text:
    D. H. MIDDLETON v. STATE.
    No. A-2333
    Opinion Filed Aug. 30, 1919.
    (183 Pac. 626.)
    1. GRAND JURY — Selection by Jury Commissioners — Power of Superior Court — Statute. When it is required to impanel a grand jury, and there is not a sufficient number of names in the jury box of tbe court from which to draw such grand jury, a superior court has jurisdiction to order the jury commissioners to convene ' and select 30 names, to be placed in the jury box, from which to draw and select a grand jury.

      ‘z. GRAND J URA — Selection and Impaneling — Statute. The law of this state in regard to selecting, summoning, and impaneling a grand jury is directory, and a substantial compliance therewith is sufficient.
    3. GRAND JURY — Presence of Unauthorized Pei'son — Validity of Indictment — Statutes. The presence of an unauthorized person in the grand jury room while testimony is being taken, 'and not while the grand jury is deliberating or voting upon an indictment, will not invalidate an indictment, unless it is reasonably probable that the accused was thereby prejudiced in some substantial right.
    4. SAME — Action of County Attorney — Misconduct of Jury. A grand jury became dissatisfied with the county attorney and his assistants, and sought to have the county attorney remove one of his assistants and appoint in his stead a designated person, and, upon the county attorney refusing so to do, made a report to the court asking its assistance to cause the county attorney to comply with their demand, which the court refused to do, and thereafter caused a complaint against the county attorney to be drafted, but which was not presented to the court, but came to the knowledge of the county attorney, and thereafter the county attorney, upon promise of reappointment when the grand jury adjourned sine die, secured the resignation of one of his assistants, and nominated and appointed another person as assistant to fill the vacancy caused by said resignation, and the party so appointed as assistant county attorney took the oath of office, and appeared before the grand jury, and advised them as to the finding of an indictment, and the assistant county attorney so appointed filed with the county commissioners a claim for $500 for his said services before the grand jury, and subsequently withdrew such claim. Held that said action of the grand jury and of the county attorney did not constitute such misconduct as to constitute grounds for setting aside an indictment found by such grand jury.
    5. PROSECUTING ATTORNEYS — Grand Jury — Attendance By De Jure Assistant County Attorney — Validity of Appointment— Effect Upon Indictment. Regardless of what pressure was brought upon the county attorney to cause him to secure the resignation of one of his assistants, and the appointment of another to fill such vacancy, the person so appointed, upon duly qualifying, is a de jure assistant county attorney, and may legally attend upon a grand jury and advise as to the finding of an indictment. and that the person appointed as such assistant county attorney filed with the county commissioners a claim for $500 for his said services before the grand jury did not render the appointment of such assistant county attorney void, and his attendance upon and advice to the grand jury in regard to finding an indictment did not constitute legal grounds for setting aside an indictment found by such grand jury.
    6. APPEAL AND ERROR — Eight to Allege Error — Motion for1 Change of Venue. Where tvvo persons are jointly indicted and before a severance, a motion for a change of venue by one of them, in which the other does not join, is not a motion on the part 'of the other defendant; and, where such change of venue is denied, a severance had, and the defendant who did not join in said motion is separately tried, convicted, and appeals to this court, the overruling of such motion cannot be successfully assigned as error.

      7. ARRAIGNMENT, PLEAS, AND DISCONTINUANCE — Dismissal of Counts — Leave of Court. Where an information or an indictment contains more than one count, the state’ may, before the jury is sworn, and by leave of the court, properly dismiss one or more of said counts, and try the defendant upon the remaining count or counts.
    8 APPEAL AND ERROR — Riding on Demurrer to Count — Trial of Another Count — Review. Where an information or an indictment containing two counts is demurred to, the demurrer overruled, and thereafter the state dismisses one of said counts, it is entirely immaterial whether the court erred in overruling the demurrer to tlj.6 count dismissed, and such question will not be reviewed by 'this court.
    9. EMBEZZLEMENT — Indictment and Information — Single Offense —Sufficiency. The count of the indictment upon which the defendant was' tried, held to charge but one offense, and to sufficiently inform the defendant of the particular offense he was called upon to answer.
    10. JURA’ — Challenge for Cause — Doubt—Ruling. Upon the examination of a juror as to his qualifications when challenged for cause by the defendant, the court should resolve all doubts arising under the evidence in favor of the defendant as to the competency of the juror; and if, upon so doing, it appears that the juror challenged for cause would not be an impartial juror as required by the decisions of this court, such challenge should be sustained.
    11. APPEAL AND ERROR — Reversible Error — Challenge for Cause— Ruling. Where the. defendant has exhausted his peremptory challenges, it is reversible error for the court to overrule a challenge for cause, when the examination of such juror, resolving all doubt in the evidence in favor of the defendant, shows that the juror is not impartial.
    12. TRIAL — Requested Charge — Given Charge. Several requested instructions, which cover but one legal proposition, which is in effect given in the general charge, are properly refused

      13. EMBEZZLEMENT — Presence of Defendant — Charge. A requested instruction which requires, as essential to conviction, the presence of the defendant when aiding, abetting, or advising the embezzlement charged, is properly refused.
    14. APPEAL AND ERROR — Charge—Reversible Error — Other Charges. A paragraph in the general instructions which does not technically state the law correctly, authorizing conviction if D. H. Middleton was directly or indirectly concerned in the commission of the acts constituting the offense as alleged in the indictment, does not necessarily constitute reversible error, if other instructions given clearly overcome the objection complained of.

      Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

    D. H. Middleton was convicted of embezzlement, and he appeals.
    Reversed and remanded.

      Ames, Chambers, Lowe & Richardson, S. M. Rutherford, and W. W. Noffsinger, for plaintiff in error.
    S'. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State
   ARMSTRONG, J.

Plaintiff in error, D. H. Middleton, hereinafter designated defendant, was jointly indicted with W. H. Wainwright, a severance demanded and granted, and defendant separately tried, convicted, and sentenced to imprisonment in the penitentiary at hard labor for a term of three years, and to pay a fine of $8,000 and costs of this prosecution. To reverse the judgment rendered, he prosecutes this appeal.

On the 2d day of January, 1914, the defendant filed a motion to set aside the indictment in the case upon the following grounds:

“First. The grand jury which returned the indictment herein against this defendant was not drawn and impaneled as provided by law.

“Second. Misconduct of the grand jury which returned the indictment.

“Third. Misconduct on the part of the county attorney and grand jury to the prejudice and injury of this defendant in preferring charges herein and in returning the indictment in this case.”

In support of the first ground of said motion, the defendant introduced evidence that on the 10th day of November, 1913, the court certified that a grand jury was required for the November term of the court, and, it being made to appear that an insufficient number of names were in the jury box from which to draw a grand jury, the court ordered “that the jury commissioners be summoned to meet for the purpose of selecting 30 names to be placed in the jury box according to law”; that on November 13th the court convened in due form of law, and the jury commissioners of Muskogee county having returned to the clerk of this court the names of 30 persons eligible for jury service, properly certified, it was ordered by the court that the clerk of this court remove from the jury box .of this court all the names in said box, and record the names of the said 30 persons, certified by said jury commissioners, on slips of paper of uniform size and color, in the presence of the sheriff of Muskogee county, and to deposit the names as returned by said jury commissioners in said jury box, and that the clerk of the court issue a summons to the sheriff of Muskogee county to forthwith assist him in drawing the names of 24 persons from the jury box of this court for service as grand jurors on the 24th day of November, 1913, and to issue a summons to each of said persons and a venire as required by law, and place the same in the hands of the sheriff of this county for service; that on the 24th day of November, 1913, the court having again convened in due form, of law, the clerk presented to the court the names of 24 persons drawn and summoned in serve as grand jurors on the 24th day of November, 1913, and that 12 of the persons so drawn and summoned were selected to compose, and were sworn and impaneled as a grand jury, J. L. Harvice being appointed and sworn as foreman, and, after being instructed by the court, retired, in charge of a bailiff, to consider of their presentments, and thereafter returned into court the indictment sought to be set aside.

In support of the second ground of said motion defendant introduced evidence tending to show that the grand jury, for the purpose of securing the advice of one Wyand, who was an attorney practicing in the city of Muskogee, had him summoned before them as a witness, and advised with him as to a legal way of securing legal advice other than by the county attorney and his assistant, and caused him to draw up a purported proceeding against the county attorney for his refusal to comply with the repeated requests of the grand jury for other legal assistance in their investigations; but which said proceeding was never filed in said court, but was known to the county attorney; and introduced a special report of the grand jury made to the court, setting up—

“that in order that the best interests of all the people may be served, and no injustice done any one, we are firmly convinced that it would' be to the best interest of our citizens and county that our honorable county commissioners do employ additional legal service to assist us and our most worthy county attorney, W. E. Disney, in a thorough investigation of all matters that may.come before us; and whereas, the county commissioners did pass a resolution appropriating $500 to pay for such additional legal service, and did employ Bailey & Wyand, to be most effective, it would be legally necessary for the said county attorney to“ discharge one of his present assistants, and in his stead appoint Mr. Wyand as assistant county attorney, which the said county attorney refused to do; and whereas, the said grand jury now in session have repeatedly and do demand of the said county attorney to recognize the said resolution of our said county commissioners as passed, appropriating the said sum necessary to employ said Bailey & Wyand to assist in said legal services, and to discharge one of his assistants, and appoint J. E. Wyand in his stead during the term of our session, which the said county attorney has and does refuse to do, and prayed the court to give us the relief sought.”

Upon the appearance of the grand jury in open court in connection with said report the court stated that he had exercised all the influence and power he had as an indi vidual in endeavoring to prevail upon the county attorney to accede to their request, that he had made every argument he could make, and listened to every argument that the county attorney could advance on his side, and was still of the opinion that the request is not unreasonable; but that it was a matter that the county attorney, under the laws of the state, alone could determine, and that there was no power that he knew of that could take the power from him, and that, if he continued of the opinion he then adhered to, the court did “not see that you have any remedy,” and regretted that he (the court) had not been able to render them any further assistance.

In support of the third ground of said motion the defendant introduced evidence tending to show that by reason of the pressure brought upon the county attorney, including threats of the grand jury to proceed against him, the county attorney notified the grand jury that he would appoint another assistant county attorney to attend the 'grand jury, and, in order to do So, he caused one of his assistants, with the understanding that when the grand jury had completed its labors he would be reappointed, and in the interval would be paid as a clerk in the county attorney’s office, to resign, and B. B. Blakeney to be appointed as one of his assistants; that the resignation of the said assistant, and the nomination of said Blakeley as an assistant, were duly filed with the eounty commissioners, and B. B. Blakeney, duly appointed as such assistant, took the oath of office as such, appeared before the grand jury, and advised them in regard to finding the indictment filed in this case; that said Blakeney, filed with the county commissioners a claim for $500 for his services in connection with said grand jury, and, fearing that he would thus violate the criminal law, withdrew said claim.

The defendant also introduced evidence that the county attorney and his assistants were not physically, mentally, or morally incapacitated from performing the duties devolving upon them, and were capable, willing, and ready to serve the grand jury.

The defendant also introduced in evidence the instructions given said grand jury by the court, which we deem unnecessary to recite. Attorneys for W. H. Wainwright appeared and excepted to the charge of the court to the grand jury.

The court overruled the motion to set aside the indictment, and to said action of the court the defendant excepted.

The indictments in this case originally contained two counts; but prior to the swearing of the jury the state dismissed the second count, and stood upon the first count, which, omitting caption and signature, is as follows:

‘The grand jurors, duly selected, summoned, chosen, impaneled, sworn, and charged at the November term aforesaid of said superior court within and for the body of Muskogee county, state of Oklahoma, to inquire into and true presentment make of all public offenses against the state of Oklahoma committed and triable within the county of Muskogee, in said state, in the name and by the authority of the state of Oklahoma, upon their oaths present, find, and charge:

“That one W. H. Wainwright and D. H. Middleton, in the county of Muskogee, state of Oklahoma, on or about the 9th day of October, in the year of our Lord one thousand nine hundred and thirteen, and anterior to the presentment hereof, did commit the crime of embezzlement of public money in the manner and form as follows, to wit: That the said W. H. Wainwright, in the county and state aforesaid, on or about the said 9th day of October, A. D. 1913, was duly elected, qualified, and acting county treasurer of Muskogee county, Oklahoma, and as such county treasurer of Muskogee county, Oklahoma, was charged and intrusted with the collection, receipt, safekeeping, transfer, and disbursement of public money, and other funds, property, bonds, securities, assets, and effects, all belonging to and being the property of the state of Oklahoma, and the county of Múskogee in said state, and to various precincts, cities, towns, and school districts of said county and state, and to the people thereof, and to divers other persons, firms, and corporations to the grand jurors unknown; that the said W. H. Wainwright, as such county treasurer, so acting, charged, and intrusted as aforesaid, was intrusted and charged with, and did, in the county of Muskogee and state of Oklahoma, on or about the 9th day of October, 1913, receive, have, and hold in his possession • and under his control by virtue of his said office and public trust as such county treasurer of Muskogee county, Oklahoma, and for the purposes aforesaid, certain public money, and other funds, property, bonds, securities, assets, and effects by him received and collected as county treasurer from the various sources of revenue and taxation, provided by law, and by him as county treasurer controlled and held for and received for the state of Oklahoma and the county of Muskogee, and the various precincts, cities, towns, and school districts thereof, and the people thereof, and divers other persons, firms, and corporations to the grand jurors unknown, in large sums, 'but the exact amount of said public money, funds, property, bonds, securities, assets, and effects, so received, had, and held and controlled by W. H. Wainwright as county treasurer being to the grand jurors unknown; that the said W. H. Wainwright,. while then and there in Muskogee county, Oklahoma, on the 9 th day of October, 1913, so acting in.said office of such county treasurer, and so charged and intrusted with the control, disbursement, receipt, safekeeping, and transfer of said public money, funds, property, securities, assets, bonds, and effects aforesaid, and being in possession of the same by virtue of his office and public trust as county treasurer of Muskogee county, state of Oklahoma, did then and there unlawfully, willfully, wrongfully, designedly, fraudulently, stealthily, corruptly, and feloniously, and without authority of law, and not in the due and lawful execution of his trust as county treasurer of Muskogee county, Oklahoma, take, steal, carry away, and embezzle, convert, and appropriate to his own use and benefit, and to a use and purpose not in the due and lawful execution of his' said trust as county treasurer of Muskogee county, Oklahoma, and to the use of other persons, bodies corporate, and associates to the grand jurors unknown, a part of said public money, and other funds, property, bonds, securities, assets, and effects received, controlled, and held by and intrusted and charged to him, W. H, Wainwright, as county treasurer, and by virtue of his public office and trust as aforesaid, to wit, the sum of and to the amount of and of the value of four thousand dollars ($4,000.00) of the public money and other funds, property, bonds, securities, assets, and effects, collected, received, had, held, and controlled by him, the said W. H. Wainwright, by virtue of his office and public trust as county treasurer of Muskogee county, Oklahoma, a more particular description of which is to the grand jurn’s unknown; that the said D. H. Middleton, in Muskogee county, state of Oklahoma, on the 9th day of October, 1913, then and there before and during the commission of said fraudulent acts and embezzlement as aforesaid, did knowingly, willfully, unlawfully, wrongfully, designedly, corruptly, fraudulently, stealthily, and feloni-ously, and without authority of law, move, procure, aid, conceal, advise, abet, assist, and command and counsel said W. H. Wainwright to do and commit the said felony and embezzlement in the manner and form as aforesaid, and did otherwise, and in other manners to the grand jurors unknown, knowingly, willfully, unlawfully, fraudulently, and feloniously participate with the said W. H. Wainwright in said acts of embezzlement aforesaid, with the unlawful, fraudulent, and felonious intent and design then and there on the part of them, the said W. • H. Wainwright and D. H. Middleton, to deprive the said state, county, and citizens aforesaid of said public money and other funds, property, bonds, securities, assets, and effects, and to convert the same to their own use and benefit, and to a use and purpose not in the due and lawful execution of the said trust as aforesaid.

“And so the grand jurors aforesaid, upon their oaths aforesaid, do present, find, and charge that W. H. Wainwright and D. H. Middleton, in Muskogee county and state of Oklahoma, did commit the crime of embezzlement of public money, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant demurred to the indictment, and each count thereof, upon substantially the following grounds:

(1) That the indictment and each count thereof charges more than one offense.

(2) That the facts set forth in said indictment and in each count thereof do not constitute a public offense.

(3) That the indictment and each count thereof is so uncertain and indefinite that the defendants cannot tell with what offense they are attempted to be charged.

(4) That said indictment and each count thereof fails to state facts to charge the offense of embezzlement.

The court overruled the demurrer, and the defendant excepted.

Thereupon the defendant filed a motion for a change of judge, and a motion for a transfer, of the case to the district court of Muskogee county, which said motions it is deemed unnecessary to set out. The court overruled each of said motions, and the defendant duly excepted. The defendant then granted a severance, which was granted, and thé state elected to try the defendant W. H. Wainwright first.

The trial of the defendant Middleton having been entered upon, the following proceedings, so far as necessary to be stated in reviewing this case, in the selection of the jury, were had. W. H. Keaton on his voir dire testified that he did not know Middleton; that he knew Wainwright when he saw him; that he had read some in the papers in reference to D. H. Middleton’s connection with the charge, which caused him to form an opinion to some extent as to his guilt or innocence; that he thought it would take evidence to remove this impression; that he had heard the result of Wainwright’s trial the week before; that he could not say that he had an opinion or impression as to the guilt or innocence of Wainwright as to this charge of embezzling $4,000; that he had no general opinion affecting any charge other than that he was tried for the week before, and that he had an opinion as to that one; he thought he could go into the jury box and give both sides a fair and impartial trial as if he had not heard of that result; that he knew of no good reason why he could not go into the jury box and be a fair and impartial juror.

On cross-examination he testified that he had heard discussed and had seen notices in the newspapers concerning Wainwright’s shortage in the treasurer’s office, and that from what he had heard discussed he had formed an opinion in regard to his guilt or innocence, and had that opinion yet; that if it would require the same evidence in this case which it would in the other he had an opinion as to the guilt or innocence of Wainwright which would require evidence to remove, and that he would go into the jury ¡box with that impression; that it would require evidence to clear up his mind so he could take hold of any new evidence in regard to Wainwright; that he had a general* opinion in regard to the defalcation in the treasurer’s office; that there was a shortage; that he did not hear the evidence in the other case, and did not know the specific item in the other case; and his opinion was that Wainwright was a defaulter in the treasurer’s office, and if the evidence in this case would sustain that general opinion he would have a fixed opinion, and he would not go into the jury box free and untrammeled; that he could not remove that unless the evidence was strong enough to eradicate it.

In response to a question by the court the juror answered that he could not say he had any opinion as to the guilt or innocence of W. H. Wainwright as to any shortage in the treasurer’s office other than the shortage for which he was tried.

The defendant challenged the juror for cause, the court overruled the challenge, and the defendant excepted.

W. H. Westlake on his voir dire testified that he did not know Wainwright personally; that he had known him about five years when he saw him; that he had not from any source formed or expressed an opinion as to the guilt or innocence in this particular instance of the alleged embezzlement of $4,000 on October 9th; that naturally he would have an opinion of Mr. Wainwright’s guilt or innocence in the case that had already been tried; that he had heard about it since it had been tried; that it had not produced in his mind any impression as to his guilt or innocence in this case.

On cross-examination the .juror testified that he was examined as a juror in the Wainwright case, and challenged by the defendant; that he naturally had an opinion of the guilt or innocence of Wainwright of embezzlement as to the case just tried; that he had heard about the case since it was tried; that it had not produced in his mind an impression as to the guilt or innocence of the particular charge in the indictment on trial; that he believed he could go into the jury box and give both sides a fair and impartial trial as if he had not heard the outcome of the trial of Wainwright the week before, and, if selected as a juror, would do so, and that he knew of no reason why he could not do so.

On cross-examination this juror testified that if the transaction in this and in the Wainwright case were one and the same he would have an opinion as to the guilt or innocence of Wainwright; that he would naturally go into the jury box believing he was guilty, or théy would not have found him guilty, and he supposed it would to some extent require evidence to remove that impression; that he could not say that he had an impression on his mind then as to the guilt or innocence of Wainwright; that emphatically he 'had an opinion as to his guilt or innocence in that one case; that it was a fixed opinion, and would require evidence to remove it.

The defendant challenged the juror for cause, the •court overruled the challenge, and the defendant excepted.

Fritz Haand on his voir dire testified that he did not know D. H. Middleton; had not heard of this case before; had not formed or expressed an opinion as to his guilt or innocence of this charge; that he learned of the result of the trial of W. H. Wainwright last week; had not heard this case discussed; that he had no opinion of Wainwright’s guilt before the verdict; knew nothing about what the facts were or purported to be about the case on call, alleging the embezzlement of $4,000 on the 9th of October before; never heard it talked about nor saw any special reference to it in the newspapers; that he based what opinion he had on the verdict.

This juror testified that he thought he could go into the jury box and try this case free from any opinion as to whether or not Wainwright was generally guilty of the shortage that was charged against him in the treasurer’s 'Office.

On cross-examination this juror testified that he did not read the Muskogee or his town papers; that he had heard the shortage discussed; that if Wainwright was tried for the alleged shortage that was reported, he had .an opinion as to his general guilt, and that he was responsible for the shortage, that it would take evidence to remove, and that, regardless of this case or any other, he certainly had that opinion; that it was a fixed and abiding -opinion that would take evidence to remove.

On redirect examination this juror testified that he did not know what case Wainwright was tried on, but knew he was tried for embezzlement of county funds; that if. he was charged with embezzling the funds reported to be short and discussed by the people, he had an opinion as to his guilt or innocence of the general shortage that was reported in the treasury office.

In response to a question by the court, the juror testified thát he had no opinion as to whether or not there was any other shortage in’the treasurer’s office other than the one Wainwright was tried upon.

The defendant having exhausted his peremptory challenges, W. H. Westlake, W. H. Keaton, and Fritz Haand,. each of whom was challenged by the defendant for cause, and each of which challenges was overruled by the court, served upon the jury which returned the verdict of guilty in this case.

In view of the fact that the evidence in this case covers over 1,000 pages of typewritten matter, and would, without accomplishing any good purpose, unnecessarily extend' this opinion, we think it unnecessary to set out an abridgment of the same, and especially so since counsel have failed to comply with the rules of the court in this respect.

The defendant requested the court to give the jury the following instructions, viz:

“(1) The court instructs the jury that, in order to constitute the defendant a party to the crime charged in the indictment, it is necessary that the defendant be concerned in the commission of the offense — that is, that he either commits it or aids in the commission — and it is not sufficient that he merely acquiesced therein.”

“(3) Gentlemen of the jury, you are instructed that if you should believe from the evidence that the public moneys of Muskogee county and the several municipal townships were embezzled at the timé and place and in the manner alleged in the indictment, and if you further believe that W. H. Wainwright acted as principal in committing said embezzlement, if any was committed, then I instruct you that you cannot convict the defendant D. H. Middleton unless you further believe beyond a reasonable doubt that the defendant D. H. Middleton was present and knew the unlawful intent of Wainwright, and aided and encouraged and advised him by some word or act or agreed with him to commit such embezzlement.”

“(7) The court instructs the jury that a mere mental assent or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, or took no part therein, gave no counsel, or uttered no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a party to the crime.

“(8) The court instructs the jury that a mere mental assent or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, or took no part therein, gave no counsel, or uttered no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such a person a party to the crime; and in this case the court instructs you that even though you should find that the defendant had knowledge of, and acquiesced in, the acts of his codefend-ant, W. H. Wainwright, which are charged to constitute embezzlement, that of itself would not be sufficient to find the defendant guilty.”

The court refused to give each of said requested instructions, and the defendant separately excepted to the said action of the court.

The court, among other instructions, gave the jury the following instructions, to which the defendant separately excepted, viz:

“You are further instructed that under the laws of the state of Oklahoma, that all persons concerned in the commission of any felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals; and in this connection you are instructed that if you should find beyond a reasonable doubt that D. H. Middleton did unlawfully, feloniously, fraudulently, and knowingly aid and abet, or did unlawfully, feloniously, fraudulently, and knowingly participate with the said W. H. Wainwright, in the commission of embezzlement as alleged in the indictment, then and in that event you should find the defendant guilty. Otherwise, if you entertain a reasonable dou'bt as to whether the said D. H. Middleton did knowingly, unlawfully, fraudulently, and feloniously aid or abet or participate with the said W. H. Wainwright in the commission of the embezzlements alleged in the indictment, then and in that event you should acquit him.

“G. You are instructed that if you should find from the evidence beyond a reasonable doubt that D. H. Middleton directly or indirectly was concerned in the commission of the acts constituting the offense as alleged in the indictment, he would be under the law charged as a principal as to the offense, whether he, or Wainwright, or others, as alleged in the indictment, enjoyed the benefits of the moneys alleged to have been embezzled or not.”

Timely motions were made in arrest of judgment, and for a new trial, each of which said motions was overruled by the court, and separate exceptions saved.

The defendant most earnestly insists that the- court committed reversible error in overruling the motion to set aside the indictment in this case upon the grounds:

“(1) That the court was without authority to make the order made convening the jury commissioners to select thirty names to be placed in the jury box from which to draw twenty-four names from which to select a grand jury.”

“(2) On account of the misconduct of the grand jury and the county selector.”

Section 1802, Rev. Laws 1910, provides:

That “the procedure in (superior courts) shall follow the procedure provided for the district court, * * * and all laws relative to juries and jurors for district courts shall be and hereby are made applicable to the said superior courts.”

Section 1798, Rev. Laws 1910, provides:

That superior courts “shall have and exercise concurrent jurisdiction with the district court in all proceedings, causes or matters.”

Section 3690, Rev. Laws 1910, provides that the jury commissioners shall convene at stated times, “and aft such other times as the district judge may order.”

Section 3692, Rev. Laws 1910, provides:

That “additional and other drawing of as many names as the court may order may be had at such time as the court may order * * * for the impaneling of a new grand or petit jury, * * * if, in the judgment of the court, the same shall be necessary, or, if, for any cause, the court * * * shall deem other jurors necessary.”

Hence, it appearing to the court that a grand jury was necessary, and it further appearing that there was an insufficient number of names in the jury box from which to draw a grand jury, the court had authority to make the order directing the jury commissioners to convene, and also directing them to place in the jury box the number of names directed by him, and the law requiring the jury commissioners to place in the jury box not less than 200 names only applied to the statutory times for preparing the jury boxes, and has no application in the instant case; and the court, in ordering the jury commissioners to convene and place in the jury ¡box 30 names of qualified jurors from which to draw 24 names from which to select a grand jury, did not violate any substantial rights of the defendant.

The provisions of the statute in regard to the mode of obtaining juries are directory, and a substantial compliance with the requirements of the law is sufficient. This court will not reverse a ruling of a district court overruling a challenge to the array upon objection to the manner in which the list of jurors from whom the panel was selected was made up when such objections are purely technical, and do not affect the substantial rights of the parties, and when it is not made to appear that any material rights have been lost thereby. Malignon v. Territory, 8 Okla. 439, 58 Pac. 505.

“The provisions of the statute in regard to the mode of obtaining jurors are directory, and a substantial compliance with the requirements of the law is sufficient. The court wall not reverse the ruling of the district court overruling a motion to set aside an indictment on the grounds that the grand jury were not chosen, selected, and drawn according to the provisions of the statute, and overruling an objection to the manner in which the list of persons from which the panel was selected was made up, when' such objections are purely technical, and do not affect the substantial rights of the parties, and when it does not appear- that any material right has been lost thereby.” Sharp v. United States, 13 Okla. 522, 76 Pac. 177.

The rule announced in Malignon v. Territory, supra, and Sharp v. United States, supra, has been approved by this court in Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947; Wells v. State, 5 Okla. Cr. 22, 113 Pac. 210; State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207; Tegeler v. State, 9 Okla. Cr. 139, 130 Pac. 1165.

The reason of the said statutory rule established by the Supreme Court of Oklahoma, and by this court, is expressed in R. C. L. vol. 12, pp. 1016, 1017, as follows:

“The reason of this rule is that as the grand jurors do not try the case, 'but merely charge the accused,’the names of these selectors is of no consequence to him, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections.”

The record in this case shows that not even technical errors were committed, but that the statutes of this state governing the selecting, drawing, and impaneling of the grand jury finding the indictment in this case were strictly complied with.

We do not agree with the suggestion of the defendant that to uphold the procedure followed for obtaining the grand jury presenting the indictment in this case offers an opportunity for packing the grand jury. However, we are not empowered to change the law, and if a change of the law be desirable — which we do not even intimate — this rests with the Legislature. We can only apply the law as we find it. In the absence of any evidence in the instant case of any irregularity in drawing, summoning, or impaneling the grand jury that results “in depriving the defendant of a substantial right, or was reasonably calculated so to do, we conclude that the court did not err in overruling the motion to set aside the indictment on the ground of alleged irregularities in summoning the grand jury. Section 3701, Revised Laws 1910; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808.

In Tegeler v. State, supra, it is held:

“A substantial compliance with the law in the matter of selecting, summoning, and impaneling grand jurors is all the law requires.”

The defendant also insists that the presence of Mr. Wyand in the jury room, ostensibly as a witness, but in fact as a legal adviser of the grand jury, was sufficient' ground for setting aside the indictment in this case.

In Fooshee v. State, 3 Okla. Cr. 666, 108 Pac. 554, Judge Richardson, now counsel for the defendant, speaking for this court, says:

“Furthermore our statute makes provision for setting aside an indictment on account of the presence of an unauthorized person before the grand jury only when such person was present when the jury were voting upon the question of returning an indictment. -Section 6738, Snyder’s Comp. Laws. And while we are not called upon to decide the point, and do not decide it, yet there are numerous respectable authorities holding that the presence of a stranger or unauthorized person in the grand jury room only while testimony is being taken, and not while the jury are voting or deliberating, will not invalidate the indictment, unless it is shown that the accused was thereby prejudiced in some substantial right. Bennet v. State, 62 Ark. 516, 36 S. W. 947; State v. Bate, 148 Ind. 610, 48 N. E. 2; State v. Bacon, 77 Miss, 366, 27 So. 563; State v. Justice, 11 Or. 178, 8 Pac. 337 [50 Am. Rep. 470] ; Mason v. State (Tex.) 81 S. W. 718; State v. Brester, 70 Vt. 341, 40 Atl. 1037, 42 L. R. A. 444; State v. Wood, 112 Iowa, 484, 84 N. W. 503; Wilson v. State, 41 Tex. Cr. R. 115, 51 S. W. 916.”

An examination of the several authorities cited by Judge Richardson in Fooshee v. State, supra, fully sustains the views which he therein expresses, but does not decide, and we adopt said dictum, as the law on the question to which it relates, and are of the opinion that the presence of Mr. Wyand in the grand jury room, as shown by the evidence in this case, was not a ground for setting aside the indictment in this case, as it appears from the records that Mr. Wyand was-not in the grand jury room when the grand jury was deliberating or voting upon the indictment in this case.

Section 5780, Rev. Laws 1910, provides:

That “the indictment or information must be set aside * * * in any of the following cases: * * * Third. When a person is permitted to be present during the session of the grand jury while a vote on the finding of the indictment is being taken.”

The defendant further urges that because the grand jury became dissatisfied with “their worthy county attorney” and his assistants as their legal advisers, and repeatedly requested the county attorney to arrange for another legal adviser of the grand jury, and upon the county attorney refusing so to do reported his refusal to the court, with the request that the court aid them in causing the county attorney to discharge one of his assistants and appoint another assistant during the session of the grand jury, which the court properly informed them it had no authority to do, and the, grand jury had prepared a written complaint against the county attorney, which was not presented to the court, but of which the county attorney had knowledge, and thereafter the county attorney secured the resignation of Stewart, with the understanding that he was to be reappointed after the term of the grand jury, arid appointed B. B. Blakeney to fill the vacancy caused by the resignation of Stewart, and the term of the said Blakeney Was to terminate when the embezzlement cases were disposed of, and the said Blakeney filed with the county commissioners a claim for $500 for his services rendered the grand jury, that the appointment of said Blakeney was collusive and void and that therefore the indictment in this case should be set aside.

Conceding but not deciding that the resignation of Stewart and the appointment of Blakeney were brought about- by collusion and coercion, nevertheless Blakeney was a duly appointed assistant county attorney, took the oath of office, and was legally authorized to appear before the grand jury and advise them as to finding the indictment preferred in this case, and of this the defendant cannot legally complain, nor of the fact that Blakeney filed an illegal caim of $500 as compensation for services rendered the grand jury, as neither the appointment of Bakeney as assistant county attorney nor his filing an illegal claim for his services rendered the grand jufy in any way prejudiced the material rights of the defendant and authorized the indictment to be set aside.

The defendant also urges that the court committed prejudicial error in overruling the motion of the defendant for a change of venue. A careful investigation of the record does not disclose that the defendant asked for a change of venue. It is true that, prior to the severance granted in this case, the defendant’s codefendant, Wainwright, filed a motion for a change of venue, and offered voluminous evidence in support thereof, which the state met by counter evidence, and which motion was denied; but there was no evidence offered to show the defendant entitled to a change of venue. In fact, on the hearing of Wainwright’s motion for a change of venue, nothing was said in regard to any prejudice existing against the defendant Middleton in Muskogee county. We conclude that there was no motion filed by the defendant Middleton for a change of venue.

It is a constitutional right of a defendant to be tried in the county in which the offense was committed, and he cannot be deprived of this constitutional right by a change of venue being granted his codefendant. The granting of a change of venue to a defendant does not have the effect to also change the venue as to his codefendant who has not joined in the motion for a change of venue.

The defendant complains as to the sufficiency of the indictment. The indictment when demurred to contained two counts, but before the jury was sworn the state, by leave of court, dismissed the second count and stood upon the first count, and this the defendant says could not be legally done. In support of said contention -the defendant cites only one authority (Bonitzer v. State, 4 Okla. Cr. 354, 111 Pac. 980), which authority is not at all in point, said case not involving the question of the right of the state to dismiss one or more entire counts of an indictment. Certainly it does not require the citation of authorities to show that the rights of the defendant were not prejudiced by lessening his burden by dismissing said count, and that he has not the slightest right to complain at such dismissal. The second count of the indictment having been dismissed, we have only to determine whether or not the demurrer should have been sustained to the first count of the indictment', as whether or not the second count thereof was subject to the demurrer interposed is entirely immaterial and will not be considered.

We have carefully considered said first count of the indictment — the only one upon which the defendant’ was tried — and are satisfied that it charges only one offense, the embezzlement by Wainwright, and the aiding and abetting of Middleton in the embezzlement of $4,000, and that the indictment sufficiently informed the defendant of the offense with which he was charged, and was legally sufficient, as has been often held by this court.

The defendant further complains that the court committed fundamental error — the defendant having exhausted his peremptory challenges — in overruling his respective challenges of W. H. Westlake, W. H. Keaton, S. E. Haxelet, arid Fritz Haand, who were members of the jury which returned the verdict of guilty against the defendant.

As a condition precedent to the conviction of the defendant, it had to be established that Wainwright committed the embezzlement charged, and therefore any juror who had an opinion as to the general guilt of Wainwright having embezzled the county funds was an improper juror in this case, regardless of the fact that he had no opinion as to the guilt or innocence of the defendant.

Section 20 of article 2 of the Constitution of this state provides that—

“In all criminal prosecutions the accused shall have the right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

“The court should resolve all doubts as to the competency of the juror in favor of the defendant.” Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Horn v. State, 13 Okla. Cr. 354, 164 Pac. 685.

•In Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985, it is said:

“The principle that every reasonable doubt must be resolved in favor of the defendant applies in this instance [as to the qualifications of jurors] as well as to the evidence offered before the jury on the final trial. The evidence offered as to the qualifications of jurors enters into and becomes a material part of the trial, as much as the evidence offered by the witnesses on the part of the state, and in this case the trial court should have resolved that doubt in favor of defendant.”

In Scribner v. State, supra, it is also said :

“It is a physical impossibility for a juror, who has an opinion based on what he has understood to be the facts in the case, to weigh the evidence as though he had never heard of the case and had not already made up his mind. He ma3r have an earnest and conscientious desire to do so, and to deal out exact justice, but he will unconsciously attach a greater weight to the evidence which conforms to his preconceived opinion than he would otherwise do. He is not in that frame of mind * * * which is necessary to enable him to fairly and impartially judge as to the weight to 'be given to the evidence of each witness appearing before him.”

“Persons called as jurors, who have heard and read detailed accounts of an alleged offense, from which they have formed such an opinion as to the guilt of an accused as will require evidence to remove, are not qualified jurors, although they believe, and express their belief, that they can and will fairly try the case upon testimony produced.” Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985.

In Tegeler v. State, supra, this court said:

“The fact that said juror did testify in answer to questions from the court that, if selected as a juror, he could and would wholly disregard such opinion, and base his verdict alone upon the testimony and the charge of the court, did not in our judgment do away with and destroy the effect of his previous testimony; for, if it did, the juror would then become the judge of his own qualifications. When a juror .states that he has an opinion as to the guilt of the defendant, he is not made competent to sit in the case merely because he may have stated that he can and will lay aside this opinion if taken on the jury and give the defendant a fair and impartial trial, and be governed alone in making up his verdict by the testimony of the witnesses and the charge of the court.”

In the case of Scribner v. State, 3 Okla. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985, it is said:

“In determining this case, although the evidence may show the defendant guilty beyond peradventure of a doubt, and sufficient, to support a verdict with the death penalty, we must nevertheless set a precedent under which a perfectly innocent man may be tried, and have preserved to him his constitutional rights of the presumption of innocence and a trial before an impartial jury. If a juror has prejudged the guilt of the defendant before hearing the sworn testimony, then it cannot be said that the defendant had a trial before an impartial jury. It is a physical impossibility for a juror, who has an opinion based on what he has understood to be the facts in the case, to weigh the' evidence as though he had never heard of the case, and had not already made up his mind. He may have an earnest and conscientious desire to do so, and to deal out exact justice, but he will unconsciously attach a greater-weight to the evidence which conforms to his preconceived opinion than he would otherwise do. He is not in that frame of mind which the 'Constitution contemplates, and’ which is necessary to enable him to fairly and impartially judge as to the weight to be given to the evidence of each witness appearing before him. * * * The principle that every reasonable doubt must be resolved in favor of the defendant applies in this instance as well as to the evidence offered before the jury on the final trial. The evidence offered as to the qualifications of the jurors enters into and becomes a material part of the trial, as much so as the evidence offered by the witnesses on the part of the state,. and in this case the trial court should have resolved that doubt in favor of the defendant, and sustained his challenges for cause of these jurors.”

In the case of Coughlin v. People, 144 Ill. 140, 33 N. E. 1, 19 L. R. A. 57, Mr. Chief Justice Bailey, rendering the opinion of the court, in part said:

“In the review of authorities we have already made, it has sufficiently appeared that, where the opinion of the juror is only slight or transient, or is hypothetical, very considerable reliance is placed upon his statement under oath, that his opinion is not of such character as will interfere with his action as a juror. Indeed, where the opinion is shown to be of that character, such statement is usually one of the most'satisfactory tests of the juror’s impartiality. But the holding of this and other courts is substantially uniform that where it is once clearly shown that there exists in the mind of the juror, at the time he is called to the jury box, a fixed and positive opinion as to the merits of the case, or as to the guilt or innocence of the defendant he is called to try, his statement that, notwithstanding such opinion, he can render a fair and impartial verdict, according to the law and the evidence, has little, if any, tendency to establish his impartiality.”

In 1 Burr’s Trial, 465 (Fed. Cas. No. 14692g), Mr. Chief Justice Marshall used this language: ,

“Light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient 'objection to a juror; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him.”

In case of State v. Otto, 61 Kan. 63, 58 Pac. 996, Mr. Justice Smith, delivering the opinion of the court, used this language:

“It is the duty of the court, imposed both by statute and by principles of natural justice, to stand as a vigilant guard over the jury box, to the end that bias, prejudice, and preconceived opinion do not enter. It is better that the first impression of a case come from the testimony of the witness after the jurors are sworn to try the cause. While there is recognized in the law a distinction between an impression and an opinion, yet there is so little difference between the two, and the step so short from one to the other, that courts should be certain that a juror’s mind which is possessed of the one has received it with pressure too weak to break over the dividing line.”

We think it clearly appears from the evidence of each of the challenged jurors for cause, which challenges were overruled, and said jurors permitted to sit upon the jury in this cause, without distinguishing one case against Wainwright froim another, that they, were of the opinion that Wainwright was guilty of em'bezzlng county funds generally, and that it would take evidence to remove such opinion, and consequently had a fixed opinion of a necessary charge to be proven to convict the defendant — that Wainwright had embezzled, together with other embezzlements, the said $4,000 alleged to have been embezzled in this case; and therefore the said challenged jurors entered upon the trial with their minds favorably influenced to the conviction of the defendant, and at least placed upon the defendant the burden of eradicating such adverse opinion, and also deprived the defendant of the benefit of the presumption of innocence as to a material fact averred in the indictment, the guilt of Wainwright.

And applying the rules announced and the reasons given therefor in- the above-cited cases to the evidence had on the voir dire examination of the jurors challenged for cause, which challenges were overruled and said challenged jurors allowed to act as triers of this cause, the defendant having exhausted his peremptory challenges, we are of the opinion that the court committed prejudicial error in overruling each of the challenges to the said jurors, and the defendant was thereby denied that fair and impartial trial guaranteed to him by the -Constitution and laws of this state.

The state in its brief has not combatted, or cited any authority to show that the court did not err in overruling said challenges to said jurors.

The defendant insists that the court committed prejudicial error in refusing to give requested instructions numbered, respectively, 1, 3, 7, and 8, and in this instance we are not in accord. Said instructions numbered 1, 7, and 8 are, in effect, the same; are mere different ways of stating the same legal proposition, and are each, in effect, covered by the general instructions of the court, the court having instructed the jury—

“that if they entertain a reasonable doubt as to whether the said Middleton did knowingly, unlawfully, fraudulently, and feloniously aid or abet the said W. H. Wainwright in the commission of the embezzlement alleged in the indictment, then and in that event you should acquit him”

—and thus necessarily instructing the jury that the mere-acquiescence of the defendant in the commission of said embezzlement was not sufficient to warrant the conviction of the defendant, and practically covering the legal propositions contained in said requested instructions numbered,, respectively, 1, 7, and 8.

The vice of requested instruction numbered 3 is that it requires the presence of the defendant when the embezzlement was committed as necessary to the conviction of' the defendant, while the statute under which the defendant. was prosecuted (section 7437, Rev. Laws 1910) provides that—

“If any person shall advise, aid, or in any manner knowingly participate in” an embezzlement by an official of public funds, he “shall be deemed guilty of an embezzlement”

—either of which said interdicted acts may be done without the actor being in the presence of the official committing the embezzlement.

The defendant insists that the court committed reversible error in giving paragraph F of the instructions given the jury. We are of the opinion that said instruction correctly states the law of the case.

The defendant further insists that the giving of paragraph G of the instructions given the jury was prejudicial •error, and in this contention we think there is some merit; that the said instructions do not technically correctly state the law, as the defendant might be indirectly concerned without having knowledge of the embezzlem'ent charged, .and yet not rendered guilty as charged in the indictment in this case, it being necessary to establish his guilt to show that he knowingly advised, aided, or abetted Wainwright in the commission of the embezzlement charged; but while we think the said instruction subject to criticism, yet, ■considering the instructions as a whole, which we must do, the giving of said instruction is not such error as should -cause a reversal of this case.

As the errors pointed out must work a reversal of the judgment rendered, we deem it inadvisable to lengthen this .already extended opinion by a review of the other errors assigned.

However, we deem it proper to direct the attention of the trial court for guidance, in the event of another trial of this case, to the rule as announced in State v. Rule, 11 Okla. Cr. 287, 144 Pac. 807, that, “as a general rule, evidence of other offenses, though of the same general nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged,” unless the evidence comes within the well-settled exceptions to said general rule as stated in said case.

And also to direct attention to the rule declared in Driggers v. United States, 1 Okla. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823, that the statements or acts of one conspirator, made or done prior to the formation of such conspiracy, are inadmissible as against a coconspirator.

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

DOYLE, P. J„ and MATSON, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    C. F. WATT v. STATE.
    No. A-2514
    Opinion Filed Sept. 2, 1919.
    (188 Pac. 512.)
    1. APPEAL AND ERROR — Case-Made—Signature and Certification. A purported ease-made, not signed and certified by the trial judge within the time limited by the statute for filing it in this court, is a nullity.
    2. SAME — Atsenee of Trial Judge — Right to New Trial. Where a convicted defendant, without laches or fault on his part, loses the benefit of his exceptions as reserved in a case-made, on account of the absence of the trial judge from the state at the time the «ame should have been settled and signed, and until after the., time limited by the statute for filing it in this court, a new trial will he granted.
    3 SAME. Ic appears that orders granting extensions of time within' which to prepare and serve ease-made were duly entered as provided by law, which ease-made was served within time, and notice given of the time for settling and signing the same; that the trial' • judge left the state before the day named in the notice, and remained absent until after the time limited by the statute for filing the same in this court; on the last day within the time allowed by law an appeal was taken by filing in this court a petition in error, with a certified transcript of the record and an unsigned ‘ case-made attached. It appearing that the transcript of the evidence in the ease would be essential to a consideration of the errors assigned, and that plaintiff in error has been prevented, without laches on his part, on account of the absence of the trial judge from the state, from having his case-made duly signed and settled, the judgment is reversed, and a new trial granted.

      Appeal from District Court, Blaine County; Thomas A. Edwards, Judge.

    C. F. Watt was convicted of assault with intent to do bodily harm, and he appeals.
    Reversed, and new trial, awarded.

      C. F. Dyer, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, C. F. Watt, was convicted in the district court of Blaine county of assault with a dangerous weapon with intent to do bodily harm, and on January 29, 1915, was sentenced to be confined in the county jail for 120 days, and to pay the costs. To reverse the judgment an appeal was taken by filing in this court on July 29, 1915, a, petition in error, with a duly certified transcript of the record, and a case-made, which had not been signed and settled 'by the trial judge.

In addition to the various errors assigned counsel for plaintiff in error asks that the judgment be reversed and a new trial granted because “plaintiff in error has been deprived of his constitutional right to have his trial reviewed in this court upon a case-made by reason of the absence from the state of the trial judge, who remained absent from the state until the time expired within which plaintiff in error could have had said case-made duly settled, signed, and certified as provided by law; that plaintiff in error was ignorant of the intention of the trial judge to leave the state, and was in no way responsible therefor; that his inability to procure a proper certified case-made was not through his fault.”

It appears from the record that orders granting extensions of time within which to prepare and serve a case-made were duly entered as provided by law, the last order having been made on the 6th day of July, 1915, which extended the time until the 20th day of July; that said case-made was duly served and service acknowledged on the 19th day of July, and on the same day the county attorney was notified that said case-made would be presented to the trial judge on the 24th day of July for settlement, signing and certifying at the hour of 2 o’clock p. m. of said day at the chambers of said judge in the city of Cordell. On the 20th day of July the trial judge departed from the state on his vacation, and did not return until after the 29th day of July, the lafct day on which the case-made could, within the limit of the statute, be signed and settled and filed in this court.

The Constitution recognizes the right of appeal from a conviction, but leaves it to the Legislature to regulate the manner of exercising that right. Under the provisions of the statute an appeal may be taken either by a duly certified transcript of the record proper, or by a case-made as by law provided. An appeal by transcript does not bring up the review of questions arising upon exceptions taken to-rulings of the court upon the admission and exclusion of evidence. A purported case-made not certified by the trial4 judge cannot be considered ¡by the appellate court. Cohn v. State, 4 Okla. Cr. 498, 113 Pac. 216.

And an original case-made settled and signed after the time limited by the statute for filing it in this court is a nullity. State v. Coyle, 11 Okla. Cr. 637, 150 Pac. 80.

That the case-made was not settled, signed, and certified is not the fault of plaintiff in error or his counsel. The trial judge left the state without notice to plaintiff in error or his counsel, and thereby plaintiff in error was deprived of the right to have his case reviewed on the errors assigned in this court.

In the case of Bailey v. United, States, 3 Okla. Cr. 175, 104 Pac. 917, 25 L. R. A. (N. S.) 860, it is said:

“It seems to be well established, as a general rule, that where a defendant has done all that the law requires in perfecting his appeal, and where the record necessary for a review of the case is lost or destroyed while in the custody of an officer of the court, in order to prevent a possible miscarriage of justice by depriving the defendant of his iegal right'of appeal, a new trial will be granted.” .

And see Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976.

By the weight of authority, where a convicted defendant has lost the benefit of regularly taken exceptions, through no fault or negligence of his own, the appellate court will not determine the cause, but will award a new trial. Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, 12 Ann. Cas. 1048, and note 1056.

The appeal here is taken by petition in error and a duly authenticated transcript of the record. Upon an examination of the record we have reached the conclusion that ■a transcript of the evidence in the case would be essential to a consideration of the errors assigned, and that plaintiff in error has been prevented, without fault or negligence on his part, but on account of the absence of the trial judge from the state, from having his case-made duly signed and settled. Upon that ground, and for the reasons stated, we are of opinion that the motion to reverse the judgment and award a new trial should 'be sustained.

The judgment of the trial court will therefore be reversed, and a new trial awarded.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    WESLEY BUCK v. STATE.
    No. A-2787
    Opinion Filed May 3, 1919.
    Rehearing Denied Sept. 6, 1919.
    (182 Pac. 913.)
    1. HOMICIDE — Manslaughter in First Degree — Evidence—Sufficiency. In a prosecution for murder, the evidence held to justify a conviction of manslaughter in the first degree.
    2. CRIMINAL LAW — Excuse—Voluntary Intoxication. Under Penal Code (section 2095, Rev. Laws 1910), voluntary intoxication is no excuse for crime.
    3 WITNESSES — Accused as Witness in His Own Behalf — Impeachment. On a trial for murder where the defendant elects to testify as a witness in his own behalf, he may be asked on cross-examination as to an admission voluntarily made, that he committed the homicide, and, where he denies the same, testimony showing or tending to show such an admission is competent for the purpose of impeachment, when it appears that such admission was made voluntarily.

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    Wesley Buck was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      John W. Willmott, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Wesley Buck, hereinafter called “defendant,” was informed against for the murder of Thompson Bar jo, convicted of manslaughter in the first degree, and sentenced to be confined in the penitentiary at McAlester for the term of 12 years. To reverse the judgment rendered, he prosecutes this appeal.

The undisputed evidence in the case shows that the father of the defendant was shot by the deceased, who was prosecuted therefor and sent to the penitentiary; that about a week prior to the homicide charged in this case the defendant, a full-blood Indian, together with others, attended a “stomp dance”; that while the defendant was dancing the deceased and some of his relatives “purposely and on several occasions butted into” the defendant and interfered with his dancing, and thus bad blood was engendered between the defendant and the deceased; that about a week after said “stomp dance” the defendant and the deceased were together in' the town of Wewoka, and indulged, at the expense of the deceased, in drinking “'Chock Beer”; they made two visits together to the house of a negro woman who was engaged via selling “Chock” for the purpose of obtained the same; that, on the second.visit to and in said house, the deceased was struck upon the head by the defendant with some instrument, from the effects of which, about six or seven hours afterwards, He died; that the wound inflicted upon the deceased, and from which he died, was about one inch deep and an inch and a half long, and from which matter — apparently 'brains— exuded; that the appearance of the wound indicated that it had been made with a hatchet or hammer; and that the deceased was a much larger man than the defendant.

The facts surrounding the difficulty which resulted in the homicide, and the instrument with which the wound was inflicted, are in irreconcilable conflict; there being evidence on the part of the state that without previous provocation the defendant struck the deceased with a hatchet, which belonged to the negro woman in whose house the killing occurréd, while the evidence on the part of the defendant tended to show: That the deceased and the defendant went together to said woman’s house just prior to the difficulty to 'get Choctaw Beer, defendant entering the house in advance of the deceased, and that, without any provocation on the part of the defendant, the deceased said:

“I am Thompson Harjo. I am the man who shot your father, and I can shoot you.”

That the defendant then turned and faced the deceased, and the deceased hit him right over his left eye and knocked him 'back in the corner. That he would have fallen if it had not been for the wall. That while he was falling in the corner of the room the deceased was still coming at him, and when thé defendant was in the act of getting up the deceased advanced upon him, and he shoved deceased off, and, as the deceased was in the act of striking defendant again, he seized something like a piece of stove wood about three feet' Ion#, which was lying near the wall of the room, and struck the deceased on the head. That the deceased again struck at but missed him, and at that time they were near the door of the room in which the difficulty occurred, and the defendant again struck the deceased, knocking him down, and he fell out of the door. That he did not strike the deceased with a hatchet. That “Joaie” came in and told him to go home, and he threw whatever he had struck the deceased with down, and left, and that the instrument with which the defendant claimed to have struck the deceased had been looked for by the defendant and others and could not be found. That the defendant had never seen the hatchet in evidence in this case until he was in jail for the offense with which he is charged.

The defendant and his brother Joe were jointly charged with the murder of said Harjo, arrested, and confined in jail, and while so confined were taken to the sheriff’s office and interrogated by the county attorney as to the facts surrounding the killing of said Harjo, and their statements taken by a stenographer and transcribed.

On the preliminary trial' of the defendant and his brother for said homicide, the case was dismissed as to Joe Buck. On the trial Joe Buck was examined as a witness for the defendant, and, on the cross-examination of Joe Buck and of the defendant as a witness in his own behalf, the county attorney, against the objection and exception of the defendant, was permitted to refer to said transcript in conducting the cross-examination of the defendant and his brother, as to statements made by them when examined in the sheriff’s office, and the county attorney was permitted to testify that prior to the commencing of said examination he said to the defendant:

‘‘Wesley, you are charged with the crime of killing Thompson Harjo, and I want to know the facts about how you came to kill him. I want the truth free and voluntary, so that the same can be used in the trial of this case.”

And to further testify, the defendant and his brother having denied on their cross-examination many of the statements alleged to have been made at their examination in the sheriff’s office, that the defendant and his brother did at their said examination in the sheriff’s office make the statements which on their cross-examination they later denied, the defendant testifying that, when the county attorney sought to secure a statement from him as to the killing of Thompson Harjo, he declined to make any statement “until he saw his lawyer.”

The evidence further discloses that the defendant claimed not to know or to speak intelligently the English language, and that an interpreter was used in his examination at his trial, and that at the examination of defendant and his brother in the sheriff’s office an interpreter was not used.

In the defendant’s brief, he says:

“Under the above assignments we wish to present, for the consideration of the court, one proposition only, which is as follows: Reversible error was committed in admitting over the objection of the plaintiff in error, incompetent, irrelevant, and immaterial testimony.”

And we will therefore confine our review of this case to said “one proposition.”

In support.of defendant’s one proposition, he attacks as improper the action of the county attorney — in the absence of an attorney for the defendant — in examining the defendant and his brother in the sheriff’s office, especially in view of the defendant’s want of a knowledge of the English language, and the absence of an interpreter, and insists that the court committed reversible error in permitting the transcript of the alleged statement of the defendant and his brother to be referred to by the county attorney in the cross-examination of the defendant and of his brother, and by permitting defendant and his brother to be cross-examined for the purpose of impeachment upon immaterial statements alleged to have been made by them when examined in the sheriff’s office.

That the defendant’s admissions were voluntary is not disputed, and it appears that the material admissions of the defendant were in substance the same as the admissions in the defendant’s testimony. There was no confession or admission of guilt, only admissions tending to show his participation in the commission of the homicide charged. By electing to become a witness in his own behalf, the defendant changed his status, for the time being, from defendant to witness. He was then entitled to the same privileges and was subject to be contradicted, discredited, and impeached the same as any other witness. It follows that the questions asked on cross-examination of the defendant and his witness, Joe Buck, were proper, nor was there any error in admitting evidence tending to show admissions voluntarily made by the defendant.

However, we do not wish to be understood as approving the practice indulged in by the county attorney in questioning the prisoners. The defendant is an Indian, who understands the English language only in a limited way, and he was entitled to have an interpreter and the advice of counsel before being asked to make any statements.

In the case of Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383, it is said:

, “It is elementary law that such statements -must ’be entirely free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, in order to be admissible. The genius of our free institutions requires that admissions of the accused shall not' be used against him, unless made voluntarily.”

We fully appreciate the force of the following statement of the learned attorney for defendant in his brief in this case:

■ • “It is an undeniable truth' that liquor. and the Red Man cannot stand together; one must triumph, and the other go down to defeat. There is no way to prevent crime among the Indians when liquor is present; and I hold that the man or woman who furnishes to these full-blood Indians, children of nature as they are, liquor which makes them mad, is more guilty of the crime committed than the Indian who actually does the deed.”

But we are unable to see how the truth contained in said brief can, for any purpose, be considered by this court in reviewing the instant case, even admitting, which is not even suggested by the record, that at the time the homicide in this case was committed the1 defendant was made mad from voluntary intoxication, in view of section 2095, Revised Laws 1910, which reads:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.”

■ Having considered every proposition propounded by counsel for defendant, and having carefully examined the record with the purpose of discovering whether the defendant has been deprived of a fair and impartial trial, within the meaning of the law, we have been unable to find that he has been deprived of any constitutional or other legal right. The negro woman was an eye witness of the tragedy, and if the jurors 'believed her testimony, as they had a right to do, they could not conscientiously do otherwise than find the defendant guilty, at least, of manslaughter in the first degree. The questions of fact having been determined by the tribunal whose solemn duty it was to ascertain them, and there - being sufficient competent evidence to sustain the verdict, it follows that the judgment must be, and the same is hereby, affirmed.

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


text:
    BERT FILES v. STATE.
    No. A-3063
    Opinion Filed May 10, 1919.
    Rehearing Denied Sept. 6, 1919.
    (182 Pac. 911.)
    1. APPEAL AND ERROR — Presence of Defendant at TriaWObjcction. Where the question of the presence of the defendant at his trial for felony is not raised in the lower court, it cannot be raised on appeal to this court, unless the record affirmatively shows that the defendant was not present at such trial.
    2. HABITUAL CRIMINALS — Second Violation of Liquor Law— Proof of Identity. Where, in a prosecution for a second violation of the prohibitory liquor laws, record evidence of a former conviction is offered of one of the same name as that of the defendant on trial, it is not necessary for the state to prove that the person named in said former conviction and the defendant on trial are one and the same person.
    3. INTOXICATING LIQUORS — Unlawful Sale — Interest in Place of Sale. Where an illegal sale of beer is made in a place, it is immaterial as to who is the proprietor of the place in which the sale is made, or that the person making such sale is not interested therein. The offense is established upon legal proof of a sale by the party making such sale, regardless of the proprietorship of the place in which the sale is made.
    INDICTMENT AND INFORMATION — Felony—Verification of Information. In a prosecution for a felony, it is not required that the information therefor, under the Procedure Criminal of this state, he verified.
    5 TRIAL — Insufficiency of Evidence — Demurrer toi Evidence — Request for Directed Verdict. Demurrer to the evidence is not the proper practice to attack the sufficiency of the evidence — if the evidence is thought to be. insufficient a directed .verdict should be requested.
    6. WITNESSES — Impeachment—Question. It is improper to ask a witness on cross-examination “if he has not been arrested and confined in jail for a crime.”
    7. INTOXICATING LIQUORS — Second Violation — Sufficiency of Evidence. The record in this case carefully examined, and the evidence found sufficient to reasonably sustain the verdict and judgment rendered, and the record free from error.

      Appeal from, District Court, Garfield County; James B. Cullison, Judge.

    Bert Files was convicted of a violátion of the habitual criminal act, and he appeals.
    Affirmed.

      W. 0. Cromwell, for plaintiff in error.

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

The plaintiff in error, Bert Files, hereinafter styled defendant, was convicted of a second violation of the prohibitory liquor law and sentenced to serve a term of two years in the penitentiary at McAl-ester, Okla., “no part of which time shall be in solitary confinement/' and to pay a fine of $50 and the costs of this prosecution. To reverse the judgment rendered, he prosecutes this appeal.

The information under which the defendant was convicted charges the defendant with having been three times previous to the filing of the information in the instant case convicted and sentenced in Garfield county, which said convictions each became final before the year 1916— of violations of the prohibitory liquor laws; and that on the llth day of March, 1916, in Garfield county, he did unlawfully sell to one G. C. Todd a bottle of beer. The defendant did not in his brief assign as error or argue the insufficiency of the said information.

The evidence as. to the previous convictions of the defendant, and which we deem unnecessary to recite, fully sustains the averments of the information as to such prior convictions.

The material evidence as to the sale of the bottle of beer alleged to have been sold by the defendant to Todd on the llth day of March, 1916, is, on the part of the state, that said Todd, accompanied by another, bought from the defendant, at the time alleged in the information, in a place in the city of Enid, in Garfield county, which had the reputation of being a place where intoxicating liquors were sold, a bottle of beer which was labeled “Schlitz or Budweiser,” and paid him 50 cents for same,* that Todd and the person with him jointly drank the contents of said bottle in the said place.

The material evidence of the defendant was: That he was not the proprietor of the place in which Todd testified he bought said bottle.of beer; that Walt Cook was; that he resided in Muskogee county, and was on a visit to Enid, and was taking care of the place for Walt Cook; that he did sell to said Todd “a bottle of stuff” which he did not know was beer; that Todd paid him for same, the amount not remembered; and that he gave the money to Cook, and that he had no interest in the bottle sold to Todd.

The defendant also introduced evidence tending to impeach the veracity of Todd, to which counter evidence was introduced by the state.

.Upon the conclusion of the evidence for the state the defendant demurred to the evidence, which the court overruled, and the defendant excepted.

The contention of the defendant that the judgment and sentence are irregular and void, because the judgment entry recites that the former conviction was “for maintaining a place,” is without merit; a record of such former conviction of the defendant 'being averred in the information, and supported by record evidence.

The defendant attacks the information because the same is not verified, and therefore insufficient to support a judgment. This is an information for a felony, and not required to be sworn to. In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805.

The question of former jeopardy raised by the defendant was properly held adversely to the defendant, as the same was precluded by the decision of this court in Ex parte Bert Files, 13 Okla. Cr. 163, 162 Pac. 1136. It follows tht the court did not err in not submitting the plea of former jeopardy to the determination of the jury.

The plea of the defendant that the' court was without jurisdiction has no legal ground upon which to stand.

It is entirely immaterial who owned the place at the time it had the reputation of being a place in which liquor was sold, where, as in the instant case, the evidence shows that a prohibited sale was made therein by defendant, and; if the court erred, which we do not hold, in excluding evi-, dence of the ownership of said place at the time it had such reputation, it was harmless error. <

If the court erred in admitting in evidence the transcript of the evidence given by Fred R. Feathers at the preliminary trial of the defendant, which we do not decide, it ' was not such error as should work a reversal, as, if the evi- ' dence of said Feathers be entirely eliminated, there still'remains sufficient evidence to reasonably sustain the verdict of the jury.

The defendant further insists that the court erred iii overruling the demurrer to the evidence, because there is no evidence to show that the defendant and the Bert Files shown by the records to have been formerly convicted of violating the prohibitory liquor laws were one and the same. Proof of his identity was not necessary. Defendant was being prosecuted as Bert Files, and if he was not the same person referred to in the records showing the former conviction of Bert Files, the burden was upon him to show such fact. Under criminal procedure of the state, demurrer is not the proper mode of attacking the sufficiency of the evidence. If the evidence is deemed insufficient, a directed verdict of acquittal should be requested. Considering the demurrer to the evidence as in effect a request for a directed verdict of acquittal, the court would have erred had it complied with such request.

The record affirmatively shows that the defendant was present and arraigned and declined to plead, and that the court entered for him a plea of not guilty; that he testified in the case in his own behalf, and was present when the sentence of the court was pronounced against him; and that prior to pronouncing sentence the court asked him if he had' anything to say why sentence should not be pronounced against him, and he answered “that he had no such reason.”

We think that the record affirmatively shows that the defendant was present during the trial, and that his con-, tention that the judgment and sentence are void because the record does not affirmatively show the presence of the defendant at the trial is without merit. Wood v. State 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673.

If the defendant was not present during the trial in the lower court when called upon to state his reason, if any he had, why sentence should not be pronounced against him, why was the objection not made that he was not present at the trial? If the defendant was not present at the trial in the court below, why was it not embodied as a ground for, in his motion for a new trial?

Having failed to raise in the lower court the question of not being present at the trial, he cannot raise such .question on appeal to this court, unless the record affirmatively shows that he was not present at the trial in the court below. Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657.

It was not necessary for the defendant to be present on the hearing of the motion for a new trial or on the hearing of a motion in arrest of judgment. 12 Cyc. page 526, and the very many authorities cited in note 31 on said page.

The court did not err in setting aside, on motion of the county attorney, the judgment in this case on the 11th day of February, 1916.

In Ex parte Bert Files, supra, this court held the identical judgment set aside obviously erroneous for failing to include imprisonment and fine and refused the writ of habeas corpué applied for, saying:

“However, we are of the opinion that the judgments are merely erroneous and are not void, and the trial court may yet reconsider and correct the same.”

Certainly the trial court could in effect correct the judgment by setting it aside.

The defendant also complains that the court committed reversible error in refusing to permit the defendant on cross-examination of the prosecuting witness to ask him “if he had not been arrested and confined in jail for a crime.” In so ruling the court followed an unbroken line of authority of this court.

It is further insisted by defendant that the court erred to the prejudice of the defendant in its remarks made to the defendant’s attorney when sustaining an objection of the state to a question propounded on cross-examination of the prosecuting witness. The remarks of the court, not being addressed to the jury, and not of a character to prejudice the jury against the defendant, did not constitute reversible error.

The defendant further complains that the court erred in refusing to permit the defendant to ask on cross-examination of the prosecuting witness if he was not paid to secure evidence in this case. The purpose of this question was to show the interest of the witness in the prosecution, and therefore we think that the court erred in refusing to permit the said question to be asked.

However, in view of the defendant’s testimony that he did sell “a bottle of stuff” to said prosecuting witness at the time and place averred in the information, and for which the witness paid him, and that he was unable to say whether or not the said bottle contained 'beer, which we think corroborated the evidence of the prosecuting witness of the sale testified by him to have been made by defendant, and there being evidence by other witnesses than said prosecuting witness of said sale, whether or not the prosecuting witness was interested in the prosecution was immaterial, and the act of the court in refusing to permit said question to -be asked was harmless error.

The court did not err in overruling the motion for a new trial or in overruling the motion in arrest of judgment.

Errors assigned in the petition in error and not argued or assigned in the brief of the defendant-are regarded as abandoned, and are not reviewed. But we have carefully considered every error assigned in the brief of the defendant or therein argued, and are convinced that the evidence reasonably supports the verdict of the jury, and that the record discloses that no prejudicial error was committed in the trial. The judgment of the trial court is affirmed.

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


author: PER CURIAM.

text:
    TOM JONES v. STATE
    No. A-3097
    Opinion Filed March 11, 1919
    Rehearing Denied Sept. 6, 1919.
    (182 Pac. 907.)
    APPEAL AND ERROR — Review—Technical Error. Where the undisputed facts establish the guilt of the defendant, technical questions presented by the defendant as grounds for reversal are ran-necessary to be considered by this court, under the provisions of section 6005. Rev. Raws 1910.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    Tom Jones was convicted of unlawfully conveying intoxicating liquors, and sentenced to pay a fine of $150, and to serve a term of 30 days’ imprisonment in the county jail, and appeals.
    Affirmed.

      Fred W. Kipplin, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsa county, wherein the defendant was convicted of the offense of unlawfully conveying 38 half pints of whisky from a point unknown to a point on the stairway leading up to the rooming house situated at llU/i East First street, in the city of Tulsa, Tulsa county, Okla. An examination of the record shows that the evidence points conclusively to the guilt of the defendant of the offense charged. No defense was interposed in his behalf, and no exceptions taken to any of the instructions given by the court, which said instructions cover the law of the case, and are not prejudicial to the substantial rights of the defendant.

The technical questions presented in the brief filed in behalf of the defendant are unnecessary to be considered, in view of the undisputed facts establishing the guilt of the defendant. One of the objects of the prohibitory liquor laws of this state is to prevent the unlawful sale of intoxicating liquors, and the defendant admitted to the arresting officer that the 38 half pints of liquor which he then possessed were intended for the purpose of sale, and at the same time he offered to bribe the arresting officer to permit his escape. The punishment inflicted by the jury was extremely light in view of the evidence.

The judgment of the county court of Tulsa county, sentencing the defendant to pay a fine of $150, and to serve a term of 30 days in the county jail, is affirmed.