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trine of these cases has no application to the case at bar. It is within the sound discretion of the trial court to postpone the further taking of testimony on account of the absence of witnesses who are expected to arrive that day on a certain train, and this discretion will not be controlled by this court unless abused. In the case of Johnson v. State, 32 Ark. 309, it was said: "After

place; that I had a right to be there. Christopher hit me, and we mixed up and Christopher threw me down and bumped my head on the sidewalk, and he let me up and wanted me to go away. I repeated that I would not go, and I hit him again, and he hit me, then he wanted me to go away, and I would not." That he then went home and met Doc. Guest. That Doc. Guest said that Mr. Christopher had made some threats the state had examined several witnesses, about killing a couple of Havills. That he then went to Foreman's, and asked Mr. and Mrs. Foreman for a gun. They said "No." Then went to W. J. Jones, and then to Dr. Ellis, and tried to get a gun. Then went to the sleeping shack and got Jule Hall's gun, a 38 caliber. That he came out of the house and saw Mr. Christopher with his hand in his breast, talking to his father. That he did not understand what he was saying. That Mr. Christopher pulled his gun out in the direction of his father and shot. He was then asked: "Q. Who shot first, you or he? A. I cannot tell you. We both shot at the same time. When I saw him draw his gun I fired." He also testified that he shot two times at Joe Christopher in defense of his father and in selfdefense, and that the third shot was accidental.

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DOYLE, J. (after stating the facts as above). [1] Counsel for plaintiff in error lu their brief state: "We have elected to reserve only two propositions for the consideration of this court. They may be thus stated: The defendant having been placed upon his trial in a court of competent jurisdiction, before a jury regularly drawn, impaneled, and sworn, and the trial of his case begun, he was entitled to have the trial proceed, and that upon the failure of the state to prove a case against him he then and there became entitled to his discharge, and, this right having been once acquired, he was entitled to the benefits of the provisions of the Constitution of the United States and the Constitution of the state of Oklahoma against being twice put in jeopardy for the same offense; and (2), the name and address of the witness, B. F. Christopher not appearing upon the list of witnesses served upon the defendant prior to the trial, the presumption of the trial by the examination of said witness was erroneous."

In support of the first contention counsel cite the following authorities: State v. Nelson, 19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559, 61 Am. St. Rep. 780; State v. Richardson, 47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238; McCauley v. State, 26 Ala. 135. In these cases the jury was discharged during the trial over the objection of the defendant and a new trial ordered. Therefore the doc

the court against the objection of the defendant suspended the trial, and allowed the jury to separate from Tuesday until Friday, that the state might procure the attendance of a witness. The suspension of the proceedings in a trial is within the sound discretion of a court, and we are not prepared to say there was any abuse of its discretion in this case." See, also, Griffin v. State, 90 Ala. 596, 8 South. 670.

[2] The contention that defendant was twice put in jeopardy for the same offense is without merit. As we view the record, there was not the semblance of error in the rulings of the trial court. In support of their second proposition, counsel cite the case of Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 433. In the case of Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 28 L. Ed. 170, Mr. Chief Justice Fuller said: "Under section 1033 of Rev.

Stat. (section 1033, vol. 2, Fed. Sts. Ann. p. 344 [U. S. Comp. St. 1901, p. 722]), any person indicted of a capital offense has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced, and it would be error to put him on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his right. Logan v. United States, 144 U. S. 263 [12 Sup. Ct. 617, 36 L. Ed. 433]. But we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect to this witness; but we are of opinion that the discretion of the trial court was properly exercised upon the question." In the case of Thiede v. Utah Territory, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237, Mr. Justice Brewer said: "But this section applies to the Circuit and District Courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in Hornbuckle v. Toombs, 18 Wall. 648 [21 L. Ed. 966], and it was held, overruling prior decisions, that the pleadings and procedure of territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. See, also, Clinton v. Englebrecht, 13 Wall. 434 [20 L. Ed. 659], in which it was

held that the selection of jurors in territori- I would render the enforcement of the crimal courts was to be made in conformity to inal laws practically inoperative. the territorial statutes; Good v. Martin, 95 U. S. 90 [24 L. Ed. 341], in which a like ruling was made as to the competency of witnesses; Reynolds v. United States, 98 U. S. 145 [25 L. Ed. 244], where the same rule was applied to the impaneling of grand jurors and the number of jurors; also Miles v. United States, 103 U. S. 304 [26 L. Ed. 481], a case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of challenging petit jurors. Page v. Burnstine, 102 U. S. 664, 668 [26 L. Ed. 268]. Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, Comp. Laws Utah, requires that the names of witnesses examined before the grand jury be indorsed on the indictment before it is presented. There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that as a favor the names be furnished them indicates their understanding of the extent of defendant's right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness or the testimony that he gave. This allegation of error, therefore, is without founda

tion."

We believe that the admission of the testimony of the witness Christopher was not prejudicial error. The plaintiff in error could not be prejudiced by the testimony of this witness. His defense was justifiable homicide in self-defense, and the proof of the corpus delicti was sufficient without the evidence of this witness. The proposition advanced by counsel that, if error is shown by the record, the conviction must be reversed, whether such error operated to the prejudice of the plaintiff in error or not, is not the law. In numerous cases determined by this court, the contrary doctrine is announced. The criminal laws of this state must be enforced; and, if it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury having so found, this court will not reverse a conviction for a mere technical error which it can see could not have affected the result.

[4] As we view the record, there is nothing of merit in either of the propositions relied upon to reverse the judgment. What has been said fully disposes of the assignments of error argued. However, it appears that plaintiff in error shot the deceased on August 28, 1907, at Millerton, in the Central district of the Indian Territory, and the deceased six or seven days later died in Paris, Tex., of the mortal wound caused by that shooting. It is for his acts that plaintiff in error is responsible. They constitute his offense. The place where they are committed must be the place where his offense is committed. In contemplation of law, the crime was committed in the Central district of the Indian Territory where he was indicted. The anarchist Guiteau shot President Garfield in the District of Columbia. The president was conveyed outside of that jurisdiction, and died in New Jersey. His assassin was tried, convicted, and executed in the District of Columbia. United States v. Guiteau, 1 Mackey (D. C.) 498, 47 Am. Rep. 247. We are of opinion that plaintiff in error has had an eminently fair and impartial trial. The verdict returned by the jury confirms this conclusion. Manifestly the jury was very lenient. Any one accustomed to without being fully impressed with the conweighing evidence cannot read the record viction that this is not a case of justifiable homicide. On the facts which are either admitted, or so clearly established as to be beyond controversy, the plaintiff in error is at least guilty of manslaughter.

the district court of McCurtain county is For the reasons stated, the judgment of therefore affirmed, and the district court is directed and ordered to enforce its judgment herein.

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(Criminal Court of Appeals of Oklahoma. March 28, 1911.)

(Syllabus by the Court.) CRIMINAL LAW (§ 1144*) — APPEAL — REVIEW-INSTRUCTIONS.

Where an indictment recites that it is presigned by the county attorney, indorsed "a true sented by the grand jury, and it is properly bill" by the foreman, and indorsed, "presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed the clerk, it will be presumed, in an absence of in open court," signed by the clerk and filed by a showing to the contrary, that it was duly returned in open court, notwithstanding that no journal of the court. entry of the fact is made upon the minutes or

Absolute correctness of proceeding cannot be attained, even in our very best courts; [Ed. Note. For other cases, and the establishment of any other rule Law, Cent. Dig. § 3018: Dec. Dig. § 1144.*] see Criminal

ORD.

The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2746; Dec. Dig. § 1088.*] 3. CRIMINAL LAW (§ 1088*)-APPEAL-REC

ORD.

Section 6919, Snyder's Sts., provides that the following papers shall constitute the record of the action: (1) The indictment and a copy of the minutes of the plea or demurrer. (2) A copy of the minutes of the trial. (3) The charges given or refused, and the indorsements, if any thereon. And (4) a copy of the judgment." [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1088.*]

2. CRIMINAL LAW ( 1088*)-APPEAL-REC- | of conjoint robbery. The caption and formal part of said indictment is as follows: "State of Oklahoma, Pittsburg County-ss.: "In the District Court of the Fourth Judicial District of the State of Oklahoma, held in and for Pittsburg County, in said State. State of Oklahoma v. Bill Colbert, Claud Colbert, John Jolly. Indictment. At the October term, a term of the district court of the Fourth judicial district of the state of Oklahoma, held in and for Pittsburg county, in the state of Oklahoma, at the city of McAlester, and begun on the 5th day of October, in the year of our Lord 1908, the jurors of the grand jury of said county, good and lawful men, then and there returned, tried, impaneled, sworn and charged, according to law, to diligently inquire into, and true presentment make of, all public offenses against the said state of Oklahoma, committed or triable within said county, upon their said oaths, in the name and by the authority of the said state of Oklahoma, do present and find that, in said county of Pittsburg, in said state of Oklahoma, on the 12th day of January in the year of our Lord, one thousand nine hundred and eight." And which indictment has the following indorsements:

4. CRIMINAL LAW (§ 1032*)-APPEAL-RES

ERVATION OF GROUNDS OF REVIEW.

The authenticity of an indictment should be raised by motion to quash and set aside or by plea in abatement in the trial court. It cannot be raised for the first time on appeal.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2627; Dec. Dig. § 1032.*] 5. CRIMINAL LAW (§ 851*)-CUSTODY OF JURY

-OATH OF BAILIFF-RECORD.

It is no part of the duty of the clerk to place on record the formulary of words in which the oath to the bailiff is couched.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 851.*]

6. CRIMINAL LAW (§ 1039*)-APPEAL-OBJECTIONS AT TRIAL-CUSTODY OF JURY-IRREGULARITY.

Where a party desires to avail himself of the irregularity of administering the oath to the bailiff, the attention of the court should be call

ed to it at the time the oath is taken.
[Ed. Note. For other cases, see Criminal
Law, Cent. Dig. § 2647; Dec. Dig. § 1039.*]
7. CRIMINAL LAW (§ 1186*) — APPEAL

VIEW.

RE

It is the duty of the appellate court to give judgment without regard to technical errors, or defects, or to exceptions which do not affect the substantial rights of plaintiff in error.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1186.*]

(Additional Syllabus by Editorial Staff.) 8. CRIMINAL LAW (§ 1144*)-APPEAL-REVIEW -PRESUMPTIONS.

Where the record shows that during the trial there was one adjournment, and that the jury were permitted to separate under the usual instructions until the following morning, and no objections were made to any instruction given or to the failure to admonish the jury as required by statute, and no such question was presented by motion for a new trial, it will be presumed on appeal that the jury were duly admonished by the court.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3060; Dec. Dig. § 1144.*] Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.

John Jolly was convicted of conjoint robbery, and he appeals. Affirmed.

"Indictment. In the District Court of the Fourth Judicial District of the State of Oklahoma, Held in and for Pittsburg County. State of Oklahoma v. Bill Colbert, John Jolly, Claud Colbert. Indictment for RobA true bill. bery. Jacob A. Mercer, Foreman of the Grand Jury.

"Presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed this 28th day of October, 1908. W. B. Riley, District Clerk, by C. L. Hefley, Deputy. T. R. Dean, County Attorney.

"Bail is hereby fixed at $1,500. Preslie B. Cole, District Judge.

"Filed in open court Oct. 28, 1908. W. B. Riley, Clerk of Court. "Witnesses:..

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Upon arraignment, he entered a plea of not guilty and demanded a severance, which was granted.

The facts and circumstances of the case are stated in the companion case of Bill Colbert v. State, 4 Okl. Cr. 500, 113 Pac. 558, and it is unnecessary to repeat them here, further than to add: The defendant, testifying on his own behalf, denied that he participated in the robbery and professed to

account for his movements during the night of January 12, 1908, by stating that, after

leaving Bill Colbert's house that evening, he

went to a joint where, with several others, John Jolly, the plaintiff in error, was at including a couple of colored women, a botthe October, 1908, term of the district court tle of whisky was drunk, and he then went of Pittsburg county, jointly indicted with with one of the women to an empty house Bill Colbert and Claude Colbert for the crime and stayed there until late in the night. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

filed with the clerk, and remain in his office as a public record."

[3] Section 6919, Snyder's Sts., provides that: "When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file

Then, returning to Bill Colbert's house, he met Clyde Colbert and went with him to another joint, and from there returned to Bill Colbert's house and went to bed about midnight. He is, however, not corroborated by any witness. He also undertook to explain his possessioin of White's money by stating that he won it in a crap game that Sunday afternoon. His cross-examination the following papers which constitute the showed that he had been convicted of a crime and had been but recently discharged from the penitentiary at Ft. Leavenworth.

The judgment and sentence were entered on January 16, 1909. Defendant gave notice of an appeal and filed a pauper's affidavit and asked that the court order a transcript of the record to be furnished for his appeal. Whereupon it was ordered by the court that a transcript be furnished at the expense of the county. An appeal was perfected by filing in this court on January 3, 1910, a petition in error with case-made attached, together with proof of service of notices of appeal.

Wiley Jones, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. (after stating the facts as above). The assignments of error argued in the brief and orally before the court by defendant's learned and zealous counsel relate to defects in the recitals of the record. Considered as criticisms of the mode and manner of keeping the minutes of the trial, they are well founded; but, as presenting grounds of error for which the judgment should be reversed, they are not well taken. This is our conclusion after a careful examination of the record:

[1] It is assigned as error that: (1) "There is nothing in the record to show that the necessary steps were taken, what action was had, if any, of the history of the cause, if there is any history immediately before and up to the filing of the indictment by the clerk." (2) "There is no journal entry or entry upon the minutes of the court showing that the indictment when found by the grand jury was presented to the court as required by statutes. As to this matter there is no record entry whatsoever."

Under these assignments it is contended that there is nothing in the record showing when the court convened, where it convened, who was the presiding judge, or that the indictment was returned by the grand jury in open court, and that any statements appearing in the indictment itself not required by the statute should be treated as surplusage. Such statements cannot be substituted for the record which precedes the indictment.

Section 6692, Snyder's Sts., provides that: "An indictment, when found by the grand jury, must be presented by their foreman,

record of the action: (1) The indictment and a copy of the minutes of the plea or demurrer. (2) A copy of the minutes of the trial. (3) The charges, given or refused, and the indorsements of any thereon. And (4) a copy of the judgment."

There was no question raised by motion to set aside the indictment, or in the motions for a new trial and in arrest of judgment, that said indictment was not found, presented, and filed as prescribed by law, or that the grand jury was not drawn and impaneled as provided by law.

Under the provisions of our Criminal Code, it is not the duty of the clerk to make an entry upon the minutes or journal of the court of the return of an indictment. It is the clerk's duty to note on the indictment that it was presented in open court by the foreman of the grand jury, in their presence, to the court, and to file it, and when so filed the original indictment, with all its indorsements, becomes a part of the record of the case, and whatever is properly shown by the caption and the indorsements is considered as shown by the record.

The indictment in its caption shows that it was in the district court of the Fourth judicial district of the state of Oklahoma, held in and for Pittsburg county in said state; returned and presented at the October term of the district court, convened on the 5th day of October, 1908. It is signed by the county attorney of that county and indorsed by the foreman of the grand jury as a true bill." On the back of the indictment are these indorsements: "Presented in open court by the foreman of the grand jury in the presence of the grand jurors and filed this 28th day of October, 1908. W. B. Riley, Clerk of the Court." The names of the witnesses are also indorsed thereon.

[2] The indictment itself being a part of the record proper, on file with the date and manner of its return, the attestation of the county attorney and the foreman of the grand jury constitutes it a necessary part of the record by the terms of the statute. The record therefore shows that this indictment was found and returned in the manner and by the means prescribed by law. "The indictment itself being a part of the record proper and always on file, certainly when it is authenticated as in this case by the genuine signatures and indorsements of the prosecuting attorney, foreman of the grand jury, and the circuit clerk, there can be no ques

presumption is that it was lodged in that court in the manner and by the means prescribed by law." State v. Lord, 118 Mo. 1, 23 S. W. 764. See, also, Beard v. State, 57 Ind. 8; Padgett v. State, 103 Ind. 550, 3 N. E. 377; State v. Weaver, 104 N. C. 758, 10 S. E. 486; McKee v. State, 82 Ala. 32, 2 South. 451; State v. Schill, 27 Iowa, 263; Cooper v. State, 59 Miss. 267; State v. Crilly, 69 Kan. 802, 77 Pac. 701.

In the case of John Hopkins v. State, 4 Okl. Cr. 194, 108 Pac. 420, it was said: "When an indictment is duly returned as a true bill, properly indorsed, and with the signature of the foreman, the presumption is that it was regularly found on legal evidence and by the requisite number of jurors. The presumption of regularity is in favor of the indictment."

The third assignment of error is that: "The record fails to show that the appellant was present when the jury returned its verdict, or that he was even present at all on the second and last day of the trial."

[4] It affirmatively appears from the record that the defendant was in charge of the sheriff during the trial; that he was present when the case was called for trial; that the trial lasted two days; that he took the stand on his own behalf on the second day; and that he was present in court when the jury returned their verdict, at which time he was remanded back to jail to await sentence. This question is raised for the first time in the petition in error in this court.

The fifth assignment is hypercritical.

[8] The sixth assignment is that: "The record fails to show that, upon the jury being permitted to separate, they were admonished by the court as required by statute."

The record shows that during the trial there was one adjournment of the court. The record further recites that, "it being adjourning time, the jury were permitted to separate under the usual instructions of the court until to-morrow morning at 9 a. m., January 7, 1909."

No objection was made or exception taken to any instruction given by the court or to the failure of the court to admonish the jury as required by statute. And no such question is presented by the motion for a new trial. The presumption must therefore be that the jury were admonished by the court "that it is their duty not to converse among themselves or with any one else on any subject connected with the trial, or to form or express any opinion thereon, until the case is finally submitted to them."

The seventh assignment is that: "There is nothing in the record to show that the verdict of the jury was read to the jury by the clerk or inquiry made of them whether it was their verdict."

No question of this kind is presented in the motion for a new trial, nor does the record show that the defendant requested that the jury be polled.

The statute requires that, when the jury appear, they must be asked, by the court or clerk, whether they have agreed upon their verdict, and, if the foreman answers in the

In the case of Sam Wood v. State, 4 Okl. Cr. 436, 112 Pac. 11, this question was passed upon, and the authorities fully reviewed in the opinion of the court delivered by Fur-affirmative, they must, on being required, deman, Presiding Judge.

The fourth assignment is that: "The officer in whose charge the jury was placed after the cause was submitted to them was not sworn as required by the statute."

The record recites the jury retired in charge of a sworn bailiff to consider their verdict, and thereafter returned into open court with the following verdict.

clare the same. Section 6872, Snyder's Sts.

Section 6881, Snyder's Sts., provides that: "When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case."

[5,6] No objection was made to the form of the oath when the bailiff was sworn, or at any other time prior to its presentation in this court. If there was any irregularity in We think the minutes of the trial suffithis respect, it should and probably would ciently show that the requirements of the have been objected to at the time it occurred. statute were complied with, and a more conIf the form of the oath was defective, the at-clusive answer on this point is that no obtention of the court should have been called jection was made on the part of the defendto it when the bailiff was sworn so that itant to the proceedings had, and, if there was might have been corrected. It is no part any irregularity in this respect, it should of the duty of the clerk to place on record the form of the oath to the bailiff. It is only necessary for him to note the fact that this officer was duly sworn as required by law, and upon their recital in the minutes the presumption will be that the oath was properly administered. While the recital in the record defectively states this fact, we believe it is sufficient.

and probably would have been objected to at the time it occurred. It may be observed, however, that a careless disregard to the requirements of the statute as to what the minutes of the trial should show is unpardonable. The requirements are simple and the minutes should show the presence of the defendant when the case was called for trial, and that at each adjournment of the court

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