ous adultery," held that, in a prosecution com- OF ERROR OR APPEAL. Appellate courts uniformly hold that the writ of habeas corpus is not to take the place of a writ of error or of an appeal. As a general rule there is but little virtue | persons are living together in open and notoriin a dissenting opinion, and this one would not have been written, except I entertain the hope that by a presentation of the precise holding of the courts on this question and the real value as precedents of some of the cases, it will tend to remove, as I view it, the misconception that the weight of authority sustains the conclusion reached in the majority opinion. However, failing in this, I trust I have added a trifle to the weight of argument of those authors and courts holding that it lacks the weight of reason, which, after all is the only thing of real consequence. If the contract will, on occasion, work out inequitable and unjust re-writ of habeas corpus. Writ denied. sults, if it can be cured, then the Legislatures or parties ought to change it. They have the right to do so. Courts lack the authority, and, exercising it, invade a domain dangerous alike to public and private weal. I therefore conclude that the judgment of the trial court should be affirmed. In the foregoing conclusion I am authorized to say Justice HAYES concurs. Ex parte CRANFORD. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4.*] (Syllabus by the Court.) Original application by B. M. Cranford for B. M. Cranford, petitioner, was convicted in the district court of Pontotoc county of the crime of adultery, and was thereupon sentenced to imprisonment in the state prison for a term of five years. Crawford & Bolen, for petitioner. Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State. DOYLE, J. On November 12, 1909, there was filed in this court a petition duly verified, praying that a writ of habeas corpus (Criminal Court of Appeals of Oklahoma. Nov. issue to T. J. Smith, sheriff of Pontotoc coun 22, 1909.) 1. HABEAS CORPUS (§ 30*)-GROUNDS FOR RE LIEF. Section 4867, Wilson's Rev. & Ann. St. 1903, provides: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: **** (2) Upon any process issued on any final judgment of a court of competent jurisdiction." Held, upon application for writ of habeas corpus showing commitment on judgment of conviction for the crime of adultery, that the writ be denied and rule to show cause refused. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*] 2. CRIMINAL LAW (§ 263*)-BENCH WARRANT -BILL OF RIGHTS. The declaration of section 30 of the Bill of Rights that "no warrant shall issue but upon probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched, and the person or thing to be seized," has no application to a bench warrant issued upon an information filed in the district court pursuant to the finding of an examining magistrate, wherein the party charged by complaint filed has been bound over on the finding of probable cause to await the action of the district court. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 610, 611; Dec. Dig. § 263.*] 3. ADULTERY (§ 4*)-PERSONS ENTITLED TO PROSECUTE. Under section 2264, Wilson's Rev. & Ann. St. 1903, defining adultery, and requiring that "prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife, of the other party to the crime: Provided, that any person may make complaint when ty, and that, upon a hearing thereon, petitioner be discharged. The petition, in substance, avers that on the 12th day of June, 1909, Mary E. Cranford, then the wife of petitioner, made complaint on oath before H. J. Brown, a justice of the peace of Pontotoc county, wherein petitioner was charged with the crime of adultery; that on the 15th day of June, 1909, upon a preliminary examination had before said justice of the peace, petitioner was held for trial in the district court of said county, for trial in the district court of said county, and on the 24th day of June, 1909, Robert Wimbish, county attorney for said county, filed in the said district court an information charging petitioner with the crime of adultery, which information, omitting the title is as follows: "Comes now Robt. Wimbish, the duly qualified and acting county attorney in and for Pontotoc county, state of Oklahoma, and gives the district court of the Seventh judicial district of said county and state of Oklahoma to know and be informed that the above-named defendant, B. M. Cranford, late of Pontotoc county, did in the year of our Lord one thousand nine hundred and nine commit the crime of adultery in the manner and form as follows: That is to say, the said defendant did in said county and state at the date above named unlawfully, willfully, and feloniously live in open and notorious adultery with one Maggie Jones, a female person, the said B. M. Cranford being then and there a male person and being then and there lawfully married to another female person, to wit, Mary E. Cranford; and the said B. M. Cranford, a male person, did then and there unlawfully, willfully, and feloniously and voluntarily have sexual intercourse with one Maggie Jones, a female person, the said B. M. Cranford being then and there lawfully married to another female person, to wit, Mary E. Cranford, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma. Robt. Wimbish, County Atty. State of Oklahoma, Pontotoc County. I, Robt. Wimbish, being duly sworn on oath do state that the facts set out in the foregoing information are true tled matter for the reason that same does not state facts sufficient to entitle the petitioner to a discharge, in that it is immaterial that the complaining witness, Mary E. Cranford, had procured a divorce from the petitioner after the commission of the alleged offense, and after jurisdiction had attached over the person of the petitioner and the subject-matter of the action before the trial was had thereon, as the divorce granted for the adultery charge could not abate the offense, nor divest the court of jurisdiction of the subject-matter thereof. Second. That the irregularities complained of as to the verification of the information could not be attacked collaterally on habeas corpus, but could only be attacked by appeal after objections made in due time and exceptions saved to the action of the trial court thereon." lawful information and belief. Robt. Wimbish. Subscribed and sworn to by Robt. Wimbish this the 24th day of June, 1909. W. T. Cox, Clerk Dist. Court, Pontotoc Co. Okla." Petitioner further avers that he was again arrested upon a bench We are of opinion that the demurrer should warrant issued upon said information; that be sustained. It appears by the averments on the 13th day of October, 1909, he was of the petition that the issuance of the writ, tried and found guilty as charged; that on or a rule on said sheriff to show cause why the 9th day of November, 1909, the said court the writ of habeas corpus should not be isrendered judgment on said verdict, and, in sued for petitioner's release, would result in accordance therewith, sentenced him to im- a return that said sheriff holds the prisonprisonment in the penitentiary for a term of er by virtue of the sentence of the district five years; that he is now held in the com- court of Pontotoc county. The facts before mon jail of Pontotoc county in the custody of the court are precisely the same as if the said sheriff. Petitioner avers that said judg-writ of habeas corpus had been served or a ment is illegal and void, and his restraint rule to show cause had been made. The thereunder is illegal and unauthorized, for court can determine the rights of the petithe following reasons, to wit: "First, be- tioner to be released, upon the pleadings as cause the information is not verified as is correctly and with more convenience, in the required by law, the same being verified by administration of justice, then if the writ, the county attorney, 'based on lawful in- or a rule to show cause, had issued. Upon formation and belief,' the sworn affidavit of principles which may be considered to be the said Mary E. Cranford not being attach- well settled in this court, it can have no ed to the information and made a part there- right to issue this writ of habeas corpus as of, and no allegation in said information as a means of reviewing the judgment of the to what the lawful information was and no district court upon the ground of error in allegation that it was based on said affidavit its proceedings; but if it shall appear that of Mary E. Cranford, and was not positively the district court had no jurisdiction to rensworn to, as required by law, announced by der the judgment which it gave, and under this court in the Salter Case, 102 Pac. 719, which the petitioner is held a prisoner, it is and that said court had no jurisdiction of not only within the powers of this court, but the case, and that said judgment is abso- it is its duty to allow the writ of habeas lutely void; second, for the reason that Ma- corpus and discharge the petitioner. Ex ry E. Cranford, who had been the wife of parte Charles Johnson, 1 Okl. Cr. 414, 98 Pac. your petitioner at the time of the alleged 461; Ex parte Gudenege, 2 Okl. Cr. ——, 100 crime, filed a suit in the district court of Pac. 39; Ex parte Mingle, 104 Pac. 68; Ex Pontotoc county, Okl., and on the 29th day parte Justus, 104 Pac. 933. If the district of June, 1909, and long before this case was court had jurisdiction of the person and the tried, obtained a divorce from this petition- offense for which the petitioner was tried, er, and that no notice of appeal was given and has not exceeded its powers in the senwithin 10 days, and that no appeal has been tence which it pronounced, this court can taken, and that at the time of the trial, ver- inquire no further. Whether the information dict, and judgment she was not the wife of sets forth in comprehensive terms the ofthis petitioner, and that no prosecution could fense, which the statute describes and forbe 'carried on' by her, but said suit was abat- bids, and for which it prescribes a punished; wherefore your petitioner asks that a ment, is in every case a question of law, writ of habeas corpus issue, and that upon which must necessarily be decided by the hearing he be discharged." To this applica- trial court, and is therefore clearly within tion, the Attorney General filed a demurrer its jurisdiction. Its decision on the conformas follows: "Comes now on this 15th day of ity of the information to the requirements November, 1909, the Attorney General, and of the statute may be erroneous, but, if it for and upon behalf of the state of Oklaho- is so, it is an error of law of the trial court be corrected on an appeal, but which can- | affected the jurisdiction of the district court. not be looked into on a writ of habeas corpus limited to an inquiry into the existence of the jurisdiction of the trial court. Section 2264, Wilson's Rev. & Ann. St. 1903, prescribes: "Adultery is the unlawful vol. untary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery." In the case of In re Smith, 2 Okl. 153, 37 Pac. 1099 (decided at the June term, 1904), it was held: "That a prosecution for adultery cannot be commenced and carried on by a woman after she has obtained a decree of di The jurisdiction of the district court is denied in this case upon two grounds: First, for the reason that the information is verified only on information and belief, and the case of Salter v. State, 102 Pac. 719, is referred to. The principle enunciated in that case has no application to the case at bar. In that case this court said: "But we limit the decision to informations charging misdemeanors. Informations in felony cases are to be tested, as near as may be, by the statutes regulating indictments, and we do not wish to indicate in advance what we should hold in a case where the information charges a felony." The Constitution of Oklahoma authorizes the prosecution of felonies by informations, but with the follow-vorcement from the party charged to have ing restrictions: Section 17, Bill of Rights, declares: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination." In this case it appears that upon a written complaint properly verified by the wife of the petitioner, wherein he was charged with the crime of adultery, he was arrested, and upon a preliminary examination the magistrate found that there was sufficient cause to believe him guilty as charged, and bound him over to answer the same before the district court. This was sufficient finding of probable cause upon which to base the bench warrant, and was not in violation of section 30 of the Bill of Rights. The fact that the information was not committed the crime." This case is not in For the reasons stated, the writ of habeas corpus is denied, and a rule to show cause is refused. FURMAN, P. J., and OWEN, J., concur. COX v. STATE. (Criminal Court of Appeals of Oklahoma. Dec. 7, 1909.) FOR REHEARING REQUISITES AND SUFFI A petition for a rehearing based upon the ground that a controlling decision which was. not called to the attention of the court is in conflict with the decision of which a rehearing is sought must show that such conflict exists. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1133.*] (Syllabus by the Court.) positively sworn to could not affect the ju- CRIMINAL LAW (§ 1133*)-APPEAL-PETITION risdiction of the district court; and the fact that the information does not recite that said prosecution was "in the name and by the authority of the state of Oklahoma" (section 19, art. 7, Const.) is not a fatal defect. Arie v. State, 1 Okl. Cr. 666, 100 Pac. 23, 33. In Caples v. State, 104 Pac. 493, Furman, Presiding Judge, said: "It is not nec.essary that an information should contain the words 'in the name and by the authority of the state of Oklahoma.' It is sufficient if it appears from the record of a case that the prosecution was carried on in the name and by the authority of the state. But this court suggests that, as a matter of good pleading, it would be well for informations to begin with these words." On motion for rehearing. Motion denied. PER CURIAM. Rule 9 of this court (101 Pac. ix) governs applications for a rehearing. It is as follows: "(1) Application for a rehearing in any cause, unless otherwise It only remains to consider whether the ordered by the court, shall be made by a fact that the prosecuting witness, Mary E. petition to the court signed by counsel and Cranford, having obtained a divorce from filed with the clerk within fifteen days from petitioner before his trial, deprived the dis- the date on which the opinion in the cause trict court of the power of proceeding to try is filed. Such petition shall briefly state the petitioner and sentence him. We have the grounds upon which counsel relies for no difficulty in holding that the divorce se- a rehearing, and show either that some cured by the prosecuting witness in no way question decisive of the case and duly sub*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes mitted by the counsel has been overlooked | quire some evidence of such acting together by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court, and the question, statute, or decision so overlooked must be distinctly and particularly set forth in the petition. If such application is granted, the cause shall be assigned for rehearing, and the clerk shall notify both parties or their counsel of the time when such will be had, and such time may be given for argument or brief as the court shall allow." The petition for a rehearing is as follows: "Comes now B. C. Cox, the appellant in the above-entitled cause, and most respectfully shows the court: That on the 2d day of November, 1909, a decree and judgment was rendered by this honorable court against this appellant, affirming a judgment and sentence of the county court of Rogers county, Okl., wherein the said county judge of Rogers county did on the 9th day of March, 1908, duly sentence this appellant to 60 days' imprisonment in the county jail of Rogers county, and to pay a fine of $400 upon a charge of the unlawful sale of intoxicating liquors charged to have been sold on or about January 23, 1908, in Rogers county, Okl. (1) That said decision affirming the judgment and sentence of the county court of Rogers county against this appellant overlooked the decision of this honorable court in the case of Titsworth v. State, 101 Pac. 288, which said case is controlling in this case, and wherein this honorable court lays down the following rule: It is the present opinion of the writer that in cases against defendants for keeping intoxicating liquors for sale the general reputation of such places, in the community in which they are situated, touching this point, is admissible in evidence, just as it is permissible to prove a general reputation of a bawdyhouse, a gambling house, or of any place which constitutes a nuisance. Sec tion 14, art. 3, of the enforcement act (page 608, c. 69, Sess. Laws 1907-08), expressly makes such places where liquors of any kind are sold, manufactured, bartered, or given away or otherwise disposed of in violation of the law nuisances. This, however, would not be true in cases in which the defendant was charged with a specific sale of such liquors. Such evidence would only be admissible where the defendant was charged with keeping liquors for sale at a certain place. (2) That the court in affirming said judgment and sentence against this appellant overlooked the rule as laid down by this honorable court in the case of Sturgis v. State, 102 Pac. 57, which case is almost identical with the case of appellant, and the decision of which case is controlling in this case, and the rule being laid by the before such acts and declarations of others concerned in the commission of an offense are admitted in evidence when such acts were not committed or statements were not made in the presence of the defendant. Under these rules of law, the question now presents itself as to whether there is in the record any evidence that the defendant was concerned with the Holmes and McKinley in the sale of intoxicating liquor, except the testimony as to the statements of Holmes and McKinley to the witnesses who testified to such statements. * * There is not one word of evidence in this record except hearsay which proves, or tends to prove, that the defendant was concerned with Holmes or McKinley in the sale of intoxicating liquors.' Page 66, 102 Pac. (3) That the court in affirming said judgment and sentence against this appellant overlooked the rule laid down by this honorable court in the case of State v. Mask, 101 Pac. 293, where the court lays down this rule: 'Upon the trial for the offense of having possession of intoxicating liquors with the intention of violating the provisions of the prohibition law, where no positive testimony tending to show such possession was offered to show possession purely circumstantial and did not show actual or constructive possession of such liquors as charged, held, that the evidence is insufficient to sustain the conviction.' (4) That the court in affirming the judgment and sentence in the case against this appellant overlooked the rule as laid down by this court in the case of Lightle v. State, 101 Pac. 608, wherein the court lays down the following rule governing the introduction of evidence, which rule is controlling in this case; said rule being as follows: 'Before liquor can be offered in evidence for the inspection of the jury, such liquor must be identified as having been in the possession and having been unlawfully disposed of by the defendant.' The appellant further states to the court that the above decisions as well as many other cases decided by this honorable court relative to the violation of the prohibition provisions of the Constitution and laws of the state of Oklahoma have been handed down by the court since the brief of the appellant was filed with this honorable court, and the decisions therefore could not have been cited to the court in said brief. Wherefore your petitioner, said appellant, prays the honorable court to grant a rehearing in said cause, and that said cause may be reheard by this honorable court. Respectfully submitted. Elliott & Howard, Attorneys for appellant." While a number of the decisions of this court are quoted from in the petition for a rehearing, which it is claimed were overlooked by this court, yet it is not alleged in a single instance that there is any conflict between the cision of the court in this case. In fact, no Clark Greenwood was convicted of procurattempt is made to show any such conflict. ing an abortion, and he brings error. AfIn failing to show or to attempt to show firmed. such conflict the petition is not in compliance with rule 9, and is therefore clearly insufficient, and fails to present anything for the consideration of this court. Rehearing denied. GREENWOOD v. STATE. (Criminal Court of Appeals of Oklahoma. 7, 1909.) Dec. 1. ABORTION (§ 1*)-"USE" OF INSTRUMENT-WHAT CONSTITUTES. An indictment, alleging, "That on the day of May, in the year of our Lord, one thousand nine hundred and six, at and within said county, and within the jurisdiction of said court, Clark Greenwood, then and there being, did then and there unlawfully, willfully, and feloniously advise and procure Ethel Carpenter, a pregnant woman, to use certain instruments, with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carpenter, the same not being necessary to preserve the life of the said Ethel Carpenter," held sufficient to charge an offense under section 2370, Snyder's Comp. Laws, 1909 (section 2268, Wilson's Rev. & Ann. St. 1903), prohibiting the "use" of instruments. [Ed. Note.-For other cases, see Abortion, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 8, pp. 7228-7237; vol. 8, p. 7825.] 2. CRIMINAL LAW ($ 59*) - "PRINCIPALS" WHO ARE. All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are "principals." Section 2045, Snyder's Comp. Laws, 1909 (section 1948, Wilson's Rev. & Ann. St. 1903). [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 71; Dec. Dig. § 59.* For other definitions, see Words and Phrases, vol. 6, pp. 5552-5557; vol. 8, p. 7763.] 3. INDICTMENT AND INFORMATION ($ 63*)STATEMENT OF FACTS. An indictment should recite the material facts and circumstances constituting the offense, rather than charge that defendant has committed a certain specified crime. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 185; Dec. Dig. § 63.*] (Syllabus by the Court.) 4. CRIMINAL LAW ($ 507*) "ACCOMPLICE"-CORROBORATION. TESTIMONY OF A sister of a woman upon whom an abortion was performed was not an "accomplice" whose uncorroborated testimony would not support a conviction, solely because, through sisterly affection, she went with her to the doctor's office, where she did not consent to the abortion, but did all in her power to prevent [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1082, 1083; Dec. Dig. § 507.* it. For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.] of Comanche county the plaintiff in error was At the January term of the district court indicted, charged with the crime of procuring an abortion. The charging part of the indictment, as appears in the case-made, is as follows: "That on the day of May, in the year of our Lord, one thousand nine hundred and six, at and within said county, and within the jurisdiction of said court, Clark Greenwood, then and there being, did then and there unlawfully, willfully, and feloniously advise and procure Ethel Carpenter, a pregnant woman, to use certain instruments with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carpenter; the same not being necessary to preserve the life of the said Ethel Carpenter." The case was tried to a jury, defendant convicted and sentenced to imprisonment for a term of two years. A motion for new trial was filed and overruled, and exceptions saved. The case is before us on case-made. Al J. Jennings, for plaintiff in error. Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State. OWEN, J. (after stating the facts as above). Counsel for defendant, in the brief filed in this case, urge two assignments of error for reversing the case. The reasons urged are: "First. There is no public offense charged in said indictment, for the following reasons, viz.: The advising or procuring a pregnant woman to use instruments is not contemplated by the act itself, and because the pleader failed to set out the name of the instrument employed, and also failed to tell upon what portion of complainant's body the instrument or instruments were used, and in what manner. Second, there was no corroboration of Ethel Carpenter, an accomplice." The statute under which this prosecution was had (section 2370, Snyder's Comp. Laws, 1999; section 2268, Wilson's Rev. & Ann. St. 1903), is as follows: "Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is ecessary to preserve her life, is punishable by imprisonment in the state prison not exceeding three years, or in a county jail not exceeding one year." Does the indictment charge the defendant with a violation of this statute? This section prescribes a punishment for every person who "uses" any instru Error from District Court, Comanche Coun- ment with intent to procure the miscarriage. ty; J. T. Johnson, Judge. The indictment alleges that the defendant |