rated in the statutory definition of the offense. These were not mere matters of defense; they constitute an essential element of the offense, as defined by statute. Where a negative averment is an essential and material part of the description of an offense, such negative averment must be made. 22 Cyc. 344; 14 R. C. L. 188; 6 Ann. Cas. notes 726 et seq. Mrs. Wright, the mother of Felicia, testified that her daughter was eight years of age, and that she, the mother, had been giving the child instruction in the branches taught in the public school for a period of about five hours each day. The mother was a graduate of a normal training school, in which the curriculum included pedagogy, language, literature, history, mathematics, and other branches. She testified that the child was proficient in drawing, writing, spelling, reading, and mathematics. In addition to these branches of study, she was being given Bible and religious instruction, instruction in paper cutting, clay modeling, and drawing. Exhibits of the child's work were offered, showing considerable proficiency in writing, mathematics, drawing, and other subjects. as the child's education was not neglected, we think these parents, under the Constitution and laws of this state, had a right to manage and supervise the education of their child, if done in a fitting and proficient manner. The proof is not at all convincing that the education of this child was being in any way neglected. It seems to us that the state misconstrued the scope and spirit of the statute upon which this prosecution was based. [3, 4] Over the objection of plaintiff in error the court instructed the jury, in part, as follows: "In case a parent elects to furnish other means of education, it is his duty under the law to furnish the necessary equipment for said child, and an instructor, competent to instruct his child in the prescribed course of study, as laid down by the state, or in some other course of instruction equal to or better than the course of instruction as laid down by the state, so that the child may be educated to fill its station in life when it reaches its majority.". the right to fix the number of hours the children in the state shall be taught, and in that respect you are instructed that a school month shall consist of four weeks of five days each, of six hours per day." "You are instructed that the state reserves The evidence also shows that the father, "You are instructed that under the laws of plaintiff in error here, was an experienced the state of Oklahoma no person or persons teacher; that he had taught three years in are authorized or permitted to issue any special the public schools of Kansas, and had taught permit, certificate, or temporary certificate to school several years in Oklahoma; that he any person, authorizing them to teach, except had been employed by the government three which the special permit, certificate, or temthe county superintendent of the county in years as a teacher in the Philippine Islands;porary certificate is to be used, and that in and that he had taught one year in a business college at Wichita, Kan. The testimony shows that he assisted his wife in giving Felicia instruction, and that she was unusually proficient in all branches for a child of her age. The testimony of the father and mother as to the child's training was not successfully impeached by any of the state's witnesses. The parents offered to show in open court, by demonstative evidence, that the child had received efficient educational training, which offer was refused. [1] Ostensibly this was an action to punish a parent for neglecting the education of his child; in reality, the record indicates that this prosecution grew out of religious differences and disputes arising out of the management of school affairs, involving a bond issue, the location of a consolidated school building, and methods of instruction and school discipline. The parents were members of the religious sect known as Seventh Day Adventists, and testified that they were desirous of training their children to become missionaries and ministers, and claimed that the training and moral influences in the public school there were not favorable to that end. For this and other reasons they decided to give this child instruction at home, in lieu of a public school training. So long that event such temporary certificate, permit, or special certificate shall only remain in effect until the next regular teachers' examination, and this applies to public schools of the county." In addition to the foregoing, the court gave a lengthy instruction defining the qualifica tions of teachers in public schools, which the jury by inference may have applied to private tutors. These instructions, we think, were erroneous. Under the terms of the statute and under the Constitution, a parent may have his children instructed by a competent private tutor or educated in a sectarian or other accredited school, without a strict adherence to the standard fixed for teachers in the public schools of the state. The statute makes no provisions fixing the qualifications of private teachers, or teachers in private schools or academies, or to prescribe definite courses of study in such cases. Of course, if such schools or instruction were manifestly inadequate, or such instruction was furnished for the sole purpose of evading the proper education of a child, the statute could then be properly invoked. Whether such independent facilities for education, outside of the public schools, are supplied in good faith, and whether they are equivalent to those afforded by the state, is a question of fact for (209 P.) the jury, and not a question of law for the out of the inclosure; that the pasture furcourt. nished good grazing and an abundant water For the reasons given above, the judgment supply for the cattle there kept; that the of the trial court is reversed. fences were in good shape at the time of the alleged offense, but that there were a num DOYLE, P. J., and MATSON, J., concur. ber of gates, which could not be kept up be SULLIVAN v. STATE. (No. A-3881.) (Criminal Court of Appeals of Oklahoma. Sept. 15, 1922.) cause of the carelessness of people passing through; that these gates had been put in for the benefit of persons driving across the pasture, so that they would not tear down the fences to get through, as had been done prior to their being put in; that on the 15th of October, 1919, a number of cattle got through an open gate in one side of the pasture, and got into the pasture of W. F. Banks, adjoining the Sullivan pasture, and that Banks made complaint to Sullivan by letter, and to Stewart, also, about this trespass; that Sullivan came to see Banks about Under the provisions of sections 137 and the matter, but Banks was not at home; 138, Rev. Laws 1910, as amended by section that subsequently Banks signed the com2, chapter 192, Session Laws of 1917, penaliz-plaint upon which this prosecution was in (Syllabus by the Court.) 1. Animals 56-Statute penalizing owner of stock running at large contemplates purpose or culpable negligence. ing the owners of live stock for permitting them to run at large, the law contemplates that there must be a purpose on the part of the owner to permit his stock to run at large, or such culpable negligence on the part of the owner as would indicate an indifference as to whether they were restrained or not. 2. Animals 56-Owner without fault not liable under statute. Where, through some untoward circumstance, or through no fault of the owner, live stock escapes from a well-kept, adequate inclosure, the penal provisions of the statute do not apply. stituted. This prosecution was instituted under the provisions of section 137, R. L. 1910, and section 138, R. L. 1910, as amended by section 2, chapter 192, Session Laws of 1917. The sections are as follows: "Every owner of swine, sheep, or goats shall restrain them, at all times and seasons of the year, from running at large; Provided, that in any county, or stock district thereof, where said animals, or any of them, are now running at large under authority of article 2, chapter 4 of the Session Laws of 1908, it shall be lawful for same to continue to run at large, un Appeal from County Court, Love County; less restrained by an election held as hereafter B. W. Jones, Judge. C. F. Sullivan was convicted of not restraining his domestic animals, and he appeals. Reversed. J. H. Hays, of Marietta, for plaintiff in error. S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State. BESSEY, J. C. F. Sullivan, plaintiff in error, was on the 20th day of September, 1920, found guilty of the offense of not restraining his domestic animals, and his punishment was assessed at a fine of $100 and costs. From the judgment on this verdict, he appeals. The evidence in this case shows that C. F. Sullivan was the owner of a large pasture, comprising more than a section of land in Love county, Okl., in which he kept a large number of cattle; that Sullivan did not reside at or near the pasture, but made his home in Ardmore; that one Looney Stewart was employed by Sullivan to ride after cattle and look after the pasture fences; that it was his duty at all times to keep the fences in repair, so that the cattle could not get provided in this article." "All domestic animals, other than those mentioned in the two preceding sections, shall be, by the owner thereof, restrained, at all times and seasons of the year, from running at large, held as hereafter provided in this article: Prounless permitted to run at large by an election vided, that in any county, or stock district thereof, where any of said animals are now running at large under authority of article 2, chapter 4, of the Session Laws of 1908, or section 38, article 1, chapter 1, of the Session Laws of 1903, it shall be unlawful for same to continue to run at large, unless restrained by an election held as hereafter provided in this article. "Any person, firm, association or corporation violating the provisions of sections 1, 2 or 3 of this article, same being running sections 136, 137 and 138 of the Revised Laws of Oklahoma, 1910, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars, and each day such stock or domestic animal is permitted to run at large, shall be and conthat when a firm or association is adjudged stitute a separate offense; Provided further, guilty of a violation of the provision herein, the punishment shall be assessed against each member of such firm or association, and in case of a corporation, such punishment shall be as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sessed against the president or managing officer of such corporation." "You are instructed that, if you find from the evidence in this case that the gate to the pasture in question was left down by others The charging part of the information is than the defendant, C. F. Sullivan, and without as follows: "That on the day and year aforesaid, and in the county and state aforesaid, the said C. F. Sullivan did not restrain his cattle from running at large, and the same trespassed on the premises of W. J. Banks, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state." The only instructions given by the court defining the issues were instructions Nos. 1 and 2, as follows: "The defendant, C. F. Sullivan, is charged by information filed and presented in this court on the 15th day of October, 1919, with the offense of not restraining his domestic animals from running at large, and in this connection you are instructed that all domestic animals are prohibited by law from running at large, and that it is the duty of persons owning such animals to restrain them at all times and seasons of the year from running at large." "You are further instructed that, if you find from all the testimony in this case beyond a reasonable doubt that the defendant, C. F. Sullivan, did on or about the 15th day of October, 1919, or within one year prior thereto, commit the crime of not restraining his domes tic animals from running at large, and that the domestic animals of the said C. F. Sullivan did trespass upon the premises of W. J. Banks, it will be your duty to find the defendant guilty as charged in the information, and fix his punishment at a fine of not less than $25 for each day such domestic animals were permitted to run at large." [1] The Attorney General has filed a confession of error in this case, and an examination of the record by this court convinces us that the confession of error is well taken. The evidence indicates that the owner of the trespassing cattle used every reasonable means and took every precaution to keep them restrained, and that the cattle escaped through a gate left open by persons passing through the pasture, through no fault of the owner or his agents. The plaintiff in error requested the following instructions, which were by the court refused, and exceptions allowed: "You are instructed that the law of agency does not apply in criminal law, and if you find from the evidence in this case that the defendant, C. F. Sullivan, had and maintained a pasture in Love county, Oklahoma, and the said pasture and cattle in the same, if any, were in the charge, custody, and control of Looney Stewart, and you further find that said cattle did break out of said pasture, and were not restrained from running at large, as charged in the information, then and in that event, before you could convict the defendant herein, you must believe from the evidence beyond a reasonable doubt that C. F. Sullivan knowingly and willfully refused to keep in restraint the cattle in said pasture at the time the alleged offense was committed." his consent or permission, and that by reason thereof that said cattle did gain outlet from the pasture at the time of the alleged commission of the offense, then and in that event it will be your duty to return a verdict of not guilty and acquit the defendant." Ordinarily, in cases involving a violation of police regulations, the motives and purposes of the accused are not taken into consideration; the doing of the thing prohibited alone constitutes the offense, irrespective of the motive or intent. But in this case we are convinced that the motive and intent do constitute an essential element of the offense. Considering our statutes relating to trespassing animals as a whole, in connection with the language used in the amendatory act, providing that the owner of live stock who fails to restrain the same from running at large "shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $25, and that each day such stock or domestic animals is permitted to run at large shall be and constitute a separate offense," it would seem that there must be a purpose on the part of the owner to permit his stock to run at large, or such culpable negligence as would indicate an indifference on his part as to whether they were restrained or not. Suffering or permitting animals to run at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but it does not comprehend a case where, through some untoward circumstance, the owner is unable to watch or care for them in a particular instance, or where animals escape from their owner after due precaution has been taken to secure them, without fault or negligence on his part. Montgomery v. Breed, 34 Wis. 649; Beattie v. State, 77 Ark. 247, 95 S. W. 163; Collinsville v. Scanland, 58 Ill. 221; 3 Corpus Juris, 180, and cases there cited; notes and annotations, 9 Ann. Cas. 285, 286. [2] It is generally held, under statutes prohibiting horses and cattle from running at large, that, when they escape from their owner's inclosure without his fault or negligence, they are not at large, in the legal sense of the term. 1 R. C. L. 1150. Considering the nature of the statutes dealing with live stock running at large, and particularly the language of the statute making it a penal offense, in the light of the authorities cited above, we think it was not the intention to penalize a person whose stock escaped from a well-kept pasture without his fault or negligence. The judgment of the trial court is reversed. In re KELLEY. IN RE KELLEY (No. A-4444.) (Criminal Court of Appeals of Oklahoma. (Syllabus by Editorial Staff.) Bail 49-Where testimony submitted makes question for jury, which might acquit or convict of lesser offense, bail should be granted. Where defendant was accused of murder, and the testimony submitted in an application for bail, considered as a whole, made an issue of self-defense, and a jury might be warranted in finding defendant not guilty, or guilty of some lesser degree of felonious homicide than murder, held, that he should be admitted to bail. Application of John Kelley, charged with murder, to be admitted to bail. Petition granted. Culp & Culp, of Gainesville, Tex., J. H. Hays, of Marietta, and Jas. H. Mathers, of Ardmore, for petitioner. The Attorney General, for respondent. BESSEY, J. The petitioner, John Kelley, here referred to as the defendant, stands charged with the murder of George Smart on September 4, 1922, at Marietta, Love county, Okl. At the preliminary trial, held before the county judge sitting as an examining magistrate, petitioner was committed to jail without bail. Afterwards an application for bail was heard before Hon. B. C. Logsdon, judge of the district court, at Marietta, and the application was denied. The petitioner now comes to this court, supporting his application by the testimony heard at the preliminary trial, supplemented by the testimony taken before the district judge. 183 man about this rumor, and the foreman told defendant that George Smart was the author of the story, and that if what Smart said was true he and the members of his crew would cease to trade with defendant. The defendant denied that he had made any statements hostile to labor unions and returned to his store. About that time defendant's wife came to the store, suffering from the effects of a dental operation, and asked defendant to accompany her home. He told her he would first go to the post office and then take her home. Before going to the post office, he put a pistol in his pocket. At the post office, a few doors distant from defendant's place of business, defendant saw the deceased near the post office door, at the foot of a flight of stairs leading up over the post office from the outside. The defendant said to the deceased, “I want to see you a minute," and the two stepped a few steps away from the foot of the stairs. Defendant then said: "George, I understand you have been telling Mr. Nichols, the foreman of the section, that I am against the unions. We have been good said that. friends, and I don't understand why you and I have never given you any cause to It is damaging to our business, say anything like that." The deceased replied, "Don't say that to me," and struck the defendant on the head and ear with his fist. The two then clinched, falling to the pavement; the defendant beneath the deceased. There they struggled and fought for two or three minutes, the deceased all the while striking, choking, and biting the defendant; that during the struggle defendant's pistol became partially disengaged from his pocket, and that he got hold of the pistol with one hand, and fired a shot which penetrated the body of the deceased, causing his death; that after the shot the deceased relaxed and the defendant got up, got his pistol, and returned to his store. The petitioner testified, in his own behalf, to the effect that he has lived in what is now Love county for more than 25 years; that he is now and for a number of years has been associated with his father in the grocery | business at Marietta; that among their regular customers were the railroad section hands and other railway employés, members of organized labor; that the defendant had been for many years acquainted with the deceased, George Smart, who was by occupation a drayman and also city marshal of the town of Marietta; that Mr. Smart had on different occasions been employed by the defendant, and that up to the day of the homicide their business and social relations had been pleasant. On the afternoon of the day of the homicide, word was conveyed to the defendant that some one had told the section foreman that the lefendant was hostile toward organized labor. At about 5:30 o'clock, as the section men were returning home from had heard and knew that the deceased was The testimony shows that the defendant work, the defendant asked the section fore- a violent man and had killed another man The story as related by defendant was corroborated, for the most part, by a number of disinterested witnesses. There was no positive showing that the defendant sought a difficulty with the deceased. The defendant and his wife testified that the defendant was in the habit of carrying a gun from his place of business to his home and back, evening and morning. Both men were in their shirt sleeves, and the deceased was unarmed at the time of the difficulty. The deceased was city marshal of the town of Marietta, and sometimes carried a gun. stated that during the altercation, on account of being choked, he was fast losing his strength, and that he fired his pistol in his necessary self-defense, Defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes prior to that time. There were other de- defined by the statutes and decisions of this tails related by defendant and other witness-state. not inadmissible because showing another offense. es that need not here be recited. We think 3. Criminal law 369 (2)—Relevant evidence the testimony as a whole makes an issue of self-defense, and that a jury might be warranted in finding the defendant not guilty, or guilty of some lesser degree of felonious homicide than murder. For that reason it is ordered that the defendant be admitted to bail in the sum of $15,000, with good and sufficient sureties to be approved by the court clerk of Love county. Evidence otherwise relevant is not rendered inadmissible because it shows the commission of another and different offense. 4. Criminal law 662(8)-Constitutional right of defendant to be confronted by witnesses held waived. The constitutional right of a defendant to be confronted by the witnesses against him is one that may be waived. Where, without first DOYLE, P. J., and MATSON, J., concur. having laid a sufficient predicate of the intro LITTRELL v. STATE. (No. A-3360.) 1. Jury (Syllabus by the Court.) 33(2), 100, 103(3)—“Impartial juror" as used in Constitution does not preclude Legislature defining the term; opinion formed from reading newspaper should not disqualify a juror; a juror's settled impression from reading a newspaper or current rumor does not render him incompetent; ordinarily, a juror is qualified where he believes he can and the court finds he could render an impartial verdict. The words "impartial juror," as expressed in the Constitution, have no such fixed meaning as would preclude the Legislature from defining, in some measure, what should constitute an impartial juror. There was no intention to exclude persons who read newspapers, and it was never intended that an opinion formed from such information should necessarily disqualify such person as a juror. a. The mere fact that a juror has a settled impression or opinion as to the merits of the case, resulting from reading newspaper accounts or from current rumor, and not obtained from personal knowledge of the facts or from witnesses who purport to know the facts, does not necessarily render the juror incompetent. R. L. 1910, §§ 5858 and 5861. b. Ordinarily, where a juror testified that he believes he can and the court finds as a matter of fact that he would, if selected, render an impartial verdict upon the evidence, he is an impartial juror, under our Constitution and the statutes of this state. duction of a transcript of the evidence of an absent witness for the state, taken at a former trial, such transcript, over the objections of the defendant, is read to the jury, and where the same witness at the former trial was called, and testified on behalf of the defendant, and, at the request of the defendant a transcript of the latter testimony is introduced and read to the jury, the absence of a proper predicate for the introduction of the testimony of this witness is waived, where such testimony on behalf of the defendant is incomplete and refers to the testimony on behalf of the state, and the testimony as a whole is clearly favorable to the defendant. Appeal from Superior Court, Okfuskee County; John L. Norman, Judge. Jess Littrell was convicted of murder, and sentenced to serve the term of his natural life in the state penitentiary, and he appeals. Affirmed. H. M. Carr, of Pauls Valley, and A. B. Bur- BESSEY, J. Jess Littrell, plaintiff in error, in this opinion referred to as the defendant, was on the 24th day of November, 1917, in the superior court of Okfuskee county, convicted of the crime of murder, committed on the 18th day of January, 1917. His punishment by a verdict of the jury was fixed at imprisonment in the state penitentiary for life. From the judgment on the verdict, subsequently rendered, he appeals to this court. The facts in this case, briefly stated, are that the defendant, with two or more confederates, on the 12th day of January, 1917, by intimidation and force of arms, robbed the [Ed. Note. For other definitions, see Words First National Bank of Harrah, in Oklahoma and Phrases, Impartial Juror.] county. About five days later certain peace 2. Jury 131 (10)—Trial court should be sat- officers of Oklahoma county attempted to isfied that juror examined is indeed impartial. arrest this defendant and companion, RusTrial courts should be careful not to per-sel Tucker, at the residence of one John mit persons of doubtful or uncertain qualifica- Welcher in Oklahoma county. While resisttions to serve as jurors. The trial court should ing arrest and endeavoring to escape, these be satisfied from an examination of the pro- two, Littrell and Tucker, fired a number of spective juror that he is indeed impartial, as shots at the officers, one of whom was wound For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |