is not perfected within 60 days after the rendition of judgment therein, the record must show a proper order of the trial court or judge, made before the expiration of said 60 days, extending the time within which the appeal may be taken, else the appeal must be dismissed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781; Dec. Dig. 8

the jury was properly admonished by the
court as required by law; that upon the
convening of the court the presence of the
defendant be noted; also whether the court
permitted the jury to separate or ordered the
jury kept in charge of officers; that said offi-
cers were properly sworn; that, when the
jury is brought into court for instructions or
to return their verdict, they were so conduct-2.
ed into court by the officers having them in
charge, and the defendant was present in
person; that the verdict was read to the ju-
ry, and proper inquiry made.

The eighth and ninth assignments relate to the instructions. No exception is saved to the instructions given by the court, and none were requested on the part of the defendant, and the questions were not raised in the defendant's motion for a new trial. From our examination of the instructions given, they fairly and correctly state the law of the case. The tenth assignment is that: "This cause should be reversed because of a variance between the sentence and the judgment of the court, and the charge in the indictment and the verdict of the jury."

This assignment is without merit. The jury by their verdict found the crime charged, to wit, robbery, was committed by John Jolly, conjointly with one Bill Colbert. At the time of the return of this verdict and the rendition of the judgment there was but one punishment that could be inflicted for robbery committed under such circumstances; that is, imprisonment for life.

[7] We are of the opinion that the defendant has had a fair and impartial trial. If any errors were committed in making the record, they are technical and unimportant, and not such as would justify a reversal of the conviction. The few exceptions taken to the rulings of the court upon the trial were without merit and have not been argued here. The crime committed was most heinous. An old, sick, and helpless man was brutally attacked in his own home, overpowered, and robbed, bound hand and foot, a stick of wood driven down his throat, and in that helpless condition left to die. The verdict was warranted by the proof, and the punishment fixed by the law is well deserved. The verdict and judgment has our approval. The judgment is therefore affirmed.

1087.*]

The act requiring appeals in misdemeanor cases to be taken within 60 days after rendition of judgment is applicable to offenses committed prior to its passage, where the defendant is not tried until after the act became effective.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 583; Dec. Dig. § 199.*] Appeal from Rogers County Court; Archibald Bonds, Judge.

W. E. Ault was convicted of violating the prohibitory law, and he appeals. Dismissed,

with directions.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN, P. J. [2] This is an attempted appeal by a transcript of the record. Section 6948 of Snyder's Comp. Laws Okl. 1909, is as follows: "In misdemeanor cases the

appeal must be taken within sixty days after the judgment is rendered: Provided, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed." This statute took effect on the 11th day of June, 1909. The information in this case charged the commission of the offense on the 11th day of March, 1909, but the defendant was not tried until the 15th day of July, 1909, which was more than a month after the above statute went into effect. The statute requiring appeals relates only to procedure, and is not therefore ex post facto, and is applicable to and controls appeals in all cases where the trial occurred after the law went into effect. Ensley v. State, 4 Okl. Cr. 49, 109 Pac. 250; Hughes v. State, 4 Okl. Cr. 333, 111 Pac. 964.

[1] In the case at bar judgment was rendered against the appellant on the 17th day 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 stat

concur.

(5 Ckl. Cr. 360)

AULT v. STATE.

ute required that an appeal be taken. The appeal was not filed in this court, and therefore perfected, until the 9th day of October. 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.)

(Syllabus by the Court.)

1. CRIMINAL LAW (§ 1087*)—STATUTES RELAT

ING TO PROCEDURE.

expired. We are therefore without jurisdiction to consider this appeal, and it must be dismissed. See Simmons v. State, 4 Okl. Cr. 10, 109 Pac. 79; Freely v. State, 4 Okl. Cr. 21, 109 Pac. 239; Scott v. State, 4 Okl. Cr.

Under section 6948 of Synder's Comp. Laws 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 motion of the Assistant Attorney General.

of plaintiff in error in his absence, and secured a part of a case of whisky, several bottles of beer, and a full barrel of beer in an outhouse. There is no substantive proof 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

Appeal from Pittsburg County Court; R. determining his credibility." By numerous W. Higgins, Judge.

(a) Where an indictment was returned by a grand jury in Oklahoma Territory prior to statehood, and the jury box from which the grand jurors composing said grand jury were drawn was not prepared in accordance with the provisions of section 6, c. 46 (section 3313) The undisputed facts are that a constable, of Wilson's Rev. & Ann. St., under the rule •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-9

announced in the case of Sharp v. U. S., 138 . Fed. 878, 71 C. C. A. 258, followed by our Supreme Court in McGinley v. State, 20 Okl. 218, 94 Pac. 525, such grand jury was illegal, and indictments returned by it should be set aside on proper motion.

(b) Where a grand jury is not legally formed, the filing of a waiver by a person charged with crime, by his counsel, to the illegality of such grand jury, does not make such grand jury legal or validate its acts.

[Ed. Note.-For other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. §§ 8, 19.*]

and was such a declaration and made under such circumstances as called for serious admission or denial on his part.

(b) When, in a criminal action, testimony sought to be introduced, for the purpose of proving threats by implication, shows that the person whom it seeks to bind reproved the third party for making such statement and in no way acquiesced in or approved such action, it is not admissible and should not be allowed to go to the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 898-900, 968; Dec. Dig. § 407.*1

ITY OF EVIDENCE.

2. CRIMINAL LAW (§§ 968, 1033*)-INDICT- 6. HOMICIDE (§ 187*)-MURDER-ADMISSIBIL-
MENT AND INFORMATION (§ 193*)-WAIVER
OF IRREGULARITIES-JURISDICTIONAL QUES-
TION.

(a) Prior to statehood a valid indictment was a jurisdictional requirement in all felony cases under the provisions of the law in force in Oklahoma Territory, and no act of a person charged with crime could confer jurisdiction upon the courts of the territory to legally try any cause pending against such person.

(b) Jurisdictional questions disclosed by the record are never waived, and can be raised at any time before or after trial in a motion in arrest of judgment, or even for the first time in the appellate court.

see Criminal [Ed. Note. For other cases, Law, Cent. Dig. §§ 2426, 2629; Dec. Dig. §§ 968, 1033:* Indictment and Information, Cent. Dig. 626; Dec. Dig. § 193.*]

3. WITNESSES (§ 268*) - CROSS-EXAMINATION -SCOPE.

(a) When a witness on direct examination is interrogated relative to a conversation, the opposing party is entitled to draw out all the material portions of such conversation pertinent to the issues on cross-examination.

(b) The acts and conduct of a witness variant from his testimony, and inconsistent therewith, may be shown for the purpose of weakening the testimony of such witness.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 931-948; Dec. Dig. § 268.*]

4. WITNESSES (§§ 269, 372*)-Cross-EXAMINATION-IMPEACHMENT.

(a) The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of such examination and tending to limit, explain, or modify the same.

(b) Testimony tending to show the interest or bias of a witness, or lack of it, drawn out on cross-examination. is not, and has never been, regarded as collateral.

(c) When a witness, though on cross-examination, gives adverse testimony to the person cross-examining, showing his interest or bias in the case, or lack of it, such person is not bound to accept the statements of such witness as conclusive, but is entitled to offer proof contradicting such witness and tending to establish the existence of facts to the contrary.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 949-954, 1192-1199; Dec. Dig. $ 269, 372.*]

5. CRIMINAL LAW (§ 407*) THREATS.

EVIDENCE

(a) In order to entitle the state in a criminal prosecution for murder to introduce proof of threats made by some third person, for the purpose of binding the defendant, it must be made clear that the declaration or statement containing the threat was made in the presence and hearing of the person sought to be bound,

(a) An officer on trial for murder growing out of an attempt to serve civil and criminal process, when the issue of self-defense is raisis entitled to introduce proof tending to ed show that deceased had committed a crime, and the result of serving such process would be to place in the hands of the officers the evidence of such offense, for the purpose of throwing light on the transaction and tending to show animous or hostility and who was probably the aggressor in the difficulty.

(b) When the officer has introduced such proof, the state cannot show that the deceased was advised to commit such offense by a public officer or other person, for the purpose of minimizing the effect of the proof. The rule limits the proof that the state is entitled to introduce for this purpose to such as the deceased would have been entitled to introduce in his defense had he been on trial charged with the offense.

[Ed. Note.-For other cases, see Homicide. Dec. Dig. § 187.*]

7. CRIMINAL LAW (§§ 388, 663*)— EVIDENCEDEMONSTRATIVE EVIDENCE-EXPERIMENTS.

(a) When evidence of experiments is sought to be introduced, it must be shown that the experiments were made under like conditions, on like material, with similar apparatus and under similar circumstances, fairly and honestly made, and they must be testified to by competent persons having expert knowledge thereof.

(b) Proof of experiments made with firearms upon certain material for the purpose of shedding light on the effect of a rifle shot from a specific kind of rifle on a specific kind of material, in order to be admissible must be made upon the same kind of material, in the same condition, by a competent person, and fairly and honestly conducted.

(c) When evidence of experiments is offered, it should be admitted only when it is clear to the court that the jury will be enlightened and not confused.

(d) A trial court has no right to permit counsel for the state to mutilate exhibits of a defendant, introduced in his behalf by making experiments on them, or otherwise.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 854, 1602; Dec. Dig. §§ 388, 663.*] 8. CRIMINAL LAW (§ 918*)-TRIAL-FAILURE TO SWEAR WITNESSES.

(a) When a witness has been permitted to testify without being sworn, and this fact is unknown to counsel or the defendant until after the verdict, a new trial should be granted.

(b) The fact that the testimony given by an unsworn witness may not have been as material as other testimony received in evidence The court cannot say does not cure the error. upon what particular testimony the jury bases It is the duty of the courts to see its verdict. that persons on trial for their lives or liberty receive all the protection of the law.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2163; Dec. Dig. § 918.*]

9. CRIMINAL LAW (3 785*)-—INSTRUCTIONS.
An instruction advising the jury that they
are at liberty to disregard the testimony of any
witness whom they may believe from the evi-
dence has testified falsely, except in so far as
it is corroborated by other evidence, or facts
and circumstances proven, is erroneous. The
jury is not bound, to believe any of the testi-
mony of such witnesses whether corroborated
or not. See Rea v. State, 3 Okl. Cr. 269, 105
Pac. 381.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1774, 1776-1781, 18891894; Dec. Dig. § 785.*]

10. HOMICIDE (§ 300*) — MURDER - INSTRUCTIONS SELF-DEFENSE.

Where a person is on trial for murder, and the issue of self-defense is raised, it is error for the court to give an instruction which 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. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.*] 11. CRIMINAL LAW (8734*)-INSTRUCTIONSSELF-DEFENSE.

(a) Where a person is on trial for murder alleged to have been committed by him, and the proof shows that he was an officer and had gone to the premises where the killing occurred for the purpose of serving certain process, and his defense is self-defense based on the contention that he was endeavoring to serve such process in a lawful manner, and while so doing was attacked by the deceased, it is error for the court to give an instruction on this phase of the case which leaves the júry to determine for themselves what constitutes serving process es in a lawful manner. For instruction condemned, see opinion.

ARMSTRONG, J. This case

was tried once before, and an appeal taken to the Supreme Court of Oklahoma Territory, and upon the coming of statehood the appeal was determined by the Oklahoma State Supreme Court in an opinion by Mr. Justice Turner, reported in 1 Okl. Cr. 198, 96 Pac. 466. A complete statement of the facts will be found in that opinion, and no good purpose could be served by a restatement here. In addition to the statement there, in the last trial had, from which the appeal we are 12. HOMICIDE (§§ 112, 300*) — MURDER-IN-ted that the deceased, Thurston Renfro, shot now reviewing was taken, the state admit

(b) The manner in which processes may be served is an intricate legal question, and, when upon a trial of issues joined it becomes necessary for such question to be determined, the court should carefully define it as applied to the

facts in the record.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1697-1699; Dec. Dig. 8 734.*1

STRUCTIONS.

(a) It is error for the court to give an instruction in a murder trial which destroys the right of self-defense, when that issue is raised, if bare intent and purpose to provoke a difficulty existed in the mind of the defendant. The rule is that the defendant must do some act at the time of the difficulty which does provoke it. For instruction condemned, see opinion.

(b) When, in a homicide case, the state endeavors to show that the defendant sought or brought on the difficulty, and the general rules of law are charged on this phase of the case, the court should define and state what character of acts on the part of the defendant would deprive him of the right of self-defense.

(c) Where the prosecution in a homicide case is based on the theory that the defendant provoked the difficulty, the character of the provocation, in connection with the intent, should be set out and defined in separate affirmative charges.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. §§ 112, 300.*] 13. WEAPONS (§ 11*)-RIGHT TO CARRY.

and killed special officer Ed. Plowman, on Renfro's premises immediately before the killing of Renfro by the plaintiff in error; and, further, that Plowman's death was caused by a bullet from a 25-35 Winchester.

We shall discuss the errors complained of in the order they are taken up in the brief of counsel for the plaintiff in error and the state.

On the first trial of this case the appellant raised no objection to the sufficiency or regularity of the indictment. On the second trial, however, he was given permission to withdraw his plea of not guilty and file a motion to set aside the indictment.

[14] When the court permitted appellant to withdraw his plea of not guilty, he then stood in the same attitude as if no plea had been entered, and the motion to set aside 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 ap on 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- 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 entail infamy upon his investigated by that grand jury.

posterity; for this mighty commonwealth has an interest in the lives, liberty, and character of her citizens. Her policy, therefore, is to protect, not to destroy, these, and hence it will not be permitted to the citizen to do so."

[1] The drawing of the grand jury was clearly illegal under the holding of the United States Circuit Court of Appeals in the case of Sharp v. U. S., 138 Fed. 878, 71 C. C. A. 258, and in the case of McGinley v. Territory, 20 Okl. 218, 94 Pac. 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 waives any and all objection to the panel of the grand jury and asks that all charges against him be investigated and reported by the present grand jury. L. E. Lange, Attorney for Defendant"-precludes the appellant from raising this question. Counsel for appellant urges that he could not and did not waive the constitutional requirement that a legal indictment is a condition precedent to a conviction. Unless he could, and did, the indictment is insufficient, and the motion to set aside should have been sustained under the authority of the Sharp and McGinley Cases, cited supra. This being an indictment returned prior to statehood, the rule announced in those cases would govern, according to the rule announced by this court in Ross Harris v. U. S., 4 Okl. Cr. 317, 111 Pac. 982.

In 17 Ohio, at page 222, in the case of Doyle v. State, the Supreme Court of that state, in discussing this proposition, says: "The doctrine of waiver has nothing to do with criminal prosecutions. No person can be put upon his defense on the charge of crime, or be convicted of crime, except in the exact mode prescribed by law. And whenever it shall be made manifest, in the progress of a criminal prosecution, that the legal rights of the person charged have been violated, the court will permit the accused to have the benefit of the error. The courts have the power only to try a person who has been indicted for crime. What an indictment is, is matter of law. Who shall constitute a grand jury, how it shall be summoned, composed, and organized, is all a matter of positive law. No man can, by his consent or will, constitute a grand jury. No man, by express consent, can make that indictment, authorizing the court to try that which in fact was not an indictment."

The Court of Criminal Appeals of Texas, in discussing a similar proposition, in the case of Rainey v. State, 19 Tex. App. 479, in a very able opinion delivered by Judge Hurt, approves the doctrine laid down in the Doyle Case, and among other things says:

Nor can the prisoner, either by mistake or unguardedly, confer jurisdiction on the courts to try and punish for felony.

In the case of In re Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849, the following doctrine is announced: "The declaration of article 5 of the amendments to the Constitution, that 'No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' is jurisdictional, and no court of the United States has authority to try a prisoner without indictment or presentment in such cases. The indictment here referred to is the presentation to the proper court, under oath, by a grand jury, duly impaneled, of a charge describing an offense against the law for which the party charged may be punished."

The terms "indictment" and "presentment" in a Constitution presuppose and include the action of a grand jury. The grand jury must be a legal one, or the indictment will be a nullity. Lott v. State, 18 Tex. App. 627; Ex parte Swain, 19 Tex. App. 323; Williams v. State, 19 Tex. App. 265; Smith v. State, 19 Tex. App. 95. See, also, State v. Beckey, 79 Iowa, 368, 44 N. W. 679; State v. Russell, 90 Iowa, 569, 58 N. W. 915, 28 L. R. A. 195. Also, Thorp v. People, 3 Utah, 441, 24 Pac. 908. The case of Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341, from the Supreme Court of California, is directly in point and a strong argument. See, also, California cases there cited. A valid indictment returned by a legally constituted grand jury is a jurisdictional requirement. No person can, by his consent or will, constitute a grand jury, because it is not the accused or defendant, but the law, which makes a grand jury. Brannigan v. People, 3 Utah, 489, 24 Pac. 767; Straughan v. State, 16 Ark. 44; Fitzgerald v. State, 4 Wis. 412; Mott v. State, 29 Ark. 147. See, also, Newcomb v. State, 37 Miss. 383, wherein the court holds that the accused cannot waive objection to a void indictment. State v. Burnett, 119 Ind. 392, 21 N. E. 972; People v. Granice, 50 Cal. 447.

In the case of Ex parte McClusky (C. C.) 40 Fed. 74, 75, wherein the question of the effect of waiver was discussed, the court used the following language: "Can a party consent to jurisdiction? Can he, by an agreement with the government, surrender his liberty for a stipulated time? Has any