nity to offer such proof, is without authority | decree had been entered up in favor of plainof law and contrary to the rules of practice tiff, made a motion in due course for a new in this state. trial, in which he sought to have the court

It was held in the case of Pico v. Sepul- vacate and set aside its findings of fact, conveda, 66 Cal. 336, 5 Pac. 515:

"When the findings of fact by a court are erroneous in any respect, the appropriate proceeding to have them set aside is a motion for a

new trial."

In the case of Prince v. Lynch, 38 Cal. 528, 99 Am. Dec. 427, the court said:

"We know of no provision of the Practice Act authorizing the court to re-examine the evidence upon the motion of one of the parties, after it has once filed its findings and rendered judgment, and on such re-examination to reverse its former action and substitute different findings of fact. # * The mode provided for reviewing its former action by the same court, as to the sufficiency of the evidence to justify the finding, is by motion for new trial."

In the case of Hawxhurst v. Rathgeb, 119 Cal. 531, 51 Pac. 846, 63 Am. St. Rep. 142, that court held:

"After findings have been filed, and judgment entered thereon, there is but one method by which those findings can be competently changed or modified, except perhaps, in respect of a mere clerical error or misprision, and that is the mode pointed out by the statute-by the granting of a new trial. Until the findings are thus set aside, they must, under our present system, stand in their integrity as originally made."

In the case of Wyllie v. Kent, 152 Pac. 194, this court lays down the following rule:

"It is a well-established rule that where, through mistake, there has been a failure to enter the judgment pronounced, the court has power to correct the matter and to order the proper entry made. Clerical mistakes can be corrected in this manner, but judicial errors can only be remedied by motion for a new trial or upon appeal."

clusions of law, and decree theretofore entered, and to grant to the defendants a new trial, upon the various grounds set forth in the motion. The motion for a new trial did not authorize the trial court to re-examine

the evidence offered by defendants in support of their defense in the trial of the cause, and upon the evidence so adduced, of its own motion, to enter up findings of fact, conclusions of law, and a decree in favor of defendant.

From what has been said it follows that the judgment of the trial court in favor of respondents must be reversed and the cause remanded, with directions to the trial court to grant a new trial; and it is so ordered. Costs are awarded to appellant.

(Supreme Court of Idaho. Jan. 29, 1916.) 1. INDICTMENT AND INFORMATION FORMATIONS.

4-IN

Informations are of equal dignity with indictments, subject only to the limitations contained in section 8, art. 1, of the Constitution, to the effect that a defendant may be only accused by information after commitment by a magistrate, and that, "after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of the public prosecutor."

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 3, 24-27; Dec. Dig. 4.] INDICTMENT AND INFORMATION

2.

4-FORM

OF ACCUSATION-INFORMATION-ACTION OF
GRAND JURY.

In the case of Wunderlin v. Cadogan, 75 Cal. 617, 17 Pac. 713, it appeared that the case was tried and findings of fact signed and filed. No judgment was entered thereon. Upon such findings all of the defendants were When a defendant in a criminal case has entitled to judgment. Subsequently, upon the been given, or has waived, his preliminary examconsent of some of the defendants, but with-ination, and has been by the magistrate held out notice to the others, the court set aside the findings first filed, and substituted others in their place, and the clerk was instructed not to enter judgment under the original findings, as the same were made under a misapprehension. Judgment was entered on the last set of findings in favor of the defendants who consented to the change of the findings and against those who were not notified of such change. It was said by the Supreme Court in that case:

"It is to be observed that what the court did in the first instance was not merely to supply an omission in the findings first filed, or change the direction for judgment, but was to substitute one set of findings of fact for another. This we are inclined to think the court had no power to do. These rules rest upon the theory that the modes in which a decision may be reviewed are prescribed by statute, and that the court has no power to substitute other modes in their place."

*

Counsel for defendants in this case, after the findings of fact, conclusions of law, and

to answer and for trial in the district court, and, when the prosecuting attorney, at the next session thereof, no grand jury having been called nor convened, has presented, and the clerk offense for which he has been so held to answer, has filed, an information charging him with the the court acquires jurisdiction of the defendant and of the offense with which he is charged, from which it cannot be deprived by any action of a grand jury convened at a subsequent

term.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 3, 24-27; Dec. Dig. 4.]

Habeas corpus by Ed F. Winn. Writ quashed.

Edgington & Averitt, of Idaho Falls, for plaintiff. J. H. Peterson, Atty. Cen., D. A. Dunning and Herbert Wing, Asst. Attys. Gen., and James S. Byers, Pros. Atty., of Idaho Falls, for the State.

MORGAN, J. The record in this case discloses that on the 24th day of Jane, 1915, a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
154 P.-32

complaint was filed with the probate judge or on information of the public prosecutor, after of Bonneville county, in his capacity as com- a commitment by a magistrate: * * * Promitting_magistrate, charging that the peti-vided, that a grand jury may be summoned upon tioner, Ed F. Winn, did, on August 25, 1914, in that county, commit a public offense, to wit, a nuisance, which consisted in maintaining and assisting in maintaining and controlling a certain place within a prohibition district where intoxicating liquors were sold and otherwise disposed of in violation of law, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were kept for sale and disposal in violation of law. Petitioner was arrested, brought before the magistrate, and waived preliminary examination, and was held to answer said charge in the district court.

The motion to quash the writ of habeas Section 8, art. 1, of the Constitution pro- corpus is sustained, and the petitioner is revides: manded to the custody of the sheriff of Bonneville county.

(12 Okl. Cr. 243)

Ex parte BIRMINGHAM.

(No. A-2618.)

(Criminal Court of Appeals of Oklahoma.

Jan. 31, 1916.)

(Syllabus by the Court.)

1. BAIL 49 CRIMINAL PROSECUTIONS BURDEN OF PROOF-CAPITAL OFFENSE.

On the hearing of an application for admission to bail after commitment for a capital offense, to determine whether or not the proof of guilt is evident or the presumption thereof great, the burden of proof is on the petitioner. [Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 195-208, 241, 244; Dec. Dig. 49.] 2. BAIL 49-ADMISSION TO BAIL-SUFFICIENCY OF EVIDENCE-CAPITAL OFFENSE.

Evidence reviewed, and held sufficient to show that petitioner is entitled to be admitted to bail.

[Ed. Note.-For other cases, see Bail, Cent. Dig. §§ 195-208, 241, 244; Dec. Dig. 49.]

Application of Joseph H. Birmingham for writ of habeas corpus, by which he seeks to be let to bail. Bail allowed.

t

Pruiett, Sniggs & Tripp, of Oklahoma City, for petitioner. R. McMillan, Asst. Atty. Gen.,

for the State.

PER CURIAM. This is an application by Joseph H. Birmingham for a writ of habeas corpus, by which he seeks to be let to bail pending the final hearing and determination of a charge of murder filed against him in Payne county, wherein upon his preliminary examination he was held to answer for the murder of one Guy Phillips by shooting him with a pistol on the 14th day of October, 1915. The petitioner avers that he is now unlawfully imprisoned and restrained in the common jail of Payne county, by Henry Townsend, sheriff of Payne county, and that he is not guilty of the crime of murder charged; that the proof of his guilt is not evident, nor the presumption thereof great. Attached to said petition, and made a part thereof, is a duly certified transcript of the evidence taken on his application to the district court of Payne county for admission to bail in said case, which application was denied.

[2] The evidence for the state is somewhat weak and uncertain, although it appears several persons, both male and female, were eyewitnesses to the tragedy. The testimony taken on the part of the defendant is substantially as follows: Harry E. Stege testified that he is the superintendent of the bureau of identification of the police department at Tulsa; that he had formerly conducted a private detective agency at Oklahoma City, and knows the general reputation of the deceased there as to being a dangerous and quarrelsome and turbulent character, and that it is bad; that his reputation at Tulsa was the same; and that at Tulsa about a year ago upon his conviction in the police court he took his Bertillion measurements. E. B. McMillen testified that he was present at the

roadhouse east of Cushing, near the county line of Creek county, at the time of the shooting. That the deceased walked up to Birmingham and said, "Now is a good time to settle our troubles;" that he had a long spring-back knife in his hand, and Birmingham backed up against the wall, and as the deceased attempted to strike with the knife, he shot him; that witness then grabbed the pistol; that there was present at the time John Phillips, Lon Anderson, Cecil Messenger, Ruby Bowen, and Ruth Bradley; that the shooting occurred about 11:30 that night. The petitioner as a witness in his own behalf testified that he had known the deceased about three years and knew his general reputation in Oklahoma City and Tulsa as to being a bad and dangerous character. That he was generally known as a holdup man, and all-around tough character, who hung around houses of prostitution; that petitioner was in the oil country at the time as an employé of a law and order enforcement league to get data on the transportation and selling of whisky and to take photographs of the joints; that he had been there several days and went from Pemeta to this roadhouse that night; that he went in and asked for a glass of water; that as he reached for the glass the deceased said, “We will cut his throat now," and pushed him and kicked him; that he backed up against the wall, and the deceased came towards him with a long spring-back knife in his hand and struck at him and he drew a pistol and shot him in his necessary self-defense; that some one took the pistol from him, and the deceased struck at him again with a knife, and he pulled a second pistol; just then the knife fell from his hand as he dropped to the floor.

[1] By numerous decisions of this court it is held that upon an application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution. Ex parte Dykes, 6 Okl. Cr. 162, 117 Pac. 724; In re Fraley, 3 Okl. Cr. 719, 109 Pac. 295, 139 Am. St. Rep. 988. However, where the facts and circumstances in evidence reasonably support the issue that the accused acted in his necessary self-defense in taking the life of the deceased, the petitioner should be admitted to bail.

Upon a consideration of the testimony we are of the opinion that the petitioner herein is entitled to be admitted to bail. It is therefore ordered that said petitioner be admitted to bail upon the charge of murder now pending against him, and that his bail be, and the same is, hereby fixed in the sum of $10,000. Bond to be conditioned as required by law, and the same to be approved by the clerk of said county.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

21-"PRINCIPAL" AND ACCES

One who is present at the forgery of a deed, knowingly aiding, abetting, or assisting such forgery, is guilty as a principal, although the act of signing the name with intent to forge the same was done by another person.

[Ed. Note.-For other cases, see Forgery, Cent. Dig. § 57; Dec. Dig. 21.

W. E. Grisso dated March 15, 1913, acknowledged before H. A. Born, notary public, in and for Seminole county on said date.

On the part of the state the evidence tended to prove the following facts: That on the date alleged the said Jimmie Cudjoe, with one Willie Barkus, went to the drug store of one W. E. Grisso in the town of Seminole, introduced said Barkus as Ben Grayson, and stated that he wanted to sell his land; after talking the matter over Grisso agreed to buy the land, and Barkus signed the deed as Ben Grayson, and acknowledged the same be

For other definitions, see Words and Phrases, fore H. A. Born, a notary public. The conFirst and Second Series, Principal.] sideration for the deed was $250. Grisso also gave Jimmie Cudjoe $1.

2. CRIMINAL LAW

OF LAW AND FACT.

742-TRIAL-QUESTIONS

Where the evidence is conflicting as to Ben Grayson testified that he had lived in whether a witness participated in committing Seminole county all his life; that he had the crime charged, the question as to whether known Jimmie Cudjoe for five years, that or not such witness is an accomplice is one of

fact for the jury. But where the acts and con- they were at school together at Mekusukey; duct of the witness are admitted, it becomes a that the land described in said deed was his question of law for the court to say whether homestead allotment; that he had never or not those acts and facts make the witness an authorized Willie Barkus or any one else to accomplice. sign a deed; that he was in possession of the land described in the Grisso deed on the 15th day of March, 1913.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig. 742.]

3. CRIMINAL LAW 510-TESTIMONY OF ACCOMPLICE CORROBORATION.

H. A. Born, notary public, testified that he took the acknowledgment of the deed in Under Proc. Cr. § 5884, Rev. Laws, "a conviction cannot be had upon the testimony of question, and that Ben Grayson was not the an accomplice, unless he be corroborated by such person who signed the deed; that Willie other evidence as tends to connect the defend- Barkus signed the name of Grayson to the ant with the commission of the offense," and if deed and Jimmie Cudjoe said at the time that two or more accomplices testify, the same corroboration is required as if there be but one: he was Ben Grayson. Willie Barkus testiAn accomplice can neither corroborate himself fied: That he had pleaded guilty to forgery nor another accomplice. in connection with signing this deed. That [Ed. Note. For other cases, see Criminal he had known Jimmie Cudjoe all his life. Law, Cent. Dig. §§ 1124-1126; Dec. Dig. 510.j

SUFFICIENCY OF EVI

4. FORGERY 44
DENCE.
Evidence in a prosecution for forgery, con-
sidered and held to be sufficient to sustain a

conviction.

[Ed. Note.-For other cases, see Forgery, Cent. Dig. §§ 117-121; Dec. Dig. 44.]

Seminole

Appeal from District Court,
County; Frank Mathews, Judge.
Jimmie Cudjoe was convicted of forgery,
and appeals. Affirmed.

E. L. Harris, of Wewoka, for plaintiff in
Chas. West, Atty. Gen., and Smith C.
Matson, Asst. Atty. Gen., for the State.

error.

That on the day in question he arrived at the town of Seminole, and was going up the street when he met Jimmie Cudjoe, who said to him, "A fellow here wants you to sign a deed." And witness said, "What for?" And Jimmie Cudjoe said, "He will give me $7 if you can write it like he says." And he said, "All right;" and went with Cudjoe to sign the deed and they gave him $7, a check, and a paper or two; when they left he gave the papers to Jimmie Cudjoe. The defendant, Cudjoe, as a witness in his own behalf, testified: That he was in Shawnee a few weeks before the deed was signed, and a fellow walked up to him and said, "Don't you remember Ben Grayson, that boy that went to

DOYLE, P. J. This appeal is from a judg-school with you?" And he said, "Jimmie, ment of conviction for the crime of forgery in the first degree, rendered by the district court of Seminole county, on the 28th day of January, 1914, wherein Jimmie Cudjoe, plaintiff in error, was sentenced to imprisonment in the penitentiary for the term of 7 years. The information charged Jimmie Cudjoe and Willie Barkus with forging a warranty deed, purporting to convey the following described land in Seminole county. The southeast quarter of the northwest quarter of section 11, township 5 N., of range 5 E. The deed purported to be executed by Ben Grayson to

do you know where a fellow could sell any land down there where you live?" and he told him he thought he could; and he said, "I will be down there some time and see about it." That on the day the deed was signed he was standing near the depot at Seminole, when the same fellow walked up and said, "Hello, I have come down here to sell that land I was talking to you about:" and they went down to Mr. Grisso, who bought the land. That he thought Willie Barkus was Ben Grayson, who had gone to school with him at Mekusukey.

tion.

The first assignment of error is based upon the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence, as set forth in the affidavit of one Bunnie Bruner. It appears that the day before the case was called for trial, upon due notice to the defendant and his counsel, the court permitted the county attorney to indorse the name of the codefendant Willie Barkus on the informaWhen the case was called for trial, counsel for defendant filed an application for a continuance on the ground that "neither the defendant nor his attorneys know what the testimony of Willie Barkus will be, and had no opportunity to consult with their client." The application was overruled. It is argued that the defendant was thus deprived of an opportunity to show diligence in obtaining the attendance of the witness Bunnie Bruner. Under the statute every defendant jointly indicted or informed against is charged with notice that the state may, if it so desires, use a codefendant as a witness against him. Proc. Cr. § 5879, Rev.

Laws.

Willie Barkus had entered his plea of guilty, and had been sentenced prior to this trial. Bruner it appears was a neighbor of Cudjoe; his failure to learn what Bruner would testify to before the trial was a lack of diligence on his part; had the defendant exercised any diligence whatever he could have secured the attendance of this witness at the trial. A defendant must use all reasonable diligence, not only to find out what witnesses he will need, but also to secure the attendance of such witnesses at the trial. Davis v. State, 10 Okl. Cr. 169, 135 Pac. 438. We think the motion for a new trial was properly overruled.

[1-3] The second assignment is that the court erred in giving the following instruction:

"You are further instructed that a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, or as an accessory, or one who aids and abets in the commission of an offense; it includes all persons who are connected with the crime by unlawful acts on their parts committed, either before or at the time of the commission of the offense, and if you find that the deed set out in the information was forged and that any witness who has testified herein against the defendant was an accomplice in said forgery, then you must disregard the testimony of such witness in so far as the same is against said defendant, in so far as the same is not corroborated as herein stated. (Excepted to by defendant, and exception allowed.) Frank Mathews, Judge." The criticism made upon this instruction in the defendant's brief is as follows:

"The court ought to have included in the above instruction the further charge that if they found all of the witnesses above mentioned to be

accomplices, then that one accomplice could not corroborate another, and that before they could convict the defendant they must have other testimony corroborating that of Barkus, Grisso, and Bern, tending to connect the defendant with the commission of the offense before they could find Cudjoe, the defendant, guilty."

There was no evi

This criticism is based upon the theory that the witnesses Barkus, Grisso, and Born were all accomplices. dence tending to prove that the witness Born was an accomplice. The testimony of Barkus, a codefendant, as to what Cudjoe said to him just before and after the forgery was committed, tends to prove that Grisso was an accomplice. Grisso's testimony tended to show that he was an innocent purchaser.

When the question of an accomplice arises in rule is for the court to instruct the jury on the trial of a case, the general and accepted the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to be such, or where the undisputed facts show him to be an accomplice, the court may so charge without invading the rule that the court should not comment on the credibility of any witness. Driggers v. U. S., 1 Okl. Cr. 167, 95 Pac. 612, 129 Am. St. Rep. 823; Id., 21 Okl. 60, 95 Pac. 612, 129 Am. St. Rep. 823, 17 Ann. Cas. 66. See People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. (N. S.) 706; Underhill on Criminal Evidence, § 69.

If two or more accomplices testify, the same corroboration is required as if there be but one; an accomplice can neither corroborate himself nor another accomplice. Whether the witness Grisso was or was not an accomplice was a question of fact for the jury. The instruction objected to was amply sufficient, and fully and fairly submitted the law applicable to accomplice testimony. This was the only instruction objected to. It appears that the case was fairly submitted to the jury in a clear, concise, and fully adequate charge.

[4] Finally it is insisted that the evidence is insufficient to support the conviction. That the deed was forgery and that the defendant was present when the name of Ben Grayson was signed thereto by Barkus with intent to defraud was undisputed. If the defendant knowingly or intentionally aided or abetted in the commission of the crime, he was guilty also, as much so as if he had forged Grayson's name himself. The testimony of Born, a disinterested witness, was sufficient to show his guilt, unless it was, as the defendant testified, a case of mistaken identity, and that he believed Barkus was Grayson. The defendant, Cudjoe, Barkus, and Grayson are Seminole negroes; and in the face of the un