*1 Iíea v. State.
Syllabus. said cause No. 95, the judgment against A— defendant is re- versed and remanded.
DOYLE and OWEN, Judges, concur.
W. C. Rea v. State. Opinion
No. A-283. Filed December 1909. 1. LIMITATION OF PROSECUTIONS —Burden of Proof —Judicial County, Notice —Nonexistence (a) The statute of limitations negative does not single a element of the crime with which a may charged. defendant put It does not guilt in issue the of the defendant. It therefore is not prose- prove beyond cution to a reasonable doubt the offense com- mitted is not barred the statute of limitations. (b)A trial jury judicial take can. notice of the fact statehood began for Oklahoma day on the 16th November, prior and that to that date there was no such county county Pontotoc Oklahoma, and that an offense county committed in said committed incoming after of statehood. 2. APPEAL —Presentation and Reservation of Grounds of Review— Necessity Timely Objection —Motion New Necessity Trial — — Instructions, “Fundamental Errors” Written (a) When in a present misdemeanor case is and is represented by counsel, present, who are also are orally instructed, and no exceptions is made or reserved, time, instructions, to such and the matter brought to the attention of the trial in the motion trial, for a new is too late to raise this auestion for the first appellate time in the court. (b) Only those preserved raised and in the mo- tion for a new trial will be appeal, considered on they unless are of a fundamental justice character. When the of the case requires it, fundamental errors considered, will be whether as- signed or errors not. (c) “Fundamental errors” go are those which to the foun- dation or which take right from the defendant which was essential to his defense. (d) is best in all give they and when are waived it is best appear fact should in the record. REPORTS. CRIMINAL 3 OKLAHOMA Coui’t any (a) Fact, there When Review—Questions APPEAL — logically could record guilt, defendant’s conclusion draw *2 fairly and indicted properly been has the defendant shows court. judgment lower the of the affirm will tried, this Court.)
(Syllabus the Terrell, Judge. Court; Joel County Pontotoc Appeal from intoxicating selling unlawfully oí convicted Rea was C.W. Affirmed. and he appeals. liquor, _ as designated hereinafter error, plaintiff The an infor- on county, Pontotoc of county the convicted was July on Okla., count}', Pontotoc that, in charging mation fur- and away, barter, give sell, unlawfully did defendant the said wit, alcohol. to liquor, intoxicating Hattox Wes one nish 1909, which February, of day the 4th on trial for on came cause filed, new trial a Motion for of guilty. verdict ain resulted sentenced the whereupon allowed, exception overruled, and 30 of a period county jail the imprisoned to defendant judgment From costs. and $50 of a fine pay that he and days court. to appeals defendant court, the of the and sentence McTCeown, appellant. Galbraith and Kerr& Bulloch reporter. the reached briefs of copies No facts stating Judge (after FURMAN, PRESIDING of counsel contention first First. above). sale alleged prove state did “Because follows: is as limitations." of statute of period within made been have limitations. of statute defense presents contention This Court Supreme upon passed been has question This 5 Territory, v. of Coleman case Territory Oklahoma Judge opinion able lengthly After Ameri- leading all discusses he cites Tarsney, says: (cid:127) subject, on text-writers eases can element traverses nó limitations statute of the defense “The It defense. an extrinsic essentially charged. crime constituting elements essential either in issue put -not virtue asserts simply He charged. offense guilt bis Esa
Opinion of the Court of an extrinsic condition, not relating the commission of the offense, but recognizing its commission, namely, re- pose or limitation, he is not now subject to punishment for the crime, which he admits having committed. We can see no reason why the rule relating the defense of license, authorization by the state, acquit, autrefois convict, pardon, provocation, autrefois or compulsion should not be the rule as to his defense. fact, In we think the rule applies with more reason and justice to this de- fense than to the others. It is not inequitable, oppressive, or sub- stantially prejudicial to the safeguards which should surround the defense of one accused of crime, that if his defense does not deny the commission of the acts charged, or traverse any of the material elements of the offense, but is based upon facts wholly extrinsic and peculiarly within his knowledge, and more readily susceptible of proof by him than by the prosecution, that he should be held establish such defense to the reasonable satisfaction of the jury.” But, even if the burden proof was on the state to establish the commission of the offense within the statute of limitations be- yond a reasonable doubt, we think that it was done in this case. *3 The is as follows: “Q. You name is Wes Hattox? Q. A. Yes, sir. Where do you live? A. At Q. Fitzhugh. You know Will Ehea? A. Yes, Q. sir. What is business in? A. Drug Q. business. Where? A. Boff. Q. Were you in his drug store July? in A. Yes, Q. sir. Did you purchase anything? Yes, A. Q. sir. What was it? A. Q. Alcohol. Is alcohol intoxicating? A. sir; Yes, I suppose Q. is. That was in Pontotoc county, Okla.? Yes, A. sir.”
From this it is proven that the sale took place in Pontotoc county, The Okla. court takes judicial notice of the fact that prior to the incoming statehood, on 16, November 1907, such county as Pontotoc county, Okla., was not in existence. Therefore the sale was proven to have been made subsequent to that date. Wigmore on Evidence, vol. 4, 2575, says; § ' “Domestic Political Organization Boundaries, Capitals, etc. — —So far as the facts of political organization and operation of the
state are determined in the law, they are judicially noticed as a part of the law.”
Therefore the contention of the defendant that the case should be reversed because it. was not proven that the sale was made with- Reports.
284 Criminal Oklahoma of the Court by limitations, supported, is period law or the evidence. for the of counsel The second
Second. contention rec- jury orally. in instructing the trial court erred that were jury to that instructions does the fact ord disclose were waived oral, and that it fails to show failure to the defendant; any exceptions neither it contain for a new motion to instruct the in jury writing. reversal, nothing trial does not this for a rely upon ground in error petition said with in the original reference to this matter with the in this This was first appeal filed case. point 23, 1909, court on an to this November amended petition &Rev. 5484, error. The latter paragraph Wilson's § follows: Ann.“St. is as
“All instructions
unless waived
given
writing
shall be
both
parties, and shall be filed and become part
case.”
that it is not essential and
From this it appears
all
that
be reduced
but
the instructions
the jury
writing,
waived
may
parties.
States,
oral
Opinion of the Court. exists, Therefore, considered while error court on review. one, it not nor is it one which we think affects reversible substantial has been the defendant. This rights question this court in case of Frank Terri- passed upon by Swaggart v. entire tory, 96, which, 50 Pac. in after reviewing that, subject, the declined to reverse judgment, holding although error been appeared, question having trial, the trial court the motion for new one being it not the substantial the error rights affected was not one which work a reversal of the should judgment.” This court has time and that, declared again whenever there was any evidence in the record from which the could ration- ally conclude that the defendant was we guilty,, would not reverse unless, conviction record, that the appeared defend- ant been of some deprived had substantial right trial. during the We fail find any such in this error record. We are therefore compelled the conviction. .affirm
Affirmed. OWENy Judges,
DOYLE and concur,. Rehearing. On Petition eor February Denied 1. 1910. McKeown,
Galbraith & for appellant. Caldwell,
Fred S. for the State. PER CURIAM. no There is mandatory in this state requiring all instances instructions to juries shall be writing. The language the law is: "All be in unless waived writing and shall both become a the record parties filed (Wilson’s
the case.” Ann. St. par. 6.) Rev. § of law is that proceedings courts of The presumption on the The burden is who party regular. *5 Reports. Criminal 3 Oklahoma of the Court. that clearly irregularity exists. show regularity bemay instructions that written terms provided having express reduced have not been waived, in where instructions were that written instructions will be presumption Coun- the contrary. shows affirmatively waived unless the record .to say: sel for a rehearing defendant in their petition 55,18 1903), & Ann. St. Rev. 5525 (Wilson’s “Sections and causes criminal instructions which, least command .in impliedly, given not them be require do they to be reduced to writing,'if in writing.” St., is as follows: & Ann. Okla. Rev.
Section Wilson’s mat- all to them must “In state charging giv- information for their it necessary, ters of law which thinks must case, it testimony it of verdict, and if state their ing judges.of exclusive they that addition inform the any to the court 'party may present all of fact. Either questions If -it the court thinks given. it be and that charge, request written not, if it must be refused. be given; correct and it.must pertinent, or court must refused the Upon charge given each If be any charge given its written sign part or decision. indorse in- distinguish, must showing refused the court and part charge or what each and what answer, part dorsement refused.” all it state matters law which court.must information, their if the court states the thinks must, thereto, testimony it in addition inform the jury are the exclusive of all of fact. There they judges no is must or instructions express command here implied be written reduced to of the statute relates to writing. The rest instructions, not defendant. may may requested by which or be is There claim written instructions were re- no made that such any statute is by the case. Therefore this quested not material to the us. question now before St., Okla. Rev. Ann. relied upon
Section Wilson’s counsel for the is as follows:: with them take jury may “On deliberation the retiring for verdict court; the forms ap- by the as been received court, have papers proved
Haikey
Syllabus. ox cause, or records public such copies parts not, private documents ought opinion them in taken the person having possession.” can- merely permissive. seen that this statute So We the defendant with the contention counsel agree *6 in- these two sections of the statute by implication require an old writing. structions proverb reduced words,” acceptance of universal than “Actions louder speak and when oral instructions are to a and the defendant does not save object and an waives his exception, thereby right to have such instructions reduced to after- cannot wards be heard to that such complain instructions were not As the of instructions in writing. writing may be waived giving be said that the failure of the court cannot to reduce in- structions to writing jurisdiction affects the or goes to the foundation of the and such failure constitute fundamental error.
Behearing denied. Haikey
Frank No. A-122. Filed December Pac Change Venue —Transmission VENUE — Indictment —Harmless Error. indicted prior statehood United States Court the Western District of Indian Terri- sitting tory, at Tulsa. On application defendant’s the case was transferred to the United Court States the Western District sitting Territory, of Indian Sapulpa. at clerk of the court ' sitting Tulsa, at also clerk of the who was at Sapulpa failed to affix his official seal the transcript of the proceed- ings original which was with transmitted indictment Held, Sapulpa. the failure to affix his official seal prejudice rights transcript did not the substantial defendant. Court.) (Syllabus by the .