tory, can be prosecuted only by indictment." | petitioner for a felony alleged to have been [3, 4] In the case of Bonaparte v. State, 4 committed in the Indian Territory before Okl. Cr. 603, 112 Pac. 947, it was held: "Ar-statehood. It follows that petitioner is unticle 5 of the amendments to the Constitution lawfully imprisoned under said judgment of of the United States, providing that 'no per- conviction and commitment. son shall be held to answer for a capital or Wherefore the writ of habeas corpus is alotherwise infamous crime, unless on a pre-lowed, and it is ordered that petitioner be sentment or indictment of a grand jury,' discharged from said judgment and commitguarantees to a defendant, charged with the ment and that respondent, the warden of commission of a felony in the Indian Terri- the penitentiary, deliver him to the custody tory prior to statehood, an unalterable right of the sheriff of Muskogee county. It is furto be accused by indictment only." And ther ordered that the clerk of this court that: "In such cases the indictment is a nec- forward the mandate in this case to the essary prerequisite to give the court juris- clerk of the district court of Muskogee coundiction." ty, and that said clerk issue to the sheriff of Muskogee county said mandate, directing said sheriff to present the same without delay to the warden, and transport said petitioner to the county jail of Muskogee county, pending the further action of said district court. In section 20 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277), as amended by act approved March 4, 1907 (Act March 4, 1907, c. 2911, § 3, 34 Stat. 1287), it is provided that: "All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States Circuit or District Courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that territory." FURMAN, P. J., and ARMSTRONG, J., concur. (5 Okl. Cr. 377) CRAWFORD v. FERGUSON, County Judge. (Criminal Court of Appeals of Oklahoma. May 2, 1911.) (Syllabus by the Court.) 1. RIOT (§ 1*)-WHAT CONSTITUTES. [Ed. Note.-For other cases, see Riot, Cent. Dig. §§ 1-5; Dec. Dig. § 1.* 2. CRIMINAL LAW (§ 22*)—Enforcement of LAW-UNLAWFUL ACTS. In Garnsey v. State, 4 Okl. Cr. 547, 112 Pac. 24, the court said: "These provisions of the enabling act and the schedule preserve the rights of persons who are charged with the commission of offenses prior to the admission of the state, and render them liable to punishment under the law. For this reason we are clearly of opinion that the constitutional provision providing for the prosecution of felonies by information was not intended to be retrospective or retroactive in its operation, and has reference only to prosecutions for crimes committed after For other definitions, see Words and Phrases, statehood. However, it is immaterial wheth-vol. 7, pp. 6240-6242.] er the enabling act permitted, or the framers of our Constitution intended to provide, a new method for the prosecution of crimes committed before statehood, because in respect to such crimes the Constitution of the United States gave to the accused an unalterable right to be accused by indictment only." And continuing, said: "The courts of this state, in exercising the jurisdiction conferred upon them by the enabling act and the state Constitution over crimes committed in Oklahoma Territory, cannot deprive the accused of substantial rights secured to him by the Constitution of the United States, such as depriving him of the right to be accused by indictment for an infamous crime, or the right to be tried by a common-law jury." Under the decision of this court in the case of Charley Thompson v. State, supra, and the uniform holding of this court in numerous other cases, the district court of Muskogee county did not, upon the information filed by the county attorney, acquire jurisdiction to try, convict, and sentence the The violation of law under the guise of attempting to enforce the law is not only illegal, but it is anarchy. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 22.*] 3. UNLAWFUL ASSEMBLY (§ 1*)-LEGALITY OF PURPOSE-ENFORCEMENT OF LAWS. peaceable manner, to combine together and orThe people have the right, in a quiet and ganize for the purpose of assisting the officers in the enforcement of law, and they may also take such steps as they may deem necessary such organization, taking care at all times to for the purpose of carrying out the objects of abstain from any illegal act or conduct. [Ed. Note.-For other cases, see Unlawful ticipating in public meetings in which questions [Ed. Note.-For other cases, see Judges, Dec. Dig. § 49.*] 5. JUDGES (8 49*)-CONDUCT. A judge should be careful not to commit himself upon questions of fact or law which may come before him for decision, until the matter is properly presented in open court, and both parties have had ample opportunity to be heard. action of an organized mob, consisting of more than one hundred persons, which mob visited a number of people in the town of Watonga who were supposed to be violators of the prohibitory liquor law of the state, and commanded such persons to quit their business and leave the town, and threatened said parties with violence in case the com6. JUDGES (§ 49*)-DISQUALIFICATION-PREJU-mands of said organized mob were not com [Ed. Note. For other cases, see Judges, Cent. Dig. § 188; Dec. Dig. § 49.*] DICE. There is a great and manifest difference between being prejudiced against the commission of crime and being prejudiced against a person charged with the commission of such crime. The fact that a judge is prejudiced against the commission of crime does not disqualify him from presiding at a criminal trial. He is only disqualified when he has personal bias or prejudice against the defendant, who is on trial before him, charged with the commis sion of a crime. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 187, 188; Dec. Dig. § 49.*] 7. WITNESSES (§ 344*)-IMPEACHMENT-OccuPATION-COMPANIONS. While it is improper to impeach a witness by showing that he has been indicted, arrested, or imprisoned for crime, before conviction, yet his occupation and companions are of his own choosing, and may therefore be shown, when they indicate a want of moral character, for the purpose of impeaching his testimony. Slater v. U. S., 1 Okl. Cr. 275, 98 Pac. 110, reaffirmed. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.*] 8. WITNESSES ($ 345*)-IMPEACHMENT. plied with; and that petitioner was a leader and one of the spokesmen of said mob. This application was duly sworn to by petitioner. This application being presented to respondent, he declined to certify his disqualification from presiding at the trial of said cause. Therefore, on the 15th day of April, petitioner applied to this court for an alternative writ of mandamus, requiring respondent, either to certify his disqualification to act as said judge or show cause for his refusing to do so. The original application for a change of judge as presented to respondent was attached to and made a part of the petition for a writ of mandamus filed in this court. This matter came on to be heard on the 24th day of April, 1911. Upon a hearing of this case, respondent denied the allegations contained in the petition for mandamus. The petitioner filed a number of affidavits sustaining the allegations contained in his petition. If When a witness has been convicted of boot- [9] It is a significant fact that 23 of these legging, or has the general reputation of being affidavits were acknowledged before the ata bootlegger, this fact may be shown for the torney for the petitioner. As this matter has purpose of affecting his credibility as a witness. not been passed upon by this court before, [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.*] we will not do more now than say that the 9. AFFIDAVITS (§ 5*)-AUTHORITY TO TAKE-authorities all denounce this practice. ATTORNEYS-DISABILITIES. it is permitted, the door is opened to all kinds of impositions and frauds. Such conIn the future duct must not be repeated. such affidavits will not be received or considered, except as the basis of proceedings against the offending attorney. It is improper for a lawyer to act in the double capacity of a notary to take acknowledgments to affidavits, to be used in the trial of a case in which he is the attorney for one of the parties. [Ed. Note. For other cases, see Affidavits, Cent. Dig. § 20; Dec. Dig. § 5.*] Petition of J. P. Crawford for a writ of mandamus to George W. Ferguson, County Judge. Petition denied. I. H. Lookabaugh, for petitioner. A. L. Emery, Co. Atty., and J. P. Wishard, Asst. Co. Atty., for respondent. FURMAN, P. J. J. P. Crawford, the petitioner, being prosecuted by information in the county court of Blaine county, Okl., charged with the offense of violating the prohibitory liquor law of the state of Oklahoma, on the 14th day of April, 1911, made application for a change of judge, upon the ground that George W. Ferguson, the judge of the county court of Blaine county, and the respondent herein, was so prejudiced against petitioner that petitioner could not secure a fair and impartial trial on said charge before respondent; and alleging, further, that about the middle of March, 1911, respondent participated in the If the facts stated in the petition for mandamus had been proved to be true beyond all question, petitioner would be entitled to a change of judge. The conduct therein set forth and described would not only be illegal, but it would amount to a riot. Section 2497 of Snyder's Comp. Laws of Okl. 1909, is as follows: "Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot." [1] It matters not how good their intentions may be, if three or more persons, without authority of law, combine together, and by threats to use force or violence, if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot, and liable to be imprisoned in the state penitentiary for any period not less than three years. [2] A violation of law, when committed *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes སྙ even for the purpose of enforcing the law, | Counsel for petitioner did not give us any is not only illegal, but it is anarchy itself. information upon this subject. But this Therefore, if it were proven to this court matter was gone into by counsel for respondthat the facts stated in the petition for man- ent, and it was shown that these men were damus were true, it would be the duty of professional bootleggers, or the companions this court to issue the writ prayed for, it and associates of bootleggers. When the matters not what the intention of the par- hearing was through, the court, desiring to ties who committed the acts may have been, be fair and just to all parties and to coneven though such mandamus might involve demn no man without affording him an opevery man in Blaine county. When a viola-portunity to be heard, offered to allow eition of law has been proven, this court cannot, Pontius Pilate like, place its fingers upon the public pulse and sustain such violation of law, even though it be demanded by the entire people of a county. Therefore we have no hesitancy in saying that the showing made by the petitioner, if not disproven, would clearly entitle him to a change of judge. Petitioner filed a great many affidavits sustaining his petition. Upon the hearing of this matter, six reputable citizens of Blaine county were placed upon the witness stand, and they denied every material allegation tending to establish prejudice on the part of respondent contained in the petition for mandamus. [7] In the case of Slater v. U. S., 1 Okl. Cr. 275, 98 Pac. 110, this court held that it was improper, for the purpose of impeaching a witness, to ask him on cross-examination 11 he had ever been indicted, arrested, or imprisoned for crime before conviction, but this court also held, in the same case, that it is always admissible to inquire into the antecedents of a witness, by showing his occupation, social connections, manner of living, and such matters, for the purpose of affecting his credibility. The reason for this distinction is that the indictment, arrest, and imprisonment of a witness are involuntary on the part of the witness, and result from accusations which are often prompted by malice, and that they are not conclusive as to the guilt of the witness of the offense charged against him, but that the occupation, companions, and associates of a witness are of his own choosing, and indicate his real character. To prevent any misconception upon this question, the case of Slater v. U. S., above quoted, should be carefully examined. We have never modified, and do not expect to modify, any statement contained in that opinion. [8] Upon the hearing of this matter, the court invited information as to the witnesses who had made affidavits in support of the petition for mandamus. The effect of their affidavits was to charge respondent with having assisted in the organization of a mob, and with being one of the leaders in a riot. If these accusations were true, respondent should not preside at the trial of this cause, but should be removed from office and confined in the penitentiary as a common felon. It was therefore important for this court to know who these men were who had made these serious charges against a ther party to file additional affidavits, if they desired. If the state's testimony as to the character of petitioner's witnesses was not true, the attorney for petitioner should have availed himself of this opportunity to sustain the character of his witnesses, but he replied that he did not desire to file additional affidavits. In the case of Hendrix v. State, 4 Okl. Cr. 612, 113 Pac. 244, this court said: "The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is an inmoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the 'bootlegger' will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character." Counsel must take notice of the published decisions of this court and are chargeable with such knowledge. With the Hendrix Case before him, counsel for petitioner knew that a failure to sustain the character of his witnesses was a practical abandonment of his case. We are therefore forced to accept the testimony of respondent upon this question. An opportunity was given counsel for petitioner to file further affidavits. He declined to do so. We are therefore compelled to believe that he could not rebut the testimony of respondent upon this question. In addition to this respondent filed a great many affidavits from citizens of Blaine county, denying in toto the charges made by petitioner. A number of persons who were on the witness stand and who filed affidavits in behalf of respondent are personally known to the members of this court as being among the most reputable citizens, not only of Blaine county, but also of the state of Oklahoma. For the purpose of this decision, it is only necessary to copy in full the affidavit of Ex-Governor Ferguson, who justly enjoys the confidence and respect of all who know him, and whom we believe to be incapable of intentionally misstating any matter of fact. His affidavit is as follows: "State of Oklahoma, Blaine County-ss.: "I, T. B. Ferguson, being first duly sworn, would be enforced, and that their moral support was behind the officers; that said arrangements were made and G. W. Craven was named as spokesman; that George W. Ferguson had been in said meeting, and when the meeting adjourned to wait upon these different people the said George W. Ferguson told this affiant that they must be careful and see that no harsh or violent acts or language should be used or tolerated by said members in any way. "That affiant knows of his own knowledge that the said George W. Ferguson did not make a speech at said meeting, or at any other time, to his knowledge, warning any person under suspicion; that all he said in substance was that the laws should be upheld; that I was present at the speech he made in said meeting, and that he did not say that a jury would be got that would stick all persons charged with the violation of the law; that at no time have I seen the said George W. Ferguson do or say anything that tended to show bias or prejudice for or against any persons accused of crime that was brought to this court. Watonga, Blaine county, state of Oklahoma, | gested, and give them notice that the law and have been most of the time since said town was opened for settlement; that I am especially familiar with conditions which existed in said town during the fall of 1910 and the spring of 1911; that during the fall of 1910 it was an open and notorious fact that there were from four to five places in said town where intoxicating liquors could be obtained in various quantities; that said parties who seemed to control these different places where intoxicating liquors were disposed of were, to the best of my belief, either protected, or at least overlooked, by the officers; that the community of Watonga and the law-abiding people of said community were incensed against such open and notorious violations; that the incoming of ficers who were elected at the election in November, 1910, had promised that they would, if elected, see that these violations were taken care of; that several arrests followed, after the taking of office by these officers, but the bootleggers and their friends seemed to have an ostensible showing of influence against the arrest and prosecution of what is commonly termed 'bootleggers,' and which is a misdemeanor charge (they would often, when attempted to be arrested, try to evade the officers, and did in various instances); that on the afternoon of the 14th day of March, A. D. 1911, S. E. Southerland, sheriff of said county, having in his possession a warrant for a misdemeanor charge, attempted to arrest one Joe Steils, for the violation of the prohibitory law; that the said Joe Steils was in a buggy in company with one Charlie Hawkins, at said time; that they attempted to and did run from said officer, driving said horse that was thereto hitched, at a dangerous and reckless speed, through the business streets of said town, in making their flight from said officer; that on one particular crossing of said town they ran into a pedestrian crossing said street and seriously injured her, in the presence of a large number of people, who immediately gathered and helped the officer arrest said defendant. "That it was suggested at said time, by some person to this affiant at this time unknown, that they give their moral support to the officers in the enforcement of the law, and that they organize some sort of society showing that their moral support was in favor of the enforcement of the laws, duly enacted; that, pursuant to said suggestion, a meeting was called at the courthouse in the said town of Watonga; that a large number of inhabitants of said town, congregated at said meeting, and, after appointing a committee on constitution and bylaws, different members suggested that a notice of some kind be given to the various persons who were knowingly violating the laws of the state; that it was the sense of the said meeting that they go as a body to these difference places, heretofore sug "That, being a publisher of the Watonga Republican, I have on numerous occasions visited and been present when the court, presided over by the said George W. Ferguson, was in session, and that at all times he seemed to conduct said court in a fair and impartial manner. "That at no time when said citizens so congregated together, and at a meeting which was called a 'Law and Order' meeting, and at which law and order meeting said visitation was made, did the said George W. Ferguson say anything, to my knowledge, nor was anything said by the spokesman, to tend to terrorize or intimidate any person called upon; that they were simply asked to desist from further violation of the law, and told that if they did not do so law and order would be enforced. "That there were no unlawful acts by said citizens; that they were men of respectability and law-abiding citizens of the said town of Watonga; that no place or person were mentioned, other than those that were visited, nor any threats made, other than were executed, and that the whole idea and object of said meeting and the warning of people to desist from the violation of law was for the purpose of showing that violators of the law that the good citizenship of Watonga stood for law enforcement and the upholding of the officers in the discharge of their duties. T. B. Ferguson. "Subscribed and sworn to before me this day of April, A. D. 1911. filed by respondent. In fact some of these |ion was for years attorney for the Antiaffidavits go more into details and state the Horse-Thief Association. He confesses to a conditions existing in Blaine county more strongly than they are stated by Governor Ferguson. At first it was feared that the woman who was run over as described by Governor Ferguson was fatally injured. We desire to commend the people of Blaine county for their self-control and regard for law and order, as is indicated by the fact that they did not execute summary vengeance at the time upon the man who drove his horse and buggy over this unoffending woman on the streets of Watonga. strong prejudice against horse stealing, but [3] We think that under the conditions proven to exist in Blaine county, and described in the affidavit of Governor Ferguson, that the people of Blaine county not only had the right to organize in a lawful manner for the purpose of assisting the officers to enforce the law, but that it was their duty to do so. No reputable witness testified to any disorderly act committed by the people at this meeting. It was proven upon the trial of this cause that no threats of violence or profane language was used, and that no arms were carried by those who notified parties who were under suspicion that they must cease violating the law if they desired to remain in Blaine county, and that the good people of the county were going to sup- We are therefore of the opinion that it port the officers of the law in an honest would have been better if respondent had effort to enforce the law. We desire in this not participated in the public meeting which connection to say that all organizations hav-took place in Blaine county, Okl., and had ing for their purpose the enforcement of law should exercise the greatest care to see that they themselves do not violate the law. The history of the Western states shows that in many instances such organizations have gone entirely too far, and have resulted in great disorder and bloodshed. We believe that the laws of Oklahoma, if properly enforced, afford ample means for punishing the guilty and thereby protecting society. We also believe that these laws can and will be properly enforced, when the people give the officers their moral support. We can see no lawful reason or excuse why any body of men should attempt to take the enforcement of the law into their hands. Neither is there any reason why the people should not organize to assist the officers in enforcing the laws. not accompanied those who felt it to be their duty to warn persons who were under suspicion of having violated the law that if they desired to remain in Blaine county they must cease violating the law, and that the people were going to assist the officers in enforcing the law. But all the evidence for the respondent shows that no threats of violence were made by those who gave this warning, and that their conduct was quiet and orderly, and that their only purpose was to give warning to parties who were under suspicion. We cannot therefore hold that their conduct was illegal, and, although we believe that it would have been better if respondent had not gone with these parties, we cannot say that his presence indicated such a personal bias against the parties warned as would justify this court in holding that he was incompetent, on the ground of prejudice, from presiding at the trial of any person so warned. If the contention of counsel for petitioner is correct, no judge or jury should try a defendant who is charged with a crime who are themselves opposed to the commission of such crime; or, in other words, the idea of petitioner seems to be that the punishment of criminals should be intrusted to those who sympathize with criminals. One of the most useful organizations in the state is the Anti-Horse-Thief Association. The people have just as much right to organize to assist the officers to enforce the law against the bootlegger, as they have to organize to assist the officers to enforce the law against the horse thief. Of the two, the horse thief is the least dangerous to the lives and character of the people, and the peace and good order of society. Who would say that, because a juror or judge may belong to or be in sympathy with the Anti-Horse-Thief Association, he would thereby be disqualified [6] There is a great and manifest differfrom taking part in the trial of a defendant ence between prejudice against a crime and |