would go to his room with him and stay, sometimes half an hour, and sometimes not so long. NORWOOD v. STATE. (No. A-2569.) (Criminal Court of Appeals of Oklahoma. Jan. 12, 1918.) Mrs. M. C. Collins testified that she was present at the home of the defendant, Isom Williams, when Fannie Williams' baby was born; that the defendant was there and she 1. CRIMINAL LAW 244-PRELIMINARY Ex asked Fannie who its father was, and she said, "It is Papa's, and, what is more, he has been making me do that, why, ever since I was 16 years old." By consent of the parties the children of the prosecuting witness were brought into court and exhibited to the jury. The defendant as a witness in his own behalf testified that he was a full-blood Choctaw Indian. He denied ever having had improper relations of any kind at any time with his daughter Fannie, and said that she always told him that Gus Barr was the father of her children. (Syllabus by the Court.) AMINATION-INDORSEMENT OF COMPLAINT. After a justice of the peace has certified to the court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon motion to quash the information for failure to indorse upon the original complaint that he found a crime had been committed, and that defendant was probably guilty thereof, by leave of the court record by making said indorsement where the and before the trial commences complete such same is not inconsistent with the transcript of the record as previously made and certified. 2. INDICTMENT AND INFORMATION ~41(6) PRELIMINARY EXAMINATION-JURISDICTION. Section 17, Bill of Rights, prescribes: "No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination." Held, that under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes a jurisdictional basis for a prosecution on information in the district court. It is the fact that there A part of the defense was that the prose- was a preliminary examination, or a waiver cuting witness and her husband and her half- thereof, and a judicial determination thereon by sister and half-brother conspired to prose-committed, and that there is probable cause to the examining magistrate that a felony has been cute the defendant for the purpose of send- believe that defendant is guilty thereof, that ing him to the penitentiary and securing his confers jurisdiction on the district court and property. authorizes the county attorney to file an inmitted according to the facts in evidence on formation in said court charging the crime comsuch examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant. Several character witnesses testified that they knew the general reputation of Isom Williams in the community in which he had lived as to being a moral, upright man and law-abiding citizen, and that it was good. We are of the opinion that the testimony of the prosecuting witness was sufficiently corroborated by the other evidence in the case to warrant the verdict of the jury, and, the jury being the exclusive judges of the weight of the evidence and the credibility of the witnesses, we would not feel justified in setting aside their verdict. Appeal from District Court, Oklahoma County; John W. Hayson, Judge. J. L. Norwood was convicted of forgery in the second degree, and he brings error. Af E. C. Patton and C. W. Stringer, both of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and C. W. King, Asst. Atty. Gen., for the State. [2] The court instructed the jury that up-firmed. on the evidence the prosecuting witness was an "accomplice," and that under the law no person could be convicted upon the testimony of an accomplice, unless there was other evidence in the case tending to connect the defendant with the commission of the crime charged against him, “and that the corroborating evidence, if there be such, is insufficient if it merely shows that some one had unlawful sexual intercourse with the prosecuting witness." The instruction objected to fully and fairly submitted the law applicable to accomplice testimony. This was the only instruction to which an exception was taken. It appears that the case was fairly submitted to the jury in a clear, concise, and fully adequate charge. MATSON, J. [1] In the brief of counsel for plaintiff in error the only alleged errors relied upon are that the court erred to the prejudice of plaintiff in error in overruling the motion to quash the information, and for permitting the justice of the peace, upon the motion of the county attorney, to amend the record of the prosecution by indorsing upon the original complaint an order to the effect that he found a crime had been committed as charged in the original complaint, and that there was probable cause to believe that the plaintiff in error in this case and the other jointly charged were guilty of its commission. This indorsement concurred with the oral testimony given by the justice of the peace upon the hearing of the motion to quash in the district court, the same not beARMSTRONG, J.,ing inconsistent with the transcript theretofore filed by him. We are of the opinion Upon a careful consideration of the whole case, we are unable to say that the court below committed any error which would justify a reversal of the judgment. It is therefore aflirmed. MATSON, J., concurs. not participating. that there is no merit in either of these con- made to appear, before trial, as in this case, tentions. 1 First. The district court had jurisdiction to permit the justice of the peace to amend ⚫ his proceedings. The following authorities are in point: 12 Cyc. 320, where it is said: "After the justice had certified the record of the preliminary examination, he may, upon the trial, and by direction of the court, amend or complete his record where it is deficient, by inserting additional or corrected entries consistent with the record as previously made out and certified." then the jurisdiction of the district court immediately attached, and the said court had authority and power to proceed fully with the investigation. See, also, Tucker v. State, 9 Okl. Cr. 587, 132 Pac. 825; Sayers v. State. 10 Okl. Cr. 195, 135 Pac. 944; Id., 10 Okl. Cr. 233, 135 Pac. 1073. The facts appear to be and there is little dispute thereon that certain parties jointly informed against with the plaintiff in error, Norwood, told him they desired to have him assist in fixing a deed to a tract of land In State v. Geary, 58 Kan. 502, 49 Pac. to take the place of a lost deed, and desired 596, it is said: the "After a justice of the peace has certified to * court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon such trial, by leave of the court, complete such record, in any respect in which it is deficient, by additional entries therein not inconsistent with the record as previously made and certi fied." See, also, People v. Wright, 89 Mich. 70, 50 N. W. 792; State v. Clark, 49 Pac. 1117.1 After this indorsement was permitted to be made, which we hold it was proper for the court to permit, there was no question as to the jurisdiction of the district court, because it clearly appears therefrom that the plaintiff in error had been accorded a preliminary examination in full compliance with the requirements of the Constitution, thus to permit a prosecution by information in the district court. his direction as to a notary public who would take the acknowledgment of persons not present, and the said parties were directed and accompanied by the defendant Norwood to the office of one J. D. C., an attorney at law and notary public. It appears that the deed in question was presented to Norwood, with the explanation that it was a substituted deed for one already in existence, but which had been lost, and that it was necessary to have it fixed up so that it could be placed in the abstract to enable the parties to secure a loan on the land therein described. Prompted by his disposition to accommodate his friends the said Norwood admits that he assisted in the forgery of the names of the grantors to said deed, and the same was acknowledged to by said notary public and delivered. Norwood denies, however, that he received any consideration therefor, but merely thought that he was doing an ac.[2] In Williams v. State, 6 Okl. Cr. 373, commodation to his friends in the transac118 Pac. 1006, it was held by this court: "Section 17, Bill of Rights, prescribes: 'No tion, and that no one would be harmed thereperson shall be prosecuted for a felony by in- by. This pretended defense is culpable withformation without having had a preliminary exin itself. It is unavailing to resort to this amination before an examining magistrate, or court and ask that a judgment of conviction having waived such preliminary examination.' be set aside upon mere technical grounds Held, that under the constitutional provision the precedent fact that a preliminary examina- when such a defense as this is interposed. tion has been had or waived constitutes a juris- The judgment of the trial court is affirmed. dictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that defendant is guilty thereof, that confers jurisdiction on the district_court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant." It is the fact that a preliminary examination has been had or waived which confers the jurisdiction upon the district court. mere clerical error on the part of the justice of the peace in failing to indorse this fact upon the preliminary complaint cannot deprive the district court of the power to assume jurisdiction of the prosecution, if the fact itself existed, and when that fact was DOYLE, P. J., and ARMSTRONG, J., cur. MCLAUGHLIN v. STATE. con (No. A-2636.) (Criminal Court of Appeals of Oklahoma. Jan. 15, 1918.) (Syllabus by the Court.) CRIMINAL LAW 787(1)-FAILURE OF DEFENDANT TO TESTIFY-INSTRUCTION-STAT UTE. Section 5881, R. L. 1910, contains an inhibition to the effect that the failure of a defendAant to take the stand in his own behalf shall not be mentioned on the trial. The trial court is not excepted from this inhibition, and when an instruction is given calling the attention of the jury to the fact that he failed to testify in his own behalf, over his objection and exception, a judgment of conviction cannot be sustained. Matson, J., dissenting. Reported in full in the Pacific Reporter; reported as a memorandum decision without opinion in 58 Kan, 816. Error from County Court, Tulsa County; J. W. Woodford, Judge. Bert McLaughlin was convicted of violat For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing the prohibitory law, and he appeals. Re-case reported in 77 S. W. 363, discussing this versed. Luther James, of Tulsa, and McAdams & Haskell, of Oklahoma City, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. ARMSTRONG, J. The plaintiff in error, Bert McLaughlin, was convicted at the December, 1915, term of the county court of Tulsa county, on a charge of having unlawful possession of intoxicating liquors with intent to sell the same. His punishment was fixed at a fine of $500 and imprisonment in the county jail for 90 days. From this judgment he has duly prosecuted an appeal to this court. The only assignment of error which was urged in the argument and in the brief is based upon the following instruction of the court, to wit: "You are instructed that as a matter of law the defendant is not compelled to take the stand in his own behalf, and that fact is not to be taken as evidence of guilt, as he has a right to rely upon the law which presumes him to be innocent until he is proven guilty, and the state is required to prove the allegations of the information without any obligation upon the part of the defendant to take the stand.' proposition, the Court of Appeals said: "In No. 4 the jury were instructed 'that they fendant to testify; neither shall they draw any shall not comment upon the failure of the depresumption of his guilt by his failure to testify.' The jury's mind was thus directed to the fact that the appellant had not testified in his own behalf, and no comment by the commonwealths' attorney could have been more injurious to his interest than was done by this instruction. The court, by the instruction in question, did appellant the very injury which it is the object of the law to prevent. Appellant was entitled to absolute silence on his failure to testify in his own behalf." This statute set forth supra unquestionably guarantees to a defendant the right of absolute silence on his failure to testify in his own behalf. We are unable to see wherein comment of counsel could be more injurious than the comment of the court. The identical proposition presented in this case was determined by this court in an opinion by Brett, J., in the case of Holmes V. State, 162 Pac. 446, in which it is said: "Section 5881, R. L. 1910, contains two inhibitions. The first is that the failure of the defendant to take the stand in his own behalf shall 'not be mentioned on the trial'; the second, that this fact shall not be commented on by the counsel for the state. Held: First, that if counsel comments on the failure of the defend This instruction was given over the objec-ant to take the stand in his own behalf, [that] tion and exception of the plaintiff in error. The complaint against this instruction is based upon the provisions of section 5881, R. L. 1910, which is as follows: "In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial." We have many times been called upon .to discuss the principle here involved. Among the early cases is that of Sturgis v. State, 2 Okl. Cr. 362, 102 Pac. 57. Among other things in that opinion, it is said: "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 the defendant has failed to testify in his own behalf. See Brown v. State, 3 Okl. Cr. 442, 106 Pac. 808; Nowlin v. State, 7 Okl. Cr. 27, 115 Pac. 625, 121 Pac. 791. In the latter opinion, written by Presiding Judge Furman, it is said: "It matters not what we think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated. directly or indirectly either in its letter or spirit." See, also, Weinberger v. State, 8 Okl. Cr. 441, 128 Pac. 160; Teer v. State, 10 Okl. Cr. 651, 135 Pac. 1198. In Tines v. Commonwealth, a Kentucky it is mandatory that a new trial be granted; and second, that the court is not excepted from the inhibition to the effect that the failure of the defendant to take the stand in his own behalf shall not be mentioned on the trial,' and that it is error for the court to refer to such fact in his instructions or otherwise." It follows therefore that the judgment in the case at bar must be reversed, upon the ground that the instruction complained of was prejudicial. Reversed. DOYLE, P. J., concurs. MATSON, J., dissents. HENRY v. STATE. (No. A-2563.) (Criminal Court of Appeals of Oklahoma. Jan. 12, 1918.) (Syllabus by the Court.) CRIMINAL LAW 535(1, 2)-EVIDENCE-CORPUS DELICTI-CONVICTION. In a criminal case a conviction cannot be had on the extrajudicial confessions of the deOfendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable. Appeal from County Court, McIntosh County; John W. Robertson, Judge. W. M. Henry was convicted of giving away teachers' examination questions, and he ap peals. Reversed and remanded. Turner & Turner, of Eufaula, and S. M. Rutherford, of Muskogee, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ment is reversed, and the cause remanded for further proceedings. MATSON, J. This prosecution is based on | v. State, supra, and for this reason the judgsection 12 of article 14 of chapter 219, Session Laws 1913, which provides as follows: "Should any person offer to sell, barter or give away what purports to be copies of questions to be given at a future examination, he shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor more than three hundred dollars and shall be confined in the county jail for not less than thirty days nor more than six months and be forever barred from teaching in any of the public schools of this state." The defendant was convicted in the county court of McIntosh county of having sold, bartered, and given away certain examination questions to be given in a future examination for teachers' license to be held in said county to one A. Foster, then and there an applicant for a teacher's license at said examination. His punishment was fixed at a fine of $100 and 30 days' imprisonment. Among the alleged errors assigned for grounds for reversal is that there is no sufficient proof of the corpus delicti. It is claimed that the proof of the corpus delicti is based solely upon the extrajudicial confession of the defendant. In Shires v. State, 2 Okl. Cr. 89, 99 Pac. 1100, this court held: "In a criminal case a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable." To prove this offense the state relied wholly upon the testimony of Charles H. Wilson, the superintendent of schools of McIntosh county, who was then in charge of the examination. A. Foster, to whom it was alleged the defendant illegally furnished the questions to be given, was not produced as a witness by the state. The testimony of the county superintendent touching proof of the corpus delicti related solely to an extrajudicial confession alleged to have been made by the defendant to him at the time certain questions which were to be given in arithmetic on the succeeding day of the examination were found in possession of Foster. There was some slight circumstantial evidence which rendered the conduct of the defendant very suspicious, but these circumstances did not in fact connect him with the actual delivery of said questions to Foster, nor was there any evidence which placed the defendant and Foster together at any time on the day it was alleged these questions were furnished. It seems that Foster was the only person by whom the state could have established these facts, and he was not produced. It does not appear why the said Foster was not called by the state as a witness, as should have been done. After careful examination of the record, it is the opinion of the court that the proof of the corpus delicti in this case does not meet the requirements of law as established in Shires a Other alleged errors are assigned, among which it is contended that the information upon which this prosecution is based is insufficient. We have examined the information as amended; in our opinion, it is clearly sufficient to meet all the requirements necessary where a statutory offense, such as this, is pleaded. DOYLE, P. J., and ARMSTRONG, J., con cur. HARJOE v. STATE. (No. A-2797.) (Criminal Court of Appeals of Oklahoma. Jan. 4, 1918.) (Syllabus by the Court.) CRIMINAL LAW ~~1086(13)—APPEAL-JURISDICTION-DISMISSAL. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed. Appeal from District Court, Hughes County; Tom D. McKeown, Judge. Dave Harjoe was convicted of forgery, and he appeals. Appeal dismissed. J. L. Skinner, of Holdenville, for plaintiff in error. The Attorney General and R. McMillan, Asst. Atty. Gen., for the State. DOYLE, P. J. The plaintiff in error, Dave Harjoe, was convicted in the district court of Hughes county upon an indictment charging that he did unlawfully and feloniously forge and counterfeit a certain instrument purporting to be an "order for the removal of restrictions to the allotment of Nellie Harjoe, née Ellis, a full-blood Creek," by signing the name thereto of "Lewis C. Laylin, Asst. Sec. of the Interior." The jury failed to fix the punishment. An appeal was attempted to be taken by filing in this court on July 26, 1916, a petition in error with case-made. The petition recites that: "On the 20th day of March, 1916, a judgment and sentence was rendered and in force in a certain cause pending in the district court of Hughes county, Okl., wherein the state of Oklahoma, prosecuted the plaintiff in error, adjudging tencing him to the state penitentiary for a pethe plaintiff in error guilty of forgery and senriod of seven years." The Attorney General has filed a motion to dismiss because: "There is no judgment or copy of judgment as rendered below in the record upon which the alleged appeal could be taken." An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error, and does not contain the journal entry of the judgment and sentence appealed from. 185-INSTRUCTIONS-COMMENTS It is not error for the trial court to state to the jury that certain testimony has been given in the case, provided it states the same with accuracy and not in a manner to mislead the jury: Const. art. 6, § 19, providing that judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. When an appeal is taken from an alleged | 5. TRIAL judgment of conviction, and the transcript ON EVIDENCE. of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. Loyd v. State, 12 Okl. Cr. 82, 151 Pac. 1190; Fowler v. State, 11 Okl. Cr. 157, 143 Pac. 658; Dansby v. State, 7 Okl. Cr. 496, 124 Pac. 328; Allen v. State, 6 Okl. Cr. 665, 118 Pac. 1102; Bradford v. State, 3 Okl. Cr. 368, 106 Pac. 535; McLellan v. State, 2 Okl. Cr. 633, 103 Pac. 876. Inasmuch as the case-made does not contain a copy of the judgment appealed from, we are of the opinion that this court is without jurisdiction to consider the appeal. We may, remark however, that in this case, the overruling of a demurrer to the indictment is the only question raised. We think the indictment is sufficient. For this reason, it would be a useless waste of effort to seek to amend the record in this case. 6. MASTER AND SERVANT 293(15) INJURIES TO SERVANT-INSTRUCTIONS. breaking of a rafter upon which plaintiff stood, In a personal injury action, based upon the an instruction as to defendant's duty to exercise ordinary care to discover hidden defects in the rafters was not erroneous, as against an objection that the rafter broke at a knot, which was obvious, where the break occurred at another point. 7. NEGLIGENCE 101-COMPARATIVE NEGLIGENCE-INJURIES TO SERVANT. providing that, where the employé's negligence Under Employers' Liability Act of 1911, contributed to his injury, recovery may nevertheless be had, if the employé's negligence was slight in comparison with that of the employer, the jury may diminish the damages in proportion to the amount of negligence attributable to the employé. For the reasons stated, the cause is dis- 8. MASTER AND SERVANT 293(21) INmissed. JURIES TO SERVANT-INSTRUCTIONS. ARMSTRONG and MATSON, JJ., concur. In an injury action, due to the breaking of a defective rafter, an instruction that the master is not under any duty to warn or instruct servants who have already enjoyed ample opportunity to become acquainted with the danger, or where the servant has had prior ex BRUCE V. WESTERN PIPE & STEEL CO. perience, or where the employment is not for (L. A. 4054.) (Supreme Court of California. Dec. 20, 1917. Rehearing Denied Jan. 17, 1918.) 1. PLEADING 237(8) AMENDMENT TO In a personal injury case, it was not error to allow plaintiff to introduce in evidence an X-ray picture of a normal foot for illustration to enable the jury to compare it with plaintiff's foot after the injury, although the X-ray was taken in the absence of defendant; there being no claim that the picture was inaccurate. 3. WITNESSES 240(2) LEADING QUESTIONS-DISCRETION OF COURT. It is largely within the discretion of the trial court to allow leading questions. 4. TRIAL 260(8)-INSTRUCTIONS-GROSS NEGLIGENCE-REQUEST FOR DEFINITION. Under Employers' Liability Act of 1911 (St. 1911, p. 796), allowing a deduction from damages caused by an injury resulting from the combined negligence of employé and employer, where the negligence of the employé is slight and that of the employer gross in comparison, the omission from an instruction of the definition of gross negligence was not error, in the absence of a request for a more definite one. a hazardous undertaking, was erroneous, as It is not error to refuse to give instructions as to matters already covered by instructions given. Department 1. Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge. Action by William Bruce against the Western Pipe & Steel Company. From a judgment for plaintiff, and a denial of a new trial, defendant appeals. Affirmed. Morton, Hollzer & Morton, J. Crider, Jr., W. O. Morton, Harry A. Hollzer, and Chas. E. Barrett, all of Los Angeles, for-appellant. C. Ibeson Sweet and W. D. Van Nostran, both of Los Angeles, for respondent. SHAW, J. The defendant appeals from the judgment, and from an order denying its motion for a new trial. The action was to recover damages for injuries alleged to have been sustained by the plaintiff while in the service of the defendant. The plaintiff was working for the defendant in putting a wooden roof on a circular steel tank 22 feet high and 42 feet in diameter. At the time he was injured the roof was so far constructed that there were rafters, 2 inches by 6 inches in size and over 20 feet long, extending from the edge of the tank to the center thereof. In order to do the work, it was necessary for him to lay a |