error — Appeal by State from Order Sustaining Demurrer to Indictment or Information and Discharging Accused Without Direction that It Be Resubmitted1 or that New Information Be Filed, Raising Only Question of Law. The state has the right to appeal from an order sustaining a demurrer to an indictment or information; such -an appeal reserves for decision only a question of law, where the demurrer ié sustained and the defendant discharged without direction by the trial court that the same he resubmitted or that a new information be filed.
    3. Former Jeopardy — Sustaining Demurrer to Indietment or Information as Barring Another Prosecution for Same Offense. Under Code, of Criminal Procedure, section 2612, C. S. 1921, if a demurrer to the indictment or information is sustained, the judgment is final, and such judgment is a bar to another pros-eeution. for the same offense, unless the court at the. time directs the case to be resubmitted or that a new information be tiled, and such direction must be. by matter of record.
    4. Samei. — A judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it had been rendered upon a verdict of not guilty, where the court does not order a resubrnission of the case or direct that a new information be filed.
    5. Same. — The judgment of the trial court sustaining the demurrer to an information, unaccompanied by contemporaneous order or direction to file a new information, is a bar to further prosecution for the same offense.
    6. Appeal and Error — On Showing that Judgment Contained in Transcript Was not Based on Judgment of Trial Court, Appeal by State from Judgment Sustaining Demurrer to Information Dismissed. Where, on appeal by the state from a judgment sustaining a demurrer to an information and discharging th'e de-. fendant, it appears that the journal entry of judgment contained in the transcript was not based upon the judgment of the court as pronounced and entered, the appeal will be dismissed for want of jurisdiction.
    7. Indictment and Information — Allegations Against Accessory Before Faet, Only Such as Necessary as Against Principal. Under Code of Criminal Procedure, section 2574, C. S. 1S>21, no additional facts need be alleged against one who at common law was deemed! an accessory before the fact than would he necessary as against the principal.
    Appeal from District Court, Oklahoma County; A. S. Wells, Judge.
    J. C. Walton was prosecuted for diverting money ap-. propriated by law from purpose of such appropriation. From judgment sustaining demurrer to informations, the State appeals, and accused moves to dismiss the appeal.
    Appeal dismissed.
    The Attorney General, Leon S. Hirsh, Asst. Atty. Gen., and J. K. Wright, Co. Atty., for the State.
    Warren K. Snyder and Ben F. Williams, for defendant in error.
   DOYLE, J.

On the 10th day of April, 1924, the county attorney of Oklahoma County filed in the district court of said county five informations, each charging J. C. Walton with a violation of section 1662, C. S. 1921, which provides:

“That any state officer, deputy or employee of such state officer, who shall divert any money appropriated by law from the purpose and object of such appropriation, shall be deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state penitentiary for a period of not less than one year nor more than ten years.”

It is alleged in substance in each information that the Eighth Legislature of the State of Oklahoma duly appropriated $15,000 as a contingent fund to be expended under the direction of the Commissioner of Health of the State of Oklahoma for the purpose of preventing and curing venereal diseases, and that said J. C. Walton then and there being Governor of the State of Oklahoma, acting together with A. E. Davenport, the Commissioner of Health of the State of Oklahoma, and with one T. P. Edwards, did unlawfully, wrongfully, and feloniously divert $200 of the said $15,000 from the purpose and object of its appropriation in payment of the salary of the said T. P. Edwards, as a personal and private employee of the said J. C. Walton, and that the said T. P. Edwards was not then and there engaged in performing any duties for the Health Department of the State of Oklahoma.

Each of said informations charged the said defendant in the same language, except that the date on which such diversions are alleged to have occurred is different; the same being for a month’s salary in each instance.

To each of these informations the defendant interposed a demurrer, on the statutory grounds.

Thereafter on the 18th day of April, 1924, before A. S. Wells, one of the district judges of the state of Oklahoma, who at that time was holding court by assignment of the Chief Justice in Oklahoma County, the demurrers coming on to be heard, were by the court sustained.

The journal entry of judgment was on the same day prepared, signed, and filed with the court clerk by Judge Wells, the material part of which is as follows:

“This matter comes on for hearing on this the 18th day of April, 1924, on the demurrers to the informations filed herein. The state is represented by J. K. Wright, county attorney, and the defendant is represented by Warren K. Snyder, and after the argument is heard and the court has been duly advised in the premises.
“The court finds as a matter of law that the defendant, J. O. Walton, who is prosecuted alone in these cases, cannot himself divert those funds, and the court is of the opinion that the informations do not charge a crime against J. C. Walton in simply alleging that he conjointly diverted these funds with Davenport and Edwards. The court is of the opinion, however, that if the informations charged Davenport with the diversion of the funds, and in addition to that charged J. C. Walton with aiding and abetting in the diversion of those funds, and then set out the acts and nature of his acts by which he aided and abetted, that they would state a crime against J. C. Walton. That not being true in these cases, and the information simply saying that J. C. Walton diverted the funds acting conjointly with Davenport, it is the opinion of the court that the informa-tions fail to state facts sufficient to constitute a crime upon the part of J. C. Walton against the state of Oklahoma, and for that reason the demurrers to the informations are sustained.
“To the ruling of the court sustaining the demurrers the county attorney duly excepts and objects, and his exceptions and objections are allowed. Then the county attorney gives notice in open court of his intention to elect to stand on the demurrers, and gives notice in open court of his intention to appeal the matter to the Criminal Court of Appeals of the State of Oklahoma, and asks that he be given ten, five, and two days to prepare the record, suggest amendments, and settle the record that it may be filed in the Criminal Court of Appeals, and said time is allowed.
“A. S. Wells, Judge.
“Filed in district court Oklahoma County, Okla., April 18, 1924. Cliff Myers, Court Clerk, by Carl Traub, Deputy.”

A duplicate copy of said journal entry was delivered to Hon. Warren K. Snyder, counsel for the defendant. Thereafter on April 21, 1924, Judge Wells received through the mail at Lawton another journal entry, which he signed and returned to the county attorney of Oklahoma county, which journal entry contained the following recital:

“The court is of opinion that the objection to these in-formations can be avoided in new informations, and the county attorney is hereby directed to continue prosecution by filing new informations in this case in accordance with the views herein expressed.”

It appears that the original journal entry was withdrawn, and the journal .entry signed at Lawton, Comanche county, was substituted and filed with the court clerk of Oklahoma county.

The state appealed from the judgment sustaining the demurrers by filing in this court a petition in error with a duly certified transcript of the record attached.

Counsel for defendant in error filed a motion to correct the transcript to speak the truth, on the ground that the journal entry of judgment set forth in the transcript of the record, marked filed April 18,1924, was in fact signed at Lawton on April 21, and tendered for filing in Oklahoma City April 21, 1924, or later, and that the same bears a false and fictitious filing date; that Hon. A. S. Wells, judge of the Sixteenth judicial district, by order of the Chief Justice was assigned to hold court in Oklahoma county for the period of one week, beginning April 18, 1924, and his time for holding court in Oklahoma County expired midnight, Saturday, April 19, 1924; and that the journal entry of judgment made and signed while he was in Oklahoma county on the 18th day of April, 1924, was removed from the files by the court clerk, and the journal entry which was signed by him on the 21st day of April, 1924, at Lawton, was substituted therefor. Which motion for permission to correct the transcript was by this court allowed.

Thereafter, the Chief Justice of the Supreme Court assigned the said A. S. Wells, district judge, to sit and hold court in Oklahoma county to hear the application of the defendant to correct said transcript. Upon which hearing it appears without dispute that the facts as to the signing and filing of the two journal entries of judgment are as heretofore stated.

Thereafter the defendant in error filed a motion to dismiss the state’s appeal herein on the ground that the judgment pronounced sustaining the demurrers to said informa-tions as shown by the record, including the minutes of the court and the original journal entry of judgment, did not contain any order directing or authorizing the county attorney to file new informations in said cases.

We have examined fully and carefully the whole record, and we are clearly of opinion that this appeal should be dismissed.

It may be observed at the outset that a district judge, who has been regularly assigned to a district other than his own to try a criminal case, is in effect a judge pro tem-pore of such district, and has no right or power to hear and decide any motion or other matter connected with such case outside the district to which he has been assigned, unless he is authorized to do so by some constitutional or statutory provision. Dobbs v. State, 5 Okla. Cr. 480, 114 P. 358, 115 P. 370.

Our Code of Criminal Procedure provides:

That “the defendant may demur to the indictment or information when it appears: * * * That the facts stated do not constitute a public offense.” Section 2608, C. S. 1921.

That, “upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes.” Section 2611.

That, “if the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.” Section 2612.

That, “if the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.” Section 2613.

A judgment is the final consideration and determination of a court of competent jurisdiction on the matters submitted to it, and a judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it has been rendered upon a verdict of not guilty, where the court does not direct a resubmission of the case, or direct that a new information be filed.

Section 2612, supra, confers upon the court the right to direct the filing of a new information, if, when it sustains the demurrer, it is of the opinion that the objection on which the demurrer is sustained may be avoided in a new information. This section places it wholly within the power of the court to determine whether further prosecution shall be had.

In the case of State v. Robertson, 28 Okla. Cr. 234, 230 P. 932, it was held:

“The state has the right to appeal from an order sustaining a demurrer to an indictment or information. Such an appeal reserves for decision only a question of law where the indictment or information is dismissed and the defendant discharged without direction or permission by the trial court to amend the information or that the case be submitted to that or another grand jury.”

In State v. Crook, 16 Utah, 212, 51 P. 1091, the Supreme Court of 'Utah said:

“The defendant’s plea of former acquittal of the same offense charged’ in the information, by the judgment of the court sustaining the demurrer, and ordering the defendant discharged, without making an order directing another information to be filed, or that the cause be submitted to the grand jury, was, under the facts shown, a sufficient plea of former acquittal, and a bar to a prosecution under the third information filed.”

The words of this statute are similar with those of Arizona. We wish here to quote with approval the language of McAlister, Chief Justice, in the case of State v. Phillips (Ariz.) 233 P. 586:

“While the statute does not say in hsec verba that an order resubmitting the cause or directing the filing of a new information shall be made at the time the demurrer is sustained, yet it is very clear that such is its meaning. This appears, we think, from the language of section 984 itself, and also from that of the succeeding section which provides that under such conditions the defendant must be discharged if in custody, his bail exonerated if admitted to bail, or his money refunded if he has deposited money instead of bail. If it had been intended that such an order should not be effective forthwith, the Legislature would undoubtedly have given the court time in which to determine whether it would resubmit the cause or direct the filing of a new information, and inasmuch as it failed to do this there can be no question but that it intended that the discharge of the defendant, the exoneration of his bond, or the refunding of his money should follow immediately, or practically so, the order allowing the demurrer unaccompanied by one resubmitting the case or directing the filing of a new information. There is no way by which the court can prevent such an order’s becoming final forthwith and constituting a bar to another prosecution than by resubmitting the case or directing the filing of a new information, and unless this is done practically contemporaneously with the sustaining of the demurrer it is too late.”

In State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731, this court held that—

“Where the trial court sustains a demurrer to an information in a criminal case, and fails to order or direct that a new information be filed charging the same offense, ■the judgment sustaining the demurrer to the information is final, and the accused may not be subjected to another prosecution for the same offense.”

It may be well for us to say here, in order to guard against a misapprehension, that if the sufficiency of the informations to charge an offense was properly before this court, as a reserved question of law, that we would hold said informations to be sufficient.

It has been repeatedly decided by this court that under section 2574, C. S. 1921, no additional facts need be alleged against one who at common law was deemed an accessory before the fact than would be necessary as against the principal. Wertzberger v. State, 25 Okla. Cr. 1, 218 P. 721; Sanditen v. State, 22 Okla. Cr. 14, 208 P. 1040; Moore v. State, 14 Okla. Cr. 292, 170 P. 519; Rhea v. State, 9 Okla. Cr. 220, 131 P. 729.

For the reasons stated, the motion of the defendant in error to dismiss this appeal is sustained, and the appeal herein dismissed.

BESSEY, P. J., and EDWARDS, J., concur.