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place; that I had a right to be there. Chris- trine of these cases has no application to topher hit me, and we mixed up and Christo- the case at bar. It is within the sound dispher threw me down and bumped my head cretion of the trial court to postpone the on the sidewalk, and he let me up and want further taking of testimony on account of ed me to go away. I repeated that I would the absence of witnesses who are expected not go, and I hit him again, and he hit me, to arrive that day on a certain train, and then he wanted me to go away, and I would this discretion will not be controlled by this not.” That he then went home and met court unless abused. In the case of Johnson Doc. Guest. That Doc. Guest said that v. State, 32 Ark. 309, it was said: "After Mr. Christopher had made some threats the state had examined several witnesses, about killing a couple of Havills. That he the court against the objection of the dethen went to Foreman's, and asked Mr. anno fendant suspended the trial, and allowed Mrs. Foreman for a gun. They said "No." the jury to separate from Tuesday until FriThen went to W. J. Jones, and then to Dr. day, that the state might procure the atEllis, and tried to get a gun. Then went tendance of a witness. The suspension of to the sleeping shack and got Jule Hall's the proceedings in a trial is within the gun, a 38 caliber. That he came out of the sound discretion of a court, and we are not house and saw Mr. Christopher with his prepared to say there was any abuse of its hand in his breast, talking to his father. discretion in this case.” See, also, Griffin That he did not understand what he was v. State, 90 Ala. 596, 8 South. 670. saying, That Mr. Christopher pulled his [2] The contention that defendant was gun out in the direction of his father and twice put in jeopardy for the same offense is shot. He was then asked: “Q. Who shot without merit. As we view the record, there first, you or he? A. I cannot tell you. We was not the semblance of error in the rulings both shot at the same time. When I saw of the trial court. In support of their sechim draw his gun I fired.” He also testi- ond proposition, counsel cite the case of fied that he shot two times at Joe Christo- Logan v. United States, 144 U. S. 263, 12 pher in defense of his father and in self- Sup. Ct. 617, 36 L. Ed. 433. In the case defense, and that the third shot was ac- of Hickory v. U. S., 151 U. S. 303, 14 Sup. cidental.

Ct. 334, 28 L. Ed. 170, Mr. Chief Justice

Fuller said: “Under Section 1033 of Rev. Foster & Stephenson, for plaintiff in error. Chas. West, Atty. Gen., and Smith c. Stat. (section 1033, vol. 2, Fed. Sts. Ann. p.

344 [U. S. Comp. St. 1901, p. 722]), any perMatson, Asst. Atty. Gen., for the State.

son indicted of a capital offense has the

right to have delivered to him, at least two DOYLE, J. (after stating the facts as days before the trial, a list of the witnesses above). [1] Counsel for plaintiff in error lu to be produced, and it would be error to put their brief state: "We have elected to re- him on trial and allow witnesses to testify serve only two propositions for the considera- against him whose names have not been tion of this court. They may be thus stated: furnished, if he seasonably asserted his right. The defendant having been placed upon his Logan v. United States, 144 U. S. 263 (12 trial in a court of competent jurisdiction, Sup. Ct. 617, 36 L. Ed. 433). But we think before a jury regularly drawn, impaneled, he did not do that here, and that the defect and sworn, and the trial of his case begun, was waived. It was suggested by counsel he was entitled to have the trial proceed, for the defendant that the objection was and that upon the failure of the state to made as soon as it was discovered that noprove a case against him he then and there tice had not been given in respect to this became entitled to his discharge, and, this witness; but we are of opinion that the disright having been once acquired, he was en- cretion of the trial court was properly extitled to the benefits of the provisions of ercised upon the question.” In the case of the Constitution of the United States and Thiede v. Utah Territory, 159 U. S. 510, 16 the Constitution of the state of Oklahoma Sup. Ct. 62, 40 L. Ed. 237, Mr. Justice Brewagainst being twice put in jeopardy for the er said: “But this section applies to the same offense; and (2), the name and ad- Circuit and District Courts of the United dress of the witness, B. F. Christopher not States, and does not control the practice and appearing upon the list of witnesses served procedure of the courts of Utah, which are upon the defendant prior to the trial, the regulated by the statutes of that territory. presumption of the trial by the examination This question was fully considered in Hornof said witness was erroneous."

buckle v. Toombs, 18 Wall. 648 [21 L. Ed. In support of the first contention counsel 966), and it was held, overruling prior decite the following authorities: State v. Nel cisions, that the pleadings and procedure of son, 19 R. I. 467, 34 Atl. 990, 33 L. R. A. territorial courts, as well as their respec539, 61 Am. St. Rep. 780; State v. Richard. tive jurisdictions, were intended by Congress son, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. to be left to the legislative action of the 238; McCauley v. State, 26 Ala. 135. In territorial assemblies and to the regulations these cases the jury was discharged during which might be adopted by the courts themthe trial over the objection of the defendant selves. See, also, Clinton v. Englebrecht, 13 and a new trial ordered. Therefore the doc-Wall. 434 [20 L. Ed. 659), in which it was held that the selection of jurors in territori- I would render the enforcement of the crimal courts was to be made in conformity to inal laws practically inoperative. the territorial statutes; Good v. Martin, 95 [4] As we view the record, there is nothU. S. 90 [24 L. Ed. 341), in which a like ing of merit in either of the propositions reruling was made as to the competency of lied upon to reverse the judgment. What witnesses; Reynolds v. United States, 98 U. has been said fully disposes of the assignS. 145 [25 L. Ed. 244], where the same rule ments of error argued. However, it apwas applied to the impaneling of grand ju- pears that plaintiff in error shot the deceasrors and the number of jurors; also Miles ed on August 28, 1907, at Millerton, in the v. United States, 103 U. S. 304 [26 L. Ed. 481), Central district of the Indian Territory, and a case coming from the territory of Utah, the deceased six or seren days later died in in which the same doctrine was announced Paris, Tex., of the mortal wound caused by with regard to the mode of challenging petit that shooting. It is for his acts that plainjurors. Page v. Burnstine, 102 U. S. 664, tiff in error is responsible. They constitute 668 (26 L. Ed. 268]. Referring, therefore, his offense. The place where they are comto the territorial statutes, there is none mitted must be the place where his offense which directs that a list of the witnesses be is committed. In contemplation of law, the furnished to the defendant. Section 4925, crime was committed in the Central district Comp. Laws Utah, requires that the names of the Indian Territory where he was indict. of witnesses examined before the grand jury ed. . The anarchist Guiteau shot President be indorsed on the indictment before it is Garfield in the District of Columbia. The presented. There is no pretense that this president was conveyed outside of that judirection was not complied with. In the ab- risdiction, and died in New Jersey. His assence of some statutory provision, there is sassin was tried, convicted, and executed in no irregularity in calling a witness whose the District of Columbia. United States y. name does not appear on the back of the in- Guiteau, 1 Mackey (D. C.) 498, 47 Am. Rep.

247. dictment, or has not been furnished to the

We are of opinion that plaintiff in er

ror has had an eminently fair and impartial defendant before the trial. The action of

trial. The verdict returned by the jury concounsel for defendant in asking that as a favor the names be furnished them indi- firms this conclusion. Manifestly the jury cates their understanding of the extent of

was very lenient. Any one accustomed to defendant's right, and, so far as appears, without being fully impressed with the con

weighing evidence cannot read the record the district attorney fully complied with this viction that this is not a case of justifiable request, and furnished the names as fast as homicide. On the facts which are either adhe was advised that they would be called. mitted, or so clearly established as to be beThere is no suggestion that the defendant yond controversy, the plaintiff in error is at was surprised by the calling of any witness least guilty of manslaughter. or the testimony that he gave. This allega

For the reasons stated, the judgment of tion of error, therefore, is without founda- the district court of McCurtain county is tion.”

therefore affirmed, and the district court is We believe that the admission of the tes- directed and ordered to enforce its judgment timony of the witness Christopher was not herein. prejudicial error. The plaintiff in could not be prejudiced by the testimony of

FURMAN, P. J., and ARMSTRONG, J., this witness. His defense was justifiable

concur. homicide in self-defense, and the proof of the corpus delicti was sufficient without the

(5 Okl, Cr. 301) evidence of this witness. The proposition advanced by counsel that, if error is shown

JOLLY V. STATE. by the record, the conviction must be re

(Criminal Court of Appeals of Oklahoma. versed, whether such error operated to the

March 28, 1911.) prejudice of the plaintitf in error or not,

(Syllabus by the Court.) is not the law. In numerous cases determin- 1. CRIMINAL LAW (8 1144*) — APPEAL - Reed by this court, the contrary doctrine is VIEW-INSTRUCTIONS. announced. The criminal laws of this state

Where an indictment recites that it is premust be enforced; and, if it is not already signed by the county attorney, indorsed "a true

sented by the grand jury, and it is properly understood, it is high time it should be, that bill" by the foreman, and indorsed, “presented where a case is clearly made out against the in open court by the foreman of the grand jury accused, and the jury having so found, this in open court," signed by the clerk and filed by

in the presence of the grand jurors, and filed court will not reverse a conviction for a

the clerk, it will be presumed, in an absence of mere technical error which it can see could a showing to the contrary, that it was duly renot have affected the result.

turned in open court, notwithstanding, that no

entry of the fact is made upon the minutes or Absolute correctness of proceeding cannot journal of the court. be attained, even in our very best courts;

[Ed. Note.-For other cases, see Criminal and the establishment of any other rule | Law, Cent. Dig. $ 3018; Dec. Dig. $ 1144.*]



2. CRIMINAL LAW ($ 1088*)-APPEAL-REC-, of conjoint robbery. The caption and formOBD.

al part of said indictment is as follows: The original indictment and its indorsements constitute a necessary part of the record, "State of Oklahoma, Pittsburg County-ss.: and whatever is properly shown by them is con

"In the District Court of the Fourth Jusidered as shown by the record.

[Ed. Note.-For other cases, see Criminal dicial District ot the State of Oklahoma, Law, Cent. Dig. $ 2746; Dec. Dig. $ 1088.*]

held in and for Pittsburg County, in said 3. CRIMINAL LAW ($ 1088*)-APPEAL-REC-State. State of Oklahoma v. Bill Colbert,

Claud Colbert, John Jolly. Indictment. At Section 6919, Snyder's Sts., provides that the October term, a term of the district the following papers shall constitute the record court of the Fourth judicial district of the of the action: "(1) The indictment and a copy of the minutes of the plea or demurrer. (2) A state of Oklahoma, held in and for Pittsburg copy of the minutes of the trial. (3) The charg- county, in the state of Oklahoma, at the city es given or refused, and the indorsements, if of McAlester, and begun on the 5th day any thereon. And (4) a copy of the judgment.”) of October, in the year of our Lord 1908, the

(Ed. Note.-For other cases, see Criminal Law, Dec. Dig. & 1088.*]

jurors of the grand jury of said county,

good and lawful men, then and there return4. CRIMINAL LAW (1032*)-APPEAL-RES-ed, tried, impaneled, sworn and charged, acERVATION OF GROUNDS or REVIEW.

The authenticity of an indictment should cording to law, to diligently inquire into, and be raised by motion to quash and set aside or true presentment make of, all public offenses by plea in abatement in the trial court. It against the said state of Oklahoma, comcannot be raised for the first time on appeal.

mitted or triable within said county, upon (Ed. Note.-For other cases, see Criminal Law, Cent. Dig. & 2627; Dec. Dig. & 1032.*]

their said oaths, in the name and by the au

thority of the said state of Oklahoma, do 5. CRIMINAL LAW ($ 851*)-Custody Of JUBY present and find that, in said county of - OATH OF BAILIFF-RECORD.

It is no part of the duty of the clerk to Pittsburg, in said state of Oklahoma, on the place on record the formulary of words in 12th day of January in the year of our which the oath to the bailiff is couched.

Lord, one thousand nine bundred and eight.” (Ed. Note.-For other cases, see Criminal

And which indictment has the following Law, Dec. Dig. 8 851.*]

indorsements: 6. CRIMINAL LAW (1039*)--APPEAL_OBJEC

"Indictment. In the District Court of the TIONS AT TRIAL—CUSTODY OF JURY—IRREG- Fourth Judicial District of the State of OkULARITY.

Where a party desires to avail himself of lahoma, Held in and for Pittsburg County. the irregularity of administering the oath to the State of Oklahoma v. Bill Colbert, John bailiff, the attention of the court should be call- Jolly, Claud Colbert. Indictment for Robed to it at the time the oath is taken. (Ed. Note.-For other cases, see Criminal

bery. A true bill. Jacob A. Mercer, ForeLaw, Cent. Dig. $ 2647; Dec. Dig. § 1039.*] man of the Grand Jury.

"Presented in open court by the foreman 7. CRIMINAL LAW (8 1186*) — APPEAL — REVIEW.

of the grand jury in the presence of the It is the duty of the appellate court to give grand jurors, and filed this 28th day of Ocjudgment without regard to technical errors, or tober, 1908. W. B. Riley, District Clerk, by defects, or to exceptions which do not affect the C. L. Hefley, Deputy. substantial rights of plaintiff in error.

T. R. Dean, County (Ed. Note.-For other cases, see Criminal

Attorney. Law, Dec. Dig. $ 1186.*]

“Bail is hereby fixed at $1,500. Preslie B.

Cole, District Judge. (Additional Syllabus by Editorial Staff.)

"Filed in open court Oct. 28, 1908. W. B. 8. CRIMINAL LAW (8 1144*)-APPEAL-REVIEW Riley, Clerk of Court. -PRESUMPTIONS.

"Witnesses:.... Where the record shows that during the trial there was one adjournment, and that the

Upon arraignment, he entered a plea of jury were permitted to separate under the usual instructions until the following morning, and not guilty and demanded a severance, which no objections were made to any instruction giv- was granted. en or to the failure to admonish the jury as re- The facts and circumstances of the case quired by statute, and no such question was presented by motion for a new trial, it will be

are stated in the companion case of Bill Colpresumed on appeal that the jury were duly ad-bert v. State, 4 Okl. Cr. 500, 113 Pac. 558, monished by the court.

and it is unnecessary to repeat them here, [Ed. Note.-For other cases, see Criminal further than to add: The defendant, testiLaw, Cent. Dig. $ 3060; Dec. Dig. 8 1144.*] fying on his own behalf, denied that he parAppeal from District Court, Pittsburg

ticipated in the robbery and professed to County; Preslie B. Cole, Judge.

account for his movements during the night John Jolly was convicted of conjoint rob- of January 12, 1908, by stating that, after

leaving Bill Colbert's house that evening, he bery, and he appeals. Affirmed.

went to a joint where, with several others, John Jolly, the plaintiff in error, was at including a couple of colored women, a botthe October, 1908, term of the district court tle of whisky was drunk, and he then went of Pittsburg county, jointly indicted with with one of the women to an empty house Bill Colbert and Claude Colbert for the crime l and stayed there until late in the night. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Then, returning to Bill Colbert's hotise, he filed with the clerk, and remain in his office met Clyde Colbert and went with him to as a public record." another joint, and from there returned to [3] Section 6919, Snyder's Sts., provides Bill Colbert's house and went to bed about that: "When judgment upon a conviction is midnight. He is, however, not corroborated rendered, the clerk must enter the same upby any witness. He also undertook to ex- on the minutes, stating briefly the offense plain bis possessioin of White's money by for which the conviction has been had, and stating that he won it in a crap game that must immediately annex together and file Sunday afternoon. His cross-examination the following papers which constitute the showed that he had been convicted of a record of the action: (1) The indictment crime and had been but recently discharged and a copy of the minutes of the plea or from the penitentiary at Ft. Leavenworth. demurrer. (2) A copy of the minutes of the

The judgment and sentence were entered on trial. (3) The charges, given or refused, and January 16, 1909. Defendant gave notice of the indorsements of any thereon. And (4) a an appeal and filed a pauper's affidavit and copy of the judgment." asked that the court order a transcript of the There was no question raised by motion record to be furnished for his appeal. to set aside the indictment, or in the motions Whereupon it was ordered by the court that for a new trial and in arrest of judgment, a transcript be furnished at the expense of that said indictment was not found, presentthe county. An appeal was perfected by fil-ed, and filed as prescribed by law, or that ing in this court on January 3, 1910, a peti the grand jury was not drawn and impaneltion in error with case-made attached, to- ed as provided by law. gether with proof of service of notices of Under the provisions of our Criminal Code, appeal.

it is not the duty of the clerk to make an Wiley Jones, for plaintiff in error. Chas. entry upon the minutes or journal of the West, Atty. Gen., and Smith C. Matson, court of the return of an indictment. It is Asst. Atty. Gen., for the State.

the clerk's duty to note on the indictment

that it was presented in open court by the DOYLE, J. (after stating the facts as

foreman of the grand jury, in their presence, above). The assignments of error argued to the court, and to file it, and when so filed in the brief and orally before the court by the original indictment, with all its indorsedefendant's learned and zealous counsel rements, becomes a part of the record of the late to defects in the recitals of the record. case, and whatever is properly shown by the Considered as criticisms of the mode and caption and the indorsements is considered manner of keeping the minutes of the trial, as shown by the record. they are well founded; but, as presenting The indictment in its caption shows that grounds of error for which the judgment it was in the district court of the Fourth should be reversed, they are not well taken. judicial district of the state of Oklahoma, This is our conclusion after a careful ex- held in and for Pittsburg county in said amination of the record:

state; returned and presented at the Octo[1] It is assigned as error that: (1) "There ber term of the district court, convened on is nothing in the record to show that the the 5th day of October, 1908. It is signed by necessary steps were taken, what action was the county attorney of that county and inhad, if any, of the history of the cause, if dorsed by the foreman of the grand jury as there is any history immediately before and

"a true bill.” On the back of the indictment up to the filing of the indictment by the are these indorsements: “Presented in open clerk.” (2) “There is no journal entry or court by the foreman of the grand jury in entry upon the minutes of the court showing the presence of the grand jurors and filed that the indictment when found by the grand this 28th day of October, 1908. W. B. Riley, jury was presented to the court as required Clerk of the Court.” The names of the witby statutes. As to this matter there is no nesses are also indorsed thereon. record entry whatsoever."

[2] The indictment itself being a part of Under these assignments it is contended the record proper, on file with the date and that there is nothing in the record showing manner of its return, the attestation of the when the court convened, where it convened, county attorney and the foreman of the who was the presiding judge, or that the grand jury constitutes it a necessary part indictment was returned by the grand jury of the record by the terms of the statute. in open court, and that any statements ap- The record therefore shows that this indictpearing in the indictment itself not required ment was found and returned in the manner by the statute should be treated as surplus- and by the means prescribed by law. “The age. Such statements cannot be substituted indictment itself being a part of the record for the record which precedes the indict- proper and always on file, certainly when it ment.

is authenticated as in this case by the genuSection 6692, Snyder's Sts., provides that: ine signatures and indorsements of the pros“An indictment, when found by the grand ecuting attorney, foreman of the grand jury, jury, must be presented by their foreman, and the circuit clerk, there can be no quespresumption is that it was lodged in that The fifth assignment is hypercritical. court in the manner and by the means pre- [8] The sixth assignment is that: “The scribed by law." State v. Lord, 118 Mo. 1, record fails to show that, upon the jury be23 S. W. 764. See, also, Beard v. State, 57 ing permitted to separate, they were adInd. 8; Padgett v. State, 103 Ind. 550, 3 monished by the court as required by statN. E. 377; State v. Weaver, 104 N. C. 758, 10 ute." S. E. 456; McKee v. State, 82 Ala. 32, 2 The record shows that during the trial South. 451; State v. Schill, 27 Iowa, 263; there was one adjournment of the court. Cooper v. State, 59 Miss. 267; State v. Crilly, The record further recites that, "it being ad69 Kan. 802, 77 Pac. 701.

journing time, the jury were permitted to In the case of John Hopkins v. State, 4 separate under the usual instructions of the Okl. Cr. 194, 108 Pac. 420, it was said: court until to-morrow morning at 9 a. m., "When an indictment is duly returned as a January 7, 1909." true bill, properly indorsed, and with the sig- No objection was made or exception taken nature of the foreman, the presumption is to any instruction given by the court or to that it was regularly found on legal evidence the failure of the court to admonish the and by the requisite number of jurors. The jury as required by statute. And no such presumption of regularity is in favor of the question is presented by the motion for a new indictment."

trial. The presumption must therefore be The third assignment of error is that: that the jury were admonished by the court “The record fails to show that the appellant that it is their duty not to converse among was present when the jury returned its ver- themselves or with any one else on any subdict, or that he was even present at all on ject connected with the trial, or to form or the second and last day of the trial.”

express any opinion thereon, until the case is [4] It affirmatively appears from the rec- finally submitted to them.” ord that the defendant was in charge of the The seventh assignment is that: “There is sheriff during the trial; that he was present nothing in the record to show that the verwhen the case was called for trial; that the dict of the jury was read to the jury by the trial lasted two days; that he took the stand clerk or inquiry made of them whether it was on his own behalf on the second day; and their verdict.” that he was present in court when the jury No question of this kind is presented in returned their verdict, at which time he was the motion for a new trial, nor does the recremanded back to jail to await sentence. ord show that the defendant requested that This question is raised for the first time in the jury be polled. the petition in error in this court.

The statute requires that, when the jury In the case of Sam Wood v. State, 4 Okl. I appear, they must be asked, by the court or Cr. 436, 112 Pac. 11, this question was pass- clerk, whether they have agreed upon their ed upon, and the authorities fully reviewed in verdict, and, if the foreman answers in the the opinion of the court delivered by Fur- affirmative, they must, on being required, deman, Presiding Judge.

clare the same. Section 6872, Snyder's Sts. The fourth assignment is that: “The offi- Section 6881, Snyder's Sts., provides that: cer in whose charge the jury was placed after “When the verdict is given, and is such as the cause was submitted to them was not the court may receive, the clerk must immesworn as required by the statute.”

diately record it in full upon the minutes, and The record recites the jury retired in must read it to the jury and inquire of them charge of a sworn bailiff to consider their whether it is their verdict. If any juror disaverdict, and thereafter returned into open gree, the fact must be entered upon the mincourt with the following verdict.

utes, and the jury again sent out; but if no [5,6] No objection was made to the form of disagreement is expressed, the verdict is comthe oath when the bailiff was sworn, or at plete, and the jury must be discharged from any other time prior to its presentation in the case." this court. If there was any irregularity in We think the minutes of the trial sutlithis respect, it should and probably would ciently show that the requirements of the have been objected to at the time it occurred. statute were complied with, and a more conIf the form of the oath was defective, the at- clusive answer on this point is that no obtention of the court should have been called | jection was made on the part of the defendto it when the bailiff was sworn so that it | ant to the proceedings had, and, if there was might have been corrected. It is no part any irregularity in this respect, it should of the duty of the clerk to place on record and probably would have been objected to the form of the oath to the bailiff. It is at the time it occurred. It may be observed, only necessary for him to note the fact that however, that a careless disregard to the this officer was duly swor as required by requirements of the statute as to what the law, and upon their recital in the minutes minutes of the trial should show is unparthe presumption will be that the oath was donable. The requirements are simple and properly administered. While the recital in the minutes should show the presence of the the record defectively states this fact, we defendant when the case was called for trial, believe it is sufficiente

and that at each adjournment of the court

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