session or disposition of such liquor or other article.

(i) A party who places a witness upon the stand thereby vouches for his veracity, or at least vouches that the witness is not so deeply steeped in moral turpitude as not to be worthy of some credence. Therefore such party will not be permitted to impeach such witness by showing his general bad character for truth. (j) Where a party has been deceived or entrapped into placing a witness upon the stand, having reasonable ground to believe and believing that the witness will testify to facts favorable to such party, and the witness, when upon the stand, testifies to facts injurious to such party and conflicting with previous statements made by such witness, it would be a perversion of justice to deny to such party the right to introduce in evidence statements made by such witness conflicting with the testimony so given which was injurious to such party. This may be done upon the ground of surprise, to explain the action of the party in placing the witness upon the stand, and to destroy the injurious effects of such testimony.

(k) A party cannot impeach his own witness by introducing in evidence conflicting statements made by him, unless he shall testify injuriously to the party placing him upon the stand. The mere fact that the witness does not testify as the party expected him to do will afford no ground for the introduction in evidence of previous contradictory statements made by such witness.

(1) When contradictory statements made by a witness are admissible in evidence for the purpose of impeaching him, they must be confined to contradictions of the testimony of the witness which are injurious to the party seeking to impeach him, and it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence against or in favor of the defendant, and that the jury can only consider such contradictory statements for the purpose of affecting the credibility of the witness, if they decide that such statements do have this effect, and that it is unlawful for the jury to consider such statements for any other purpose.

(m) When a party places a witness upon the stand with notice that such witness will testify adversely to such party, he cannot claim sur

prise at such testimony, and will not be permitted to impeach the witness in any manner.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 71-81, 92, 989-1017, 1875; Dec. Dig. 88 59, 60, 75, 404, 423, 424, 427, 673;* Witnesses, Cent. Dig. 88 1094-1100, 1209-1256; Dec. Dig. §§ 321, 379, 380.*

then no motion to exclude need be made, and the question as to whether they were proper will be properly presented on appeal by a simple objection, without being followed by a motion to exclude.

(c) Our statute is mandatory, and, when the defendant has failed to become a witness in his own behalf, this fact must not, directly or indirectly, be mentioned or in any manner referred to or called to the attention of the jury. If such an attempt is made by counsel for the defense, the court must at once intervene and reprimand the counsel making such an attempt, and see that it is not repeated. If such an attempt is made by the prosecuting attorney and a conviction follows, a new trial must be granted to the defendant.

(d) It is improper for the court or any other person to refer or in any manner call attention, in the presence of the jury, to the fact that a defendant has failed to testify in his own behalf; but if this matter, in any manner, is called to the attention of the jury, then the court should instruct them that such failure of the defendant to become a witness in his own behalf is not to be considered by them as a circumstance against him, and that the law forbids them from discussing this fact or allowing it in any manner to influence them in considering the case and in arriving at a verdict.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533, 1672, 1693; Dec. Dig. §§ 656, 721, 728, 730, 1044.*]

6. CRIMINAL LAW (§ 804*)—"INSTRUCTIONS" -REDUCTION TO WRITING-STATEMENTS NOT INSTRUCTIONS.

Oral statements made by the court to the jury, with reference to the form or character of their verdict, which do not contain instructions or directions upon some question of law involved in the trial, or comment on the evidence, do not come within the statute which requires instructions to the jury to be reduced to writing, unless waived by the defendant. For illustration, see facts stated in the opinion of the court, which are held not to constitute error. [Ed. Note. For other cases, see Criminal Law Cent. Dig. §§ 1948-1957; Dec. Dig.

804.*

For other definitions, see Words and Phrases,

vol. 4, pp. 3663, 3664.]

(Syllabus by the Court.)

Appeal from Tulsa County Court; N. J. Gubser, Judge.

Norman Sturgis was convicted under an information charging the selling of intoxiFor other definitions, see Words and Phrases, cating liquor and the conveying of intoxivol. 6, pp. 5553-5557; vol. 8, p. 7763.] 5. CRIMINAL LAW (§§ 656, 721, 728, 730, 1044*) cating liquor from one place to another in -APPEAL-PRESENTATION AND RESERVATION the state, and appeals. Reversed and re

OF GROUNDS OF REVIEW-IMPROPER ARGU-manded.
MENT ARGUMENT OF COUNSEL-COMMENTS
ON FAILURE OF ACCUSED TO TESTIFY.

On the 31st of December, 1907, a prosecu(a) When counsel for the state goes out of tion was instituted against Norman Sturgis, the record and makes remarks injurious to the Arthur Sturgis, and Walter Sturgis, by indefendant, it is the duty of the counsel for the defendant to object to such remarks and formation, charging them with the commove the court to exclude them from the con- mission of two separate and distinct offenssideration of the jury. An objection to such es, viz.: First. Selling intoxicating liquors remarks is only a protest against the line of to certain parties whose names were unargument being pursued. If this matter is deemed of sufficient importance to be reserved known. Second. With transporting and confor review by this court, a motion to exclude such remarks from the consideration of the jury must be made, and, if this motion is not sustained, an exception must be taken, otherwise this court is not required to review the question upon appeal.

(b) If the remarks of the prosecuting attorney are of such a character that their exclusion from the jury will not cure the injury done,

veying intoxicating liquors from one place in the state to another place in the state, but not designating such places. The case being called for trial, the defendants assailed the information upon the ground of duplicity, in that it attempted to charge two offenses based upon separate and distinct

Sleeper & Davidson, for appellant. 8. Caldwell, for the State.

acts of the defendants. This motion was, by | Tulsa county, state of Oklahoma, who prosthe court, overruled, and the defendants then ecutes in the name and by the authority of obtained a severance. Walter Steen was the state of Oklahoma, comes here in perplaced upon trial first. Norman Sturgis, son into the county court of said county this who will hereinafter be called the defend- | 2d day of January, A. D. 1908, and upon the ant, was placed upon trial and found guilty affidavit of Joe Holmes, duly subscribed and by the jury. A motion for a new trial was sworn to by him as provided by law, and filed and overruled, and the case is regular- the same is hereto attached, marked 'Exhibit ly before us on appeal. A' and made a part hereof, gives the court Fred to understand and be informed that on the 31st day of December, A. D. 1907, in Tulsa county, state of Oklahoma, Norman Sturgis, Arthur Sturgis, and Walter Steen, late of said county, and within the jurisdiction of this court, did unlawfully sell, barter, give away, and otherwise furnish intoxicating liquor, to wit, one pint of whisky, one drink of whisky, one bottle of beer, one pint of ale, and one pint of wine to John Doe and Richard Roe, whose real names are unknown, against the peace and dignity of the state of Oklahoma. And the said county attorney in and for Tulsa county further gives the court to understand and be informed upon the affidavit aforesaid that on the 31st day of December, A. D. 1907, in Tulsa county, Norman Sturgis, Arthur Sturgis, and Walter Steen, then and there being, did then and there unlawfully ship and convey intoxicating liquors, to wit, twelve pints of whisky, twelve bottles of beer, five gallons of ale, and five gallons of wine from one place within this state to another place therein, without lawful authority to ship and convey the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma."

FURMAN, P. J. (after stating the facts as above). First. Counsel for the defendant in their brief say: "While we believe that the court erred in each and every one of the 26 assignments of error, yet some of them are so flagrant that we do not deem it necessary to call the court's attention to the minor errors appearing in the record. Those we do insist upon as grounds for reversal are the 5th, 6th, 11th, 12th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 22d, 24th, 25th, and 26th assignments." It is the settled policy of this court to treat as abandoned assignments of error which are not presented in the briefs filed in the case, unless we shall discover some fundamental error in the record before us. We will therefore confine our investigations and discussions to those questions which are presented in the brief of counsel. The presentation of so many assignments of error will necessarily require a lengthy opinion, as this court does not propose to dodge or evade a single question properly presented for decision, it matters not how much labor it may entail upon this court. If counsel properly raise a question in good faith, it is their right to have it decided; nothing is gained by saying, "The other questions will probably not arise upon a second trial." Our experience is that such questions will arise upon a second trial. The sooner questions of practice are settled, the better it will be for the administration of justice in Oklahoma. At present questions of practice are largely in a condition of rank confusion. This is especially true in prosecutions for violations of our prohibition law. This should not be a matter of surprise when it is remembered that our officers generally are overcrowded with work and do not have access to good libraries. It is the duty of this court to see that these questions are settled as rapidly as possible, so that we may have a uniform system of practice in Oklahoma. We therefore make it a rule to pass upon every material question involved in a case, which is properly presented.

Second. Under assignments 5 and 6, counsel for the defense assail the information in the case upon the ground of duplicity, in that it charges more than one offense. The information is as follows: "Amended Information. Be it remembered that M. A. Breckenridge, county attorney in and for

This information charges two distinct offenses, viz., a sale and a shipment. Is this permissible under our statute? Section 5360, Wilsons' Rev. & Ann. St. 1903, is as follows: "(5360) § 224. The indictment must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count."

This statute starts out with the mandatory statement that "the indictment must charge but one offense." It then proceeds, "but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be convicted of, the different offenses may be set forth in separate counts in the same indictment," etc. The same rules of

two houses, and that they are in fact one and the same house. The general rule is that the identity of the name is prima facie evidence of the identity of the person. Thompson v. Manrow, 1 Cal. 428; Mott v. Smith, 16 Cal. 554; Carleton v. Townsend, 28 Cal. 219; Jackson v. Boneham, 15 Johns. 226. And we see no reason why the rule may not apply to houses as well as persons." People v. Thompson, 28 Cal. 217.

obnoxious to the objection that it charges, prima facie evidence of the identity of the more than one offense. Or, take the present case. The first count charges that the defendant intended to steal the goods of John McRaith. The second charges that he intended to steal the goods of James McGraith. Now, assuming that it was necessary to allege the ownership of the goods, which the defendant intended to steal, in order to make a statement of the offense which would be sufficient in law, the two counts are proper, and there is no legal objection to the indictment merely upon the ground that the ownership of the goods intended to be stolen is charged to be in two different persons, which seems to have been the principal ground relied upon by counsel for the defendant in the court below. The use of the words 'said' or 'aforesaid,' or equivalent expressions in the second count of an indictment, will generally be found indispensable in order to fix the identity of the offense therein stated with that contained in the first count. It is a little

In another case the same court said: "It is proper to add in this connection that the learned judge of the court below was mistaken in supposing, as he seems to have done, that this case was within the four hundred and twenty-fourth section of the Criminal Practice Act, which provides that 'in all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment.' * * * Larceny is not necessarily included in burglary, remarkable that in the indictment before us like manslaughter in murder, within the those words are not used in a single instance sense of the statute; on the contrary, it is where their presence would have been proper, no part of it. The offense of burglary is if not necessary, for the purpose of identificomplete without any larceny being commitcation, but are used where they were not need-ted. The relation contemplated by the stated. Thus the date of the transaction is pre- ute does not exist between burglary and such ceded by the word 'said,' which was not necesother felony, if any, as may chance to be sary, since the court must know that there committed by the defendant at the same can have been but one 21st day of July in the time." People v. Garnett, 29 Cal. 628. year 1864. But when we come to the dwelling house, the identity of which with that mentioned in the first count must be shown with certainty, neither the word 'said' nor any equivalent expression is used. It is true that it is described, word for word, the same as in the first, but, so far as the use of words is concerned, there is nothing to show that the Crescent City Hotel of the second count is the Crescent City Hotel of the first, except that the name of the hotel and its proprietor is the same in both. The dwelling house having been described in the first count, no further description in the second count was required. A simple reference to it as 'the said dwelling house,' or as 'the dwelling house aforesaid,' was all that was necessary in the second count, and, had that course been adopted, the identity of the house would have been sustained throughout without involving a resort to legal presumptions, and no argument would have been required to show that the transactions described in the first and second counts were in fact one and the same. In this case the identifying facts are the venue or place, the date of the entry, and the house entered. The first and last are stated in the second count by simply repeating the language of the first count, without using the words 'said' or 'aforesaid,' or equivalent expressions, for the purpose of more certainly identifying them. This must, however, be held sufficient on the score of identity, for the court will take judicial knowledge of the fact that there is but one 'county of Sacramento' in the state, and because the identity of the names of the houses and their proprietors is

In another case the same court said: "The indictment, containing but a single count, charges that the defendant, 'unlawfully and with malice aforethought, and in and upon P. Alibez, C. Alibez, and R. Alibez did willfully, unlawfully, maliciously, and feloniously administer a poisonous drug, known as strychnine, with intent them, the said P. Alibez and C. Alibez and R. Alibez, to unlawfully and maliciously kill and murder, and did maliciously, unlawfully, and feloniously, then and there, by administering said poisonous drug, to wit, strychnine, unlawfully, premeditatedly, and with malice aforethought, kill and murder the said P. Alibez, C. Alibez, and R. Alibez, contrary to the form, force, and effect of the statute,' etc. The defendant filed a demurrer to the indictment, on the ground that it charges more than one offense; the demurrer was overruled. A trial was subsequently had upon a plea of not guilty, and, a verdict of guilty of murder in the first degree having been found by the jury, the defendant moved the court in arrest of judgment, upon the ground that more than one offense had been charged in the indictment. The motion was denied, and, judgment having been rendered upon the verdict, the case is brought here upon appeal. The statute (Pen. Code, § 954) under which the proceedings in question were had distinctly provides that the indictment 'must charge but one offense,' while it is self-evident that the indictment here, charging the defendant, as it does, with the murder of three persons, necessarily charges three offenses. The