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“did then and there unlawfully, willfully, , er.' This is necessary, so that the prisoner

. and feloniously 'advise' and 'procure' Ethel may know of what crime he is accused, and Carpenter, a pregnant woman, to use certain have time to prepare his defense on the facts. instruments, with the unlawful and felonious It is also necessary that the jury may be intent of him, the said Clark Greenwood, to warranted in their finding, the court in procure the miscarriage of the said Ethel its judgment, and the prisoner be protected Carpenter.” To be guilty under this statute against any subsequent prosecution for the one must “use” the instrument. Does the same offense. i Chitty, Criminal Law, 170; "procuring” and “advising" the use of instru- Willis v. People, 1 Scam. (I11.) 401." The ments constitute a "use" in violation of this same court, in the case of People v. Hood, 6 section? Section 2045, Snyder's Comp. Laws, Cal. 236, said: “An indictment should set 1909 (Wilson's Rev. & Ann. St. 1903, § 1948), forth the facts and circumstances of the alis as follows: "All persons concerned in the leged offense so that the accused may be precommission of crime, whether it be felony or pared for his defense.” misdemeanor, and whether they directly com

The crime alleged to have been committed mit the act constituting the offense, or aid by the defendant in the case at bar was the and abet in its commission, though not pres use of the instruments with the intent to ent, are principals.” Under this statute all procure a miscarriage. The defendant adof the persons concerned in the use of the in- vised and procured their use, and thereby struments, with the intent to procure the mis- became a principal in the crime; and, uncarriage, would be guilty of using the instru- der the rule announced in the authorities ments, and could be prosecuted as principals. just quoted, it was proper for the indictIt is not necessary that the indictment should ment to set out the facts and circumstances use the exact language of the statute. On the constituting the offense. The facts consticontrary, it is better pleading to describe tuting the offense, so far as this defendant more particularly the acts of the defendant was concerned, were the advising and prowhich constitute the crime. It is a general curing, and, under the allegations here, the rule that it is not sufficient to charge in the defendant was given notice that he was indictment that the defendant has committed charged with having advised and procured, a certain specified crime, but that it must be the use of the instruments with the intent: stated how he committed the crime, by recit- to procure a miscarriage. If the indictment ing the material facts and circumstances con- had alleged in the exact language of the stituting the offense. This rule is announced statute that the defendant did use the inby Joyce on Indictments, $ 241, citing a num- struments, certainly the state would have ber of authorities.

This court, in the case of Weston v. Terri- been permitted, under section 2045, Snyder's tory, 1 Okl. Cr, 407, 98 Pac. 360, said: "In Comp. Laws 1909, above quoted, to prove an indictment for committing an offense that the use consisted of his advising and against a statute the offense may be describ- procuring. There can be no fault in the ined in the general language of the act, but the dictment in alleging, in specific terms, the description must be accompanied by a state- particular acts of the defendant complainment of all the particulars essential to con

ed of constituting the offense. It is to the stitute the offense or crime, and to acquaint advantage of the defendant. By this allegathe accused with what he must meet on the tion he is informed that he violated that trial.” And, in the case of Vickers v. United section, not by using the instruments himStates, 1 Okl. Cr. 452, 98 Pac. 467, this court self, but by advising and procuring their us said: "In framing an indictment the general

As to the failure of the indictment to alrule is 'that the offense shall be so described lege the name of the instrument employed, that the defendant may know how to answer and upon what portions of the body the init, the court what judgment to pronounce, and struments were used, we think the objecthat a conviction or acquittal on it may be tions not well taken. Counsel, for authority pleaded in bar of another indictment for the upon the proposition, cites the case of Cochsame offense.'” The Supreme Court of Cali- ran v. People, 175 Ill. 28, 51 N. E. 845. The fornia announced the same rule in the case indictment in that case was returned under of People v. Aro, 6 Cal. 208, 65 Am. Dec. 503. a statute very different from ours. The The defendant there was charged with mur- statute in Illinois makes the person procurder, and the court said: "Murder is a con- ing or causing an abortion or miscarriage clusion drawn by the law from certain facts, guilty of murder if death ensues, and the and in order to determine whether it has been indictment in that case alleges that the miscommitted, it is necessary that the facts carriage was performed, and by reason of should be stated with convenient certainty. such miscarriage the woman on whom the 'For this purpose the charge must contain a operation was performed then and there died. certain description of the crime of which the The indictment in the case at bar is under defendant is accused, and a statement of the a different statute. Under the statute here facts by which it is constituted, so as to the use of the instrument with the intent identify the accusation, lest the grand jury to produce the miscarriage completes the should find a bill for one offense, and the de-offense, whether the miscarriage is produced

There is another reason why the Illinois Indictments, $ 242, and was observed in the case is not binding on this court. Section case of Wingard v. State, 13 Ga. 396. We 6705, Snyder's Comp. Laws, 1909 (section think the indictment sufficient, and there was 5366, Wilson's Rev. & Ann. St. 1903), is as no error in the action of the trial court in follows: "No indictment is insufficient, nor so holding. can the trial, judgment, or other proceedings The second error complained of is there thereon be affected, by reason of a defect was no corroboration of Ethel Carpenter. or imperfection in the matter of form which Counsel for the defendant insists that Ethel does not tend to the prejudice of the sub- Carpenter was an accomplice with the destantial rights of the defendant upon the fendant, and that the prosecuting witness, merits." The defendant in this case is Mrs. Kate Rose, a sister of Ethel Carpenter, charged with advising and procuring the use and who was present when the operation of the instruments; and, unless that allega- was performed, is also an accomplice, and, tion tends to the prejudice of the substan- under the rule that a conviction cannot be tial rights of the defendant upon the mer- had on the uncorroborated testimony of an its, we are prohibited by this statute from accomplice, the verdict in this case should holding the indictment insufficient. In our be set aside. We are not unmindful of the opinion the language of the indictment does rule that the defendant in a felony case not tend to the prejudice of the substantial cannot be convicted on the uncorroborated rights of the defendant. The proof in the testimony of an accomplice. In this case case is to the effect that Ethel Carpenter was it is not necessary to determine whether Etha pregnant woman; that the defendant was el Carpenter is an accomplice. It is clear the cause of her condition; that the defendant from the evidence as it appears in the caseprocured Dr. Brewer, in the town of Lawton, made that Mrs. Kate Rose was not an acto use certain instruments on Ethel Car- complice, and her testimony was amply sufpenter to procure a miscarriage, and that ficient to corroborate Ethel Carpenter, or, takEthel Carpenter consented to the use of the en alone, would amply warrant the jury in instruments; that the operation was per- finding the defendant guilty. If she had adformed by Dr. Brewer; and that the de- vised, aided, and abetted in the operation she fendant provided her with $50 with which would have been an accomplice. From the to pay the doctor for his services. These mere fact that she was present when the opfacts make the defendant guilty of “using" eration was performed, unless she consentel, the instruments under the provisions of and was there for the purpose of aiding in section 2045, Snyder's Comp. Laws 1909, the operation, and encouraged the same, she above quoted, and the allegation of the in- would not be an accomplice. Her testimony dictment that he did "advise and procure" is to the effect that the defendant arranged could not in any way mislead the defendant, with Dr. Brewer to come to her residence or in any way prejudice his substantial and perform the operation, and that, when rights. The proof further discloses he was she learned of that, she telephoned Dr. Brewnot present when the instruments were used. er that he could not perform the operation at If they were in fact used, as the result of his her residence, and that she advised her sister advising and procuring, the character of against the operation, warning her of the

, the instruments is immaterial, and, since he dangers attached, and urged the defendant was not present, to allege a description of to marry her sister, and that, on her sister's them, or the portion of her body on which earnest request, she accompanied her to the they were used, would avail him nothing. doctor's office, but never at any time conHe was not called upon to defend against sented to it. In our opinion she is not to using any particular instrument, or in any be adjudged an accomplice solely because, particular place he was called upon to de throuģh her sisterly affection, she went with fend against the advising and procuring. The her sister to the doctor's office, when the objects in requiring particularity in setting proof is she did not give her consent to it, out the facts constituting the offense are: but did all in her power to prevent the opFirst, in order to identify the charge, lest eration. The trial court instructed the jury the grand jury find a bill for one offense, that a conviction could not be had on the and the defendant be put upon his trial in testimony of an accomplice, uncorroborated chief for another; .second, that the defend-by other evidence, and the instruction clearant's conviction or acquittal may inure to his ly defines the term "accomplice," and told subsequent protection, should he again be the jury, if they had a reasonable doubt as questioned on the same facts; third, to en- to whether Mrs. Rose was an accomplice, able the accused to determine on the line of they would resolve the doubt in favor of his defense, and prepare for it both as to the defendant and acquit him. There were the law and the facts; fourth, to put it in no exceptions taken to the instruction of the the power of the court to look through the court. This question was properly submitrecord and decide whether the facts charged ted to the jury. are sufficient to support a conviction for a The judgment of the lower court is afparticular crime, and also to regulate the firmed. appropriate punishment for the particular of

ror with case-made attached. There was STEWART et al. v. STATE.

also filed in this court proof of service of no(Criminal Court of Appeals of Oklahoma. Dec. tice upon Geo. G. Graham, county attorney of 1, 1909.)

Cleveland county, and N. E. Sharp, county 1. CRIMINAL LAW ($ 1081*)--NOTICE OF AP- judge of said county, that said defendants

PEAL FROM COUNTY COURT-SERVICE UPON appeal from the judgment to the Oriminal

Under the provisions of section 6949, Sny-Court of Appeals of Oklahoma.
der's Comp. St. 1909, the notice that defendant

The Attorney General's office, on Novemappeals from the judgment is properly served ber 16, 1909, filed a motion to dismiss said upon the county

judge as ex officio clerk of the appeal for two reasons: county court. There is no clerk of the county

"First. Because no notices of appeal were court in the sense that there is a clerk of the district court.

served, as required under the statute.” This [Ed. Note.--For other cases, see Criminal contention is based upon section 6949, SnyLaw, Dec. Dig. $ 1081.*]

der's Comp. St. 1909, which provides that: 2. CLERKS OF COURTS (& 3*)—APPOINTMENT- "An appeal is taken by the service of a noPERMISSIVE STATUTE. Section 1995, Snyder's Comp. St. 1909, au

tice upon the clerk of the court where the thorizing the appointment of clerks for county judgment was entered, stating that the appelcourts, is permissive merely, and there may or lant appeals from the judgment. If taken there may not be a clerk of a county court, at by the defendant, a similar notice must be the option of the county judge with the approval of the board of county commissioners. served upon the prosecuting attorney”-in When a clerk is so appointed, the county judge that the notice of appeal should have been is not disqualified or excused from performing served upon the clerk of the county court, any act that by law he might perform if no and not upon the judge thereof. No contenclerk had been appointed.

[Ed. Note.--For other cases, see Clerks of tion is made that the notice of appeal does Courts, Dec. Dig. $ 3.*]

not comply with the statute in all other re3. CRIMINAL LAW ($ 1099*)–CERTIFICATE OF spects. There is no merit in this objection. SETTLEMENT OF CASE-MADE-SUFFICIENCY. There is no clerk of the county court in the

Section 6951, Snyder's Comp. St. 1909, sense that there is a clerk of the district provides: “The case and amendments shall be submitted to the judge, who shall settle and court. The laws of this state do not require sign the same and cause it to be attested by that there shall be a clerk of the county the clerk or county judge, and the seal of the court. Section 1995, Snyder's Comp. St.

to . tificate of the settlement of a case-made from a 1909, provides: “The county judge may apcounty court is sufficient, when signed and seal point a clerk of the county court in each ed by the judge thereof, without being attested county of this state having a population of by a clerk of the county court.

more than ten thousand inhabitants subject [Ed. Note.-For other cases, see 'Criminal to the approval of the board of county comLaw, Dec. Dig. § 1099.*]

missioners if, in their judgment, said board 4. COURTS (8 43*)-APPEAL-AUTHENTICATION finds that the public interest requires the ap


Section 24, Schedule of the Constitution, pointment of such clerk. Said clerk shall
provides: “Until otherwise provided by law the have authority to issue all process and no-
seal of the probate courts in the counties of tices from the county court, to issue mar-
the territory of Oklahoma shall be the seal of riage licenses, and to perform such other
the county courts." Held, that this clause of
the Constitution, in the absence of other legis- duties, ministerial in character, as are per-
lation, makes the seal of the probate court the formed by the clerk of the district court."
official seal of the county court of said county. This statute is merely permissive, and au-

[Ed. Note.--For other cases, see Courts, Dec. thorizes the appointment of a clerk of the Dig. § 48.*]

county court where the public interest re(Syllabus by the Court.)

quires it. In appeals from county courts

it is sufficient where the notice of appeal has Appeal from Cleveland County Court; N. been served upon the county judge, as he is E. Sharp, Judge.

ex officio clerk of his own court. Fred Stewart and others were convicted of

"Second. Because the judge's signature on disturbing the peace, and they appeal, and the certificates to the case-made is not attestthe State moves to dismiss the appeal. Mo-ed by the clerk, as required by law.” The tion denied.

record shows that the certificate of the setWilliams & Williams and S. A. Norton, tlement of the case-made is attested as folfor appellants. Charles West, Atty. Gen., and lows: "Witness my hand this 19th day of Charles L. Moore, Asst. Atty. Gen., for the September, 1908. N. E. Sharp, County Judge, State.

Cleveland County.” Seal attached bearing

the impress: "Seal Probate Court, CleveDOYLE, J. The plaintiffs in error were land Co., Okl.” “Filed in county court of tried and convicted in the county court of Cleveland county, Oklahoma, Sept. 19, 1908. Cleveland county for disturbing the public N. E. Sharp, County Judge.” Section 6951, peace, from which conviction an appeal was Snyder's Comp. St. 1909, provides: “The taken by filing in this court a petition in er- | case and amendments shall be submitted to

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the judge, who shall settle and sign the same will assume there was no error in permitting the and cause it to be attested by the clerk or change. county judge, and the seal of the court to be

[Ed. Note. For other cases, see Indictment thereto attached. It shall then be filed with and Information, Cent. Dig. SŠ 516-523; Dec.


. the papers in the case. Such original case- 4. CRIMINAL LAW (8789*) "REASONABLE made shall be filed with the petition in er- DOUBT"-INSTRUCTIONS. ror.” As regards the alleged irregularities For an approved definition of "reasonof the seal, section 24 of the Schedule of the able doubt," see definition as set out in the

opinion. Constitution provides : "Until otherwise pro

[Ed. Note.-For other cases, see Criminal vided by law the seal of the probate courts, Law, Cent. Dig. SS 1846–1849, 1904–1922, 1960, in the counties of the territory of Oklahoma, 1967; Dec. Dig. $ 789.* shall be the seals of the county courts.” This For other definitions, see Words and Phrases, clause of the Constitution doubtless contem- vol. 7, pp. 5958–5972; vol. 8, p. 7779.] plates a change by legislative enactment, but 5. CRIMINAL LAW (88 796, 1172*)-APPEALan examination of the acts relating to coun


An instruction to the jury to fix the punty courts discloses the fact that there has ishment on conviction, when not requested by been no legislation on this subject. As we the defendant, is improper; but the verdict view the record, it shows a full compliance will not be set aside for that reason alone, when with the requirements of the statute.

it appears that the punishment fixed was not

excessive, and no showing is made that the deAn appeal to the Criminal Court of Appeals fendant has been in any manner injured. may be taken by a defendant, as a matter of [Ed. Note. For other cases, see Criminal constitutional right, from any judgment Law, Cent. Dig. $$ 1928, 3154–3163; Dec. Dig. against him; and, in a proceeding in error, $$ 796, 1172.*]

SS where the appellant is without fault, this

(Syllabus by the Court.) right cannot be denied by any act of omis- 6. CRIMINAL LAW ($ 1088*)—“RECORD". ON sion, or through the neglect or fault of the APPEAL.

The "record” proper in a criminal action trial court, or any official thereof. Bailey y.

under the Oklahoma statutes includes the inUnited States, 104 Pac. 917. In the case at formation, the plea of the defendant, the verbar. however, we find there has been no dict of the jury, the sentence of the court, the neglect or omission on the part of the trial instructions given by the court, and those recourt, and that the appeal has been properly quested by the defendant, together with all in

dorsements made thereon. perfected.

[Ed. Note.-For other cases, see Criminal For the reasons stated, the motion to dis- Law, Cent. Dig. $S 2746–2751, 2757, 2766,

$, miss is hereby overuled.

2782-2802; Dec. Dig. $ 1088.*

For other definitions, see Words and Phrases, FURMAN, P. J., and OWEN, J., concur. vol. 7, pp. 6008–6014; vol. 8, p. 7781.]


The word “administer” has not a strict

legal or technical import, but is a word in CHANDLER v. STATE.

general use with a common and accepted mean

ing: the primary definition being "to give" (Criminal Court of Appeals of Oklahoma. Dec. (citing Words and Phrases, vol. 1, p. 195). 7, 1909.)

Error from District Court, Seminole Coun1. CRIMINAL LAW ($ 1099*)-APPEAL-CASE

ty; Malcolm E. Rosser, Judge. MADE.

A case-made must be signed and settled J. J. Chandler was convicted of crime, and by the judge who tried the case.

brings error. Motion to dismiss denied, and [Ed. Note. For other cases, see Criminal judgment affirmed. Law, Dec. Dig. $ 1099.*] 2. INDICTMENT AND INFORMATION ($ 119*) - plaint was filed before H. M. Tate, justice of

On the 20th day of January, 1908, com


The information alleges that defendant com- the peace, charging the defendant with an mitted the "crime of attempting to procure an attempt to procure an abortion upon Barabortion.” The charging portion of the in

bara Brown. Upon hearing the defendant formation alleges facts sufficient to charge defendant with the crime of abortion. Held, the was held for appearance before the district words "attempting to procure an abortion" sur- court of Seminole county. The county attorplusage.

ney of said county, on the 4th day of Jan[Ed. Note.--For other cases: see Indictment uary, 1908, filed an information against the and Information, Cent. Dig. $$ 311-314; Dec. defendant, and on the 28th day of NovemDig. $ 119.*]

, 3. INDICTMENT AND INFORMATION (8 161*)— ber, 1908, after the trial had begun, amended AMENDMENTS:

the information by interlineation. The deUnder section 6645, Comp. Laws Okl. 1909 fendant was tried and convicted, and the (section 5307, Wilson's Rev. & Ann. St. 1903), case is before this court on appeal. The Atan information may be amended by leave of torney General files motion to dismiss the court after the trial has begun, where the same can be done without material prejudice to the appeal. defendant, and where the record fails to disclose anything from which prejudice can be in

Davis & Davis, for plaintiff in error. Chas. ferred, and counsel fail to point out any injury West, Atty. Gen., and E. G. Spilman, Asst. done the defendant by such change, this court ! Atty. Gen., for the State.

OWEN, J. (after stating the facts as above). I usual in such matters, stipulated and agreed It appears that this case was tried before that the case-made contained a true, full, Malcolm E. Rosser, at a special term of the and correct copy of all the proceedings in district court of Seminole county, and that the cause. The statute requires the casethe case-made was settled and signed by A. made to be authenticated by the court. The T. West. The Attorney General urges that case of Hodgden v. Commissioners, 10 Kan. the case-made is not properly before this 637, seems to be directly in point. In that court, for the reason that the case-made must case the case-made was never signed or setbe signed and settled by the judge who tried tled by the judge; but in lieu thereof this the case. Section 6074, Comp. Laws Okl. stipulation appears at the close: “This case 1909 (section 4741, Wilson's Rev. & Ann. St. and exceptions is agreed to be correct. S. 1903), provides, among other things, as fol- Atwood, Attorney for Defendants. Theodore lows: “The case and amendments shall be Sternberg, Attorney for Plaintiffs." The submitted to the judge who shall settle and court, in passing on the question, said: “This sign the same, and cause it to be attested by paper is not authenticated as required by the clerk, and the seal of the court to be the statute to constitute it a case-made. The thereto attached. It shall then be filed with signature of the judge is as essential to a the papers in the case." Section 6075, Comp. case as to a bill of exceptions. Without such Laws Okl. 1909 (section 4742, Wilson's Rev. statutory authentication we cannot examine & Ann. St. 1903), among other things, pro- into it. The agreements of counsel cannot vides as follows: "The court or judge may, make a case, or a bill of exceptions. That upon good cause shown, extend the time for can be done only in the manner provided by making a case and the time in which the the Code. As was said by the court in Leoncase may be served ; and may also direct no- ard v. Warriner, .20 Wis. 42: 'We cannot tice to be given of the time when a case permit the stipulation of the attorneys to may be presented for settlement after the take the place of or do away with the nesame has been made and served, and amend- cessity of such signing by the judge. If this ments suggested, which when so made and practice were allowed, attorneys might send presented shall be settled, certified and sign up to this court for decision questions never ed by the judge who tried the cause; * * * raised in the court below, and evencases to and in all causes 'heretofore or hereafter which the attention of the circuit court was tried, when the term of office of the trial never called.' See, also, People v. Ferguson, judge shall have expired or may hereafter 34 Cal. 310; Cohen v. Trowbridge, 6 Kan. expire before the time fixed for making or 388." The motion to dismiss must be sussettling and signing a case, it shall be his tained so far as it relates to the case-made. duty to certify, sign or settle the case in all We find that the transcript is properly berespects as if his term had not expired," etc. fore the court, and the record proper, under This question was presented to the Supreme the transcript, will be considered. The recCourt of the territory of Oklahoma, in the ord proper, under our statutes, includes the case of City of Enid v. Wigger, 15 Okl. 507, information, the plea of the defendant, the 85 Pac. 697. The court in that case said: verdict of the jury, the sentence of the court, "It must be conceded that the settling and the instructions given by the court, and those signing of a case-made by the judge trying requested by the defendant, together with the cause) is the exercise of a judicial power, all indorsements made thereon. Reed v. and a judicial function, and one which the United States, 2 Okl. Cr.

103 Pac. law has conferred upon the judge trying the 371. cause and upon no one else. Another judge, The first assignment is that the court erred while acting as judge of the district, may ex- in entertaining jurisdiction of the cause; the tend the time within which it is to be done; same being a misdemeanor and not a felony. but the judge who tried the case must pass The first count of the information in this upon a motion for a new trial, and must set-case, and the one relied on by the county attle and sign the case when prepared for the torney, is as follows: “Comes now Aubrey Supreme Court.” We agree with the hold- M. Fowler, the duly elected and acting couning of the court in that case. There is every ty attorney within and for the county of reason why the case-made should be settled Seminole, and state of Oklahoma, and inby the judge who tried the case. He alone forms the district court of the Seventh judiknows what proceedings were had. In this cial district of the state of Oklahoma, sitcase Judge Rosser was acting judge for that ting within and for the said county of Semidistrict. The case-made should have been nole, in said state of Oklahoma, that on the signed and settled by Judge Rosser, who 30th day of January, A. D. 1908, the said tried the case. Judge West could not pos- above-named defendant, J. J. Chandler, was sibly have known what took place except upon complaint duly made and verified, from hearsay. It would not be fair to one charging the said defendant with procuring trial judge to permit another judge to sign an abortion, brought before, H. M. Tate, a and settle the case-made. The purpose of justice of the peace within and for said Semsigning and settling a case-made is to pre-inole county, state of Oklahoma, an examsent an authentic record to this court. It is ining magistrate, duly qualified and acting,

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