the absence of any statutory provision or | either in abatement or in bar of the second implication to the contrary, a deputy clerk indictment. The indictment having been leis authorized to perform any official minis-gally returned into court, it was the duty of terial act that may be done by his principal, the court to dispose of it, just as if the inexcept to make a deputy. Thus it has been formation was not pending. held that a deputy clerk may administer oaths, take affidavits and acknowledgments, take claims of witnesses for attendance, approve bonds, make certificates, issue and test writs, draw the names of grand jurors, and order the seizure of personalty in an action of claim and delivery." The defendant filed an application to take evidence in support of his motion to set aside the indictment. This application was based on section 5399, Wilson's Rev. & Ann. St. 1903, which is, in part, as follows: "To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, the defendant may file his application before any court of record in the county, setting out and alleging that he is indicted in the district court, naming it, and setting out a copy of his motion to set aside the indictment, and alleging all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof." It will be observed that the statute in express terms states that this application must allege "all under oath." The affidavit in this case fails to comply with this statute, because it does not allege that the facts stated in the application are true. It was therefore not sufficient to authorize the court to make an order to take evidence in support of the motion to set aside the indictment. Two things must concur before a court would be authorized to make the order prayed for: First, The facts alleged in the application must be sufficient, if true, to set aside the indictment-which we have held was not true of the application in this case. Second, The affidavit must state that the allegations made in the application are true. This is not done in the affidavit. For these reasons there was no error in the action of the court in overruling the motion and refusing to take evidence. Third. Defendant complains that the trial court erred in overruling his application for a continuance. The first ground relied upon was that there was then pending in the probate court of Payne county an information against defendant for the same offense, and that defendant had an agreement with the county attorney that the case so pending in the probate court should be continued to await the result of some other case pending on appeal in the Supreme Court of the territory. It is almost universally recognized that a grand jury can find a valid indictment against a defendant, notwithstanding the fact that another indictment or information is pending against the accused for the same offense, and the pendency of the other indictment or information, when there has The second ground relied upon for the continuance was the absence of R. B. Bryan, who was alleged to be a material witness for the defendant, and who was at that time in the territory of New Mexico. There are two objections to the motion for a continuance: First. It does not allege that the defendant could not prove, by other witnesses, the same facts desired to be proven by the absent witness. In the case of Murphy et al. v. Hood & Lumley, 12 Okl. 595, 73 Pac. 261, the Supreme Court of Oklahoma Territory held that this omission was fatal to an application for a continuance. While we concur in this view as a general proposition, yet we do not desire to be understood as holding that it should be enforced in all cases. It might occur that cases may arise in which the testimony of an absent witness might be intrinsically more valuable than that of other witnesses available. When such contingency arises, the application for a continuance should state the facts fully which would take the case out of the general rule. Secondly. The application for a continuance, omitting the question of diligence, stated that: "This affiant believes said witness will prove the following facts, to wit: That the said R. B. Bryan, on the 12th day of May, 1906, was a resident of the town of Glencoe, Payne county, territory of Oklahoma, and the owner and proprietor of a drug store in said town, and that Bryan Reed worked for him as a clerk in said drug store; that said R. B. Bryan was then giving his personal attention to said business, and was in his said store as usual on the 12th day of May, 1906, and that his said clerk, Bryan Reed, was present in the store on that day; that he is well acquainted with James Hoggatt, and that said person did not purchase or obtain any whisky or any spirituous or intoxicating liquor on said 12th day of May, 1906, or at any other time, from any one in said drug store or from Bryan Reed; that said R. B. Bryan and Bryan Reed were both present in the store at work together throughout said 12th day of May, 1906, as upon other days, and that said R. B. Bryan would have seen said James Hoggatt if he had obtained or purchased any whisky or other intoxicating liquor from said Bryan Reed on said day or at any other time." It is seen that the evidence of the absent witness, as set out in the application for the continuance, consisted so far as this case is concerned, in statements of negative conclusions of fact, and that it shows upon its face that if this defendant was not guilty of the offense charged there was better evidence of this than that on account of which the continuance was sought. No attempt was made and a continuance on account of his absence | cise the power of inspection through the was not sought. There was therefore no er ror in the action of the court in overruling the application for a continuance. Fourth. It appears from the record, that upon the trial of this cause a government witness produced a bottle which he testified contained whisky, and identified it as being the bottle of whisky that he had purchased from defendant. This bottle was introduced in evidence, and the jury were permitted to look at and smell the contents of the bottle. To all of which the defendant duly objected and excepted. Counsel in their brief say "the evidence must either be oral or written, and the jury cannot act as witnesses as well as triers of facts." It is true that counsel cite cases from the Supreme Courts of Kansas and Alabama in support of their position, but we cannot agree with their contentions. Both upon reason and authority we submit that there are three channels through which tribunals of fact receive evidence, namely, inspection, documents, and oral testimony. No jury ever decided any controverted question of fact without using one or more of their five senses. The senses of hearing and sight are used in every case for more purposes than that of simply seeing the witnesses and hearing their words. Through these senses impressions are made upon the minds of the jurors which cause them to accept as true, or reject as false, the statements made by the several witnesses. Thus the exercise of these senses, on the part of the jurors, affects their verdicts. But this does not make them witnesses in the case. They have simply tested the credibility of the witnesses by the personal experience and observations of the jurors. A thousand things in the lives and observations of the jurors may influence them in doing this, but a knowledge of these things has never been regarded as making the jurors witnesses in the case. In this case the jurors were permitted to smell the contents of the bottle offered in evidence, to enable them to decide as to whether the prosecuting witness had told the truth about its being whisky. By this the jurors did not learn any facts independent of the evidence; they simply tested the facts in evidence by the use of one of their senses. Or, in other words, they were permitted to hold an autopsy on a part of the evidence already be fore them, to test its true character. Our statute permitting the inspection of places and premises, referred to in the evidence, when, in the opinion of the court, such inspection will promote the ends of justice, clearly recognizes the right of the jury to receive evidence by inspection. If this is true with reference to places and premises, which cannot be incorporated in the record or introduced in evidence before the jury in the courtroom, why should it not be true as to any other object or thing which is introduced in evidence before the jury, under the direc sense of sight, why should they not exercise the power of inspection through any or all of their other senses? We hold that they have this power as to all objects and things introduced in evidence before them, subject to the discretion and control of the trial court, a proper understanding of which depends upon the common experience of men. In a matter requiring expert knowledge this would not be true. We are fully sustained in these views by the following authorities: "In by the jury, or autoptic evidence, at length, 17 Cyc. p. 290, is as follows: "The tribunal of fact receives evidence through three channels-inspection, documents, and witnesses. which the tribunal cognizes with its own Evidence gained by inspection covers facts senses; sees, hears, smells, tastes, or otherwise perceives for itself." This question of the right of a party to introduce autoptic evidence, which is the same thing as inspection by the jury, came up in the case of Gentry v. McGinnis, 3 Dana (Ky.) 382, 386. This case involved the question as to whether the plaintiff was a white or a negro woman. Chief Justice Robertson said: "The counsel denies that personal inspection by the jurors on the trial is proper or allowable evidence. * To a rational man of perfect organization the best and highest proof of which any fact is susceptible is the evidence of his own senses. This is the ultimate test of truth, and is therefore the first principle in the philosophy of evidence. Hence autopsy, or the evidence of one's own senses, furnishes the strongest probability, and indeed the only perfect and indubitable certainty, of the existence of any sensible fact. * rors), when they decide altogether on the testimony of others, do so only because the fact to be tried is unsusceptible of any better proof. Their own personal knowledge of the fact would always be much more satisfactory to themselves, and afford much more certaintv of truth and justice. * * policy of having a jury of the vicinage; and hence, too, jurors have not only been permitted, but required, to decide on autoptical examination wherever it was practical and convenient." (Ju Hence the Wharton on Criminal Evidence (9th Ed.) § 312, is as follows: "The remains of a deceased person may be produced, when in a fit condition, for the purpose of showing the na smelling it could not give evidence to their fellow jurors without being sworn. There is nothing in the record showing or tending to show that any of the jurors smelled or drank of it, nor is there any evidence that the bottle was placed in their hands for examination. The record is entirely silent upon that subject; but, even if it had been handed them and they had tasted it, we think it would not have been error." which an offense is alleged to have been com- | ions of its properties, as to whether it was mitted; all clothes of parties concerned, hard or fermented cider, those tasting or from which inference may be drawn; all materials in any way part of the res gesta may be produced at the trial of the case. Injury to the person may also be proved by inspection. Thus in an action to recover damages for an injury to a limb, the injured limb may be exhibited on trial, to be inspected by the court and jury, while the surgeon who was employed to set it testifies as to the injury. When the issue is infancy, on an indictment, the court and jury may decide by - inspection, and so when the question arises as to the color of a person. On an issue of bastardy, the jury may judge of likenesses by inspection; and so on an issue of adultery, for the purpose of connecting a child with a putative father." In Commonwealth v. Stevens, 142 Mass. 457, 8 N. E. 344, the court said: "The small bottle of whisky produced by the witness Pease was properly admitted in evidence; it being identified as. the whisky which he bought of the defendant." In State v. McCafferty, 63 Me. 224, Justice Dickerson, in rendering the unanimous opinion of the court, said: "The leave granted to the jury by the court to take to their room a bottle of the liquor introduced in evidence, not as the liquor seized, but as liquor manufactured and sold by the same person under the same name as the liquor seized, was unobjectionable, coupled with the instruction to the jury not to consider the qualities of such liquor unless they should find from the evidence in the case that it was the same kind as that seized." We think that the court went too far in permitting the jury to take to their room the bottle of liquor introduced in evidence, on account of the danger of abuse of the privilege. In the absence of a statute to the contrary, the jury should not be permitted to have any kind of beer or intoxicating liquor in their room. In the case of People v. Kinney, 124 Mich. 486, 83 N. W. 147, the Supreme Court of Michigan held that: "After Mahoney had given his testimony, the prosecution offered the bottle of cider in evidence. Counsel for respondent objected to this offer on the ground that it was incompetent, irrelevant, and immaterial. The court said: 'Unless the evidence in this case shows that the contents of this bottle is in the same condition it was on October 5th, it would be of no value as evidence; but, if the evidence has any tendency to show it in the same condition, it would be admissible.' It was received in evidence, and the court then said: "There is a tumbler, gentlemen, if you want to taste of it-any of you.' Respondent's counsel objected to these remarks of the court instructing the jury that they might taste it. The argument of respondent's counsel here is that if the jury, by tasting it, smelling or drinking it, as they were ordered by the court, In Schulenberg v. State, 112 N. W. 304, the Supreme Court of Nebraska said: "The authorities are somewhat in conflict as to the propriety of permitting jurors to taste of liquor in prosecutions of this character, and the question has never before been in this court for determination. The Appellate Court of Kansas in State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 689, held that it was error to permit jurors to taste of liquor produced in evidence. The reasoning seems to be that the jurors thus obtained private grounds of belief, and that, after tasting of the liquor, they were properly witnesses in the case and disqualified as jurors. We are unable to concur in that reasoning. If a belief founded on the evidence during the progress of a trial can be held to be a private ground of information, then it may be so held because of a belief founded on any class of evidence. In Commonwealth v. Brelsford, 161 Mass. 61, 36 N. E. 677, it is said: "There are grave reasons against giving liquor to a jury to drink for the purpose of determining whether or not it is intoxicating.' We entirely agree with the sentiment there expressed, where such course is taken by direction of the court, express or implied. The tasting should not be compulsory." In the case of Weinandt v. State (Neb.) 113 N. W. 1041, it is held that, "While the court would have no authority to direct or compel the jury to taste or sample liquors, it was not error to permit them to taste thereof if they so chose." When the trial court is of the opinion that the ends of justice will be advanced by permitting the jury to examine or inspect anything that has been introduced in evidence, the court may permit this to be done, but the examination or inspection must be in open court, and in the presence of the defendant, and at all times subject to the control of the court. Our statute, permitting an inspection by the jury of places or premises, when in the judgment of the court the ends of justice will be promoted thereby, is simply an extension of the power of inspection to places and premises which cannot be brought into court. Thus we see that our statute recognizes, indorses, and extends the power of inspection. There was no abuse of the power of the trial court in permitting the jury in this case to smell the contents of the bottle introduced in evidence. the least inconvenience, whereas, if proof of the negative were required, the inconvenience would be very great.' Another view advanced by the court in Georgia is that a plea of 'not guilty' to a charge of selling without license amounts to an allegation of selling with license, and the rule applies that he who alleges affirmative must prove it, especially if it is peculiarly within his knowledge." Finding that no material error was committed on the trial of this case, the judgment is in all things affirmed. BAKER and DOYLE, JJ., concur. PATRICK v. STATE. (Supreme Court of Wyoming. Dec. 22, 1908.) TIONS PRESENTED-ABSENCE OF BILL OF EX- On error to the Supreme Court without a bill of exceptions, only error on the face of the record can be considered, and where the record contains the information, plea of guilty, the judgment, motion in arrest, and order denying same, only the sufficiency of the information and the jurisdiction of the trial court can be considered. [Ed. Note.-For other cases, Law, Cent. Dig. §§ 2803-2827; Dec. Dig. § see Criminal 1090.*] was not proven in this case. The indictment | profession, or the like. Here the party, if laid the venue in Payne county, territory of licensed, can immediately show it without Oklahoma. The witness Pennington testified that the whisky was purchased from the defendant in Glencoe, Okl., and that defendant was a clerk in the drug store of R. B. Bryan, which drug store was in Glencoe, Okl. C. E. Donart testified that he was deputy clerk of Payne county, and that the record did not show that R. B. Bryan had a license to retail malt, spirituous, or vinous liquors in Glencoe, Okl., on the 12th day of May, 1906. The courts of this state take judicial notice of the boundaries of the state and of counties in the state, and also of the geographical position and location of cities and towns within their jurisdiction. Harvey v. Territory, 11 Okl. 163, 65 Pac. 837. Under this rule the evidence in the case was sufficient to support the venue of the case. Sixth. The defendant complains that there was no sufficient evidence that R. B. Bryan did not have a license to retail malt, spirituous, and vinous liquors. The deputy county clerk testified that the records of his office did not show that any such license had been granted to R. B. Bryan. We are at a loss to know how any better proof of a want of license to retail liquors could be made than was made in this case. Black on Intoxicating Liquors cites and discusses all of the authorities, and then, on page 507, sums up as follows: "The rule established by the vast preponderance of authority is that, in cases where a license to sell, if produced and relied on, would constitute a complete defense to the action, the prosecution is not bound to produce any evidence in support of the negative allegation that the sale was made without license, but, on the contrary, the defendant must assume the burden of proving that he was licensed. Various reasons have at different times been advanced in support of this rule. Thus, Dr. Bishop thinks that a prima facie case is made out for the prosecution, without evidence on this point, by the presumption that the defendant belongs to the general mass of people, who are unlicensed, rather than to the exceptional class of license holders, and that, as there was certainly a time when he was not licensed, the presumption of continuance applies, which presumptions the rule requires him to overcome by proof. But we believe the rule is sufficiently justified by considerations of convenience and reasonableness. It is a general and well-settled principle that: 'Where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor; as, for selling liquors, exercising a trade or 2. INDICTMENT AND INFORMATION (§ 119*) – SUFFICIENCY OF ACCUSATION-SURPLUSAGE. Rev. St. 1899, § 2090. as amended and reenacted by Sess. Laws 1905, p. 150, c. 98, § 4, makes it unlawful to bring into the state any sheep infected with scab, or other infectious disease, and an information charged accused with bringing diseased sheep into the state, and also causing such sheep to be brought into the state. Held that, since the crime was sufficiently charged, the allegation that accused caused the sheep to be brought into the state was mere surplusage, and by the express provision of Rev. St. 1899, § 5301, did not render the information invalid. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 311, 313; Dec. Dig. § 119.*] 3. INDICTMENT AND INFORMATION (§ 196*) WAIVER OF DEFECTS-SUFFICIENCY OF ACCUSATION. In a prosecution under Rev. St. 1899. § 2090, as amended and re-enacted by Sess. Laws 1905, p. 150, c. 98, § 4, making it unlawful to in the information, in alleging that accused causbring infected sheep into the state, any defect ed sheep to be brought into the state in addition to alleging that he brought them in, was waived by pleading to the merits. and Information, Dec. Dig. § 196.*] [Ed. Note. For other cases, see Indictment 4. CRIMINAL LAW (§ 273*)-PLEADING-PLEA OF GUILTY-SCOPE. A plea of guilty admits all facts sufficiently pleaded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 631; Dec. Dig. § 273.*] 5. CRIMINAL LAW (§ 273*)—PLEADING-PLEA OF GUILTY. In a prosecution charging accused with bringing sheep into the state which were in fected with scab, a plea of guilty admitted the | pay a fine of $725, and costs. From that bringing of the sheep into the state, and that judgment he brings the case here on error. they were so infected. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 631; Dec. Dig. § 273.*] 6. COMMERCE (§ 52*)-SUBJECTS OF REGULATION-IMPORTATION OF ANIMALS "REGULATION OF INTERSTATE COMMERCE.' "" Rev. St. 1899, § 2090, as amended and reenacted by Sess. Laws 1905, p. 150, c. 98, § 4, making it unlawful to bring infected sheep into the state, is not a regulation of interstate commerce, in violation of the federal Constitution, but is a reasonable exercise of the state's police power. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 49; Dec. Dig. § 52.* For other definitions, see Words and Phrases, vol. 7, pp. 6047-6049; vol. 8, p. 7782.] There is no bill of exceptions in the case, and hence the only alleged errors that can be considered here are such as appear upon the face of the record. The record contains the information, the plea of guilty by the defendant, the judgment, and what is entitled a motion in arrest of judgment, and the order of the court denying said motion. The assignments of error, as contained in the petition in error, are: "(1) The district court of Natrona county was without jurisdiction of the subject-matter of said prosecution. (2) The said information filed herein on December 8, 1906, wholly failed to state facts which con 7. CRIMINAL LAW (§ 1130*)-APPEAL AND ER-stitute any violation of the laws of Wyoming. BOR-BRIEFS-QUESTIONS RAISED. Plaintiff in error contended that a statute making it unlawful to bring infected sheep into the state was unconstitutional because of some defect in its title, and in his brief cited a constitutional provision which did not refer to the title of an act, and quoted another constitutional provison incorrectly, and also cited another statute, which he stated was amended by a certain act; but the alleged amending act did not refer to such statute and related to an entirely different subject. Held, that the brief was so unintelligible that no question was raised. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1130.*] 8. CRIMINAL LAW (§ 108*) INFECTED ANI MALS-PROSECUTIONS-JURISDICTION. Rev. St. 1899, § 2090, as amended by Sess. Laws 1905, p. 150, c. 98, § 4, making it unlawful to bring infected sheep into the state, prohibits bringing such sheep into any part of the state, so that the district court of an interior county to which infected sheep were shipped would have jurisdiction of a prosecution under the statute. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 108.*] Error to District Court, Natrona County; Charles E. Carpenter, Judge. Eugene W. Patrick was convicted of bringing infected sheep into the state, and he brings error. Affirmed. BEARD, J. An information was filed by the county and prosecuting attorney of Natrona county in the district court of that county charging the plaintiff in error, E. W. Patrick, with the crime of bringing into the state sheep that were infected with scab; the charge contained in the information being as follows: "That E. W. Patrick, late of the county aforesaid, on or about the 6th day of December, A. D. 1906, in the county of Natrona in the state of Wyoming, did willfully and knowingly bring into the state of Wyoming and county of Natrona, and did willfully and knowingly cause to be brought into the county and state aforesaid, 188 head of bucks; the said bucks being then and there infected with scab." To this information he pleaded guilty and was sentenced to (3) The court was without jurisdiction to give judgment. (4) The court erred in overruling the motion of defendant in arrest of judgment. (5) The court erred in overruling the motion of defendant to set aside his plea of guilty.” In the absence of a bill of exceptions, it is clear that this record presents but two questions, viz.: The sufficiency of the information to state an offense; and the jurisdiction of the district court of the subject-matter of the action. The statute upon which the information is based is section 2090, Rev. St. 1899, as amended and re-enacted by section 4, c. 98. p. 150, Sess. Laws, 1905, and is as follows: "It shall be unlawful for any person to bring into this state any sheep infected with scab or any other infectious or contagious disease, or that have in any manner been exposed to such disease. If any person shall violate the provisions of this section, he shall, upon conviction thereof, be for a term of not exceeding sixty days or a punished by imprisonment in a county jail fine of not less than five hundred nor more than one thousand dollars, or both." It is argued that the information is bad because it alleges that the defendant brought diseased sheep into the state, and also that he caused them to be brought in, and that the court could not know by defendant's plea which of these acts he committed, and that the latter is not a violation of the statute. It is not claimed that the information does not sufficiently charge the offense of bringing diseased sheep into the state, and, if it be true that the fact that he only caused them to be brought in is no crime, then that allegation was mere surplusage, and by the express provision of our statute "no indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected: For any surplusage or repugnant allegation where there is sufficient matter alleged to indicate the crime or person charged." Section 5301, Rev. St. 1899. And, again, the objection is to the manner in which the offense is charged, and the defect, if any, was waived by |