preceding section, the one construed in the | to miscarry by the forcible use of instruments Hunter Case defining the analogous offense, upon her person, against her will. This, of would require a like modification to permit course, amounted to a direct assault against the wife to testify against the husband. The omission of this statutory provision from section 1855 might be taken as an indication that the exception should not apply to child abandonment, but that it would apply to criminal neglect of children. In West v. State, 13 Okl. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129, it was held that, in a prosecution against a husband for willful and corrupt perjury in making a false affidavit to obtain a divorce from his wife, the wife is a competent witness for the state. Under such circumstances the wife's rights and interests as such are directly attacked. Through perjury the husband perpetrated a fraud upon the wife, directly affecting and dissolving the marital relation, against her will. This, it would seem, comes clearly with in the purview of the statutory exception permitting the wife to testify. the wife, and would plainly come within the purview of the exception in our statute as being a crime against the wife. In this case there was personal violence against the wife, the act being done by force and coercion. The rule would have been different if the act had been done at the request of the wife, or if perpetrated upon a third person. Hostetter v. Green, 159 Ky. 611, 167 S. W. 919, L. R. A. 1915C, 870; Commonwealth v. Davis, 169 Ky, 650, 184 S. W. 1121; annotations, 16 A. L. R. 490. A woman is not a competent witness against her husband in a prosecution against him for rape or assault to commit rape upon a third person, under a statute permitting her to testify in a prosecution for a crime committed by the husband against the wife. The practice of bigamy is a direct interference with and suspension of marital rights of We have seen that adultery is a crime the innocent spouse, but rape does not necagainst the marital state by virtue of the essarily so operate. Iowa v. Wilcox, 185 statute, and that perjury committed for the Iowa, 90, 169 N. W. 646, 4 A. L. R. 1066 (rape purpose of wrongfully breaking up the mar- on stepdaughter); Brock v. State, 44 Tex. riage relation is a crime against the ag- Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 grieved spouse, constituting a direct attack Am. St. Rep. 859. The same may be said of upon the conjugal relation. Upon reason and incest, a revolting crime, but not one necauthority bigamy has been held to be a crime essarily incompatible with the continuance of against the innocent party, being also a di- the marriage relation. State v. Burt, 17 S. rect interference with the marital rights of D. 7, 94 N. W. 409, 62 L. R. A. 172, 106 Am. the innocent spouse. Schell v. People, 65 St. Rep. 759; Compton v. State, 13 Tex. App. Colo. 116, 173 Pac. 1141, L. R. A. 1918F, 954;271, 44 Am. Rep. 703; People v. Westbrook, State v. Hughes, 58 Iowa, 165, 11 N. W. 706;| 94 Mich. 629, 54 N. W. 486 (incest with stepU. S. v. Cutler, 5 Utah, 608, 19 Pac. 145. daughter). There is good reason' for holding that bigamy is a direct crime against marital rights. The practice of bigamy is a continuing relation, wholly incompatible with lawful conjugal relations as contemplated by modern society. Ordinarily the reasons applicable to a case of bigamy do not apply to cases of abortion, rape, incest, sodomy, etc. However, there are cases holding that these offenses are crimes against the innocent spouse, coming within the exception, though the weight of authority seems to be the other way. These degrading crimes are usually committed by sexual degenerates of loose morals and with loose marriage ties. In addition to the other reasons usually urged, the abrogation of the rule in these cases might operate as a fraud against the one accused, even though entirely innocent. An innocent spouse might be charged with the commission of one of these offenses by the other as the easiest way to terminate the marriage relation. By the weight of authority these are crimes against society and common decency, rather than against the marriage state. In Commonwealth v. Allen, 191 Ky. 624, 231 S. W. 41, 16 A. L. R. 484, it was held that a woman might testify against her husband in a prosecution against him for causing her We have found no adjudicated case applying this rule of evidence to cases of sodomy, but assume that the rule governing in cases of rape and incest would apply. The rules of evidence affecting husband and wife, as applied to different sexual crimes, have been reviewed for the purpose only of elucidating these rules properly applicable to rape committed on a stepdaughter, as in this case. The test at common law was whether the offense amounted to a physical assault upon the innocent spouse. As has been seen, under remedial statutes making the exception to the rule apply to crimes committed one against the other, our state and most other states have enlarged the scope of the exception so as to make it apply, where there is no actual force, to direct infringements upon the marital rights of the other spouse. [4] To enlarge the scope of the exception to include every offense remotely or indirectly vexing, humiliating, or distressing the innocent spouse would be to make it too broad, and would amount to judicial legislation, throwing the doors wide open for the introduction of evidence by one against the other in any and every case affecting their domestic affairs. In other words, such a con (220 P.) struction of the exception to the rule would, and conclusions reached by Mr. Justice Brewin a large measure abrogate the rule itself. er and the United States Supreme Court in As illustrating how reluctant the courts the Bassett Case and adopts the reasons and are to depart from the common-law rule, in conclusions of Prof. Wigmore in his admirthe case of Bassett v. United States, 137 U. able and profound treatise on Evidence, § S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762, Mr. 2228 et seq. The inadequacy of the reasons Justice Brewer, in construing a statute simi- for the rule and its exceptions, as stated by lar to ours in a Utah case wherein the ac- Wigmore, may be sound, but we are called cused was indicted for polygamy, said: to look beyond these reasons. We are here the law, but to determine what the law is. called upon, not to determine the wisdom of If the law is unwise, the Legislature can easily modify it. So far as possible, we are bound to follow the law as declared by the highest courts of the land, rather than that of text-writers, however eminent. The rule of evidence announced in the Hunter Case is therefore reversed, so far as in conflict with the rule announced herein. * "We do not doubt the power of the Legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law a rule having its solid foundation in the best interests of society-can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. * The clause in the Civil Code is negative, and declares that the exception of the incompetency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other. Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common-law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or for [3] Whether or not the defendant is guilty, we hold in this case that the wife was incompetent to testify against her husband, and since her testimony related to important facts in issue, as well as to communications made to her by her husband, the case must be reversed and remanded; and it is so ordered. The warden of the penitentiary of McAlester, upon proper demand at the penitentiary, will deliver the defendant to the sheriff of Oklahoma county, who will hold him in custody until otherwise ordered according to law. MATSON, P. J., and DOYLE, J., concur. STAMPER v. STATE. (No. A-4007.) (Criminal Court of Appeals of Oklahoma. June gery, than when he commits polygamy or adul- 3 16, 1923. Rehearing Denied (Syllabus by the Court.) based upon the absence of any essential prelim- Objections to an indictment or information For the reasons stated, we are constrained to take the middle ground. The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks or directly and vitally impairs the conjugal relation, it comes within the exception to the statute that one When an information is filed charging a deshall not be a witness against the other except fendant with the commission of a felony, the in a criminal prosecution for a crime commit-law presumes that the defendant has had a preted one against the other. In this sense the commission of rape by a husband upon a third person is not a crime against the wife within the meaning of our statute. And the rule announced by Judge Furman in the Hunter Case, supra, is too comprehensive. In that opinion Judge Furman criticizes the reasons the merits. liminary examination, or has waived the same, and the information need not allege that fact. examination has been had or waived, and he If the defendant contends that no preliminary desires to raise the question, he must do so by a motion to set aside or to quash the information by plea in abatement before pleading to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Indictment and information 52(1)—Veri-jurisdiction of the court over the subject of fication not indispensable requisite of infor- the indictment or information, or that the facts mation charging felony. stated do not constitute a public offense, may The verification of an 'information charg-be taken at the trial, under the plea of not ing a felony is no part of the information it-guilty, and in arrest of judgment." (Comp. self, and is not an indispensable requisite. Stats. 1921, § 2616.) 4. Homicide 257(1)—Evidence held sufficient to support conviction of shooting another with intent to kill.. In a prosecution for shooting another with intent to kill, evidence held sufficient to support the verdict and judgment of conviction. Appeal from District Court, Pottawatomie County; Hal Johnson, Judge. George Stamper was convicted of shooting another with intent to kill, and he appeals. Affirmed. Goode & Dierker, of Shawnee, for plain tiff in error. The record shows that no objection to the jurisdiction of the court was taken by objection at the trial, and that no motion in arrest of judgment was filed in the case. [1, 2] By numerous decisions of this court it is held that objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits, and when a defendant relies upon the want of a preliminary examination the proper practice is to raise the question by a motion to set aside or to quash the information, or by plea in abatement before pleading to the merits. The state can then take issue on the motion or plea, and the fact can be determined by the proof, and the burden of proof is on the defendant. DOYLE, J. This appeal is from a judg- Robbins v. State, 12 Okl. Cr. 294, 155 Pac. ment of conviction rendered on the verdict of 491; Stone v. State, 12 Okl. Cr. 313, 155 Pac. a jury finding George Stamper guilty of shoot-701; Roebuck et al. v. State, 14 Okl. Cr. 241, ing one Ralph Turner with intent to kill, and assessing his punishment at imprisonment in the penitentiary for the term of one year and one day. George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the state. It is assigned as error that the court erred in assuming jurisdiction to try the defendant on the information, because the record of the examining magistrate shows that defendant was denied a preliminary hearing before an examining magistrate having jurisdiction of the complaint upon which the information is based, in that said defendant filed his affidavit for a change of venue before said cause was heard before the examining magistrate, and the same was unlawfully denied, and that the information is wholly insufficient to constitute a valid information, because it is not verified by the oath of the prosecuting attorney, or some other person as by law required. 170 Pac. 277. Upon the record before us, counsel for appellant have not properly raised the question of jurisdiction. Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court. And where a defendant upon arraignment pleads to the merits and enters on the trial he waives the right to a preliminary examination, or, if one was held, he waives the right to any irregularity in the proceeding. Muldrow v. State, 16 Okl. Cr. 549, 185 Pac. 332. The record further shows that no objection was made or question raised during the trial upon the ground that the information was not verified. Under our Code: It is not claimed by the defendant that a complaint was not filed against him before an examining magistrate charging him with the "No indictment or information is insufficient, identical offense with which he was charged nor can the trial, judgment, or other proceedin the information, or that a preliminary ex-ings thereon be affected, by reason of a defect amination was not held. The record shows that the only objection made to the information was the filing of a demurrer thereto, and it does not show that any exception was taken to the judgment of the court overruling it. The record or transcript of the proceedings had on the preliminary examination was not offered in evidence. Our Code provides: "When the objections mentioned in section 5791 (2608) appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Comp. Stats. 1921, § 2564. [3] The uniform holding of this court is that: "The verification is not a part of an information charging a felony, and is therefore not an indispensable requisite. The object of such verification is not, as in misdemeanors, for a showing of probable cause supported by oath or affirmation, to authorize the arrest of the accused, and it is not for the purpose of evi dence, which is to be weighed and passed upon, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) but only, as we believe, to secure good faith and as a matter of good form in pleading." Henson v. State, 5 Okl. Cr. 201,-114 Pac. 630; Hughes v. State, 7 Okl. Cr. 117, 122 Pac. 554; Brown v. State, 9 Okl. Cr. 383, 132 Pac. 359. [4] Upon careful examination, we discover no error in the record. The case appears to have been fairly tried, and the verdict appears to have been fully justified by the evidence. The judgment of the district court of Pottawatomie county is accordingly affirmed. [2] The major part of the evidence produced by the state was evidence procured by means of an illegal search and seizure. Following the decision in Gore v. State, 218 Pac. 545, recently decided by this court but not yet officially reported, the admission of this evidence was error, [1] Notwithstanding this improper testimony, the accused took the stand and admitted his guilt, and the jury could come to no other rational conclusion. The accused testified that he, in company with Pete Smith, drove from his farm to Durant; that in pass MATSON, P. J., and BESSEY, J., concur. ing through the Caney bottoms he for the DYER v. STATE. (No. A-4249.) (Syllabus by the Court.) 1. Criminal law 1169(3)-Where accused admits facts showing guilt, admission of incompetent evidence by state harmless. Where a defendant admits facts that exclude every theory of innocence, amounting to a confession of guilt, incompetent evidence introduced by the state will be deemed harmless. (Additional Syllabus by Editorial Staff.) 2. Criminal law 395-Admission of evidence procured by illegal search and seizure erro neous. The admission of evidence procured by an illegal search and seizure is erroneous. 3. Intoxicating liquors 131-Purpose of transportation immaterial. first time noticed two bottles of liquor in their dinner bucket, which upon examination they found to be whisky. They drank some of it and proceeded on into Durant, where they were arrested. Defendant stated that he did not know who made them a present of this liquor and that after its discovery he intended to take it to his home for his own use. Quoting from the record: "Q. Where did you put your dinner bucket when you got through eating dinner? A. Left it in the car. "Q. This whisky was in the dinner bucket? A. Yes, sir. "Q. You say somebody came there and put the whisky in it? A. I guess they did. "Q. You put it in there? A. No, sir. "Q. Did Pete put it in there? A. I couldn't say; I think not. "Q. You first saw it at Caney bottom in the car? A. Yes, sir. "Q. You say you took a drink of it? A. Yes, sir; we both did. "Q. After you knew it was in there you brought it to Durant? A. Yes, sir. "Q. You admit transporting it? A. It was The purpose for which liquor is being in my car, and I come on with it, and we drank transported is immaterial. some of it. "Q. You knew it was a violation of the law Appeal from County Court, Bryan County; to transport whisky, didn't you? A. I thought John Finney, Judge. if a man had it he ought to have a right to drink it. Harrison Dyer was convicted of the illegal transportation of intoxicating liquor, and he appeals. Affirmed. "Q. You told Jim Keirsey and George Baxter the whisky was yours, and you just had it for your own use, didn't you? A. I think I told Warren B. Phillips, of Durant, for plaintiff them that we just had it to drink. That's what in error. I think I said." The Attorney General and N. W. Gore, Asst. Atty. Gen., for the state. [3] The purpose for which liquor is being transported is immaterial. McGill v. State, 16 Okl. Cr. 657, 185 Pac. 530; Watkins v. State, 13 Okl. Cr. 507, 165 Pac. 621. BESSEY, J. On January 13, 1922, by a verdict of a jury, the plaintiff in error, Harrison Dyer, was found guilty of the il- Under the admissions quoted and others legal transportation of intoxicating liquor, appearing in the record, it appears concluand his punishment fixed at a fine of $150 sively that the accused was guilty as charged. and confinement in the county jail for a period of 30 days. From the judgment on this verdict he appeals. The judgment of the trial court is affirmed. MATSON, P. J., and DOYLE, J., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (Criminal Court of Appeals of Oklahoma. Nov. 24, 1923.) (Syllabus by the Court.) of Dorothy Bue, and made an engagement to later call on her and her sister at their residence on West Third street in Oklahoma City. After leaving the show Burkhart went to his place of business and there engaged for a time in working on his books, after 1. Robbery 24(1)—Evidence held to sustain which he closed his office and started west conviction. offenses. Evidence that the defendant, at the time he was arrested, was armed, resisted arrest, and attempted to escape, is competent, and the admissibility of such evidence is not affected by the fact that incidentally it tended to prove the defendant guilty of other offenses. 4. Criminal law 814(20)—Instructions as to lower degree of crime charged unnecessary, in absence of evidence thereof. The trial court is not required to instruct as to the lower degree of the crime charged, if there is no evidence tending to reduce the crime to such degree. Appeal from District Court, Oklahoma County; Hale Johnson, Special Judge. E. T. Cox was convicted of robbery, and he appeals. Affirmed. on Second street to fill his engagement with these young ladies. He had walked to near the corner of Second and Dewey when, according to his testimony, he was accosted by a man who told him to "stick' em up," and who backed him into an alleyway at the side of a brick building standing there, and who there, at the point of a revolver placed in his back, relieved him of $10 in currency, and also at the time took from his person a Columbian half dollar which Burkhart was carrying as a pocket piece, but which coin the robber returned to Burkhart at Burkhart's request. Burkhart also claims that he saved a valuable watch that he was carrying by withdrawing the same from his pocket and holding the same between his body and the wall of the brick building, with his body pressed against the watch. There was an electric light burning at the corner of Second and Dewey, the robber was unmasked, and Burkhart claims that he was able to obtain a good view of the robber by means of the light reflecting on the robber's face at the time of the robbery. After relieving Burkhart of this money, the robber compelled him to walk west in an alleyway between Second and Third streets and ordered him not to look back. Upon being thus commanded, Burkhart walked west in the alley to the west side of Dewey street, and there turned around, and the robber was nowhere to be seen. BurkSecond to Hudson street, and looked in hart then retraced his steps, going east on several places to see if he could find the robOn the 2d day of April, 1921, the county ber, but, being unable to locate him, he attorney of Oklahoma county filed in the then went east to Broadway, where he notidistrict court of said county an information fied an officer of the holdup and was there charging plaintiff in error, E. T. Cox (here- directed to go to the police station and make inafter referred to as defendant) with the a report of same, which he did, giving a decrime of robbery, alleged to have been com-tailed description of the man whom he allegmitted by him on the 7th day of March, 1921, ed had robbed him. C. C. York, an officer by taking $10 in money, of the personal property of R. S. Burkhart, from the possession and person of said Burkhart, against his will, and by fear of immediate death caused by a revolver had and held in the hands of the said E. T. Cox. then on duty, was detailed to go with Burkhart in search of the robber, and they made a trip in a car looking for the robber but failed to find any one answering the description. Later on that night, however, York, in the absence of Burkhart, picked up a young man whom he thought answered the description that Burkhart had given and took this young man to the police station. Later Burkhart was called, and the young man was discharged. Succinctly stated, the facts are about as follows: Burkhart, the complaining witness, was a single man about 48 years of age and engaged in the business of electrical contracting, with his place of business located on West Second street, between Broadway and Nothing happened in connection with the Robinson streets, in the city of Oklahoma search for the robber until the next night, City. On the night of March 7, 1921, he had when York took his car, a sawed-off shotgun attended a show at the Majestic Theater, and his revolver, and started out again in and there met a young lady by the name search of the man. He drove up to the in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |