read such instrument and it did not contain their engagements and agreement. American Ins. Co. v. McWhorter, 78 Ind. 136; Robinson v. Glass, 94 Ind. 211; Green

field's Estate, 14 Pa. 496.

[5] 5. The instructions correctly and fairly state the law. The burden was upon the plaintiff to prove fraud in the securing of the execution of said mortgage by positive and convincing evidence. As a rule fraud is not presumed, and a person signing an instrument is presumed to know its contents, unless the contrary appears by clear, positive, and convincing evidence, and the party signing the instrument cannot escape its legal liability if such party has an opportunity to read the instrument and neglects and fails to do so, and this even is so if false representations may have been made to them as to character and kind of the instrument signed. Moore v. Adams et al., 26 Okl. 28, 108 Pac. 392; Hunter v. Patterson, 142 Mo. 310, 44 S. W. 250; Hochstein v. Bergerhouser, 123 Cal. 681, 56 Pac. 547; Cross v. Dean, 81 Me. 525, 17 Atl. 710; Seeman v. Biemann, et al., 108 Wis. 365, 84 N. W. 490; Baltzer v. Raleigh & Augusta R. Co., 115 U. S. 634, 6 Sup. Ct. 216, 29 L. Ed. 505.

The judgment of the lower court is affirmed. All the Justices concur.

(6 Okl. Cr. 85)

DALTON v. STATE.

to trial by a jury of 12 men, and with his con-
sent may be tried by a jury of 6, but the rec
ord must expressly show his consent thereto.
Dig. §§ 197-203; Dec. Dig. § 29.*]
[Ed. Note. For other cases, see Jury, Cent.

Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.

informed against, tried, and convicted of the crime of having unlawfully in his possession intoxicating liquors with the intention of selling the same.

The plaintiff in error, William Dalton, was

The trial was had without

objection before a jury composed of 6 men. He was found guilty, and on October 30, 1909, was sentenced to serve a term of 30 days in the county jail and pay a fine of $100 and costs, and appeals. Reversed and re

manded.

John A. Remy, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. [1] The only important question which the record presents is whether the court erred in the absence of an objection on the part of the defendant in impaneling a jury of only six persons to try the cause. Section 19 of the Bill of Rights provides: "The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of

(Criminal Court of Appeals of Oklahoma. June twelve men; but, in county courts and courts

6, 1911.)

(Syllabus by the Court.)

not of record. a jury shall consist of six men." In addition to the district courts and county courts provided for in the Constitu1. JURY (4*)-TRIAL BY JURY-NUMBER OF tion, the Legislature created and establishJurors. In all criminal trials in courts of recorded in every county in the state having a popexcept county courts, in which a defendant is ulation of 30,000 or more, and having a city entitled to a jury, the jury must consist of 12 therein with 8,000 or more, a court of civil men. The right to demand in such cases a jury and criminal jurisdiction coextensive with of 12 men is a constitutional right. the county, to be known as the superior court of such county, which shall be a court of record, and providing that such superior 2. JURY (§ 2*)-JURY TRIAL-NUMBER OF JU-court shall have and exercise concurrent juRORS CONSTITUTIONAL LAW.

[Ed. Note.-For other cases, see Jury, Cent. Dig. 88 3-7; Dec. Dig. § 4.*]

The provision in the act creating and establishing superior courts, prescribing "that all misdemeanor cases shall be tried by a jury of six men instead of twelve" (proviso in section 1970, Snyder's Sts.), is unconstitutional.

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 4, 5; Dec. Dig. § 2.*] 3. JURY (§ 10*)-CRIMINAL PROSECUTIONSWAIVER OF JURY.

Section 5435, Wilson's Sts. (section 6774, Snyder's Sts.), providing that in criminal trials "issues of fact must be tried by a jury," is repugnant to section 20, art. 7, of the state Constitution, and therefore was not adopted as a law of the state.

risdiction with the district court and concurrent jurisdiction with the county court in all civil and criminal matters except matters of probate. Act approved March 6, 1909, c. 24, art. 4, Snyder's Sts.

[2] The act further provides, section 1970, Snyder's Sts.: "The procedure in said court shall follow the procedure that is or may be provided for the district court. The juries for said court shall be selected in the same manner as juries for the district court, and the jury commissioners of all counties in which a superior court is created by opera

[Ed. Note.-For other cases, see Jury, Dec. tion of this act, whenever they meet to make Dig. § 10.*]

4. JURY ($ 29*)-JURY TRIAL NUMBER OF JURORS-WAIVER.

jury lists for the district court shall make an additional certified list of jurors of the Upon a trial for a misdemeanor in a susame number as for the district court and perior court, the defendant may waive his right | mark the same, 'Jury List No. 3, for the su

perior court,' and shall deliver the same to | requires the concurrence of at least nine jurthe clerk of the superior court, and said ors to render a verdict, and in felony cases clerk and the sheriff of the county shall se- the concurrence of the full twelve." lect from said list the jurors for the superior court in the same manner as the sheriff and clerk of the district court select jurors for the district court. Juries in said court shall be composed of the same number of men, of the same qualifications as in the district court, and all laws relative to juries and jurors for district courts shall be, and are hereby made applicable to the said superior court. Provided, however, that all misdemeanor cases shall be tried by a jury of six men, instead of twelve, to be selected the same as juries in the district court."

In the case of Hill v. State, 3 Okl. Cr. 686, 109 Pac. 291, it was held that the superior courts created by act approved March 6, 1909, are not "county courts," as the latter term is used in section 19 of the Bill of Rights, even when exercising jurisdiction concurrent with county courts, and the provision in the act prescribing "that all misdemeanor cases shall be tried by a jury of six men instead of twelve," is unconstitution

al and void.

[3] Under the federal Constitution, art. 3, § 2, and the laws of Oklahoma territory (section 5435, Wilson's Sts.), providing "issues of fact must be tried by a jury," the right of a trial by jury could not be waived by a defendant in a criminal prosecution arising before statehood. And section 19 of the Bill of Rights providing that "the right of trial by jury shall be and remain inviolate," considered alone, would preserve the right of trial by jury as it existed at the time of the adoption of the state Constitution, were it not for the fact that our state Constitution further provides (section 20, art. 7): "In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury."

Section 6774, Snyder's Sts. (section 5435, Wilson's Sts.), providing that "issues of fact must be tried by a jury," is repugnant to the foregoing constitutional provision and therefore was not adopted under section 2 of the Schedule of the Constitution as a law of the state. It cannot be denied that the superior court had jurisdiction of the offense and the person of the defendant. Ex parte Whitehouse, 3 Okl. Cr. 97, 104 Pac. 372.

[4] The constitutional charge clause prescribing a jury of 6 men for the trial of misilar provision contained in section 1970, Snydemeanors in the county courts, and the simder's Sts., constitutes at least consent on the part of the state that the defendant may waive his right to a jury of 12, and consent to a trial by a jury of 6 men in a superior court for a misdemeanor. We have no doubt that with the waiver and consent by the defendant, made and shown by the record, a

Justice Richardson delivering the opinion of the court used the following language: "It is a court sui generis. It has the jurisdiction of a district court, and also jurisdiction which the district court does not have. It has concurrent jurisdiction with the county court in certain matters, but not in all, and it has jurisdiction which the county court does not have. It is a court of record other than the county court. The county court referred to in section 19 of article 2 of our Constitution is the county court created by section 11 of article 7 of that same Constitution; and that court is the only court of record in this state in which a jury of six men may be used. The Legislature is pow-legal trial could be had in this case with a erless in the face of the Constitution to provide otherwise. The test is not the character of case to be tried, but the court in which it is tried. See People v. Luby, 56 Mich. 551 [23 N. W. 218], an almost identical case decided by Chief Justice Cooley, one of the greatest of constitutional lawyers. It may be that, tested by reason and logic, the provision should be otherwise; but that is a matter for the consideration of the people in their sovereign capacity of Constitution makers and amenders, and not for us. There is nothing more unreasonable or illogical in this procedure than there is in trying an action for $600 claimed as debt in the district court with a jury of twelve men, while the county court in an adjoining room is trying the very same character of case for the very same amount with a jury of six men. Under the Constitution twelve men constitute a jury in the superior court in all cases, and in civil cases and misdemeanors it

jury composed of 6 men. "Where a constitutional right in a criminal cause is largely for the benefit of the accused or in the nature of a personal privilege, the law is well settled that an accused may waive such right." Starr v. State, 5 Okl. Cr. —, 115 Pac. 365.

Under the constitutional provision and the laws of this state, upon a trial for misdemeanor in a superior court, the defendant may have a choice of three modes of trial; either by a constitutional jury of 12, or by a jury of 6 persons, where he waives his right to a jury of 12, or by the court, the state consenting.

The only statute prescribing how a jury may be waived is section 5808, Snyder's Sts. This provision of the Civil Code provides that a jury trial may be waived with the assent of the court "by written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal."

Section 20, art. 7, of our Constitution is identical with section 13, art. 4, of the Constitution of North Carolina.

In the case of Hahn v. Brinson, 133 N. C. 7, 45 S. E. 359, the court said: "It is provided by the Code that a jury trial may be waived by written consent, in person or by attorney, filed with the clerk, or by oral consent, entered in the minutes, and that, when a jury trial is thus waived, the decision of the judge shall be filed with the clerk during the term of the court at which the trial takes place. * * And as the requirements of the Code and of the rule of this court have not been complied with, we must hold that there was no agreement to waive a jury trial and consequently no consent to the rendition of judgment out of term because there is no legal evidence of the same." In the case of Farmers' National Bank of Tecumseh v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217, our Supreme Court said: "The Supreme Court of North Carolina has never held under such provisions of the Constitution and the enforcing statutes thereto that a jury might be waived de hors the record."

(6 Okl. Cr. 605)

DALTON v. STATE.

(Criminal Court of Appeals of Oklahoma. June 6, 1911.)

Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.

Bill Dalton was convicted of an illegal sale of liquor, and he appeals. Reversed and remanded.

John A. Remy, for plaintiff in error.

PER CURIAM. Bill Dalton, plaintiff in error, was informed against, tried, and convicted of the crime of having unlawfully in his possession intoxicating liquors with the intention of selling the same. Trial was had before a jury composed of six men. He was found guilty, and on October 30, 1909, was sentenced to serve a term of 60 days and pay a fine of $200.

In his motion for a new trial he alleges that the court erred in submitting said cause to a jury of 6 persons instead of impaneling a jury of 12 as provided by the Constitution. The question presented in this case has been passed upon in the case of William Dalton v. State, 5 Okl. Cr. - 116 Pac. 954.

For the reasons given in the opinion in tuat case the judgment is reversed and the cause remanded, with direction to grant a new trial.

ZOLL v. STATE.

(6 Okl. Cr. 603)

court is authorized to try the question of the (Criminal Court of Appeals of Oklahoma. guilt of the accused under a plea of not guilty.

We are of opinion that it is incumbent on the state to show by the record that the defendant waived his right to a constitutional

jury, and consented to be tried by a jury of

six men. This is the law in civil cases, and it certainly cannot be said in reason that in criminal cases where the defendant's liberty is at stake an express waiver of the right to be shown by the record is unnecessary. We are not willing to establish such a rule.

It is a questionable practice for nisi prius courts to take the initiative in holding statutes unconstitutional, and it is a matter of commendation that the superior court passed the important question of the constitutionality of this provision of the statute to the appellate courts.

Our conclusion is that for the reasons stated the lower court erred in overruling the

motion for a new trial.

The judgment is therefore reversed and the cause remanded to the superior court of Logan county, with direction to grant a new trial.

June 6, 1911.)

Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.

in

Joe Zoll was convicted of having liquor

his possession with intent to sell, and

he appeals. Reversed and remanded.
F. H. McGuire, for plaintiff in error.

PER CURIAM. Joe Zoll, plaintiff in error, was informed against, tried, and convicted of the crime of having in his possession intoxicating liquors with the intention of selling the same. The trial was had without objection before a jury composed of 6 men. He was found guilty, and on October 30, 1909, he was sentenced to serve a term of 60 days in the county jail and pay a fine of $200.

In his motion for a new trial he alleges that the court erred in submitting said cause to a jury of 6 persons instead of impaneling a jury of 12 as provided by the Constitution. The question presented in this case has been passed upon in the case of William Dalton v. State, 5 Okl. Cr. -, 116 Pac. 954.

For the reasons stated in the opinion in that case the judgment is reversed and the FURMAN, P. J., and ARMSTRONG, J., cause remanded, with direction to grant a

(5 Okl. Cr. 391)

PICKRELL v. STATE.

(Criminal Court of Appeals of Oklahoma.

May 2, 1911.)

(Syllabus by the Court.)

CRIMINAL LAW (§ 730*)—TRIAL-MISCONDUCT
OF PROSECUTING ATTORNEY.

him any whisky, and that he had never before been arrested.

Several character witnesses testified that the defendant had always borne the reputation of being a law-abiding citizen.

Complaint is made that defendant was prevented from having a fair and impartial After an objection has been sustained to an trial by reason of the misconduct of the improper question propounded on the cross-ex-county attorney, in asking improper quesamination of the defendant, the repeated asking

by the prosecuting attorney of similar questions of witness Davis and of the defendant, tions, notwithstanding the sustaining of the as a witness on his own behalf. Also his objections thereto, and his action in excepting offer, on the part of the state, to introduce to the rulings of the court thereon, constitutes the records of the county court showing the misconduct on the part of the prosecuting attorney, prejudicial to the substantial rights of number of cases pending against one Bonthe defendant, for which a conviction will be durant. reversed, although such conduct was reprimanded by the court, and the jury directed to disregard the same.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*] Error from Grady County Court; N. M. Williams, Judge.

W. N. Pickrell was convicted of violation of the prohibitory law, and brings error. Reversed and remanded.

The plaintiff in error was convicted in the county court of Grady county of the crime of unlawfully selling intoxicating liquor, and was, on November 11, 1908, sentenced to be confined in the county jail for a term of 30 days and to pay a fine of $50. From which judgment he appealed by filing in this court, on February 13, 1909, a petition in error with case-made.

George Turner, the sole witness for the state, testified that he lived in Guthrie, and was employed as a detective in the enforce ment of the prohibition law; that he met the defendant September 6, 1908, on a train going to Chickasha; that the next day, Labor Day, he met him on the street in Chickasha, and started to walk out to the fair grounds with him, and after going part way bought a half pint of whisky from him.

The record is as follows: "Q. You say you
were over to Bondurant's place there? A.
Yes, sir. Q. How many whisky charges are
there against Mr. Bondurant here? (Object-
ed to as incompetent, immaterial, and irrel-
evant. Objection is by the court sustained.)
Q. Were you down here at the pool hall on
Labor Day? A. Yes, sir. Q. Do you know
how many times they have been arrested?
Q. Bondurant.
A. Who?
(Same objection
Cross-examina-

is by the court sustained.)
tion of the defendant: Q. Did you know H.
(Ob-
C. Bondurant before you left here?
jected to as incompetent, immaterial, and ir-
relevant. Objection overruled. Defendant
A. Yes, sir.
excepts.)
Q. Had you ever
A. Yes, sir. Q.
worked for Bondurant?
That was prior to the time you left here?
Q. How many times has Mr.
A. Yes, sir.
Bondurant been arrested for selling whisky?
(jected to as incompetent, immaterial, and
irrelevant. Objection sustained. The state
excepts.)"

In rebuttal the record shows: "The state now offers to introduce the records of the county court, showing the number of cases pending against H. C. Bondurant. The defendant objects and excepts to the misconduct of the county attorney in offering said records, and asks the court to admonish the county attorney not to make any such remarks. The objection is by the court sustained, and the court instructs the county attorney not to make such remarks before the jury; that the introduction of the records is not admissible, and the county attorney should know that they are not, To which ruling of the court the state excepts." Motion for new trial was made on the ground of: "Misconduct of the county attorney in the trial of said cause, prejudicial to the rights of this defendant, and which prevented this defendant from having a fair and impartial trial, which said misconduct consisted of the county attorney repeatedly making offers to introduce testimony tending to show that one H. C. Bondurant had been arrested on charge of selling intoxicating liquors, said offers being made by the county attorney after objections to the

On the part of the defendant, C. C. Davis testified that he and the defendant lived neighbors at Logan, N. M.; that together they returned to Chickasha from New Mexico, arriving the day before Labor Day, and stayed together all the time until they returned from the picnic on Labor Day. The defendant testified that he lived several years in Chickasha before going to New Mexico to homestead land; that he returned to Chickasha with C. C. Davis, arriving the day before Labor Day; that on the train he met a man who he thought was the prosecuting witness, who said he was going to Chickasha, and asked him for a drink; that he told him that he did not have any whisky; that he then asked him if he could buy any whisky at Chickasha, and defendant told him that a man could buy whisky there when he formerly lived there. He further testified that he did not see the prosecuting witness at any time on Labor Day, and did not sell For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

same had been repeatedly sustained by the | will frequently arise about which lawyers court, to which conduct the defendant then and there excepted. Wherefore defendant prays that said verdict be set aside and held for naught, and this defendant be given a new trial."