that he should be discharged from said indictments, cites State v. Sims, 1 Overt. (Tenn.) 253. The defendant in this case was committed for stealing goods out of Potter's store. There was no Attorney General, nor any person to prosecute for the state. Campbell, J., requested the prosecutor to be called. He was, and asked if he had anything to say as to why the court should not discharge the defendant, as his counsel insisted that he had a right to claim his discharge.

"Overton, J. The ninth section of the Bill of Rights secures to the citizen a speedy public trial, and to demand the cause of the accusation against him. The state has omitted to provide an Attorney General since the resignation of the former one. Upon this man's demanding the cause of accusation against him, and that he shall have a trial, and there being no reason shown why he should not, he ought to be discharged. The omission of the state to provide a public prosecutor cannot render the provision of the Constitution inefficient. This circumstance of itself furnishes no ground to keep the prisoner six months longer in confinement."

"Campbell, J. and Powel, J., gave no decisive opinion on this ground, but the prisoner was discharged."

In

This case was tried over a hundred years ago, and is the first case we have found where the right of a speedy trial in a criminal case found judicial determination in this ccantry. The above case in no wise supports the contention of relator in this case. the case at bar the state provided a prosecutor, who, according to his affidavit filed in this case, was always ready, and is now ready, to try the cases of the relator, but was unable to do so for the want of time.

The

Relator cites the case of Newlin v. People, 221 Ill. 166, 77 N. E. 529, an Illinois case. The state of Illinois has a statute requiring that all criminal cases shall be tried within four months of the date of the commitment; failing to do so, confers an absolute right on the person charged with the crime and imprisoned to be set at liberty unless tried within the time limited. It will be observed that under the Illinois statute the person charged with the crime must be imprisoned before he has a right to a discharge after the four months' period has expired. court in said case holds that, where a person charged with crime and imprisoned applies for his discharge, it is not sufficient to say that it was inconvenient or impossible for the judges of the court to hold the term of court at the time fixed by statute, within the four months. It will be observed, also, that under chapter 37, § 57, of the Statutes of Illinois (Hurd's Rev. St. 1908), different judges may hold court for each other, and perform each other's duties where they find it necessary or convenient; and that the right secured to the accused by said statute

made without his consent, dispensing with the services of a jury at a term commencing within four months of the date of the commitment. Thus we find from an examination of the facts in this case that relator's contention is not sustained.

The relator cites the case of People v. Morino, 85 Cal. 515, 24 Pac. 892. This case construes section 13 of article 1 of the Constitution of California, which guarantees a speedy trial to every person charged with crime. The California Revised Code (section 1382) also provides that unless good cause is shown the court must order the prosecution to be dismissed. If the defendant, whose trial has not been postponed upon his own application, is not brought to trial within 60 days after the filing of the indictment or information, this case holds, "that a person against whom information was filed on August 7th, and who was arraigned and pleaded not guilty five days later, was entitled to a dismissal in the case for want of prosecution on motion made the following March, when it appeared he had made no application for a continuance, and no cause for the delay was shown by the prosecution." In this case there was no cause whatever for the delay shown.

People v. Buckley, 116 Cal. 146, 47 Pac. 1009, is also cited and relied upon. In this case information was filed December 27th; defendant arraigned January 4th; demurred on the 11th; demurrer argued 18th, and overruled the 25th. Defendant then pleaded not guilty. Case was called for trial February 12th; defendant obtained a continuance of one day, but the trial did not occur until March 18th. Held, that defendant was entitled to dismissal under section 1382, provided that the prosecution shall be dismissed unless good cause to the contrary be shown. This court also held that the mere statement of the judge, on denying the motion to dismiss, that during the time of delay the court had been wholly occupied with other cases, does not show good cause for the delay. Nor was it good cause that a material witness for the state was absent, unless diligence was shown to procure his attendance.

State v. Kuhn, 154 Ind. 450, 57 N. E. 106, is also relied on by relator. This was a construction of section 1852, Burns' Ann. St. Ind. 1894, and section 1783, Horner's Ann. St. Ind. 1897. These statutes provide that, unless the accused be brought to trial within three terms after admission to bail, he shall be discharged, unless the delay be caused by his own act. Held, that the prisoner, not having been brought to trial within the time prescribed by said statute, was entitled to be discharged.

These cases, with the case of Van Buren v. People, 7 Colo. App. 136, 42 Pac. 599, are all the cases cited and relied on by the relatThis last-named case holds: "The elapse of three full terms of court after the is

or.

ant without application to postpone or delay the trial, entitled him to a discharge, notwithstanding he was out on bail."

All the cases (with a few exceptions) cited by relator upon the subject of the right of his discharge for want of speedy trial are either error or appeal cases, and not manda

mus.

Many courts of last resort have defined the legal meaning of a speedy public trial, but we submit that in none of the states in which this question has found judicial investigation and decision have the facts regarding the condition of the courts been such as existed in the Indian Territory prior to statehood. It is well known to the bar, and public generally, in this state, that a condition existed in the federal courts of the Indian Territory before statehood unprecedented in the history of jurisprudence of the nation. Until about two years prior to statehood only four judges were provided to hold court in the entire territory, comprising the Five Civilized Tribes, and a population of, approximately, 800,000. It will be remembered that said judges had jurisdiction of all classes of criminal cases, from the smallest misdemeanor to capital offenses; and, also had jurisdiction of all civil cases, including chancery and probate matters. It was, therefore, a common occurrence to find upon the dockets of said courts thousands of undecided cases, both criminal and civil. It was, under such conditions, a physical impossibility for said courts to give all the accused speedy trials. It will be conceded that said courts did all in their power to dispatch business; so much so, that the haste in which cases were sometimes disposed of often brought a blush of shame upon the cheek of the members of the bar, the jurors, and spectators. This condition of affairs, combined with the ambition of at least one of the judges of said federal court to dispose of more cases than any of the other judges, caused him to attempt the horrible feat of sentencing 100 prisoners in 100 minutes, and similar travesties upon justice and the forms of law. The government sought to aid the congested condition of the dockets in said courts by appointing, about two years before statehood, four additional judges; but the number of accumulated cases and new cases had so grown upon the dockets of said courts that it was impossible for the additional judges to much relieve the situation. Therefore, in deciding the question of a speedy trial in this case, due regard should be had to all the facts and circumstances. must also be remembered that respondent in this case fell heir, so to speak, to the congested conditions of the docket in his district, and in which the relator's cases are pending; also that, necessarily, delays were caused by the change of the form of government, and the inauguration of the state courts.

It

Many courts of last resort in states where conditions have been much more favorable to the enforcements of the right of a speedy

trial than those existing in this state at this time have defined the legal meaning of a speedy public trial. One of the early cases on this subject is found in the case of Nixon v. State, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601. The first syllabus of this case reads: "By a speedy trial is intended a trial conducted according to the fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and offensive delays manufactured by the ministers of justice." In State, Respondent, v. Huting, 21 Mo. 464, referring to a statute in that state conferring the right of speedy trial, bottom of second syllabus say: "The statute was intended to operate only when there is some laches on the part of the state." In this case the court further holds: "It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment has been found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, while it secures to every person accused of crime to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary efforts, diligence, or exertion from the courts or representatives of the state, nor does it contemplate that the right of a speedy trial which it guarantees to the prisoner shall operate to deprive the state of a reasonable opportunity of fairly prosecuting the prisoner." The right of a speedy trial is necessarily relative; it is consistent with delays, and depends upon circumstances. It secures rights for the defendant, but it does not preclude the rights of public justice. Beavers v. Haubert, 198 U. S. 86, 25 Sup. Ct. 573, 49 L. Ed. 950. "There is no doubt that necessity, either moral or physical, may raise an available exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was intended to be required of it. The Legislature intended to prevent willful and oppressive delay; and it is sufficient that there is no color of imputation of it." Commonwealth v. Jailor, 7 Watts (Pa.) 366.

From the proof it clearly appears that there was pending in the district court of Okmulgee county, at the beginning of the September, 1908, term, 419 criminal cases and 409 civil cases; and that since the admission of Oklahoma as a state more cases have been filed that it has been possible to try; and that it was a physical impossibility, and be

yond the power of physical and mental achievement, to have disposed of all the criminal cases on the docket within the time of the terms of court as fixed by order of the Supreme Court. Ordinarily, a court should require a showing to be made by affidavit, in order to continue cases for the term, when such continuances are objected to by either party; but when a condition of affairs exists that is notorious, and about which, from its very nature, there could be no conflict, the court is authorized, by its own motion, to continue the causes for the term. The regulation of the business of the term is a matter exclusively within the control of the judge, and cannot be interfered with. Ex parte Larkin, 11 Nev. 90; Ex parte Stanley, 4 Nev. 116.

In State v. Enke, 85 Iowa, 35, 51 N. W. 1146, held: Where the trial has not been postponed upon defendant's application, if he be not brought to trial at the next regular term of the court in which the indictment is triable, after the same is found, the court must order the defendant to be dismissed, unless for good cause to the contrary. In this case the record did not show that the accused made objection to the continuance of the case. The court held: "We do not think that it was necessary that the record should show the reason why the case was continued."

In New Jersey the statutes provided that every indictment shall be tried at the term or session in which issue is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof, and, if such indictment be not so tried, the defendant shall be discharged. The Supreme Court, in the case of Patterson v. State, 49 N. J. Law, 326, 8 Atl. 305, where the accused relied upon this statutory provision in support of his motion to be discharged, held that the statute was drafted to effectuate the purpose which the constitutional guaranty of a speedy trial was designed to secure, that the remedy of accused lies in the first instance in the trial court, for the reason that the existence of facts which will afford a just cause for allowance of further time is peculiarly within the knowledge of the trial court, and that nowhere else can the exercise of the discretion be so intelligently discharged.

Judge Cooley, in his excellent work on Constitutional Limitations, says: "It is required that the trial shall be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court." Cooley on Const. Lim. p. 311.

It must appear that the application was made to the trial court for discharge, and that there was an arbitrary and causeless refusal to do so, before a discharge would be ordered by appellate court. It would be presumed that the court exercised discretion in a proper, honest, and judicial spirit; and that sufficient reasons were before the court to

review the exercise of discretion by lower court, unless it appears from the record or proof that the trial court had abused such discretion.

Section 2192, Mansfield's Digest of the Laws of the State of Arkansas, was passed to protect prisoners, and afford them a speedy trial. If, therefore, the state should indict a person and confine him in the prison of the county, or cause him to give bail, as the case may require, and afterwards took no steps to bring accused to trial, and thus lie by and do nothing until the third term after that at which the indictment was found, such delay and neglect on the part of the state will authorize and justify the discharge of accused from such offense. On the other hand, if the state makes every proper and reasonable exertion to bring the accused to trial, yet, from causes beyond the control of the state, the trial may be properly delayed.

A fair and reasonable construction of sections 2192 and 2193 evidently contemplated that the accused is not to be discharged, as a matter of course, after the expiration of three terms, or at any other term, except on application to the court. Upon such application being made, it becomes a question whether the delay resulted from any of the causes which were contained in said section 2193. If the delay was not occasioned by any of the causes within the exception, the court, if so satisfied, should order the relator discharged. But if, however, the court, upon such application being made, should be honestly satisfied that the delay was the result of one of the causes within the exception, it would be the duty of the court to continue the cause until the next term, and hold the accused, unconditionally, to await his trial as long and as often as the state is able to make it truthfully appear that the occasion of the delay is one of the excepted causes enumerated in said section.

The court below is authorized to use its discretion in the disposition of such motion to discharge, unless the accused has made out a case in all respects free from any of the statutory exceptions. Then such court has no further discretionary power to continue the application and motion to discharge should be allowed.

In support of the findings of the court in this case see copious notes to Nixon v. State, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601, and Dillard v. State, 65 Ark. 404, 46 S. W. 533; In re James Dykes et al., 13 Okl. 339, 74 Pac. 506; Ex parte McGehan, 22 Ohio St. 442; United States v. Fox, 3 Mont. 512; State of Iowa v. Enke, 85 Iowa, 35, 51 N. W. 1146; Wood v. Strother, Auditor, 76 Cal. 545, 18 Pac. 766, 9 Am. St. Rep. 249; Ex parte Turman, 26 Tex. 708, 84 Am. Dec. 598; People v. Benc, 130 Cal. 159, 62 Pac. 404; Ex parte Larkin, 11 Nev. 90; People v. Henry, 77 Cal. 445, 19 Pac. 830; Commonwealth v. Adcock, 8

v. State, 57 Ga. 154; State of Utah v. Endsley, 19 Utah, 478, 57 Pac. 430; In re Murphy, (C. C.) 87 Fed. 549.

The proof fails to show laches on the part of the court below in bringing relator to trial -the contrary is shown to be true. At the first term no jury was summoned, and the term so-called (as we above stated) was for the purpose of organizing the state courts, it being the first term under statehood. The second term complained of, the jury was discharged on account of smallpox epidemic, but not until after the witnesses for the state had been subpoenaed in relator's cases for February 10th, of said term, which shows diligence on the part of the officers of the court and respondent to bring relator's cases to trial.

For the reasons herein stated, the peremptory writ of mandamus is denied.

FURMAN, P. J., and DOYLE, J., concur.

WELLS v. TERRITORY. (Criminal Court of Appeals of Oklahoma. Dec. 9, 1908.)

1._INDICTMENT AND INFORMATION (§ 125*)— | INDICTMENT-DUPLICITY.

Under the provisions of Code Cr. Proc. § 224 (Wilson's Rev. & Ann. St. 1903, § 5360), providing that: "An indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment, and the accused may be convicted of either offense"-an indictment is bad for duplicity that charges two distinct offenses in one count-that is, the uttering of a check knowing it to be forged, and the forging of the indorsement thereon and then uttering the same and a demurrer thereto should be sustained.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 339; Dec. Dig. § 125.*]

2. CRIMINAL LAW ( 1165*)—APPEAL-IMMATERIAL ERROR.

Section 482, Code Cr. Proc. (Wilson's Rev. & Ann. St. 1903, § 5618), provides that: "On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." Where the indictment charges that the check was delivered to Katz Bros., a firm composed of Jacob Katz and Isaac Katz, partners,_ doing business under the firm name of Katz Bros., if the check was, in fact, passed to Katz Bros., a corporation, doing_business under the corporate name of Katz Bros., of which corporation Jacob Katz and Isaac Katz were stockholders and officers, such variance is not material.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1165.*]

4. FORGERY (§ 5*) — INSTRUCTIONS - KNOWLEDGE OF ACCUSED.

Under a statute defining the offense of uttering forged instruments knowing them to be forged, it is error to instruct the jury that they should find that defendant had knowledge of the forgery. "If he had notice of any suspicious facts or circumstances which were sufficient to put a reasonably prudent and cautious person upon inquiry, which, if followed up, would have led to knowledge of its forgery, then he would be chargeable with notice of the character of the check."

[Ed. Note.-For other cases, see Forgery, Cent. Dig. § 6; Dec. Dig. § 5.*]

5. FORGERY (§ 47*)-GUILTY KNOWLEdge.

Guilty knowledge that an instrument is forged may be found if the jury is satisfied from the facts and circumstances shown by the testimony that the defendant had reason to believe it was forged; but the inference is for the jury, and does not follow of necessity.

[Ed. Note. For other cases, see Forgery, Dec. Dig. § 47.*]

(Syllabus by the Court.)

Error from District Court, Payne County; before Justice Burford.

Moses Wells was convicted of forgery, and brings error. Reversed and remanded.

Plaintiff in error, Moses Wells, hereinafter referred to as "the defendant," was prosecuted by indictment for the crime of forgery, in the district court of Payne county, Okl. T., at the April term, 1906, which indictment, omitting the formal parts, reads as follows:

"Territory of Oklahoma vs. Moses Wells. Indictment. Of the April term of the district court of the first judicial district of the territory of Oklahoma, within and for Payne county, in said territory, in the year of our Lord, one thousand nine hundred and six, the grand jurors, having been first duly chosen, selected, impaneled, sworn and charged to inquire of the offenses against the laws of the territory of Oklahoma, committed within said county, in said territory of Oklahoma upon their oath aforesaid, in the name and by the authority of the territory of Oklahoma, do find and present: That at and within said Payne county, in said territory, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five, Moses Wells, late of the county aforesaid, on the twenty-fifth day of July, in the year of our Lord one thousand nine hundred and five in the county of Payne and territory of Oklahoma aforesaid, then and there being, did then and there unlawfully and feloniously sell, exchange and deliver to Katz Brothers, a firm composed of Jacob Katz and Isaac Katz, partners, doing business under the firm name of Katz Brothers, for the consideration of about thirteen dollars of good and lawful money of the United

States and of the value of about thirteen dollars, the exact value and description of which is to the grand jurors unknown, and various articles of clothing, goods, wares and merchandise of about the value of eight dollars, the exact description and value of which is to the grand jurors unknown; a forged and counterfeited check of the tenor, purport and effect following: 'Billings, Oklahoma, July 18, 1905. No. 8. Citizens' Bank of Billings: Pay to Paul Brown, or bearer, $21.00. Twenty-one Dollars. H. Biffer. (Shadinger Ptg. Co. Abilene, Kan.)'-which instrument had endorsed on the back thereof, 'Paul Brown,' with the felonious intent to have the same uttered and passed, and he, the said Moses Wells, before delivering said forged and counterfeited check to Katz Brothers, wrote and indorsed on the back thereof the name 'Paul Brown,' and he, the said Moses Wells, at the time he so sold, exchanged and delivered the said forged and counterfeited check to said Katz Brothers, knew the same to be forged and counterfeited, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the territory of Oklahoma."

To this indictment the defendant entered a general demurrer, which was, by the court, overruled, to which ruling of the court the defendant excepted. The case coming on for trial by a jury, the territory offered its evidence and rests. Whereupon the defendant moved the court to direct a verdict of not guilty, for the reasons: First, that the evidence offered by the territory is not sufficient to sustain a verdict of guilty; second, that there is a fatal variance between the allegations of the indictment and the proof offered in the case-which motion was, by the court, overruled, and the defendant excepted. Evidence was then introduced by the defendant and the territory, and the defendant renewed his motion to direct a verdict, which motion was overruled, and exception taken. The court instructed the jury, arguments were made by counsel, and the jury retired to deliberate, and thereafter returned into court their verdict, which was a general verdict of guilty. Motion for new trial was regularly made, and on the 23d day of April, 1906, the court overruled said motion; to this the defendant duly excepted. The court then sentenced defendant to confinement in the territorial penitentiary for a term of two years, to all of which the defendant duly excepted, and gives notice of an appeal, which appeal was duly perfected to the Supreme Court of the territory of Oklahoma. Upon the admission of Oklahoma as a state, the cause was transferred to the Supreme Court of Oklahoma. Under the provisions of the act creating the Criminal Court of Appeals, the cause was transferred to, and is now before, this court for review.

Lowry & Lowry, for plaintiff in error. W.

W. C. Reeves, Asst. Atty. Gen., for the Territory.

DOYLE, J. The first assignment of error relied on by the defendant to reverse this case is the overruling of the defendant's de murrer to the indictment. The third ground of said demurrer is as follows: "(3) That said indictment upon its face attempts to charge more than one offense against the laws of the territory of Oklahoma." Section 22 224, Code Cr. Proc. (Wilson's Rev. & Ann. St. 1903, § 5360), prescribes that an indictment must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment, and the accused may be convicted of either offense.

We believe the indictment is bad for duplicity, in charging two distinct offenses in one count; that is, the uttering of the check, knowing it to be forged, and the forging of the indorsement thereon, and then uttering the same. The offenses are distinct, arising upon different acts, and each constitutes the offense of forgery in the second degree. Under the foregoing provisions of the Code, it was necessary to set forth the separate counts, the uttering and the selling or exchanging of said check, knowing it to be forged, and the forging of the indorsement thereon, and the selling, exchanging, and delivery with the forged indorsement. It is a general rule that when a statute makes it an offense to do some one or another act, naming them disjunctively, either of which would constitute one and the same offense, the acts may be charged conjunctively in one count as constituting a single offense, and it has been held that: "Where the making and uttering of a fictitious instrument is one continuous transaction, they may be properly charged in one count as a single offense." 19 Cyc. p. 1410; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50; Selby v. State, 161 Ind. 667, 69 N. E. 463; State v. Greenwood, 76 Minn. 207, 78 N. W. 1044, 1117. Having examined the foregoing cases, we think there is a distinctive difference between these cases and the case at bar. "Possession of forged paper by a defendant with a claim of title thereunder, if unexplained, raises a conclusive presumption that he forged it, or procured it to be forged." 19 Cyc. p. 1412. "Nevertheless, proof that the defendant uttered a genuine instrument, with forged indorsement in blank by the payee thereof, raises no such presumption." 19 Cyc. p. 1413. In the case of Miller v. State, 51 Ind. 405, Worden, J., in part, says: "We do not think it can be laid down as a rule of law that the uttering and publishing as true of a commercial instrument, with the name of the payee forged thereon, raises a