Rea v. State , 3 Okla. Crim. 281 ( 1909 )

FURMAN, PRESIDING Judge

(after stating the facts as above). First. The first contention of counsel for the defendant is as follows: “Because the state did not prove the alleged sale to have been made within the period of the statute of limitations." This contention presents the defense of the statute of limitations.

This question has been passed upon by the Supreme Court of Oklahoma Territory in the case of Coleman v. Territory, 5 Okla. 201, 47 Pac. 1079. After a lengthly and able opinion by Judge Tarsney, in which he cites and discusses all of the leading Ameri- • can eases and text-writers on this subject, he says:

“The defense of the statute of limitations traverses nó element of the crime charged. It is essentially an extrinsic defense. It does -not put in issue either of the essential elements constituting bis guilt of the offense charged. He simply asserts that by virtue of an extrinsic condition, not relating to the commission of the offense, but recognizing its commission, namely, a statute of repose 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 to the defense of license, authorization by the state, autrefois acquit, autrefois convict, pardon, provocation, or compulsion should not be the rule as to his defense. In fact, we think the rule applies with more reason and justice to this defense than to the others. It is not inequitable, oppressive, or substantially 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 to establish such defense to the reasonable satisfaction of the jury.”

But, even if the burden of proof was on the state to establish the commission of the offense within the statute of limitations beyond a reasonable doubt, we think that it was done in this case. The evidence is as follows:

“Q. You name is Wes Hattox? A. Yes, sir. Q. Where do you live? A. At Fitzhugh. Q. You know Will Ehea? A. Yes, sir. Q. What business is he in? A. Drug business. Q. Where? A. Boff. Q. Were you in his drug store in July? A. Yes, sir. Q. Did you purchase anything? A. Yes, sir. Q. What was it? A. Alcohol. Q. Is alcohol intoxicating? A. Yes, sir; I suppose it is. Q. That was in Pontotoc county, Okla.? A. Yes, sir.”

From this it is proven that the sale took place in Pontotoc county, Okla. The court takes judicial notice of the fact that prior to the incoming of statehood, on November 16, 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 within the period of the statute of limitations, is not supported, by the law or the evidence.

Second. The second contention of counsel for the defendant is that the trial court erred in instructing the jury orally. The record does disclose the fact that the instructions to the jury were oral, and it fails to show that written instructions were waived by the defendant; neither does it contain any exceptions to the failure of the court to instruct the jury in writing. The motion for a new trial does not rely upon this ground for a reversal, and nothing is said with reference to this matter in the original petition in error filed with the appeal in this case. This point was first presented to this court on November 23, 1909, by an amended petition in error. The latter part of paragraph 6, § 5484, Wilson's Rev. & Ann.“St. 1903, is as follows:

“All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.”

From this it appears that it is not essential and necessary in all cases that the instructions to the jury be reduced to writing, but that this may be waived by the parties.

In Williams v. United States, 17 Okla. 28, 87 Pac. 647, oral instructions were given to the jury. The court said :

“No objection was made or exception taken to this manner of instructing the jury; but it is now claimed that, inasmuch as the statute provides that all instructions shall b.e in writing, this method of giving an instruction, under the circumstances, was materia] error. Had- the defendant at the time objected to the instruction being given in this manner, we have no doubt that that court would have handed to the jury the instruction properly prepared and written out. It would seem, from an examination of the entire record, that the manner in which this instruction was given to the jury was ‘perfectly satisfactory to all parties concerned, and the error was not preserved nor presented to the trial court for review by the motion for new trial.”

Replying to the manner in which the objection was presented, the court further said:

“It has been repeatedly held by this court that only those questions raised and peserved in the motion for new trial will be considered by this court on review. Therefore, while error exists, it is not a reversible one, nor is it one which we think affects the substantial rights of the defendant. This question has been passed upon by this court in the case of Frank Swaggart v. Territory, 6 Okla. 344, 50 Pac. 96, in which, after reviewing the entire subject, the court declined to reverse the judgment, holding that, although error appeared, the question not having been presented to the trial court in the motion for new trial, and it not being one which affected the substantial rights of the defendant, the error was not one which should work a reversal of the judgment.”

Denied February 1. 1910. (106 Pac. 982.) Galbraith & McKeown, for appellant. Fred S. Caldwell, for the State.

This court has time and again declared that, whenever there was any evidence in the record from which the jury could rationally conclude that the defendant was guilty,, we would not reverse a conviction unless, from the record, it appeared that the defendant had been deprived of some substantial right during the trial. We fail to find any such error in this record. We are therefore compelled to .affirm the conviction.

Affirmed.

DOYLE and OWENy Judges, concur,.