DOYLE, Judge
(after stating the facts as above). Counsel for plaintiff in error in their brief state:
“We have elected to reserve only two propositions for the consideration of this court. They may be thus stated: The defendant having been placed upon his trial in a court of competent jurisdiction, before a jury regularly drawn, impaneled, and sworn, and the trial of his case begun, he was entitled to have the trial
proceed, and that upon the failure of the state to prove a case against him he then and there became entitled to his discharge, and, this right having been once acquired, he was entitled to the benefits of the provisions of the Constitution of the United States and the Constitution of the state of Oklahoma against being twice put in jeopardy for the same offense; and (2), the name and address of the witness, B. F. Christopher not appearing upon the. list of witnesses served upon the defendant prior to the trial, the resumption of the trial by the examination of said witness was erroneous.”
In support of the first contention counsel cite the following authorities:
State v. Nelson,
19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559, 61 Am. St. Rep. 780;
State v. Richardson,
47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238;
McCauley v. State,
26 Ala. 135. In these cases the jury was discharged during the trial over the objection of the defendant and a new trial ordered. Therefore the doctrine of these cases has no application to the case at bar. It is within the sound discretion of the trial court to postpone the further taking of testimony on account of the absence of witnesses who are expected to arrive that day on a certain train, and this discretion will not be controlled by this court unless abused. In the case of
Johnson v. State,
32 Ark. 309, it was said:
“After the state had examined several witnesses, the court against the objection "of the defendant suspended the trial, and allowed the jury to separate from Tuesday until Friday, that the state might procure the attendance of a witness. The suspension of the proceedings in a trial is within the sound discretion of a court, and we are not prepared to say there was any abuse of its discretion in this case.”
See, also,
Griffin v. State,
90 Ala. 596, 8 South. 670.
The contention that defendant was twice put in jeopardy for the same offense is without merit. As we view the record, there was not the semblance of error in the rulings of the trial court.
In support of their second proposition, counsel cite the case of
Logan v. United States,
144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 433. In the case of
Hickory v. U. S.,
151 U. S. 303, 14 Sup. Ct. 334, 28 L. Ed. 170, Mr. Chief Justice Fuller said:
“Under section 1033 of Rev. Stat. (section 1033., vol 2, Fed. Sts. Ann. p. 344 [U. S. Comp. St. 1901, p. 722]), any person indicted of a capital offense has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced, and it would be error to put Mm on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his right.
Logan v. United States,
144 U. S. 263 [12 Sup. Ct. 617, 36 L. Ed. 433]. But we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect to this witness; but we are of opinion that the discretion of the trial court was properly exercised upon the question.”
In the case of
Thiede v. Utah Territory,
159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237, Mr. Justice Brewer said:
“But this section applies to the Circuit and District Courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in
Hornbuckle v. Toombs,
18 Wall. 648 [21 L. Ed. 966], and it was held, overruling prior decisions, that the pleadings and procedure of territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. See, also,
Clinton v. Englebrecht,
13 Wall. 434 [20 L. Ed. 659], in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes;
Good v.
Martin, 95 U. S. 90 [24 L. Ed. 341], in which a like ruling was made as to the competency of witnesses;
Reynolds v. United States,
98 U. S. 145 [25 L. Ed. 244], where the same rule was applied to the impaneling of grand jurors and the number of jurors; also
Miles v. United States,
103 U. S. 304 [26 L. Ed. 481], a case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of' challenging petit jurors.
Page v. Burnstine,
102 U. S. 664, 668 [26 L. Ed. 268]. Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, -Comp. Laws Utah, requires that the names of. witnesses examined before the grand jury be indorsed on the indictment before it is presented.
There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that as a favor the names be furnished them indicates their understanding of the extent'of defendant’s right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness or the testimony that he gave. This allegation of error, therefore, is without foundation.”
‘‘While the Bevised Statutes of the United States, and not the Arkansas law, were in force in the Indian Territory in so far as the definition of the crimes of murder and manslaughter and the punishment prescribed therefor were concerned, yet the Arkansas law respecting the procedure governing the trial even of those offenses was in force in the Indian Territory to the exclusion of all other laws.
Binyon v. U. S.,
4 Ind. Ter. 542;
Simon et al. v. U.
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DOYLE, Judge
(after stating the facts as above). Counsel for plaintiff in error in their brief state:
“We have elected to reserve only two propositions for the consideration of this court. They may be thus stated: The defendant having been placed upon his trial in a court of competent jurisdiction, before a jury regularly drawn, impaneled, and sworn, and the trial of his case begun, he was entitled to have the trial
proceed, and that upon the failure of the state to prove a case against him he then and there became entitled to his discharge, and, this right having been once acquired, he was entitled to the benefits of the provisions of the Constitution of the United States and the Constitution of the state of Oklahoma against being twice put in jeopardy for the same offense; and (2), the name and address of the witness, B. F. Christopher not appearing upon the. list of witnesses served upon the defendant prior to the trial, the resumption of the trial by the examination of said witness was erroneous.”
In support of the first contention counsel cite the following authorities:
State v. Nelson,
19 R. I. 467, 34 Atl. 990, 33 L. R. A. 559, 61 Am. St. Rep. 780;
State v. Richardson,
47 S. C. 166, 25 S. E. 220, 35 L. R. A. 238;
McCauley v. State,
26 Ala. 135. In these cases the jury was discharged during the trial over the objection of the defendant and a new trial ordered. Therefore the doctrine of these cases has no application to the case at bar. It is within the sound discretion of the trial court to postpone the further taking of testimony on account of the absence of witnesses who are expected to arrive that day on a certain train, and this discretion will not be controlled by this court unless abused. In the case of
Johnson v. State,
32 Ark. 309, it was said:
“After the state had examined several witnesses, the court against the objection "of the defendant suspended the trial, and allowed the jury to separate from Tuesday until Friday, that the state might procure the attendance of a witness. The suspension of the proceedings in a trial is within the sound discretion of a court, and we are not prepared to say there was any abuse of its discretion in this case.”
See, also,
Griffin v. State,
90 Ala. 596, 8 South. 670.
The contention that defendant was twice put in jeopardy for the same offense is without merit. As we view the record, there was not the semblance of error in the rulings of the trial court.
In support of their second proposition, counsel cite the case of
Logan v. United States,
144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 433. In the case of
Hickory v. U. S.,
151 U. S. 303, 14 Sup. Ct. 334, 28 L. Ed. 170, Mr. Chief Justice Fuller said:
“Under section 1033 of Rev. Stat. (section 1033., vol 2, Fed. Sts. Ann. p. 344 [U. S. Comp. St. 1901, p. 722]), any person indicted of a capital offense has the right to have delivered to him, at least two days before the trial, a list of the witnesses to be produced, and it would be error to put Mm on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his right.
Logan v. United States,
144 U. S. 263 [12 Sup. Ct. 617, 36 L. Ed. 433]. But we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect to this witness; but we are of opinion that the discretion of the trial court was properly exercised upon the question.”
In the case of
Thiede v. Utah Territory,
159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237, Mr. Justice Brewer said:
“But this section applies to the Circuit and District Courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that territory. This question was fully considered in
Hornbuckle v. Toombs,
18 Wall. 648 [21 L. Ed. 966], and it was held, overruling prior decisions, that the pleadings and procedure of territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. See, also,
Clinton v. Englebrecht,
13 Wall. 434 [20 L. Ed. 659], in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes;
Good v.
Martin, 95 U. S. 90 [24 L. Ed. 341], in which a like ruling was made as to the competency of witnesses;
Reynolds v. United States,
98 U. S. 145 [25 L. Ed. 244], where the same rule was applied to the impaneling of grand jurors and the number of jurors; also
Miles v. United States,
103 U. S. 304 [26 L. Ed. 481], a case coming from the territory of Utah, in which the same doctrine was announced with regard to the mode of' challenging petit jurors.
Page v. Burnstine,
102 U. S. 664, 668 [26 L. Ed. 268]. Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, -Comp. Laws Utah, requires that the names of. witnesses examined before the grand jury be indorsed on the indictment before it is presented.
There is no pretense that this direction was not complied with. In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment, or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that as a favor the names be furnished them indicates their understanding of the extent'of defendant’s right, and, so far as appears, the district attorney fully complied with this request, and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness or the testimony that he gave. This allegation of error, therefore, is without foundation.”
‘‘While the Bevised Statutes of the United States, and not the Arkansas law, were in force in the Indian Territory in so far as the definition of the crimes of murder and manslaughter and the punishment prescribed therefor were concerned, yet the Arkansas law respecting the procedure governing the trial even of those offenses was in force in the Indian Territory to the exclusion of all other laws.
Binyon v. U. S.,
4 Ind. Ter. 542;
Simon et al. v. U.
S., 4 Ind. Ter. 688;
Driggers v. U.
S., 7 Ind. Ter. 752, 104 S. W. 1166;
Taylor v. U. S.,
6 Ind. Ter. 350, 98 S. W. 123;
Leftridge v. U.
S., 6 Ind. Ter. 305, 97 S. W. 1018.”
(Prince v. U. S.,
3 Okla. Cr. 700, 109 Pac. 241.)
We believe that the admission of the testimony of the witness Christopher was not error. The plaintiff in error could not be prejudiced by the testimony of this witness. His defense was justifiable homicide in self-defense, and the proof of the
corjnis delicti
was sufficient without the evidence of this witness. The proposition advanced by counsel that, if error is shown by the record, the conviction must be reversed, whether such error operated to the prejudice of the plaintiff in error or not, is not the law. In numerous cases determined by this court, the contrary doctrine is announced. The criminal laws of this state must be enforced; and, if it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury have so found, this court will not reverse a conviction for a mere technical error which it can see could not have affected the result.
Absolute correctness of proceeding cannot be attained, even in our very best courts; and the establishment of any other rale would render the enforcement of the criminal laws practically inoperative.
As we view the record, there is nothing of merit in either of the propositions relied upon to reverse the judgment. What has been said fully disposes of the assignments of error argued. However, it appears that plaintiff in error shot the deceased on August 28, 1907, at Millerton, in the Central district of the Indian Territory, and the deceased six or seven days later died in Paris, Tex., of the mortal wound caused by that shooting. It is for his acts that plaintiff in error is responsible. They constitute his offense. The place where they are committed must be the place where his offense is committed. In contemplation of.law, the crime was committed in the Central district of the Indian Territory where he was indicted. The anarchist Guiteau shot President Garfield in the District of Columbia. The president was conveyed outside of that jurisdiction, and died in New Jersey. His assassin was tried, convicted, and executed in the District of Columbia.
United States v. Guiteau,
1 Mackey (D. C.) 498, 47 Am. Rep. 247. We are of opinion that plaintiff in error has had an eminently fair and impartial trial. The verdict returned by the jury confirms this conclusion. Manifestly the jury was very lenient. Any one accustomed to weighing evidence cannot read the record without being fully impressed with the conviction that this is not a case of justifiable homicide. On the facts which are either admitted, or so clearly established as to be beyond controversy, the plaintiff in error is at least guilty of manslaughter.
For the reasons stated, the judgment of the district court of McCurtain county is affirmed, and the district court is directed and ordered to enforce its judgment herein.
FURMAN, PRESIDING Judge, and ARMSTRONG, Judge, concur.