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the jury was properly admonished by the is not perfected within 60 days after the rendicourt as required by law; that upon the tion of judgment therein, the record must show convening of the court the presence of the a proper order of the trial court or judge, made

before the expiration of said 60 days, extending defendant be noted; also whether the court the time within which the appeal may be takpermitted the jury to separate or ordered the en, else the appeal must be dismissed. jury kept in charge of officers; that said offi [Ed. Note.--For other cases, see Criminal cers were properly sworn; that, when the Law, Cent. Dig. $8 2770-2781 ; Dec. Dig. $

1087.*] jury is brought into court for instructions or to return their verdict, they were so conduct- 2. CONSTITUTIONAL LAW (8 199*)—RETROAC

TIVE LAW-APPEALS. ed into court by the officers having them in The act requiring appeals in misdemeanor charge, and the defendant was present in cases to be taken within 60 days after rendition person; that the verdict was read to the ju- of judgment is applicable to offenses committed ry, and proper inquiry made.

prior to its passage, where the defendant is not

tried until after the act became effective. The eighth and ninth assignments relate to

[Ed. Note.-For other cases, see Constitutionthe instructions. No exception is saved to al Law, Cent. Dig. $ 583; Dec. Dig. $ 199.*] the instructions given by the court, and none were requested on the part of the defendant, bald Bonds, Judge.

Appeal from Rogers County Court; Archiand the questions were not raised in the de

W. E. Ault was convicted of violating the fendant's motion for a new trial. From our prohibitory law, and he appeals. Dismissed, examination of the instructions given, they with directions. fairly and correctly state the law of the case. The tenth assignment is that: “This cause

Smith C. Matson, Asst. Atty. Gen., for the should be reversed because of a variance be

State. tween the sentence and the judgment of the

FURMAN, P. J. [2] This is an attempted · court, and the charge in the indictment and appeal by a transcript of the record. Secthe verdict of the jury."

tion 6948 of Snyder's Comp. Laws Okl. 1909, This assignment is without merit.

is as follows: "In misdemeanor cases the The jury by their verdict found the crime appeal must be taken within sixty days after charged, to wit, robbery, was committed by the judgment is rendered: Provided, that John Jolly, conjointly with one Bill Colbert. the trial court or judge may, for good cause At the time of the return of this verdict and shown, extend the time in which such apthe rendition of the judgment there was but peal may be taken not exceeding sixty days. one punishment that could be inflicted for în felony cases the appeal must be taken robbery committed under such circumstances; within six months after the judgment is renthat is, imprisonment for life.

dered, and a transcript in both felony and [7] We are of the opinion that the defend- misdemeanor cases must be filed as hereinant has had a fair and impartial trial. If after directed.” This statute took effect on any errors were committed in making the the 11th day of June, 1909. The information record, they are technical and unimportant, in this case charged the commission of the and not such as would justify a reversal of offense on the 11th day of March, 1909, but the conviction. The few exceptions taken to the defendant was not tried until the 15th the rulings of the court upon the trial were day of July, 1909, which was more than a without merit and have not been argued month after the above statute went into efhere. The crime committed was most hein- fect. The statute requiring appeals relates ous. An old, sick, and helpless man was only to procedure, and is not therefore ex brutally attacked in his own home, over-post facto, and is applicable to and controls powered, and robbed, bound hand and foot, a appeals in all cases where the trial occurred stick of wood driven down his throat, and after the law went into effect. Ensley v. in that helpless condition left to die. The State, 4 Okl. Cr. 49, 109 Pac. 250; Hughes v. verdict was warranted by the proof, and the State, 4 Okl. Cr. 333, 111 Pac. 964. punishment fixed by the law is well deserved. [1] In the case at bar judgment was renThe verdict and judgment has our approval. dered against the appellant on the 17th day The judgment is therefore affirmed. of July, 1909, and the record fails to show

that any order was made by the county court FURMAN, P. J., and ARMSTRONG, J.,

extending the 60 days within which the statconcur.

ute required that an appeal be taken. The ap

peal was not filed in this court, and there(5 Ckl. Cr. 360)

fore perfected, until the 9th day of October. AULT v. STATE.

1909, which was long after the time allowed (Criminal Court of Appeals of Oklahoma. April by the statute for perfecting the appeal had 18, 1911.)

expired. We are therefore without jurisdic(Syllabus by the Court.)

tion to consider this appeal, and it must be

dismissed. See Simmons v. State, 4 Okl. Cr. 1. CRIMINAL LAW ($ 1087*)-STATUTES RELAT- 10, 109 Pac. 79; Freely v. State, 4 Okl. Cr. ING TO PROCEDURE.

Under section 6948 of Synder's Comp. Laws 21, 109 Pac. 239; Scott v. State, 4 Okl. Cr. 1909, where an appeal in a misdemeanor case 657, 112 Pac. 763; James Farmer v. State,

114 Pac. 753, decided at the last term of this serving a search warrant, entered the home court. We must therefore sustain the mo- of plaintiff in error in his absence, and setion of the Assistant Attorney General. cured a part of a case of whisky, several

This appeal is dismissed, with directions bottles of beer, and a full barrel of beer in to the county court of Rogers county to pro- an outhouse. There is no substantive proof ceed with the execution of its judgment. showing an unlawful purpose or intent to

violate the prohibition law. Plaintiff in ARMSTRONG and DOYLE, JJ., concur. error, an Italian, testifying on his own be

half, said the liquors were for his personal

use, and the use of his family; that he was (5 Okl. Cr. 371) GUIACCIMO V. STATE.

using the whisky as prescribed by a physi

cian for a sick child, and the beer was for (Criminal Court of Appeals of Oklahoma. April his own use, and that he had never violated

18, 1911.) 1. CRIMINAL LAW (87524*) – TRIAL - Dis-enue license from the United States.

the prohibition law, and did not have a rev. MISSAL. While the jury is the tribunal for determin

[1] It is a cardinal principle in our juris ing facts questioned, where there is no evidence prudence that the jury is the ultimate tritending to prove the offense charged, the pros- bunal for the investigation and determination ecution must be dismissed. [Ed. Note.-For other cases, see Criminal

of questions of fact. Where, however, the Law, Dec, Dig. $ 75242.*]

prosecution fails to offer any testimony tend2. CRIMINAL Law (811*)-INSTRUCTIONS-ing to prove the offense charged, or whether CREDIBILITY OF ACCUSED.

the evidence offered tends to prove anything A charge that accused is a competent wit- pertinent to the issue is a question of law Dess for himself, but the jury may consider his for the court, and where there is an entire interest in the event in determining his credi-absence of evidence to support the charge, bility, is erroneous.

[Ed. Note.-For other cases, see Criminal the court should dismiss the prosecution. Law, Cent. Dig. & 1786; Dec. Dig. $ 811.*) [2] The instructions given in the case are 3. INTOXICATING LIQUORS ($ 236*)—PROSECU- commendably correct, with the exceptions of TION-SUFFICIENCY OF EVIDENCE. Evidence held not to sustain a conviction structed that the defendant is a competent

the fifth, which reads: "The jury are infor having intoxicants with intent to violate the prohibition law.

witness in his own behalf. The jury are [Ed. Note.-For other cases, see Intoxicating entitled to take into consideration his inLiquors, Dec. Dig. § 236.*]

terest, in the event of the prosecution, in Appeal from Pittsburg County Court; R. determining his credibility.” By numerous W. Higgins, Judge.

decisions of this court similar instructions Nichola Guiaccimo was convicted of vio- have been condemned. See Hughes v. State, lating the prohibition law, and he appeals. 3 Okl. Cr. 387, 106 Pac. 546. Under the Reversed and remanded.

proof in this cause, this instruction clearly

constitutes error. J. R. Miller and Grace & Haynes, for plaintiff in error.

[3] It is important that the criminal laws

should be enforced, but it is no less imporPER CURIAM. The plaintiff in error was

tant that no person be punished for crime convicted in the county court of Pittsburg

who is innocent, and no person should be county on an information which charged punished or deprived of his liberty, except that, on or about the 5th day of April, 1909, on evidence sufficient to establish his guilt he did then and there, in the town of Hailey of the crime charged. ville, unlawfully have in his possession and

For the reasons herein expressed, the judge under his control certain spirituous liquor,

ment of conviction is reversed, and the with the intent then and there to violate the cause remanded to the county court of Pittsprovisions of the prohibition law. May 8,

burg county. 1909, he was sentenced to serve a term of 30 days in the county jail, and pay a fine of $200, from which judgment an appeal

(5 Okl. Cr. 212) was taken by filing in this court, on June 4,

GIBBONS V. TERRITORY. 1909, a petition in error with case-made at

(Criminal Court of Appeals of Oklahoma. tached.

April 18, 1911.) On the various assignments of error, after à careful examination of the record, we

(Syllabus by the Court.) believe it is only necessary to consider the 1. GRAND JURY (S$ 8, 19*)-SELECTION-Com. assignment "that said verdict and judgment

PLIANCE WITH STATUTE.

(a)Where an indictment_was returned by was contrary to the evidence." Outside of a

a grand jury in Oklahoma Territory prior to few suspicious circumstances, no evidence statehood, and the jury box from which the was adduced showing that the defendant grand jurors composing said grand jury were has committed the offense charged.

drawn was not prepared in accordance with

the provisions of section 6, c. 46 (section 3313) The undisputed facts are that a constable, 1 of Wilson's Rev. & Ann.' St., under the

rule For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexus

115 P.-9

announced in the case of Sharp v. U. S., 138, and was such a declaration and made under Fed. 878, 71 C. C. A. 258, followed by our such circumstances as called for serious admisSupreme Court in McGinley v: State, 20 Okl. sion or denial on his part. 218, 94 Pac. 525, such grand jury was illegal, (b) When, in a criminal action, testimony and indictments returned by it should be set sought to be introduced, for the purpose of aside on proper motion.

proving threats by implication, shows that the (b) Where a grand jury is not legally form- person whom it seeks to bind reproved the ed, the filing of a waiver by a person charged third party for making such statement and in with crime, by his counsel, to the illegality of no way acquiesced in or approved such action, such grand jury, does not make such grand jury it is not admissible and should not be allowed legal or validate its acts.

to go to the jury. [Ed. Note.-For other cases, see Grand Jury, [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. 88 53–55; Dec. Dig. $8 8, 19.*] Cent. Dig. 88 898-900, 968; Dec. Dig. & 407.*1 2. CRIMINAL LAW (88 968, 1033*) – INDICT-6. HOMICIDE ($ 187*)-MURDER-ADMISSIBIL

MENT AND INFORMATION (8 193*)-WAIVER ITY OF EVIDENCE. or IRREGULARITIES–JURISDICTIONAL QUES (a) An officer on trial for murder growing TION

out of an attempt to serve civil and criminal (a) Prior to statehood a valid indictment process, when the issue of self-defense is raiswas a jurisdictional requirement in all felony ed is entitled to introduce proof tending to cases under the provisions of the law in force show that deceased had committed a crime, in Oklahoma Territory, and no act of a person and the result of serving such process would charged with crime could confer jurisdiction be to place in the hands of the officers the eviupon the courts of the territory to legally try dence of such offense, for the purpose of throw. any cause pending against such person. ing light on the transaction and tending to

(b) Jurisdictional questions disclosed by the show animous or hostility and who was probrecord are never waived, and can be raised at ably the aggressor in the difficulty. any time before or after trial in a motion in

(b) When the officer has introduced such arrest of judgment, or even for the first time proof, the state cannot show that the deceased in the appellate court.

was advised to commit such offense by a public [Ed. Note.-For other cases, see Criminal officer or other person, for the purpose of miniLaw, Cent. Dig. 88 2426, 2629'; Dec. Dig. 88 mizing the effect of the proof. The rule limits 968, 1033;* Indictment and Information, Cent. the proof that the state is entitled to introduce Dig. $ 626; Dec. Dig. $ 193.*]

for this purpose to such as the deceased would

have been entitled to introduce in his defense 3. WITNESSES ($ 268*) - Cross-EXAMINATION had he been on trial charged with the offense. -Scope. (a) When a witness on direct examination Dec. Dig. & 187.*]

[Ed. Note.-For other cases, see Homicide. is interrogated relative to a conversation, the opposing party is entitled to draw out all the 7. CRIMINAL LAW (88 388, 663*)EVIDENCEmaterial portions of such conversation perti DEMONSTRATIVE EVIDENCE-EXPERIMENTS. nent to the issues on cross-examination.

(a) When evidence of experiments is sought (b) The acts and conduct of a witness variant to be introduced, it must be shown that the from his testimony, and inconsistent therewith, experiments were made under like conditions, may be shown for the purpose of weakening onlike material, with similar apparatus and the testimony of such witness.

under similar circumstances, fairly, and hon[Ed. Note.-For other cases, see Witnesses, estly made, and they must be testified to by Cent. Dig. $8 931-948; Dec. Dig. § 268.*] competent persons having expert knowledge

thereof. 4. WITNESSES (8$ 269, 372*)-CROSS-EXAMINA (b) Proof of experiments made with firearms TION-IMPEACHMENT.

upon certain material for the purpose of shed(a) The cross-examination of a witness is ding light on the effect of a rifle shot from a not to be confined to the particular questions specific kind of rifle on a specific kind of maasked, nor the precise subjects called to his terial, in order to be admissible must be made attention on direct examination. The correct upon the same kind of material, in the same rule is to allow the cross-examination to extend condition, by a competent person, and fairly to any matter not foreign to the subject matter and honestly conducted. of such examination and tending to limit, ex

(c) When evidence of experiments is offered, plain, or modify the same.

it should be admitted only when it is clear to (b) Testimony tending to show the interest the court that the jury will be enlightened and or bias of a witness, or lack of it, drawn out not confused. on cross-examination, is not, and has never (d) A trial court has no right to permit counbeen, regarded as collateral.

sel for the state to mutilate exhibits of a de(C) When a witness, though on cross-exam- | fendant, introduced in his behalf by making exination, gives adverse testimony to the person periments on them, or otherwise. cross-examining, showing his interest or bias [Ed. Note.-For other cases, see Criminal Law, in the case, or lack of it, such person is not Cent. Dig. $S 854, 1602; Dec. Dig. $$ 388, 603.* ] bound to accept the statements of such witness as conclusive, but is entitled to offer proof con. 8. CRIMINAL LAW (% 918*)—TRIAL-FAILURE tradicting such witness and tending to establish TO SWEAR WITNESSES. the existence of facts to the contrary.

(a) When a witness has been permitted to [Ed. Note.-For other cases, see Witnesses, testify without being sworn, and this fact is Cent, Dig: $S 949-954, 1192-1199; Dec. Dig. unknown to counsel or the defendant until aft$ 269, 372.*]

er the verdict, a new trial should be granted.

(b) The fact that the testimony given by an 5. CRIMINAL LAW (8 407*) EVIDENCE unsworn witness may not have been as mateTHREATS,

rial as other testimony received in evidence (a) In order to entitle the state in a crim- does not cure the error. The court cannot say ipal prosecution for murder to introduce proof upon what particular testimony the jury bases of threats made by some third person, for the its verdict. It is the duty of the courts to see purpose of binding the defendant, it 'must be that persons on trial for their lives or liberty made clear that the declaration or statement receive all the protection of the law. containing the threat was made in the presence (Ed. Note.-For other cases, see Criminal and hearing of the person sought to be bound, Law, Cent. Dig. $ 2163; Dec. Dig. & 918.*]

9. CRIMINAL LAW ( 785*)-INSTRUCTIONS. ceased with a weapon, the carrying of which is

An instruction advising the jury that they prohibited by law, except by officers in the are at liberty to disregard the testimony of any discharge of their official duties, a charge rewitness whom they may believe from the evi- quested by the defendant embodying the law on dence has testified falsely, except in so far as this proposition should be given. it is corroborated by other evidence, or facts and circumstances proven, is erroneous.

[Ed. Note.-For other cases, see Weapons, The

Cent. Dig. $ 10; Dec. Dig. $ 11.*] jury is pot bound to believe any of the testimony of such witnesses whether corroborated or not. See Rea v. State, 3 Okl. Cr. 269, 105

(Additional Syllabus by Editorial Staff.) Pac. 381.

14. CRIMINAL LAW (8 301*) — PRELIMINARY (Ed. Note.-For other cases, see Criminal PROCEEDINGS - WITHDRAWAL OF PLEA OF Law, Cent. Dig. $$ 1774, 1776-1781, 1889 NOT GUILTY-EFFECT. 1894; Dec, Dig. & 785.*]

Where the court permits accused to with10. HOMICIDE ($ 300*) – MURDEB – INSTRUC-draw his plea of not guilty, accused stands in TIONS-SELF-DEFENSE.

the same attitude as if no plea had been enWhere a person is on trial for murder, tered. and the issue of self-defense is raised, it is [Ed. Note.-For other cases, see Criminal error for the court to give an instruction which Law, Cent. Dig. $ 687; Dec. Dig. $ 301.*] in effect tells the jury that any intent other than the intent to do some lawful act stated is sufficient to destroy the right of self-defense. ty; Frank M. Bailey, Judge.

Appeal from District Court, Caddo Coun(Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614-632; Dec. Dig. $ 300.*)

Thomas Gibbons was convicted of man11. CRIMINAL LAW (% 734*)-INSTRUCTIONS, slaughter in the first degree, and he appeals. SELF-DEFENSE.

Reversed and remanded. (a) Where a person is on trial for murder alleged to have been committed by him, and Barclay, Fauntleroy & Cullen, for plainthe proof shows that he was an officer and had tiff in error. Charles West, Atty. Gen.,' and gone to the premises where the killing occurred Smith C. Matson, Asst. Atty. Gen., for the for the purpose of serving certain process, and his defense is self-defense based on the conten

Territory. tion that he was endeavoring to serve such process in a lawful manner, and while so doing

ARMSTRONG, J. This case was tried was attacked by the deceased, it is error for the court to give an instruction on this phase once before, and an appeal taken to the Suof the case which leaves the jury to determine preme Court of Oklahoma Territory, and for themselves what constitutes serving process upon the coming of statehood the appeal es in a lawful manner. For instruction condemned, see opinion.

was determined by the Oklahoma State Su(b) The manner in which processes may be preme Court in an opinion by Mr. Justice served is an intricate legal question, and, when Turner, reported in 1 Okl. Cr. 198, 96 Pac. upon a trial of issues joined it becomes necessary for such question to be determined, the 466. A complete statement of the facts will court should carefully define it as applied to the be found in that opinion, and no good purfacts in the record,

pose could be served by a restatement here. [Ed. Note.-For other cases, see Criminal In addition to the statement there, in the Law, Cent. Dig. $$ 1697-1699; Dec. Dig. $ last trial had, from which the appeal we are 734.*] 12. HOMICIDE (8$ 112, 300*) – MURDER-IN- now reviewing was taken, the state admit: STRUCTIONS.

ted that the deceased, Thurston Renfro, shot (a) It is error for the court to give an in- and killed special officer Ed. Plowman, on struction in a murder trial which destroys the Renfro's premises immediately before the right of self-defense, when that issue is raised, killing of Renfro by the plaintiff in error; if bare intent and purpose to provoke a difficulty existed in the mind of the defendant. and, further, that Plowman's death was The rule is that the defendant must do some caused by a bullet from a 25–35 Winchester. act at the time of the difficulty which does We shall discuss the errors complained of provoke it. For instruction condemned, see opinion.

in the order they are taken up in the brief (b) When, in a homicide case, the state en- of counsel for the plaintiff in error and the deavors to show that the defendant sought or state. brought on the difficulty, and the general rules

On the first trial of this case the appelof law are charged on this phase of the case, the court should define and state what char lant raised no objection to the sufficiency or acter of acts on the part of the defendant would regularity of the indictment. On the secdeprive him of the right of self-defense. c) Where the prosecution in a homicide case to withdraw his plea of not guilty and file

ond trial, however, he was given permission is based on the theory that the defendant provoked the difficulty, the character of the provo a motion to set aside the indictment. cation, in connection with the intent, should [14] When the court permitted appellant to be set out and defined in separate affirmative withdraw his plea of not guilty, he then charges.

[Ed. Note.--For other cases, see Homicide. stood in the same attitude as if no plea had Cent. Dig. $$ 145–150; Dec. Dig. $$ 112, 300.*j been entered, and the motion to set aside 13. WEAPONS ($ 11*)-RIGHT TO CARRY.

was in time. The motion to set aside the Under our statute officers in the actual indictment was by the court overruled, and discharge of their official duties are entitled to he excepted. It appears that an attorney carry weapons, and when any such officer is by the name of Lange, who originally apon trial for murder growing out of an effort to discharge his official duty, and the proof peared for the appellant, filed a written waivshows that he was armed with and killed de-I er to the grand jury and requested that all For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

matters pending against the appellant be | life or liberty, and entall infamy upon his lavestigated by that grand jury.

posterity; for this mighty commonwealth [1] The drawing of the grand jury was has an interest in the lives, liberty, and clearly illegal under the holding of the Unit- character of her citizens. Her policy, thereed States Circuit Court of Appeals in the fore, is to protect, not to destroy, these, and case of Sharp v. U. S., 138 Fed. 878, 71 C. hence it will not be permitted to the citizen C. A. 258, and in the case of McGinley v. to do so." Territory, 20 Okl. 218, 94 Pač. 525, the See, also, the case of Finley v. State, 61 facts in the case at bar being practically Ala. 201, in which it is held that all the acts the same as the facts in those cases. The of a grand jury which has not been organizonly question which arises for our consid- ed according to law are void, and no laches eration is whether or not the filing of the of the accused will cure the illegality. See, waiver and the request, which is as follows: also, Royce v. Territory, 5 Okl. 61, 47 Pac. "Comes now the defendant, Thomas Gib- 1085. bons, by his attorney, L. E. Lange, and In the case of In re Bain, 121 U. S. 1, 7 waives any and all objection to the panel of Sup. Ct. 781, 30 L Ed. 849, the following docthe grand jury and asks that all charges trine is announced: "The declaration of aragainst him be investigated and reported by ticle 5 of the amendments to the Constituthe present grand jury. L. E. Lange, Attor- tion, that 'No person shall be held to anney for Defendant"-precludes the appellant swer for a capital or otherwise infamous from raising this question. Counsel for ap- crime, unless on a presentment or indict. pellant urges that he could not and did not ment of a grand jury,' is jurisdictional, and waive the constitutional requirement that a no court of the United States has authority legal indictment is a condition precedent to to try a prisoner without indictment or preà conviction. Unless he could, and did, the sentment in such cases. The indictment here indictment is insufficient, and the motion to referred to is the presentation to the propset aside should have been sustained under er court, under oath, by a grand jury, duly the authority of the Sharp and McGinley impaneled, of a charge describing an offense Cases, cited supra. This being an indict- against the law for which the party charged ment returned prior to statehood, the rule may be punished.” announced in those cases would govern, ac The terms "indictment" and "presentcording to the rule announced by this court ment" in a Constitution presuppose and inin Ross Harris v. U. S., 4 Okl. Cr. 317, 111 clude the action of a grand jury. The grand Pac, 982.

jury must be a legal one, or the indictment In 17 Ohio, at page 222, in the case of will be a nullity. Lott v. State, 18 Tex. Doyle v. State, the Supreme Court of that App. 627; Ex parte Swain, 19 Tex. App. state, in discussing this proposition, says: 323; Williams v. State, 19 Tex. App. 265; "The doctrine of waiver has nothing to do Smith v. State, 19' Tex. App. 95. See, also, with criminal prosecutions. No person can State v. Beckey, 79 Iowa, 368, 44 N. W. 679; be put upon his defense on the charge of State V. Russell, 90 Iowa, 569, 58 N. W. crime, or be convicted of crime, except in 915, 28 L. R. A. 195. Also, Thorp v. People, the exact mode prescribed by law. And 3 Utah, 441, 24 Pac. 908. The case of Brunwhenever it shall be made manifest, in the er v. Superior Court, 92 Cal. 239, 28 Pac. progress of a criminal prosecution, that the 341, from the Supreme Court of California, legal rights of the person charged have been is directly in point and a strong argument. violated, the court will permit the accused See, also, California cases there cited. A to have the benefit of the error.

valid indictment returned by a legally conThe courts have the power only to try a stituted grand jury is a jurisdictional reperson who has been indicted for crime. quirement. No person can, by his consent What an indictment is, is matter of law. or will, constitute a grand jury, because it Who shall constitute a grand jury, how it is not the accused or defendant, but the law, shall be summoned, composed, and organiz- which makes a grand jury. Brannigan v. ed, is all a matter of positive law. No man People, 3 Utah, 489, 24 Pac. 767; Straughcan, by his consent or will, constitute a an v. State, 16 Ark. 44; Fitzgerald v. State, grand jury. No man, by express consent, 4 Wis. 412; Mott v. State, 29 Ark. 147. See, can make that indictment, authorizing the also, Newcomb v. State, 37 Miss. 383, wherecourt to try that which in fact was not an in the court holds that the accused cannot indictment."

waive objection to a void indictment. State The Court of Criminal Appeals of Texas, V. Burnett, 119 Ind. 392, 21 N. E. 972; Peoin discussing a similar proposition, in the ple v. Granice, 50 Cal. 447. case of Rainey v. State, 19 Tex. App. 479, In the case of Ex parte McClusky (C. C.) in a very able opinion delivered by Judge 40 Fed. 74, 75, wherein the question of the Hurt, approves the doctrine laid down in the effect of waiver was discussed, the court Doyle Case, and among other things says: used the following language: "Can a par

Nor can the prisoner, either by ty consent to jurisdiction? Can he, by an mistake or unguardedly, confer jurisdiction agreement with the government, surrender on the courts to try and punish for felony. his liberty for a stipulated time? Has ang

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