author: PEE CUEIAM.

text:
    Chas. H. Hast v. Territory.
    No. 1502.
    Okla. Ter.
    Opinion Filed December 20, 1909.
    (105 Pac. 1118.)

      Appeal from Distinct Court, Pottawatomie County; B. F. Burwell, Judge.

    Charles H. Hast was convicted of crime, and appeals.
    Dismissed.

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The records of the clerk of this court show that on April 20, 1904, a petition in error, with ease-made attached, in the above-entitled cause, ‘ was filed in the ■ Supreme court of the territory of Oklahoma, and that upon the admission of Oklahoma, as a state said cause was transferred to the Supreme Court of the state of Oklahoma. Upon the organization of the Criminal Court of Appeals, as directed by statute, the Supreme Court transferred said cause to this, court; but no record, petition in error, case-made, or -briefs have ever been transferred to this court. No appearance has ever been made in this court on behalf of plaintiff in error,., although said cause has been assigned and continued from term to term since the organization of this court.. It appearing that plaintiff in error has abandoned his appeal, for the reasons stated, the appeal is, on the motion of Assistant Attorney General, Charles L. Moore, dismissed for want of prosecution, with direction to the district court of Pottawatomie county to cause the judgment and sentence to be carried into execution.


source: Caselaw Access Project

author: FURMAN, PRESIDING Judge

license: Public Domain

text:
    State v. George Hoffer.
    No. 372.
    Opinion Filed January 4, 1910.
    (106 Pac. 533.)
    INTOXICATING LIQUORS — Statutes—Constitutionality —• Possession of Prohibited 'Liquors — Information, (a) Section 1 of article 3 of Senate Bill No. 61 (Laws 1907-08, p. 603, c. 69), which makes 'it an offense to have possession of prohibited liquors with the intention of violating any of the provisions of the act,', is constitutional and valid.
    (b) Por a sufficient information charging the defendant with having possession -of prohibited liquors with the intention, of violating the provisions of the enforcement act. see opinion.
    (Syllabus by the Court.)

      Appeal from Logan County Court; J. C. Strang, County Judge.
    ' . George Hoffer was indicted for having in his possession intoxicating liquor with -intent to sell. Information ■ quashed, .and the State appeals.
    Beversed.

      On the 18th day of July, 1908, an information was filed in the county court of Logan county, Okla., against George Hoffer, who is hereinafter called the defendant, which information is as follows:
    “In the County Court of Logan County, State of Oklahoma. The State of Oklahoma, y. George .Hoffer, Defendant. Information for Haying Possession of Liquor. In the .Name of and by the Authority of the State of Oklahoma. Comes now James Hepburn, county attorney in and for Logan County, Oklahoma, who prosecutes for and on 'behalf of said State in all Courts sitting in said County, and duly authorized and empowered to -inform of all offenses committed or triable therein, and gives this Court to know and be informed that heretofore, to-wit, on or about the 17th day of July, A. D. 1908, at and within the County of Logan, and State of Oklahoma, one George Hoffer then and there being, did then and there unlawfully, wilfully and knowingly have the possession of certain spirituous, vinous, fermented and malt liquors, to-wit: 60 pints of whisky and 3 pints of beer, with intent then and there on the part of him the said George Hoffer of violating the provisions of the liquor laws of the State of Oklahoma, by .then and there selling the said liquors, the said George Hoffer not then and there being a Superintendent or local agent and authorized by law to have possession of such liquors. Contrary to and in violation of the Statutes in such case made and provided, and against the peace and dignity of the State. James Hepburn, County Attorney. State of Oklahoma, County of Logan — ss.: L. D. Muxlow being first duly sworn on oath says that he has read and knows the contents of the within and foregoing information, and that the allegations and statements therein contained are true. L. D. Muxlow. Subscribed and sworn to before me this 18th day of July, A. D. 1908. J. C. Strang, County .Judge.”
    The case coming on for trial, the defendant filed a motion to quash and set aside the information upon the following grounds:
    “First. For the reason that said information does not state a crime under the laws of the state of Oklahoma.
    “Second. For the reason that the act of the. Legislature,, to wit, Senate Bill' No. 61, under which the charges are drawn, is void for the reason that said act embraces more than one subject.
    “Third. For the reason that article 3 of Senate Bill No. 61 is void for the reason that said article 3, under which the charges in the above information is made, contains subject-matter not embraced in the title to said act, and also different subject-matter to that embraced in said title.
    “Fourth. For the reason that that part of section 1 of article 3 of Senate Bill No. 61, under which this information is drawn, and which reads, ‘or to have the possession of any such liquors with the intention of violating any of the provisions of this act/ is void, for the reason that said clause embraces new and different •subject-matter from that in the title to said act.”
    After hearing argument, the court entered judgment as follows :
    “Now, to wit, August 20, 1908, the above cause came on for hearing on a motion to quash the information for the reason that that part of section 1, art. 3, of Senate Bill No. 61, under which this information is drawn, which reads, ‘Or to have the possession of any such liquors with the intention of violating any of the provisions of this act/ is void for the reason that said clause embraces a new and different subject-matter from that in the title to said act. After argument of counsel, the court sustained the motion to quash the information on the ground above stated, and for the further reason that the title to the act under which the information is drawn, to wit, Senate Bill No. 61, enumerates offenses created by the act, and does not enumerate the offense charged in the information in this case. Under the well-known rule of construction in construing statutes, where certain things are included by the enumeration, others of like character not therein enumerated are excluded. To all of which the state objects and excepts, exception allowed. Sixty (60) days to make a case for the Supreme Court. Ten (10) days for which to suggest amendments. Five (5) days in which to settle and sign same.”
    The case is regularly before this court on appeal prosecuted by the state.

      Charles West, Atty. Gen., for the State.
    — Citing: City of Pond Creelc v. Haskell, 21 Okla. 711; Nobie State Bank v. Has-kell, 22' Okla. 48; In re Menefee, 22 Okla. 365; In re County Gomm’rs, 22’“ Okla. 435; State ex rel. v. Hooker., 22 Okla. 712; State v. Schweiter, 27 Kan. 499; Cooley, Const. Lim. (7th Ed.) p. 204.
   FURMAN, PRESIDING Judge

(after stating tbe facts as above). This court approves and adopts the decision of the Supreme Court of Oklahoma in the casé of State ex rel. Caldwell v. Hooker, 22 Okla. 712, 98 Pac. 964, the syllabus of which is as follows:

“An act (Laws 1907-08, p. 594, c. 69), the general object of which was to prohibit the manufacture, sale, barter, giving' away, or otherwise furnishing of intoxicating liquors, except as therein provided for medical, industrial, and mechanical purposes entitled ‘An act to establish a state agency, and local agencies for the sale of intoxicating liquors for certain purposes; and providing for referring same to the people; prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney, and for the enforcement of the provisions of 'this act; making an appropriation and declaring an emergency’ — is not in conflict with section 57, art. 5 (Bunn’s Ed. sec. 130), of the Constitution of Oklahoma, because the title contained an abstract of the contents of the act; the Constitution beings satisfied if the act has but one general subject, and that is fairly indicated by the title. It may have many details, but, if they all relate to the same general subject or object, they are properly included therein.”

This syllabus is supported by an elaborate and well-reasoned opinion by Chief Justice Williams, which is decisive of the question herein presented. It is but fair to the able judge who decided this case in the lower court to call attention to the fact that the opinion of the Supreme Court was handed down some months after this case was decided.

We are of the opinion that that part of section 1 of article 3 (page 603) of Senate Bill No. 61 which makes it an offense for any person to have possession of any prohibited liquors for the purpose of violating any of the provisions of the act is valid. Mr. Cooley, in his work on Constitutional Limitations (7th Ed.) p. 204, says:

“The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in' their favor the advocates of all, and thus secure the passage of several measures, no one of 'which could' succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by- which, through dexterous management, clauses were inserted in bills of which the title gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiply their number; but the framers of the Constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and 'to require that in every case the proposed measure should stand upon its own merits, and that the Legislature should be -fairly satisfied of its design when required to pass upon it.”

The bill in question has only one general object, viz., the prohibition of the sale of the liquors therein mentioned, except as therein provided.. Making it a crime to have possession of such liquors with the intention of violating any of the provisions of the act is not inconsistent with the general object of the bill, but is directly in support of it.

The information is sufficient.’ The action of the lower court in sustaining the demurrer to the information was error, and the judgment is reversed.

DOYLE and OWEN, Judges, concur. ’


author: ■ DOYLE, Judge.

text:
    N. N. Boneparte v. United States.
    No. 197.
    Opinion Filed January 5, 1910.
    (106 Pac. 347.)
    1. APPEAL AND ERROR — Procedure to Perfect Appeal. An appeal in a criminal case, when taken by the defendant, is perfected by filing- a petition in error in the office of the Clerk of the Criminal Court of Appeals, together with case-made, or duly authenticated transcript of the judgment and proceedings attached thereto, and by filing proof of service of notice upon the clerk of the court where the judgment is entered, and notice upon the prosecuting attorney of the county, stating that the appellant appeals from the judgment.
    2. SAME — Notice of Appeal — Dismissal. An appeal to the Criminal Court of Appeals may be taken by the defendant as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter for legislative • control, and the appeal must be taken in the manner prescribed by the law; and, where the record before this court fails to show notices of appeal and proof of service as required by law, the case will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Latimer County; Malcolm E. Rosser, Judge.

    N. N. Boneparte was convicted of crime, and appeals.
    Dismissed.

      J. E. Whitehead, for plaintiff in error.

      Chchrles L. Moore, Asst. Atty. Gen., for the State.
   ■ DOYLE, Judge.

Plaintiff in error, N. N. Boneparte was indicted in the United States Court for the Central district of the Indian Territory, at the May term, 1906, at McAlester The charging part of said indictment is as follows:

“N. N. Boneparte, on the 26th day of February, A. D. 1906, within the Central district of the Indian Territory, and in the South McAlester court division thereof, fraudulently- and felon-iously and unlawfully did forge and counterfeit a certain instrument of writing purporting -to be a certain bank' check, which said instrument of writing is of the tenor following: ‘Ardmore, 1. T. Feb. 12, 1906, No. -. The City Natinal Bank. Pay to Simpson Boneparte or bearer $75.00 seventy five dollars. Mullen & Mullen’' — with the intent then and there unlawfully, feloniously and fraudulently to defraud another, to wit, Mullen & Mullen and the City Natinal Bank of Ardmore, Ind. T., contrary to the forms of the statute in such case made and provided and against the peace and dignity of the United States of America.”

On June 15, 1906, the defendant waived arraignment, and pleaded not'guilty, and filed his application for a change of venue to the Wilburton division of said court. On January 10, 1908, the defendant appeared before the district court of Latimer county, and by leave of the court withdrew his plea of not guilty, and filed a general demurrer to the indictment. On March 8, 1909, the cause was called for trial, a jury was impaneled and sworn to try the cause. Upon the trial the jury returned a verdict of guilty, and assessed the punishment at two years in the penitentiary. On March 10, 1908, the defendant filed motions in arrest of judgment and for a new trial, which motions were overruled by the court and exceptions allowed. Whereupon the court pronounced judgment and sentence in accordance with the verdict, defendant prayed an appeal. On May 16, 1908, there was filed in the Supreme Court a petition in error, with what purported to be a case-made attached. Upon the organization of the Criminal Court of Appeals said cause was duly transferred to this court.

On July 9, 1909, the Attorney General’s office filed a motion to dismiss the appeal:

"For the reason that no case-made has been signed, settled, or allowed, as required by law in this: That the trial judge does not certify the' same, except that he certifies that it was agreed between -the counsel for the plaintiff in error and counsel fox-defendant in error that the same ‘contained a true and correct statement of all the pleadings, orders, and judgments had in such case, so far as necessary for the presentation of the questions involved’ ; that the signature of the presiding judge was not attested by the clerk of the court, and the seal of the court is not affixed; that no transcript of the proceedings in said cause has been filed herein; that the signature of the clerk of said court, nor the seal of said court, anywhere appears on the case-made; and that said record presents nothing to this court for review.”

On July 29, 1909, in reply to the motion to dismiss the appeal, plaintiff in error filed an application that he be permitted to withdraw the record for the purpose of perfecting the same. On behalf of the state this application is objected to for the reason that more than a year has elapsed since the date of the judgment, and there is nothing in the record before this court showing notice to the clerk of the district court - of Latimer county, and notice to the prosecuting attorney of said county, that the defendant appeals from the judgment rendered. We are of opinion that this objection is well taken. Section 6949, Snyder’s St. 1909, provides as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals ftom the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney.”

An appeal may be taken to this court as a matter of right by the defendant from any judgment against him in the district or county court, under the provisions of the criminal procedure act. But the manner of perfecting an appeal is a matter of statutory regulation. An appeal must be taken in the manner prescribed by law. Article 15, c. 89, Procedure Criminal, Snyder’s St. prescribes specific and definite rules of practice for taking appeals in criminal cases. So far as it appears by the record in this case the plaintiff in error has wholly failed to comply with these statutory provisions. In order to give this court jurisdiction the notices prescribed by the provision quoted must be served upon the clerk of the court and upon the prosecuting attorney, and under the law in force when this appeal was attempted to be taken, the proof of the service of such notices or a waiver of the same must be filed with the record in this court within a year from date of the judgment. That was not done in this case. There is nothing in the record before us which confers jurisdiction upon this court to consider the application of the plaintiff in error for leave to correct the record, or to review the errors assigned in the petition in error. Neither is there a proper ease-made or transcript of the proceedings in said case attached to the petition in error. Section 6077, Snyder’s St. 1909, prpvides for the correction of court records on appeal in either civil or criminal cases.

For the reasons stated, we are of opinion that the motion to dismiss the appeal should be sustained. It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the district court of Latimer county, with direction to enforce the judgment and sentence.

FURMAN, PresidiNg Judge, and OWEN, Judge, concur.


author: PER CURIAM.

text:
    R. R. Wilson v. State.
    No. A-90.
    Opinion Filed January 11, 1910.
    (106 Pac. 348.)
    APPEAL AND ERROR — Procedure—Notice of Appeal — Necessity. An appeal m a criminal case, "when taken by the defendant, is perfected by filing a petition in error in the office of the clerk of . the Criminal Court of Appeals together with case-made, or duly authenticated transcript of the judgment and proceedings attached thereto, and by filing proof of service of notice upon ■ the clerk of the court where the judgment is entered, and notice upon the prosecuting attorney of the county, stating that ■ the appellant appeals from ’the judgment.
    (Syllabus by the Court.)

      Appeal from Grady County Court; N. M. Williams, Judge.

      •. R. R. Wilson was convicted of .a violation of the prohibition law, and appeals.
    Dismissed.
    ' F. B. Biddle, for appellant.
    ' Fred S. Caldwell, Counsel to the Governor, and B. B. Barefoot, ' Co. Atty., for the State.
   PER CURIAM.

R. R. Wilson was tried and convicted,’ in the county court of Grady county, of a violation of the prohibition law,' and was on the 6th day of March,' 1908, sentenced to pay 'a fine of '$400 and cost, and to be imprisoned for 30 days in the county jail. On February 8, 1909, there, was filed with .the clerk of this court a petition in error, with what purported to be a case-made attached. On December 27, 1909, Fred S. Caldwell, counsel to the Governor, and as attorney for the state, filed a motion to dismiss the appeal, which, omitting the formal part, is as follows:

“Special Appearance and Motion to Dismiss'. Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, as counsel to the Governor, and appearing specially herein for the purpose of this motion only, represents to this honorable court as follows: More than one year has elapsed since the rendition of the judgment from which plaintiff in error undertakes to prose.cute this appeal, and no notices of appeal were ever served or filed as provided and required by section 6949 of the 1.909 Compiled Laws of Oklahoma. Wherefore the state of Oklahoma says that this court is without jurisdiction to entertain said appeal, and that the same should be dismissed at plaintiff in error’s cost.”

There was also filed proof of service of notice of said motion to dismiss, as required by the rules of this court. Rule 6 subd. 4 (1 Okla. Cr. xi; 101 Pac. viii). On December 22, 1909, in response to the motion to dismiss appeal, counsel for plaintiff in error filed his affidavit that notices as required by statute had been served. On behalf of the state, this showing is objected to for the reason thát more than a year has elapsed since the date of the judgment, and there is nothing in the record in said case before this court showing notice to the clerk of the county court of Grady county, and notice to the prosecuting attorney, of said county, that the defendant appeals from the judgment rendered.

We are of the opinion that the objection is well taken, and the motion to dismiss should be sustained, a.s was said by this court in Boneparte v. United States, ante, p. 345, 106 Pac. 347:

“An appeal may be taken to this court as a matter of right by the defendant from any judgment .against him in the district or county court, under the provisions of the criminal procedure act. But the manner of perfecting an appeal is a matter of1 statutory regulation. An appeal must be taken in the manner prescribed by law. Art. 15, ch. 89, Procedure Criminal, Snyder’s St., prescribes specific and definite rules- of practice for taking appeals in criminal cases. So far as it appears by the record in this case, the plaintiff in error has wholly failed to comply with these statutory, provisions. In order to give this court jurisdiction the notices prescribed by. the provision quoted must be served upon the clerk of the court, and upon the prosecuting attorney. Under the law in force when this appeal was attempted to be taken the proof of the service of such notices,, or a waiver of the same, must be filed with the record in this court within a year from date of the judgment. That was not done in this case. There is nothing in the record before us which confers jurisdiction upon this court to consider the application of the plaintiff in error for leave to correct the record, or to review the errors assigned in the petition in error.”

’ Section 6077, Snyder’s St. 1909, provides for the correction of court records on appeal in either civil or criminal cases,* but ■this statute has no application where the appeal has not been taken within the time fixed by statute, as this court has • not acquired jurisdiction.

For the reasons stated, we are’of opinion that the motion to dismiss the appeal should be sustained.

It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the county court of Grady county, ■ with • direction to enforce the judgment and sentence.


author: DOYLE, Judge,

text:
      Ex parte William Ridley.
    No. A-328.
    Opinion Filed January 11, 1910.
    (106 Pac. 549.)
    1. PARDON — “Parol©”—Definition. A “parole,” as the term is used in criminal law, may 'be defined as' the release of a convict from imprisonment upon certain conditions to be observed by him, and a suspension of his sentence during- his liberty thus granted.
    2. PAIRDON — Parole—Power to Grant — Exclusive Authority of Governor — Revocation. Under the constitutional provision conferring the pardoning power upon the Governor (Const, art. 6. sec. 10), the Governor has exclusive power to parole a convict, with such restrictions and limitations as he may deem proper, and upon a violation by such convict of the terms and conditions of his parole, the Governor has power to revoke his parole, and direct that such convict be rearrested and returned to custody, and required to serve out the unexpired part of the sentence of the court, as though no parole had been granted, even after the time his sentence would have ended but fpr the suspension thereof by the parole.
    3. CONSTITUTIONAL LAW — Due Process, of Law — 'Revocation of Parole. .An executive order, revoking a parole for violating a condition thereof, and directing the rearrest and return to custody of the convict, is not violative of the constitutional guaranty “that no person shall be deprived of his liberty without due process of law,” and "that no warrant shall issue but upon* probable cause, supported by oath or affirmation,” since being a convict at large by executive clemency, which he has accepted on conditions included therein, the convict, upon violation of such conditions, is merely an escaped eonvct, and not entitled to invoke such constitutional guaranty.
    4. HABEAS CORPUS — Parole Convict — Rearrest. When a convict has been released upon a parole, and where said parole has been revoked by order of the Governor for violation of the conditions thereof, in the absence of a statute or of an express provision of the parole' providing for a hearing, the convict is entitled to a hearing on habeas corpus, before the Criminal Court of Appeals, or the district court of the county where he is held, in order that he may show, if he can, that he has performed the conditions of the parole, or that he has a legal excuse for having not done so, or that he is not the same person who was convicted.
    5. CONSTITUTIONAL LAW — Pardoning Power — Limitation— Statutes — Board of Pardons. Under section 10, art. 6, of the Constitution, the pardoning power is vested exclusively in the Governor of the state, and any law which restricted this power would be unconstitutional and void. Held, that article 26. c. 89, Snyder’s Comp. St. 1909, being chapter 62, p. 576, Sess. Law' 1907-1908, entitled “An act relating to the granting of pardons; creating a board of pardons and defining its duties,” in conferring pardoning powers upon other state officers, and restricting the Governor in the exercise of the pardoning power, is an unconstitutional infringement and interference upon the executive power. The Constitution only vests in the Legislature the power to provide by law regulations relative to the manner of applying for paráons.
    <5. CONSTITUTIONAL LAW — Pardoning Power — Infringement— Deduction of Time for Good Behavior. The law giving to prisoners certain deductions from their term of imprisonment for
      good ’behavior is not unconstitutional as an infringement of the prerogative of the Governor to pardon. It does not restrict or interfere with this power in any way. It simply fixes the term of imprisonment in certain cases ■ and upon certain conditions, and thus enters into a'nd becomes a part of the judgment and sentence of the court.
    (Syllabus by the Court.)
    Application by William Ridley for writ of habeas corpus alleging that relator was illegally restrained of his liberty by W. M. Cates, Sheriff of Stephens County.
    Writ denied, and petitioner remanded.
    Writ heard on agreed statements of facts as follows:
    “Agreed Statements of Facts.
    “It is agreed by and betweeen the petitioner, William Ridley, by his counsel, E. E. Morris, and the respondent by Charles L. Moore, Assistant Attorney General- of Oklahoma, that the petitioner, William Ridley, was convicted in the district court of Comanche county, territory of Oklahoma, on the 22d day of November, 1904, for the crime of manslaughter, and sentenced to a term of four years in the penitentiary of the territory of Oklahoma, then located at Lansing, in the state of Kansas; that he was sentenced and began his term' on July 11, 1905; that said William Ridley served in said penitentiary in pursuance of said sentence until the 8th day of February, 1908, at which time he wás paroled by Governor Charles N. Haskell, Governor of the state of Oklahoma. A copy of said parole is hereto attached, marked 'Exhibit A/ and made a part of this agreement.
    “It is further agreed that the original term, of the sentence of four years expired on July 11, 1909, but, with the credit for good time allowed the petitioner under the law, said sentence expired on November 8, 1908.
    “It is further agreed that on August 30, 1909, the said Charles N. Haskell, Govérnor, as aforesaid, summarily, and without notice to petitioner, or without any bearing, revoked said parole, and ordered and had issued his warrant of arrest, commanding the peace officers of the state to arrest the petitioner and confine him in the penitentiary of the state of Oklahoma to serve out the remaining portion of the said sentence as aforesaid.-
    “That in pursuance of said executive order, W. M.‘ Cates, Sheriff of Stephens county,' Okía.,' árrested the said petitioner, and he is now in the custody of said sheriff' in the said county. A copy of said revocation or executive order is hereto attached, marked 'Exhibit B/ and made a part of this agreement.-
    “It is further agreed since the issuing of the said parole that the said petitioner has not been convicted of the violation of any of the criminal laws of the state of Oklahoma, but it is agreed that said Bidley is now charged with the crime of selling liquor in the county court of Stephens county, Okla., but that said offense is alleged to have occurred on July 17, 1909.
    “It is further agreed that petitioner made regular monthly reports to the Governor, as aforesaid, up until the date said original sentence would have expired by allowence to. petitioner credit for good time.
    “E. E: MORRIS,
    “Attorney for Petitioner.
    “Chas. L. MooRe,
    “Assistant Attorney General.
    “Revocation of Parole.
    “State of Oklahoma, Executive Department.
    “Whereas, one Will Ridley wajs! convicted in the district court of Comanche county, Oklahoma Territory, of the crime of manslaughter in the second degree and was on the eleventh day of July, A. D. 1905, sentenced to a term of four years in the territorial prison and was thereafter confined in said prison under said sentence until on or about the eighth day of February, 1908, upon which last-named day the undersigned Governor of the state of Oklahoma granted a parole to said Ridley upon the express conditions therein set forth as follows, to wit:
    “First. That the said Will Ridley shall immediately go to the home of his wife, in Duncan, Stephens county, Oklahoma, and there remain as a dutiful husband during the remainder of said sentence.
    “Second. That the said Will Ridley shall report in writing to the Governor of the state of Oklahoma, every thirty days after the. signing of this parole, during the remainder- of said sentence and that the said Will Ridley will abstain from the use of intoxicating liquors, and to remain away from all places where intoxicating liquors are sold and places where gambling is carried on, and will avoid all evil associations; that he will respect the laws of the state of Oklahoma, and conduct himself in all respects ’as an upright citizen.
    “And whereas, it has been made to appear to the undersigned Governor of the state of Oklahoma that said Will Ridlev has violated the terms and conditions of said parole in this, to wit, that he'has not conducted himself as an upright citizen; that he has not remained away from illicit places and questionable 'resorts and places where intoxicating liquors were sold as by the terms 'of his parole he was required to do, but that on the contrary he has engaged in the unlawful sale of intoxicating liquors and has otherwise violated the terms of said parole:
    “Now therefore, in consideration of the premises and by virtue of the authority in me vested, I, C. N. Haskell, Governor of the state of Oklahoma, do hereby annul, cancel and revoke the said parole granted to the said Will Ridley and hereby order and direct all sheriffs and other police officers of the state of Oklahoma to apprehend the said Will Ridley wherever he may be found and to take him into safe custody and to conduct him to the warden of the penitentiary at MeA1 ester and the said warden of the penitentiary is hereby ordered and directed to receive said Will Rid-ley and confine him for that portion of said term which was unexpired at the date of said parole, in accordance with the terms of the original judgment and sentence of said court, a certified copy of which is heréto attached.
    “In testimony, I have hereunto set my hand and caused the great seál of the state of Oklahoma to be hereto affixed • this thirtieth day of August in the year of our .Lord, one thousand nine hundred and nine and of the independence of the United States of America the one hundred and thirty-third.
    “[Seal.] C. N. HasKell,
    “Governor of the State of Oklahoma.
    “Attest:
    “Bill Cross, Secretary of State.” -
    The cause was submitted on briefs December 22, 1909.

      E. E. Morris, for petitioner.
    — Citing: Ex parie Trout, 12 Idaho, 494, and State v. Horne, 52 Fla. 125. •

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the state. No'copy of brief reached the reporter.
   DOYLE, Judge,

'The proposition presented involves the power of the Governor to grant parols and to revoke paroles upon a violation of the conditions thereof, after the expiration of the period of time designated in the sentence of imprisonment. Our Constitution confers on the Governor the power to grant, after conviction, paroles and pardons. Section 10, art. 6, of the Constitution is as follows:

“The Governor shall have power to grant, after conviction, reprieves, commutation, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. He shall communicate to the Legislature, at each regular session, each'case of reprieve, commutation, parole, or pardon, granted,' stating the name of the convict, the crime of which he was convicted, the date and place of conviction and the date of commutation, pardon, parole, or reprieve.”

The First Legislature passed an act creating a board of pardons, defining its duties. Chapter 62, p. 576, Sess. Laws 1907-1908, the same being article 26, c. 89, Snyder’s Comp. St. 1909. This board consists of the State Superintendent of Public Instruction, the President of the Board of Agriculture, and the , State Auditor. Its duties are to hold regular meetings at the office of the Secretary of State, on the second Monday of each month, and such special meetings as the president or any two members may direct, and to receive applications for pardons ot commutation of punishment, fix a date for the hearings, and cause a copy of the order to be published, and within 20 days after the hearing of any case to file with the Secretary of State its decision in writing and transmit a copy of said decision to the Governor. The act further provides that:

“No pardons, nor paroles shall be granted by the Governor until he shall present the matter to and obtain the advice of the Board of Pardons and Parole, but he may commute death sentence of persons to imprisonment for life.”

Under our Constitution the pardoning power is vested ex-clusively in the Governor of the state, and any law which restricted .this power would be unconstitutional and void. The co-ordinate ■ departments of the government have nothing to do with the pardoning power; except that the Legislature may by law provide how applications may be made, and is entitled to a report at each regular session of the action taken. People v. Brown, 54 Mich. 15, 19 N. W. 571; People v. Moore, 62 Mich. 496, 29 N. W. 80; People v. Cummings, 88 Mich. 249, 50 N. W. 310, 14 L. R. A. 285; U. S. v. Wilson, 7 Pet. 150, 8 L. Ed. 640; Ex parte Wells, 18 How. 307, 15 L. Ed. 421; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Rich, Governor, v. Chamberlain, Warden, 104 Mich. 436, 62 N. W. 584, 27 L. R. A. 573. The power conferred by section 10 of the Constitution is practically unrestricted, and the exercise of executive clemency is a matter of discretion. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Governor, not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.

Chief Justice Marshall in U. S. v. Wilson, supra, said:

“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose -benefit it is intended.”
“A parole, as the term is used in criminal law, may be defined as the release of a convict from imprisonment upon certain conditions to be observed by him, and a suspension of his sentence during his liberty thus granted.” (A. & E. Enc. vol. 24. p. 552.)

This constitutional provision is self-executing, and we believe that the legislative act creating the Board of Pardons is clearly unconstitutional and void. In it the Legislature has attempted to confer pardoning power upoi other state officers,, which is clearly an unconstitutional interference and iniringment upon the executive power.

In support of this conclusion we adopt the language and cogent reasoning of Justice Hooker, in the case of Rich, Governor, v. Chamberlain, Warden, supra, wherein a similar constitutional provision was construed; the' Michigan Legislature having passed an act creating a board of pardons, consisting of four members, appointed by the Governor.

“There are many reasons why a power of this .kind should be confined to tlie highest executive officer. It involves a wide discretion. The proceedings upon the trial may be reviewed. New evidence majr be taken upon which to rest the pardon thus, in effect, granting a new trial. It may be ex parte, after the witnesses have disappeared or are dead. It may and often is based upon an alleged reform of an offender. Youth or age may furnish an excuse for its exercise. Petitions which a 'good-natured public sign without reading, and importunities of interested persons and friends, may be expected wherever there is hope of success. It is therefore of the highest importance to 'the public that this power should be carefully exercised, and that the fullest responsibility should rest upon the person to whom it is confided. The office of Governor seems to be generally considered the proper one with which to lodge such responsibility, and the public have the right to insist upon his performance of the duty. Not only is it beyond the power of the Legislature to impose the duty upon 'others, but it should not in any way lessen his responsibility to the public, when he sets aside the judgment of court and jury by opening the doors of a prison to a convicted felon. If ' the act in question does this, it should not be sustained. The effect of it is to establish a sort of tribunal open to convicts, where the question of whether they should be pardoned or be licensed to go at large may be tried. The conclusion reached —i. e., the result — accompanied by a recommendation, must be certified to the Governor, who then grants or refuses a pardon, as he may think advisable.
“We understand that the practice of this board is to conduct its investigations with care and thoroughness, to require notice to be given to the authorities, to reduce proof to writing, and to return the same, with a report in detail, to the Governor. This, however, seems to be under rules of its own devising, or prescribed bj^ the Governor, for the act requires nothing of the kind. This is unimportant however., as it might be' remedied by legislation. But the vital defect in the act is that it tends to substitute the judgment of the board for that of the Governor. It can be truly said that the opinions of the board need not be controlling. But the tendency is naturally to offer an opportunity, if not an inducement, to an overburdened magistrate, to depend upon the judgment of a board in which he has confidence, and which has made a more careful investigation than he has made, and to act upon the recommendation of such board, while the public have a right to the fullest exercise of his own understanding and judgment, which they have signified by their Constitution that thejr desire. This right should not be thw-arted or placed in jeopardy by a law whose natural result may be expected to contravene the spirit of the constitutional provision. A loose exercise of the pardoning power is greatly to be deplored. It is inexcusable. It is a blow at good order, and is an additional hardship upon society, in its conflict with crime and criminals— a conflict which is irrepressible, and in which the criminal has many, and possibly undue, advantages. The erection of a court of pardons is of such doubtful expediency, offering, as it does, an opportunity to the convict — practically within the doors of every prison — to press his suit for pardon, mar it should never be permitted until the people have signified a willingness that the safeguards- placed in their Constitution be removed. The erection of a court of pardons is to invite unworthy applications. A practice grows up. It offers a premium to pardon-brokers, and the pardon, in place of remaining a matter of high, executive discretion, based upon legitimate clemency, degenerates to a routine award of a committee, to be obtained and justified by compliance with fixed rules, and sought as an assertion of right rather than clemency. This section contemplates that the Legislature may regulate the manner of applying for pardons, but this should not be construed to confer the power to limit the discretion of the Governor to grant pardons, or to require any other officer to first pass upon the question. All power is taken from the Legislature except that of regulating the manner of applying to the executive. Act 150 [Pub Laws 1893, p. 248] does not profess or attempt to do this. Its title is silent upon the one and only subject in relation to pardons which the Constitution permits the Legislature to act upon. It nowhere provides how applications for-pardons shall be applied for, or that such applications shall be uniform. It does not regulate applications for pardons. It provides for a board, which must act in cases wnere petitions are filed, and gives no authority to the board to act in the absence of petitions. It seems to regulate the board which the act creates, instead of regulating - the manner of making application to the only officer authorized to grant pardons. Under the claim that it is prescribing a manner of applying for a pardon it imposes a duty to investigate and report, and professes to authorize the Governor to act upon such report and recommendation. If this means anything, it is that the Governor might lawfully forego any investigation, and act upon the recommendation of the board, substituting their judgment lor his own. The answer to this is that we cannot suppose that the Governor will pay any attention to the recommendation, because the Constitution imposes a duty upon him. The act does not regulate the methods of applying for pardons. It does provide for a sort of investigation, which we are told that the Legislature intended should be disregarded. In my opinion, this was not the legislative intent. On the contrary, it was expected that the Governor would do just what the Legislature undertook to provide that he might do, viz., act upon the report and recommendation without personal investigation. If there was no board of pardons, a governor would not be likely to feel at liberty to grant a pardon upon a mere application, without investigation. If he did, such a practice would not meet public approval, nor would it be a proper discharge of .his duty. Yet the act in question provides that he may do that ver''- thing, and, to sustain the act, the argument must be made that the Legislature did not mean what the language expressly states, but intended that the report and recommendation should be whollv disregarded by the Governor.
“Our attention has not been called to a case involving the question that has been discussed. Our own investigation has disclosed that, by most state Constitutions, the pardoning power is lodged with the Governor, as it is with the president under the federal Constitution. In several states the power of the Governor is restricted, possibly to cut off any danger of an undue exercise of the power. In most of those, however, the consent of the Governor is indispensable. It is, however, a significant fact, and one that bears forcibly upon this case, that we have found no instance where a board has been created by statute, but invariably by constitutional provisions.”

This section of the Constitution in express terms provides that the Governor shall have power to grant paroles upon “such conditions and with such restrictions and limitations as he may deem proper.” It must be conceded that under this clause of said section of the Constitution the Governor may, upon the granting of a parole, attach such conditions as he sees fit, so long as they are not immoral, illegal, or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. Counsel for petitioner contends that, as the agreed statement - of facts shows that petitioner had not violated any of the conditions of his parole until after the expiration of the period of time designated' in the sentence of imprisonment, “the Governor is without power to revoke the parole.”- — citing Ex parte Prout, 12 Idaho, 494, 86 Pac. 275, 5 L. R. A. (N. S.) 1064. In that case the judgment provided that the term of imprisonment should commence to run from the date of defendant’s delivery to the warden, and by a divided court it was held that a condition off the parole was ¡illegal because it extended beyond the term for which the defendant was sentenced, and thereby increased the punishment imposed by the judgment. Justice Sullivan dissented in a strong, well-reasoned opinion. The doctrine of that' case has no application here.

Under the provisions of Procedure Criminal (article 14, c. 89, Snyder’s Comp. St. 1909), after a plea or verdict of guilty the court must render judgment, and assess the punishment or penalty prescribed by law. The time fixed for executing a judgment and sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, is not a part of the judgment and sentence. The essential part of the judgment and sentence is the punishment, and the amount there-if, without reference to the time when it shall be executed. Except in cases where the defendant has been convicted of two or more offenses, before judgment of either, the order of the court in reference to the time when the sentence shall be executed is not material. Expiration of the time without imprisonment is. in no sense an execution of the judgment and sentence. Hollon v. Hopkins, 21 Kan. 638; Dolan’s Case, 101 Mass. 219; Stale v. Cockerham, 24 N. C. 204; Ex parte Bell, 56 Miss. 282; Re Edwards, 43 N. J. Law, 555, 39 Am. Rep. 610.

“While, as a general rule, the imprisonment begins with the sentence, and the sentence is subject to existing valid laws, the imprisonment may be suspended by appellate or other judicial proceedings or by reprieve, or otherwise; and the period during which the imprisonment may be suffered may be interrupted by escape, or be changed by the pardoning power, so long as the change does not increase the penalty imposed by the sentence, or is not otherwise illegal.” (State v. Harne, 52 Fla. 125, 42 South. 388, 7 L. R. A. (N. S.) 719. See, also, In re Linden, 112 Wis. 523, 88 N. W. 645; Ex parte Wadleigh, 82 Cal. 518, 23 Pac. 190; Re Canfield, 98 Mich. 644, 57 N. W. 807.)
“The release of a prisoner on parole does not amount to a commutation of his sentence, since it does not change his punishment into a less severe one; the sentence remaining in force, and the prisoner, while enjoying his liberty, being liable to be re-imprisoned at any time.” (A. & E. Enc. vol. 24, p. 553.)

In Fuller v. State, 122 Ala. 32, 26 South. 146, 45 L. R. A. 502, 82 Am. St. Rep. 17, the court says:

“The parole does not in any wise displace or abridge the sentence; it merely stops its execution for a time only, it may be, or indefinitely, it may prove — it suspends, not destroys. The suspension is like that which occurs constantly in the administration of criminal laws where the defendant appeals from the judgment of conviction. The execution of the sentence is by the appeal superseded and postponed pending the appeal; and, if the judgment is affirmed, the execution of the sentence thereupon begins and- continues for the period set down originally in the judgment. So the word is usedt in this statute; and upon condition broken, the sentence, which has all along hung in its entirety over the liberty of the paroled convict, is to be executed upon him ‘as though no parole had been granted to him.’ This is the plain meaning of the statute; and, so interpreted, it involves of necessary consequence the proposition that upon condition broken even after the time at which the sentence would have ended but for its suspension, the convict may still be remanded to custody that the unserved, and hence unexpired, part of the sentence — that part which he was released from serving during the period of durance originally specified — may be executed upon him. So the law is written.”

The conditions of the parole in this case refer to the judgment and sentence to be affected by it in its legal and proper aspect. The conditions cannot be said to be immoral, or to be impossible of performance during the life of the petitioner; nor can it be illegal, since the particular'period of time within which the sentence is to be suffered by the convicx as specified in the judgment and sentence is not a part of the judgment and sentence, except so far as it fixes the quantum of time that he must suffer such penalty, and the conditions imposed are not forbidden by law, and do not increase the punishment imposed by the court. If the particular period of time fixed by the court within which the execution of the sentence of imprisonment was to be fully performed is extended, or held in abeyance or postponed, the time or duration of imprisonment is not thereby increased, and the interruption of the execution of the judgment and sentence during the time the petitioner was at liberty under the parole was secured to him by his acceptance of the conditions thereof, and the petitioner cannot complain of it.

If a condition of the parole upon which petitioner secured his release from imprisonment has been violated by him, the parole may be revoked, and the petitioner may be rearrested and compelled to undergo so much of the original sentence as he had not suffered at the time of his release. State v. Horne, 52 Fla. 125, 42 South. 388, 7 L. R. A. (N. S.) 719; State v. Barnes, 32 S. C. 14, 10 S. E. 611, 6 L. R. A. 743, 17 Am. St. Rep. 832; 12 Cyc. p. 968; Ex parte Marks, 64 Cal. 29, 28 Pac. 109, 49 Am. Rep. 684. The petitioner accepted and agreed to the conditions of the parole, thereby securing his release from imprisonment, and he is bound by its terms and conditions. One of the conditions of the parole was that defendant, “Will Ridley, will abstain from the use of intoxicating liquors, and to remain away from all places where intoxicating liquors are sold, and places where gambling is carried on and will avoid all evil associations; that he will respect the laws of the state of Oklahoma, and conduct himself in all respects as an upright citizen,” The violation of this condition of the parole renders it null and void, and upon the revocation by the 'Governor for such violation the status of the petitioner is as though he had never been paroled. The law imposes the obligation to complete the term of imprisonment fixed by the judgment and sentence as though no parole had been granted, and petitioner should be returned to serve the remainder of his term of imprisonment.

When a convict has been released upon a parole, his rearrest and return to custody by an executive order revoking the parole is not in violation of the constitutional guaranty “that no person shall be deprived of his liberty without due process of law” or “that no warrant shall issue but upon probable cause supported-by oath or affirmation,” since being a convict at large by executive clemency, which he has accepted on conditions included therein, upon the violation of any of such conditions he is merely an escaped convict, and not entitled to invoke such constitutional guar-ranty. However, a convict who has been released upon a parole, and apprehended upon the revocation thereof, in the absence of a statute or of an express provision in the parole giving him the. right to a hearing before a court having jurisdiction, may upon an application for writ of habeas corpus averring the facts show that he has fully performed the conditions of-the parole, or that he has a legal excuse for not having done so, or that he is not the same person who was convicted. If it be determined upon the hearing of such application that there has not been a violation of or noncompliance with the. condition or conditions of the parole, or if the petitioner shall show to the satisfaction of the court some valid reason or excuse for such violation or noncompliance, he should be discharged from custody, but if a violation of or noncompliance with, the condition or conditions of the parole be shown to the satisfaction of the court without out any legal reason or excuse therefor, the petitioner should be’ remanded to custody, and ordered to have the original sentence imposed upon him duly executed, or so much thereof as has not been already suffered.

In the matter of “the credit for good time allowed petitioner under the law” the parole and its revocation in no way affects it. Under our Constitution it is the duty and prerogative of the legislative department to define crime and fix the maximum and minimum penalty, and to fix by law the kind and manner of punishment, and to provide such disciplinary regulations for prisoners, not in conflict with the fundamental law, as the Legislature deems best. It is the duty of the judicial department to try offenders against those laws, and upon conviction to sentence them under the statute. The Governor has no authority, and has not attempted to insert as a provision of the parole, that a revocation of its provisions should work a forfeiture of the statutory diminution of sentence for good conduct while in prison. Such a condition as a consequence of the revocation of the parole would in effect require petitioner to serve a longer term than that for which he had been sentenced, and would therefore be illegal. We are of opinion, upon an examination of the authorities and upon principle, that an act of the Legislature specifically defining credits for good behavior, in existence at the date of the judgment against the prisoner, becomes a part of the sentence and inheres into the punishment assessed, and is not an invasion of the constitutional prerogative of the Governor.

It having been brought to the attention of the sheriff of Stephens county, the respondent in this ■ case, that by executive order it became the duty of all sheriffs and other peace officers of the state to apprehend the said William Ridley, wherever he may be found, and to take him into safe custody, and to conduct him to the warden of the penitentiary at McAlester, the respondent as sheriff acted within his authority in arresting and detaining him in custody. It appearing that the arrest and detention of the petitioner is warranted under the conditions of the parole, by which he secured his release from imprisonment, the writ of habeas corpus is denied.

It is by the court ordered that petitioner be remanded to the custody of the sheriff of Stephens county, and by him to be delivered to the warden of the state penitentiary at McAlester, there to serve the remainder of the original sentence imposed upon him until the same shall be fully executed.

Writ denied, and petitioner remanded.

FURMAN, PresidiNg Judge, and OWEN, Judge, concur.


author: PEE CTTBIAM.

text:
    C. B. Carlisle v. State.
    No. A-87.
    Opinion Filed January 11, 1910.
    (106 Pac. 349.)
    APPEAL AND ERROR — Notice of Appeal. In order to perfect an appeal to this court hy a defendant, notice of such appeal must be served upon the county attorney and the clerk of the court where the judgment was rendered, as is provided by section 6949, 'Snyder’s Comp. Laws Okla. 1909. •
    (Syllabus by the Court.)

      Appeal from Haslceil County Court; A. L. Beclcett, Judge.

    C. B. Carlisle was convicted of violating the prohibition law, and appeals.
    Dismissed.

      C. F. Mitch M, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE CTTBIAM.

Notice of appeal was not served npon the connty attorney or npon the clerk of the court in which the judgment was rendered, as is required by section 6949 of Snyder’s Comp. Laws Okla. 1909.

The state’s motion to dismiss the appeal npon this ground must therefore be sustained. Boneparte v. State, ante, p. 345, 106 Pac. 347.


text:
    A. J. Bailey v. State.
    No. A-86.
    Opinion Filed January 11, 1910.
    (106 Pac. 348.)
    APPEAL AND ERROR — Notice of Appeal. In order to perfóet an appeal to this court by a defendant, notice of such, appeal must be served upon the county attorney and the clerk of the court • where the judgment was rendered, as is provided by section 6949, Snyder’s Comp. Laws Okla. 1909.
    (Syllabus by the Court.)

      Appeal from, Hashell County Court; A. L. Beckett, Judge.

      ■ A; J. Bailey was convicted of. crime, and appeals.
    Dismissed.

      Fred S. Caldwell, for the State.
   PER CURIAM.

Notice of appeal was not served upon the county attorney or upon the clerk of the court in which the judg- •, ment was rendered, as is required by. section 6949 of Snyder’s Comp. Laws Okla. 1909.

' The state’s motion to dismiss the appeal. upon this ground must therefore be sustained. Boneparte v. State, ante, p. 345, 106 Pac. 347.


text:
    State v. E. J. Johnston.
    No. A-6.
    Opinion Filed January 12, 1910.
    (106 Pac. 1134.)

      Brror from Coal County Court; B. H. Wells, Judge.

    Information against E. J. Johnson. From the judgment, the State brings error.
    Dismissed.

      Fred 8. Caldwell, counsel to the Governor, and James B. Wood, Co. Atty., for the State.
   PER CURIAM.

Upon motion of- counsel for the state, plaintiff in error in said cause, the appeal herein is hereby dismissed. •


author: FURMAN, PresidiNg Judge.

text:
    Willie Bradford v. State.
    No. A-7.
    Opinion Filed January 13, 1910.
    (106 Pac. 535.)

      1. APPEAL AND ERROR — Defective Record — Dismissal, (a) Section 6951, Snyder’s Comp. Laws Okla. 1909, requiring the case-made or transcript of the record to contain a copy of the judgment from which the appeal is prosecuted, is mandatory, and, when such judgment is not contained in the case-made or transcript of the record, the appeal will be dismissed.
    APPEAL AND ERRO'R — Service of Case-Made — Time. - (b) The case-made must be served before the statutory time for such service has expired or before the expiration of the time allowed by the court, if the statutory time has been extended ■by the court, and if this is not done any service of such case-made after the expiration of such time is void, and no court has power to settle and sign a case-made upon such service. Cvl
    (Syllabus by the Court.)

      Appeal from Okmulgee County Courtj J. L. Newhouse, Judge.

    Willie Bradford was convicted of a violation of the prohibition law, and appeals.
    Dismissed.

      Whitfield & Gamble and Brown & Stewart, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, PresidiNg Judge.

The state moves to dismiss this appeal upon two grounds, viz.: First, that the pretended ■case-made does not contain the judgment of the trial court, from which defendant prosecutes this appeal and which he seeks to have reversed. Second, that the petition in error alleges that judgment was rendered against defendant on the 25th day of May, 1908, and that the alleged case-made was not served within the time prescribed by law for such service, and that the countv judge had not granted an order extending the time within which the case' must be served.

First. Section 6951., Snyder’s Comp. Laws Okla. 1909. among other things, provides:

“The plaintiff in error shall file with his petition in error a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original ease-made, as hereinafter provided, or a copy thereof. The plaintiff in error shall attach to and file with the petition in error the original case-made filed in the court below, or a* certified transcript of the record of said court.”

It is seen from this that the statute in plain and mandatory language requires that the judgment from which the appeal is prosecuted shall bo presented to us by the transcript of the proceedings or embodied in the case-made. In either event the record so presented must be certified to as the law directs; if not so certified to, this court would have no means of judging of its authenticity.

In McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 877, this court said:

“This question was passed upon by the Supreme Court of Oklahoma Territory in Sproat v. Durland, 7 Okla. 230, 54 Pac. 458. In that case the record contains the following.: ‘Otto C. Durland v. Samuel Sproat. No. 1,551. Come now the plaintiff and . defendant, by their counsel and waive a jury and consent to a trial by court; and J. M. Owens is sworn and testified on behalf of plaintiff, and plaintiff .and defendant rest; and judgment is rendered herein for plaintiff and against, the defendant, per journal entry; and defendant excepts to said judgment, and is given 30 days to make and serve a case-made for the Supreme Court, and 10 days given to suggest amendments, and to be closed on five, daj^s’ notice.’ There is no certificate of the clerk that this is a copy of the judgment rendered in said cause, and it is not, and it does not purport to be, a judgment. It is simply a recital of the fact that a judgment was rendered, and shows on its face that a journal entry was to be filed, showing what the judgment of the court was. It has frequently been held by appellate courts that the form of a judgment is not to be treated as fatal, if it appears that it was intended to be a judgment, and it can be determined whom the judgment was in favor of, and whom against, and what the court ordered or decreed should be done, together with the amount of recovery, if there was a money judgment. But what is not intended for a judgment of the court cannot be treated as a judgment, and it is clear from what we have before us that the entry set out was not intended for the judgment of the court. This court will not review the proceedings of the trial court in any case, unless the record contains a copy of the final judgment or final order of the court from which the appeal is taken. Gardenhire v. Burdick, 7 Okla. 212, 54 Pac. 483. In Brown v. Territory, 15 Okla. 362, 82 Pac. 647, the court said: ‘The case-made-contains no copy of the judgment of the district court; nor does it contain any. statement that a judgment of conviction was rendered against the defendant, the plaintiff in error; neither does the record contain any motion for new trial. There is a recital that a motion for new trial was filed, presented, and overruled; but we have no means of knowing what it contains, or upon what the plaintiff in error relied as ground for new trial in the court below. We cannot consider the alleged errors embraced in the petition in error upon so defective a record. It is the judgment of trial court that the plaintiff in error is entitled to appeal from. There.is nothing to inform this court that any judgment has ever been rendered.’ An appeal does not lie to this court from any ruling or order made by the trial court before final judgment is rendered and sentence has been pronounced. When a final judgment -is rendered, and an appeal is taken therefrom, then any and all rulings or orders made during the trial aTe subject to review by this court, if properly saved by exceptions and contained in the cases-made or transcripts of record.”

There is no transcript of the record in this case certified to by the clerk of the court. What purports to be the case-made does not contain the judgment. Under our statutes and the former adjudications of the Supreme Court of Oklahoipa and of this court, we are without jurisdiction to consider this appeal because the judgment of conviction is not in what purports to bo the record before us.

Second. Section 6951, Snyder’s Comp. Laws Okla., among other things, provides:

“The case so made, or a copy thereof, shall within thirty days after the judgment or order is entered be- served upon the- opposite party, or his attorney, who majf, within three days thereafter, suggest amendments thereto in writing, and present the same to the party making the case, or his attorney.”

It is alleged in the petition in error filed in this case that the • judgment was rendered against the defendant on the 25th day of May, 1908. In what purports to be the case-made, we find the ■following:

“I, the undersigned attorney for the state in the foregoing suit, certify that the foregoing case was duly served on me this 25th day of June, 1908. Joe S. Baton, Prosecuting Attorney, by Geo. C. Beidleman, Asst. County Atty.” ’

The month of May has 31 days. So, excluding the day on which the judgment was rendered and the day on which service •of what is claimed to be the case-made was had, the 30 days prescribed by the statute within which the case-made must be served had expired. It is true that the trial court had the power to extend the time within which a case-made might be served. But no such extension is shown in this record. Therefore when the time ■prescribed by statute had expired, no court "or judge had the power' to extend the time for so doing. This has been repeatedly passed upon by the Supreme Court of Oklahoma. In Abel v. Blair, 3 Okla. 401, 41 Pac. 342, the Supreme Court said:

“This grant of additional time, made on July 3, 1894, for 60 days, expired on the 1st day of September 1894, and the judge •of the district court had no power, on September 5, 1894, to grant ■any additional time, and the service of the case-made, and the settlement of the pase-made served after the time for making and serving the same had elapsed, were void. Aetna Life Insurance Co. v. Koons, 26 Kan. 215; Ingersoll v. Yates, 21 Kan. 90. To this case-made, which we have held’ void, is attached the pleadings, the special findings of fact and conclusions of law, and ex•ceptions thereto, in the court below, and plaintiff in error asks that the errors assigned be considered upon this record by treating it as a transcript, instead of a case-made. This might be done if the copies, or purported copies, of these pleadings, findings, and •conclusions were certified by the clerk of thp district court as being true and _ correct copies of the originals. Lauer v. Livings, 24 Kan. 273. But there is nowhere in the record any certificate of the clerk of the district court that they are true and' correct copies. 'There is attached to this record the certificate of" the judge of the district court, who settled the case-made, ‘that the same, as above set forth, and as corrected by me, is true and correct, and contains a true and correct statement of all the pleadings, motions, orders, evidence, findings, proceedings, and judgment had in said cause/ and this is attested by the clerk. This attestation of the clerk, however, does not make these copies a transcript. The clerk has not .certified that these are true and correct copies of the original pleadings, findings* and conclusions as shown by the record in the court below. All that the clerk has done in this case, and all that he is required to do under the law, is to attest the case-made. This attestation is not a certificate that the things therein contained are true and correct, or that anything that may be contained in the case-made is true and correct. All that the clerk does is to attest the signature of the judge. It is not the business of the clerk to examine the case-made to see whether it is correct or not, and even should he do so, and find that it was incorrect, what power would he have to so certify? The law gives him none. He would have no right to certify that the facts, which the judge bad stated were true, were not correct as shown by the record. His only duty is to attest — that is, to witness — the signature of the judge who settled and signed the case. When this is done, it authenticates the signature of the judge to the .certificate to the case-made, but that does not make the judge’s certificate sufficient to treat the record, if void as a case-made, as a transcript of the record in the court below. In the case of Whitney v. Harris, 21 Kan. 96, the case was taken to the Supreme Court on a bill of exceptions. This bill of exceptions was held to be insufficient as such because it did not contain all of the record and proceedings of the court below, and plaintiff in error then asked that the record be considered as a transcript, but the Supreme Court denied this request upon the ground that the certificate of the clerk to the bill of exceptions did not state that the copies contained in the record were true- and correct copies of the original pleadings and proceedings of the court, and that the certificate of the judge to the bill of exceptions was not sufficient to entitle the record to be used as a transcript. The court in this case said: ‘Besides, the judge does not have authority to certify to the correctness of copies of the record, or copies of any other proceedings which are already of record. It is the duty of the judge only to see that the original record is made up properly, and that it speaks the truth; and the clerk then certifies to the correctness of copies thereof, or to copies of portions thereof. But the clerk does not, and has not in this ease, certified to the correctness of the copies of the pleadings copied into the bill of exceptions. That is, while the clerk certifies that the copy of the bill of exceptions brought to this court is a correct copy of the original bill of exceptions, yet he does not certify that the original pleadings or proceedings, or any of them, were correctly copied into the original bill of exceptions, and he does not certify that the copies of pleadings and proceedings found in'the copy of the bill of exceptions brought to this court are true copies of the original pleadings and proceedings/ ”

In Polson v. Purcell, 4 Okla. 93, 46 Pac. 578, the Supreme Court of Oklahoma Territory said:

“The record shows that the judgment of the district court was rendered on the 24th day of.November, 1893, and- the■ plaintiff in error given 60 days to make and serve case-made. It further shows that on February 1, 1894, the plaintiff in error, by his attorney, made a motion to be granted a further extension of time of 30 days to make and serve his ease-made, and to this motion is attached the affidavit of his attorney that he had been unable to prepare and appeal and serve case-made in the cause. The record shows an acceptance of service of case-made by the attorneys for the defendants in error, but does not show when it was served. The record should aways affirmatively show that the case-made was served in time. This record not only does not do this, but it does show, by the affidavit of appellant’s own attorney, that it was not served in time, and that was his reason for getting a further extension of time. The extension of time was granted by the trial judge as asked for, but he had no power to then extend the time to make a case-made, and the extension was absolutely void.”

In Sigman v. Pool, 5 Okla. 682, 49 Pac. 945, the Supreme Court said:

“The case not having been served and settlement made within the time originally granted by the court for that purposé, we cannot review it. It is recommended that the petition in error be dismissed. For the reasons stated, the motion to dismiss the petition in error is sustained, and the cause dismissed at the cost of plaintiff in error.”'

In Board of Commissioners of Day County v. Hubble, 8 Okla. 210, 211, 57 Pac. 163, the Supreme Court said:

“An order extending the time to serve a case-made must be made before the expiration of the statutory time for service in the first instance, or before the extension of time allowed by the court or judge has elapsed. The district court or judge has no pqwer or authority to, make an order extending the time for settling and serving a case-made after the extension of time originally allowed has elapsed, and any order of extension after the ex- ' piration of such original order is absolutely void.”

In the case of Chandler v. State, ante, p. 254, 105 Pac. 376, Judge Owen, speaking for this court, said:

“It is true that in this case the attorneys, as is usual in such matters, stipulated and agreed that’ the case-made contained a true, full, and correct copy of all the proceedings in the cause. The statute requires the case-made to be authenticated by the court. The case of Hodgen v. Commissioners, 10 Kan. 637, seems to be directly in point. In that case the ease-made was never signed or settled by the judge; but in lieu thereof this stipulation appears at the close: “This ease and exceptions is agreed to be correct. S. Atwood, Attorney for Plaintiffs.’ The court, in passing on the question, said: ‘This paper is not authenticated as required by the statute to constitute it a case-made. The signature of the judge is as essential to a case as to a bill of exceptions. Without such statutory authentication we cannot examine into it. The agreements of counsel cannot make a case, or a bill of exceptions. That can be done only in the manner provided by the Code. As was said by the court in Leonard v. Warriner, 20 Wis. 42: “We cannot permit the1 stipulation of the attorneys to take the place of Or do away with the necessity of such signing by the judge. If this practice were allowed, attorneys might send up to this court for decision questions never raised in the court below, and even cases to which the attention of the circuit court was never called.” See, also, People v. Ferguson, 34 Cal. 310; Cohen v. Trowbridge, 6 Kan. 388.’ The motion to dismiss must be sustained so far as it relates to the case-made. We find that the transcript is properly before the court, and the record proper, under the transcript, will be considered. The record proper, under our statutes, includes the information, the plea of the defend7 ant, the verdict of the jury, the sentence of the court, the instructions given by the court, and those requested by the defendant, together with all indorsements made thereon. Reed v. United States, 2 Okla. Cr. 652, 103 Pac. 371.”

We have quoted thus fully from the authorities for the purpose of showing that the statute must be strictly’complied with in perfecting an appeal. These provisions of the statute are not technicalities which may be dispensed with, but they are jurisdictional. Whatever goes to the foundation of .a case and affects the jurisdiction of the court must be complied with.

Under the statute and the authorities above presented, this court is without authority to entertain this appeal.

The appeal is dismissed.

DOYLE, and OWEN, Judges, concur.


author: FURMAN, PRESIDING Judge.

text:
    Frank Miller v. State.
    No. A-14.
    Opinion Filed January 13, 1910.
    (106 Pac. 538.)
    INSTRUCTIONS — Presumption of Innocence — Negative Instructions, The following instruction held to be erroneous: “If you believe from the evidence that the defendant did not, on or about the day and in the county and- state aforesaid, deliver, directly or indirectly, any whisky to the said W. N. Ellis, or if you believe defendant did not receive or expect to receive any money in exchange therefor for his own use and benefit or for the use and benefit of any one else for whom he might have been employed, or if there is a reasonable doubt of the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty.”
    (Syllabus by the Court.)

      'Appeal from Creak County Court; Josiah G. Davis. Judge.

    Frank Miller was convicted of crime, and appeals.
    Reversed.

      Henry McGraw and Thompson & Smith, for appellant.—
    Citing: Weber v. State, 2 Okla. Cr. 329; Hedden v. State, 2 Okla. Cr. 588; Pnce v. State, 1 Okla. Cr. 358.

      Fred S. Caldwell, for the State.
   FURMAN, PRESIDING Judge.

We commend the ■ action of counsel for the state in filing in this case the following Confession of error: ,

“Comes now the state of Oklahoma, by Fred S. Caldwell, as Counsel to the Governor, and represents to this honorable court that, as appears at page 24 of the record in the above-named canse, the trial court instructed the jury, in paragraph No. 6 of the intruetion, as follows: ‘If you believe from the evidence that the defendant did not, on or about the date and in the county and state aforesaid, deliver, directly or indirectly, any whisky to the the said W. N. Ellis, or if you believe that the defendant did not receive or expect to receive any money in exchange therefor for his own use and benefit, or for the use and benefit of any one else, for whom he might have been at that time, employed, or if there is a reasonable doubt of the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty.’ To the giving of the above instruction the defendant duly excepted at the time. This honorable court has, in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, held that an instruction identical in substance with the foregoing instruction constitutes prejudicial error. Wherefore, on the authority of said case of Weber v. State, supra, the state of Oklahoma prays that the judgment of the trial court in the above-named cause Fe reversed and said cause remanded to the county court of Creek county, state of Oklahoma, for a new trial.”

In Weber v. State this court said:

“Under the second specification of error, counsel for -defendant contend that, in giving instruction No. 6, the court misdirected the jury to the prejudice of the substantial rights of the defendant. Instruction No. 6 is as follows: ‘If you believe from the evidence that the defendant did not, on the date and' in the county and state aforesaid, deliver to the said S. W. Barnhill any intoxicating liquor, to wit, whisky, or if you believe that the defendant did not receive any money for said whisky, or if there is a reasonable doubt in your minds as to the guilt of the defendant, then it is your duty, under the law, to return a verdict of not guilty.’ To the giving of this instruction defendant excepted. Counsel in their brief argue that: ‘This is a negative instruction, pregnant with mischief and prejudice as to the defendant. In effect, it deprives the defendant of the benefit of the presumption of innocence until proven guilty, a right guaranteed by the statute, and imposes upon him the burden of proving his innocence. The instruction impresses us as pregnant with insinuations of the guilt of the defendant, and manifestly unfair in its phraseology. Such a rule is antagonistic to the fundamental principles of law, and is as dangerous as it is novel. It is a postive legal right appertaining to every accused person, whether guilty or innocent, that he shall not be condemned for a criminal offense in a judicial trial until and unless the evidence produced against him shall be legally sufficient to prove his guilt beyond a reasonable doubt. The law only requires the defendant to raise a reasonable doubt as to his guilt.’ They cite in support of their contention the cases of Shoemaker v. Territory, 4 Okla. 118, 43 Pac. 1059; Patzwald v. United States, 7 Okla. 232, 54 Pac. 458; Horn v. Territory, 8 Okla. 52, 56 Pac. 846; and Johnson v. State, 29 Tex. App. 151, 15 S. W. 647. Counsel for the state, in his brief, states: ‘If this instruction stood alone in the case — that is, if it were the only instruction given by the court touching matters therein referred to —the state concedes that there would be great force in the defendant’s argument. But when this is considered in connection with the instructions taken as a whole, and particularly in connection with instructions 2, 3, 4, and 5, certainly it cannot be said that the jury could have been misled thereby, or that reversible error was committed.’ We cannot agree with counsel for the state. We believe that this instruction is clearly erroneous and prejudicial to the rights of the defendant, even though instructions 2, 3, 4, and 5 correctly state the law. The aforesaid instruction No. 6 is calculated to convey to the minds of the jury an erroneous impression, in that it may be construed as varying the rule of law, and to qualify its meaning and scope and the manifest design and operation of the legal presumption of innocence. Section 5489, Wilson’s Rev. & Ann. St. 1903, provides: ‘A defendant in a criminal action is presumed to be innocent until the contrary is proven, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.’
“In the case of Horn v. Territory, supra, Justice Burwell, delivering the opinion of the court, in part, says: ‘The evidence of the first witness for the territory might be sufficient to “reasonably” overcome the presumpton of the defendant’s innocence. If so, from that very moment, during the remainder of the trial, the defendant would stand stripped of his legal presumption. That would not do. Our. statutes prohibit the jury from forming or expressing an opinion until the case is finally submitted to them for their consideration. No matter how strong the evidence may be against the defendant, the law, by reason of the presumption of the defendant’s innocence, prohibits the jury from forming any opinion as to his guilt or innocence until after the case is finally submitted. In a criminal case a . defendant is presumed to be innocent until he is proven guilty, by competent evidence, beyond a reasonable doubt, and this presumption never ceases during the trial. A defendant’s friends may forsake him, but the presumtion of innocence, never. It is present throughout the entire trial; and, when the jury go to their room to deliberate, the “presumption of innocence” goes in with them, protesting against the defendant’s guilt. And it is only after the jury has given all the evidence in the case a full, fair, and impartial consideration,, and have been able to find beyond a reasonable doubt that the defendant is guilty as charged, that the presumption of innocence leaves him.’ In Hampton v. State, 1 Tex. App. 652, it is said the presumption of innocence has been classed as one of the two 'great cardinal maxims, which may be said to be written on the portals of every criminal court, and to hang over an accused like an aegis of .protection from the moment he is placed at its bar for trial.’
“It is not essential to an acquittal that the jury should believe that the defendant did not deliver said whisky of that defendant did not receive any money for said whisky, or that the defendant was not guilty. The law presumes that he did not deliver said whisky, and that he did not receive money for said whisky, and the law presumes that he is not guilty as charged until his guilt has been established by competent evidence, beyond all reasonable doubt. In Johnson v. State, supra [29 Tex. App. 151, 15 S. W. 647], the instruction was: ‘If you believe from the evidence that the defendant, acting either alone or in concert with Jeff Wood, did not poison Elizabeth Rucker as explained in paragraph 5, or if you believe that the deceased was poisoned by accident, or by her own voluntary act, or if you believe that the deceased died from natural causes, or if you believe that deceased was poisoned by some other person than the defendant, acting alone or in connection with Jeff Wood; thén you will find the defendant not guilty.’ Wilson, Judge, speaking for the court, says: ‘We think the paragraph is subject to the exception that it requires the jury to believe from the evidence the existence of the conditions which entitled him to acquittal. It virtually requires the jury to believe from the evidence that he is innocent before finding him not guilty; whereas, the correct rule is that the jury must presume his innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertain a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the facts and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his chaTge the learned judge gave the usual instruction as to the presumption of innocence and 'as to reasonable doubt, and ordinarily such instruction is sufficient; but in this case we do not think it was sufficient to correct and counteract the error in paragraph 5. ■ The vice of the paragraph is in requiring the jury to believe from the evidence that some one of said conditions existed, in order to warrant a verdict of acquittal because thereof/ It is apparent that within itself this instruction is inconsistent and contradictory. This court has held that, where the instructions on a material point in a criminal case are inconsistent, some correct and others incorrect to the extent that they may be misleading to a jury, a conviction will be reversed. In the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, Furman, presiding judge, expressing the opinion of the court, in part, says: ‘We concede the contention of the state that instructions are to be construed as a whole, and if, when so construed, they clearly and correctly state the law, then the instructions are sufficient. But this does not mean that an erroneous instruction upon a material issue can be cured by giving a correct instruction upon the same question in another portion of the instructions. Can instructions which are self-contradictory be harmonious and sufficient? Who can tell which instruction was followed by the jury? If the court did not harmonize the instructions given, how can it be expected that the jury could or would do so? If juries are to pass upon the sufficiency of instructions, then are they not the judges of the law as well as the facts? Instructions should be clear, explicit, and free from ambiguities and contradictions; otherwise they mav confuse and mislead the jury/ ”

The doctrine of the Weber Case has been approved by this court in Hedden v. State, 2 Okla. Cr. 588, 103 Pac. 737, and Rea v. State, ante, p. 269, 105 Pac. 381.

The confession of error is sustained, and the judgment of conviction is reversed, and the cause is remanded for a new trial.

DOYLE and OWEN, Judges, concur.


author: PEE CURIAM.

text:
    William Clendenning v. State.
    No. A-9.
    Opinion Filed January 13, 1910.
    (106 Pac. 540.)
    INSTRUCTIONS — Presumption of Innocence — Negative Instructions. The following instruction held to be error: “If you believe from the evidence that the defendant did not, on or about the flay and in the county and state aforesaid, deliver to the said Frank Engles whisky, and receive in exchange therefor money, or other valuable consideration, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty, under the law, to render a verdict of not guilty.”
    (Syllabus by the Court.)

      Appeal from, Greek County Gowri; Josiah G. Davis, Judge.

    William Clendenning was convicted of violating the prohibition law, and appeals.
    Beversed and remanded.

      Henry McGraw, for appellant.

      Fred 8. Galdwell, for the State.
   PEE CURIAM.

The attorney for the state filed the follow-confession of error:

“Comes now the state of Oklahoma, by Fred S. Caldwell, as counsel to the Governor, and represents to this honorable court that, as appears at page 33 of the record in the above-named cause, the trial court instructed the jury, in paragraph No. 6 of the instructions, as follows: ‘If you believe from the evidence that the defendant did not, on or about the day and in’ the county and state aforesaid, deliver to the said Frank Engles whisky, and rer ceive in exchange therefor money or other valuable consideration, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty, under the law, to render á verdict of not guilty/ To the giving of the above instruction the defendant duly excepted at the time. This honorable court has, in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, held that an instruction identical in substance with the foregoing instruction constitutes prejudicial error. Wherefore, on the authority of the said case of Weber v. State, supra, the state of Oklahoma prays that the judgment of the trial court in the above-named cause be reversed and said cause remanded to the county court of Creek county, state of Oklahoma, for a new trial.”

The confession of error is sustained, and upon the authorities cited in Miller v. State, ante, p. 374, 106 Pac. 538, the judgment of conviction is set aside, and the cause remanded for a new trial.


text:
    Jack Young v. State.
    No. A-11.
    Opinion Filed January 13, 1910.
    (106 Pac. 555.)
    INSTRUCTIONS— Presumption of Innocence — Negative Instructions. The following instruction held to he error. “If you believe from the evidence that the defendant did not on or about the day and in the county and state aforesaid deliver or assist in delivering to the said Frank Engles any intoxicating liquor, and receive or expect to receive at or after the delivery thereof as aforesaid either for the benefit and use of the defendant or any one else, any money, or any other valuable consideration in exchange therefor or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty under the law . to render a verdict of not guilty.”
    (Syllabus -by the Court.)

      Appeal, from Greek County Court; Josiah Q. Davis, Judge.

    Jack Young was convicted of violating the prohibition law, and he appeals.
    Reversed and remanded fox new trial.

      Barrmim & McGraw and Thompson & Smith, for appellant.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The attorneys for the state filed the following confession of error:

“Comes now the state of Oklahoma by Fred S. Caldwell, as counsel to the Governor, and represents to this honorable court that, as appears on pages SO and SI of the record in the above-named cause, the trial court instructed the jury in paragraph No. 6 of the instuetions, as follows: Tf you believe from the evidence that the defendant did not on or about the day and in the county and state aforesaid deliver or assist, in delivering to the said Frank Engles any intoxicating liquor, and receive or expect to receive at or after the delivery thereof, as aforesaid, either for the benefit and use of the defendant or any one else, any money, Or any other valuable consideration in exchange therefor; or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty/ To the giving of the above instruction the defendant duly excepted at the time. This honorable court has in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, held that an instruction identical in substance with the foregoing instruction constitutes prejudicial error. Wherefore, on the authority of the said case of Weber v. State, supra, the state of Oklahoma prays that the judgment of the trial court in the above-named cause be reversed and said cause remanded to the county court of Creek county, state of Oklahoma, for a new trial.”

This confession of error is sustained, and upon the authorities cited in Miller v. State, ante, p. 374, 106 Pac. 538, the judgment of conviction is set aside, and the cause remanded for a new trial.


author: OWEN, Judge.

text:
      Ex parte J. B. Warford.
    No. A-442.
    Opinion Filed January 15, 1910.
    (106 Pac. 559.)
    1. DISMISSAL — Bar to Subsequent Prosecution. A dismissal of an action under section 7050, Snyder’s Ann. St. 1909 (section 5710, Wilson’s Rev. & Ann. St. 1903), where the defendant has not been in jeopardy, is not a bar to a subsequent prosecution for the same offense.
    2. JURISDICTION — District Courts — 'Felonies Committed Prior to Statehood. The district courts of the state have jurisdiction over felonies committed prior to statehood, and not barred by the statutes of limitations, where the indictment is . returned • since statehood.
    (Syllabus by the Court.)

      The petitioner, J. B. Warford, was tried in the district court of Canadian county on an indictment charging him with forgery. He’ was convicted and sentenced to a term of imprisonment for six months. He has filed application in this court for wiit of habeas corpus, alleging that he is'now illegally imprisoned and restrained of his liberty by the sheriff of Canadian county.
    Writ denied.

      Gillette-, Libby c& Gillette, for petitioner.

      Charles West, Atty. Gen., and Chas. L. Moore, x4sst. Atty. Gen., for respondent.
   OWEN, Judge.

It appears from the agreed statement of facts and the petition filed in this court that the petitioner was arrested on the 31st day of July, 1907 (which was prior to statehood), on a warrant issued by the probate judge of Canadian county, territory of ■ Oklahoma, charging him with the crime of forgery. After his arrest the defendant was told by the county attorney that if he paid the note alleged to have been forged and the costs of the prosecution the ease would be dismissed against him. He paid these sums, and the case was dismissed by the county attorney with the consent of the court. In December, 1907 (which was after statehood), the grand jury of the district court of Canadian county returned an indictment against the defendant,- charging him with the crime of forgery, being for the same offense for which he had previously been arrested and the action dismissed.

It is urged on part of the petitioner that his imprisonment is illegal for two reasons: First, the officials of the territory of Oklahoma, having taken cognizance of the offense and discharged the petitioner from custody on the payment of the costs of the prosecution and the reimbursement of the person injured by the forgery, this constituted a bar to further prosecution; second, the offense having been committed prior to - statehood, and under the law of the territory of Oklahoma, the state courts could acquire no jurisdiction of the offense.

Section 7050, 7051, and 7053, Snyder’s Ann. St. Okla. 1909 (sections 5710, 5711, and 5712, Wilson’s Rev. & Ann. St. 1903), are as follows:

“The court may either by its own motion or upon the application of the district attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.
“The entry of a nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.
“An order for the dismissal of the action, as provided in this chapter, is not a bar to any other prosecution for the same offense.”

There is no contention made here that this defendant was in jeopardy, and under the plain letter of these sections of the statutes the dismissal was no bar to a further prosecution for the same offense. Certainly the reimbursement of the person injured by the forgery would not be a bar to a further prosecution. His offense was against public society -and not against the individual whose name he forged. The agreed statement of facts also discloses that the agreement to dismiss the case was had without the knowledge or notice to the prosecuting witness. But it would be immaterial whether he had such notice. This is not such an offense as could be compromised for a money consideration.

The second proposition has been settled by this court in the case of Faggard v. State, ante, p. 159, 104 Pac. 930. We deem it unnecessary to review that ease, or to do more than refer to it, together with the authorities there cited.

The writ is denied.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.