and such remarks were withdrawn from the penitentiary. He was arrested on the 23d consideration of the jury. We do not think day of June, 1909, on a warrant from a justhat the remarks made by the county attor- tice of the peace court, and a preliminary ney, under the circumstances, injured appel- hearing was set for July 1st, at which time lant. he appeared and was ready for preliminary The judgment of the lower court is there- trial. The state was not ready and was fore in all things affirmed. (5 Okl. Cr. 520) FIELDS v. STATE. (Criminal Court of Appeals of Oklahoma. May 6, 1911.) (Syllabus by the Court.) 1. INDICTMENT AND INFORMATION (§ 4*) PROSECUTION-FELONIES. granted a continuance until the 10th of July, when plaintiff in error again appeared and was ready for trial and the state not ready, and a continuance was granted until the 24th day of July; all of the continuances having been had without the consent of the plaintiff in error. On July 6th a grand jury was impaneled by the district court of Osage county, and on the 20th day of July returned an indictment against plaintiff in error, charging the same offense for which he was arrested and held for examination by the justice of the peace. No disposition had been made of the cause by the justice of the peace. He was arraigned on the 1st day of Novem2. CRIMINAL Law (§ 223*)—PRELIMINARY Ex-ber on the indictment and interposed a plea AMINATION-PROSECUTION BY INFORMATION. in abatement, which was overruled and he When felonies are prosecuted by informa- excepted. The case went to trial on the 4th tion, it is necessary for a preliminary examination to be held, and proper commitment issued resulting in the conviction and sentence alholding the person charged to await the action ready mentioned. of the proper trial court. Under the provisions of section 17. art. 2, of the Constitution, felonies in this jurisdiction may be prosecuted either by indictment or information. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 24-27; Dec. Dig. § 4.*] [1] The sole assignment of error relied upon by the plaintiff in error in this court [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 463, 465; Dec. Dig. § 223.*] is that the trial court erred in overruling the 3. CRIMINAL LAW (§ 223*)—PRELIMINARY EXAMINATION-PROSECUTION BY INDICTMENT. When prosecution is by indictment, it is not necessary that a preliminary examination be held. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 463, 465; Dec. 'Dig. § 223.*1 4. INDICTMENT AND INFORMATION (§ 4*) MANNER OF PROSECUTION ELECTION BY plea in abatement. Counsel for plaintiff in error urge that the state, having elected to arrest the defendant and proceed under the provisions of the statute for preliminary examination and the filing of an information, cannot abandon that method and prosecute by indictment by a grand jury. Section 17, art. 2, of the Constitution, is as follows: "No person shall be prosecuted criminally in the courts of record for felony or misdemeanor otherwise than by presentment of indictment [Ed. Note.-For other cases, see Indictment or by information. No person shall be prose and Information, Cent. Dig. §§ 24-27; Dec. Dig.cuted for a felony by information without § 4.*] STATE. The state is not bound to prosecute by information after a preliminary examination is had as provided by statute, but may prosecute by indictment at its election. 5. HABEAS CORPUS (§ 29*)-WHEN LIES-DE LAY IN PRELIMINARY EXAMINATION. When a person is arrested charged with a felony and held in custody pending a preliminary examination, and such examination is not held within the time provided by law, he has a remedy by habeas corpus proceedings in a proper court for his discharge. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 24; Dec. Dig. § 29.*] having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecution may be instituted in courts of record upon a duly verified complaint." Under this provision, there are two methods prescribed by which prosecutions in felony cases may be prosecuted in courts having jurisdiction of such offenses, to wit: First, by indictment; second, by information. [3] The preliminary examination is not, and never was, a necessary jurisdictional requirement to prosecutions by indictment. [2] Such an examination is necessary only under our law when the prosecution is by information. There is nothing in the letter or spirit of the law to sustain the contention of the plaintiff in error. If he had been held by the committing magistrate to await the action of the grand jury, he could have been indicted, tried, and convicted just as if no examination had been had. [4] The state is not bound to prosecute by information simply because its officers may have elected to arrest a person and hold a preliminary examination. It may be true that the plaintiff in error was held in custody illegally awaiting proper preliminary hearing. [5] He had a remedy, however, if he had chosen to resort to it. The plea in abatement was properly overruled. No other errors being complained of, and none appearing from the record, the judgment of the trial court is affirmed. FURMAN, P. J., and DOYLE, J., concur. (5 Okl. Cr. 596) THORP et al. v. STATE. (Criminal Court of Appeals of Oklahoma. May 2, 1911.) (Syllabus by the Court.) 1. CRIMINAL LAW (§ 1099*) - APPEAL-DISMISSAL-FAILURE TO SERVE CASE-MADE IN the 1st day of December, 1909. On the 10th day of February, 1911, the Attorney General filed a motion to dismiss the appeal on the ground that the same was not served within the time provided by the order from the trial court, and raised other grounds for dismissal which we do not think it necessary to pass upon here. This motion to dismiss was served on counsel for plaintiffs in error on the 7th day of March, 1911. [2] On the 10th day of March counsel for plaintiffs in error filed a reply to the motion to dismiss and an affidavit of said counsel, by which affidavit it is attempted to show that the case-made was served within the proper time. The acceptance of service of a case-made signed by the county attorney is dated the 1st day of December as the same appears in the record. The affidavit attempts to correct the record by showing that it was served prior to that time. The record was properly certified to by the trial court, and this acceptance of service is a part of the record. TIME. When an appeal is taken to this court by case-made, and the time is fixed by the trial This court has repeatedly held that a casecourt within which a case-made is to be pre-made cannot be amended or a record impared and served in such appeal, the same must be served within the time allowed. is not done, this court has no jurisdiction to review the appeal on the case-made, and the same will be dismissed. When this peached by an affidavit. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1099.*] (Additional Syllabus by Editorial Staff.) 2. CRIMINAL LAW (§ 1110*)-APPEAL-RECORD -AMENDMENT BY AFFIDAVIT. A case-made cannot be amended by an affidavit to show that it was served prior to the time recited in the record. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1110.*] Appeal from District Court, Kiowa County; James R. Tolbert, Judge. J. P. Thorp and another were convicted of felonious assault, and they appeal. Dis missed. Conner & Terrall, for plaintiffs in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. ARMSTRONG, J. J. P. Thorp and J. C. Stewart were convicted in the district court of Kiowa county on the 12th day of May, 1909, on a charge of assault with a dangerous weapon with intent to do bodily harm. The law is plain as to how a case-made is to be amended. Counsel for plaintiffs in error have not appeared with any proper amendment. There is no transcript, and there is no alternative but for this court to dismiss the appeal, which is hereby ordered, and the trial court directed to enforce the judgment and sentence. FURMAN, P. J., and DOYLE, J., concur. (5 Okl. Cr. 701) LAWSON v. STATE. (Criminal Court of Appeals of Oklahoma. May 9. 1911.) CRIMINAL LAW (§ 1069*)-APPEAL --PROCEED INGS TO PERFECT-TIME. Where judgment was rendered November 13, 1909, at which time accused was given 60 days within which to perfect his appeal, and the case-made contains an order, not signed by the trial judge, purporting to extend the time 10 days, and the appeal is filed on June 24, 1910, more than 70 days from date of judgment, it was not perfected in time, and the appeal will be dismissed. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. § 1069.*] Appeal from Canadian County Court; H. L. Fogg, Judge. "Not to be officially reported." Jack Lawson was convicted of violating the prohibitory law, and he appeals. Dismissed. W. A. Maurer, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. [1] Judgment was pronounced on the 3d day of July, 1909, at which time plaintiffs in error were granted 90 days to prepare and serve case-made on the county attorney for appeal. On the 27th day of September thereafter the time was extended by the trial court for making and serving the case-made for a period of 60 days from the time of the expiration of the original order, making a total of 150 days from the 3d of July. Said 150 days expired with the 30th day of November, 1909. The case-made was served on *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-39 PER CURIAM. Plaintiff in error was convicted of unlawfully conveying intoxicating liquors from one point in this state to an other point therein, and sentenced to pay a fine of $50 and costs, and be confined for 30 days in the county jail. Judgment was rendered on the 13th day of November, 1909, at which time he was given 60 days by the trial court within which to perfect his appeal in this court. The casemade contains an order, which is not signed by the county judge, purporting to extend the time 10 days for perfecting the appeal in this court. The appeal was filed on the 24th day of June, 1910, more than 70 days after date of the judgment. The Attorney General has filed a motion to dismiss, on the ground that the appeal is not perfected in the time allowed by law. The motion is well taken, and the appeal accordingly dismissed, with directions to the trial court to enforce the judgment and sentence. (5 Okl. Cr. 576) CROOMS v. STATE. contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state." Appellant moved the court to set aside the information, upon the ground that it was indefinite and uncertain, and did not inform appellant of the particulars of the offense charged against him. This motion was by the court overruled. The specific objection urged against the information is that it simply alleges in general terms that appellant had in his possession intoxicating liquor for an unlawful purpose, but nowhere states facts sufficient to bring such unlawful purpose within the letter of the law. The statute makes it an offense for any person to have the possession of any such liquors with the intent to violate any of the provisions of the prohibitory law. In the case of State v. Feeback, 3 Okl. Cr. 508, 107 Pac. 442, this court said: "To say that a man intends to use the liquor in violating the law does not charge any offense for the reason that it is too indefinite." The information in this case (Criminal Court of Appeals of Oklahoma. May should have gone further, and have alleged 23, 1911.) (Syllabus by the Court.) INTOXICATING LIQUORS (§ 211*)-INFORMATION -SUFFICIENCY. An information which alleges that the defendant had in his possession intoxicating liquors for an unlawful purpose, without going further and alleging the intention on the part of appellant to use such intoxicating liquors in violation of the prohibitory liquor laws of the state, is too indefinite to charge any offense, and upon motion should be set aside. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 251; Dec. Dig. § 211.*] Appeal from Atoka County Court; J. H. Linbaugh, Judge. the intention on the part of the appellant to violate the provisions of article 3, c. 69, of the Session Laws of 1907 and 1908. The motion to set aside the information should have been sustained. The judgment of the trial court is reversed, and the cause is remanded. CLEMMONS v. STATE. (Criminal Court of Appeals of Oklahoma. May 23, 1911.) (Syllabus by the Court.) TION IN ERROR-NECESSITY. Aaron Crooms was convicted of having 1. CRIMINAL LAW (§ 1129*)-APPEAL-PETIwhisky in his possession for unlawful purposes, and appeals. Reversed and remanded. J. G. Ralls, for appellant. Smith C. Matson, Asst. Atty Gen., for the State. When an appeal is taken to this court from any criminal action determined in any trial case-made must be accompanied by a petition court of record in this state, the transcript or in error, pointing out the specific assignments upon which the appellant relies for a reversal of the judgment. Law, Dec. Dig. § 1129.*] 2. CRIMINAL LAW (§ 1081*)—APPEAL-NOTICE It is necessary for notice of appeal to be served upon the clerk of the court trying the cause and the county attorney of the county within which the same was tried, as provided by section 6949, Snyder's Statutes. Unless this is done, this court cannot exercise jurisdiction to review any attempted appeal, and can make no order, except to dismiss the same and direct the trial court to enforce the judgment and sentence. PER CURIAM. The information in this case is as follows: "In the name and by the authority of the state of Oklahoma, now comes J. W. Jones, the duly qualified and acting county attorney in and for Atoka county, state of Oklahoma, and gives the county court of Atoka county and state of Oklahoma to know and be informed that Aaron Crooms did, in Atoka county, and in the state of Oklahoma, on or about the 8th day of December in the year of our Lord one thousand nine hundred and nine, and anterior to the presentment hereof, commit the crime of being in the possession of intoxicating liquors for an unlawful purpose in the manner and form as follows, to wit: That the said Aaron Crooms did then and there have in his possession twenty-four pints, more or less, of intoxicating liquor, of assault with intent to kill, and appeals. namely, whisky, for an unlawful purpose, Appeal dismissed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2722-2724; Dec. Dig. § 1081.*] Appeal from District Court, Muskogee County; John H. King, Judge. Goldie Clemmons was convicted on a charge Percival Adams, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. lating "article 3, section 1, of Senate Bill No. 61 of the Laws of Oklahoma," is too indefinite: it being impossible to determine the particular Senate Bill intended. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 284, 285; Dec. Dig. § 108.*] Appeal from Custer County Court; A. H. Latimer, Judge. ARMSTRONG, J. The plaintiff in error was tried in the district court of Muskogee county on a charge of assault with intent to kill. A verdict of guilty was returned by the jury on the 13th day of November, 1909, assessing her punishment at a year in the penitentiary. Motion for a new trial was filed and overruled, and on the 16th day of No- ing the prohibitory law, and appeals. Re vember thereafter the court sentenced the plaintiff in error to imprisonment in the state penitentiary for one year. "Not to be officially reported." Mrs. E. V. Smith was convicted of violat versed and remanded. Holcombe & Bulow, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., for the State. PER CURIAM. Mrs. E. V. Smith was con [1, 2] The plaintiff in error attempted to perfect an appeal in this court on the 2d day of February, 1910, by filing petition in error and case-made. On the 12th day of Sep-victed of having intoxicating liquors in her tember, 1910, the Attorney General filed a possession for the unlawful purpose of selling motion to affirm for want of prosecution, un- the same at the January, 1909, term of the der rule 4. On the 17th day of January, county court of Custer county, and sentenced 1911, brief was filed on behalf of the plaintiff in error. On the 12th day of April, 1911, to pay a fine of $400 and be confined in the a motion to dismiss the appeal was filed by county jail 60 days. the Assistant Attorney General, which is as follows: "Comes now Charles West, Attorney General, and appearing especially and for the purpose of this motion only, moves the court to dismiss the pretended appeal herein, for the reason that no petition in error is attached to or accompanies the case-made, nor has any petition in error ever been filed in this case, and the time within which this appeal could have been perfected has long since expired. Section 6951, Compiled Laws of Oklahoma 1909 (Snyder); Edwards v. State, 2 Okl. Cr. 715, 103 Pac. 1072. Second. Because no notices of appeal were ever served upon the clerk of the district court or county attorney, as required by section 6949, Compiled Laws of Oklahoma 1909 (Snyder). Wherefore the Attorney General says that this court is without jurisdiction to consider this case, and the appeal should therefore be dismissed. Chas. West, Attorney General. Smith C. Matson, Assistant Attorney Gen eral." The motion is well taken, and is sustained. This court is without jurisdiction to review the cause on appeal, and the same is hereby dismissed, with directions to the district court of Muskogee county to enforce the judgment and sentence. The first assignment of error raises the sufficiency of the information; the charging part of which is as follows: "That Mrs. E. V. Smith, more full name unknown, late of the county of Custer and state of Oklahoma, on or about the 3d day of October in the year of our Lord one thousand nine hundred and eight (1908), at and within the said county and state, did then and there unlawfully have the possession of intoxicating liquors, to wit, about one-half barrel of beer, with the intention of violating the provisions of article 3, section 1, of Senate Bill No. 61 of the Laws of Oklahoma." There are many objections that can be and are urged to this information, and nothing can be said to justify it. In the first place, a Senate Bill is never a law until passed by both houses of the Legislature and approved by the Governor, or allowed to become a law without his signature. If an information or indictment charging a violation of the provisions of a Senate Bill, numbered 61, is filed with a court, by what process of elimination or reasoning we are to determine the particular Senate Bill contemplated is not suggested. There have been a dozen or more such bills and a number of laws on the statute books that came into existence by reason of having been enacted and originally numbered Senate Bill 61 by the Legislature. The information FURMAN, P. J., and DOYLE, J., concur. is entirely too indefinite. The demurrer (5 Okl. Cr. 708) SMITH v. STATE. (Criminal Court of Appeals of Oklahoma. May 16, 1911.) should have been sustained. There are other errors urged raising questions which this court has already passed upon, and it is unnecessary to consider them here. The judgment of the trial court is reversINDICTMENT AND INFORMATION (§ 108*)-IN-ed, and this cause remanded, with directions FORMATION-REFERENCE TO STATUTE. An information charging unlawful posses- to the county court of Custer county to sussion of intoxicating liquors with intent of vio-tain the demurrer to the information. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (5 Okl. Cr. 532) MANNING v. STATE. (Criminal Court of Appeals of Oklahoma. May 16, 1911.) (Syllabus by the Court.) appeared on the scene, and plaintiff in error was arrested. Weitzel died from the effects of the wound on the 1st day of September, 1908. There are a number of assignments of error relied upon, but, in view of the fact that 1. CRIMINAL LAW (§ 786*)-INSTRUCTIONS- the questions raised have been repeatedly CREDIBILITY OF ACCUSED. An instruction upon the credibility of the defendant as a witness in his own behalf is erroneous; and, when given, is ordinarily sufficient grounds for a new trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1895-1901; 'Dec. Dig. § 786.*] 2. CRIMINAL LAW (§ 786*) — INSTRUCTIONS CREDIBILITY OF ACCUSED. When the defendant is the only witness testifying to material facts tending to establish his defense, and the trial court, after a portion of the argument of the case has been made to the jury, gives an instruction upon the credibility of the defendant as a witness in his own be half, a conviction had will be set aside and a new trial awarded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1787-1795; Dec. Dig. § 786.*] Appeal from District Court, Oklahoma County; John J. Carney, Judge. Frank Manning was convicted of manslaughter, and he appeals. Reversed and remanded. Giddings & Giddings, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. ARMSTRONG, J. Plaintiff in error was tried in March, 1909, in the district court of Oklahoma county on a charge of murder and convicted of manslaughter in the second degree, and sentenced to four years in the state penitentiary. passed upon by this court, we shall consider only one assignment, which this court has repeatedly held is sufficient to cause a reversal. This is assignment No. 8. [1, 2] After the court had instructed the jury and the assistant county attorney had made the opening argument for the state, the court gave the following instruction, over the objection and exceptions of the defendant: "There is just one instruction that the court did not give that it will now give: "The defendant is a competent witness in his ed by the same rules that govern the testiown behalf, and his testimony is to be weighmony of other witnesses; but, in weighing his testimony, the jury may take into consideration the fact that he is the defendant in this case and his interest in the result of the trial.'" In this case the plaintiff in error was the only witness testifying to the substantial facts tending to establish his defense. Such an instruction as the foregoing has been held erroneous in a great many cases by this court, among them the following: Bridges v. U. S., 3 Okl. Cr. 64, 104 Pac. 370; Hughes v. State, 3 Okl. Cr. 387, 106 Pac. 546; Crow v. State, 3 Okl. Cr. 428, 106 Pac. 556; Fletcher v. State, 2 Okl. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Banks v. State, 2 Okl. Cr. 339, 101 Pac. 610; Mitchell v. State, 2 Okl. Cr. 442, 101 Pac. 1100; Price v. U. S., 2 Okl. Cr. 449, 101 Pac. 1036; Reed v. U. S., 2 Okl. Cr. 652, 103 Pac. 371. The judgment of the trial court is reversed, and the cause remanded for a new trial. FURMAN, P. J., and DOYLE, J., concur. (5 Okl. Cr. 670) KERKENDALL v. STATE. 23, 1911.) The proof shows: That the plaintiff in error conducted a meat and grocery market at 111 South Robinson street in Oklahoma City in the summer of 1908. That he slept at the same place. On the night of the 31st of August he closed at about 9 o'clock, and went to a resort on Grand avenue, and secured a lunch and a drink of whisky. It was a rainy night. About 11 o'clock, he returned to his place, and found the doors had been broken, and some one had forced entrance to the place. The plaintiff in error appears to have entered the back door; the front (Criminal Court of Appeals of Oklahoma. May door having been locked on the inside. As he walked through the shop, he heard a noise, and, picking up a butcher knife, started toward the front door. About the time he got to the door a man rose up, and, according to his testimony, told him to hold up his hands. A struggle ensued in which the intruder was struck on the head with the knife, and afterwards shoved out of the front door onto the street where he fell. It developed that this person was Thomas T. Weitzel. Several persons saw the plaintiff in error and deceased struggling on the walk in front of the butcher shop, but recognized neither of them. In a few moments officers (Syllabus by the Court.) 1. CRIMINAL LAW (§ 1159*)-ASSAULT AND VIEW. (a) When there is any evidence in the record from which the jury could legitimately draw court will not set aside their verdict upon the the conclusion of the defendant's guilt, this ground of the insufficiency of the testimony, unless it clearly appears from the record that the jury, were influenced by improper motives in convicting the defendant. (b) For evidence sustaining a verdict of guilty for unlawfully assaulting another with |