then and there duly informed of the nature | necessary that the miscarriage be procured. and contents of the charge against him, en- The charging part of the information is as tered his plea of not guilty, and upon ex- follows: "That said crime was committed amination duly had it was found and ad- by the said defendant, in the manner followjudged by said H. M. Tate, justice of the ing: That is to say, that the said abovepeace aforesaid, that there was reasonable named defendant, J. J. Chandler, did in the ground to believe that said offense of procur- said county of Seminole, said state of Oklaing an abortion had been committed, and homa, on or about the 20th day of December, that the defendant, J. J. Chandler, was guilty A. D. 1907, then and there unlawfully, felothereof and should be held to answer said niously administer to one Barbara Brown, the charge of procuring an abortion, in the dis- said Barbara Brown being then and there a trict court within and for said county of pregnant woman, a certain drug, medicine, Seminole and state of Oklahoma, and said and substance, with the intent then and there county attorney, in the name and by author- thereby to procure the miscarriage of the said ity of the state of Oklahoma, informs said Barbara Brown, the same not being then and district court: That on the 20th day of De- there necessary to preserve the life of the cember, 1907, said defendant, J. J. Chand- said Barbara Brown, contrary to the form ler, did in said county and state commit the of the statute in such cases made and providcrime of attempting to procure an abortion. ed and against the peace and dignity of the That said crime was committed by the said state of Oklahoma." The defendant could defendant in the manner following: That is not possibly have been misled by the inforto say, that the said above-named defendant, mation. That part of the information statJ. J. Chandler, did in the said county of Sem- ing that the defendant committed the crime inole, said state of Oklahoma, on or about of attempting to commit an abortion is surthe 20th day of December, A. D. 1907. then plusage. The purpose of the information is and there unlawfully, feloniously administer to give the defendant knowledge of the act to one Barbara Brown, the said Barbara with which he is charged, and which the Brown being then and there a pregnant wo-state alleges was criminal, and against which man, a certain drug, medicine, and substance, he must defend. The court did not err in with the intent then and there thereby to overruling the plea to the jurisdiction. The procure the miscarriage of the said Barbara Brown, the same not being then and there and the district court had jurisdiction. case was not a misdemeanor, but a felony, necessary to preserve the life of the said Barbara Brown, contrary to the form of the

statute in such cases made and provided and against the peace and dignity of the state

of Oklahoma."

It is urged by counsel for the defendant that because of the language appearing in the information, "said defendant, J. J. Chandler, did in said county and state commit the crime of attempting to procure an abortion," this offense is one of attempting to commit a crime, and therefore, under the statutes of Oklahoma, the punishment should be onehalf the term prescribed for the offense if committed, and that, under that statute, the punishment would make this offense a misdemeanor, and the district court would have jurisdiction. The statute under which this prosecution was had is section 2370, Comp. Laws Okl. 1909 (Wilson's Rev. & Ann. St. 1903, § 2268), which is as follows: "Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the state prison not exceeding three years, or in a county jail not exceeding one year." The offense is complete under this section when the medicine is administered with the in

The second assignment of error is that the

information failed to charge any offense. Counsel, in support of this assignment, quote section 2812, Comp. Laws Okl. 1909 (section 2669, Wilson's Rev. & Ann. St. 1903), which is as follows: "Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable," etc. And quotes the preceding section, which is: "No person can be convicted of an attempt to commit a crime when it appears that the crime intended or attempted was perpetrated by such person in pursuance of such attempt." And they urge that no conviction for the crime of abortion could be had under this information even if the evidence actually proved the commission of the offense. With this contention we cannot agree. As has been said, the crime was complete when the medicine was administered, and it is not necessary for the information to allege there was no miscarriage.

The third assignment of error is that the court erred in permitting the county attorney to amend the information after the trial had begun, over the defendant's objection, and in permitting the county attorney to verify the information after the trial had begun. Section 6645, Comp. Laws Okl. 1909 (section 5307, Wilson's Rev. & Ann. St. 1903), is as follows: "An information may be amended

before the defendant pleads, without leave, | bara Brown. It also alleges that the miscarand may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit." There is nothing in the record which would indicate that it was with material prejudice to the rights of the defendant. Counsel do not undertake in the brief to indicate how the defendant was prejudiced by the interlineation, and if they are not able to point out any substantial right denied the defendant, or any prejudice done him, certainly this court would not be expected to assume that the court erred in permitting the county attorney to make the amendment.

The fifth and fifth-A assignments of error are that the court erred in giving the following instruction: "If you find from the testimony beyond a reasonable doubt that the defendant, J. J. Chandler, within what is now Seminole county and state of Oklahoma, at any time since the 16th day of November, 190, prescribed for Barbara Brown, or procured her to take any medicine, drug, or substance, with intent to procure her miscarriage, she being pregnant at the time, unless it was necessary to preserve her life, then it will be your duty to convict the defendant." It is urged under these two assignments that this conviction was without authority of law for two reasons: First, it is urged that the information charges that the defendant did "administer," and this instruction uses the words "prescribed" or "procured"; second, that the court fixed the date after which the defendant might have been convicted as November 16, 190. In the printed instruction filed in this case, it is true that the figures appear as "November 16, 190"; but there was no controversy on the trial of the case as to the date of the offense. The information alleges the 20th day of December, 1907, and it is clear to this court that the date fixed by the lower court was that of statehood, November 16, 1907, and this assignment appears to us too technical to receive serious consideration. It is . nonsense to say that the trial court would instruct a jury that they might convict the defendant of an offense as early as the year 190. As to the first reason urged, the objection is not well taken. The first instruction given the jury was as follows: "The defendant in this case, J. J. Chandler, is charged by information with the crime of attempting to procure an abortion. It is alleged in the information that he committed the offense in Seminole county in the state of Oklahoma on or about the 20th day of December, 1907, by unlawfully and feloniously administering to one Brown, she being then and there pregnant, a certain drug, medicine, or substance with intent then and there to

riage was not necessary in order to preserve her life. To this charge the defendant has entered his plea of not guilty, and the question of his guilt or innocence is the one you are impaneled and sworn to try." This was a clear, full, and complete statement of the offense with which the defendant was charged, and the jury could not possibly have been misled or misinformed as to the issue. It is admitted in the brief filed by counsel that the testimony on part of Barbara Brown is to the effect that the defendant, who is a physician, at one time handed her a bottle of medicine with directions to take the same three times a day. Under this proof the jury was authorized to convict the defendant on the charge made in the information. testimony is to the effect that he gave her the medicine. The information charges that he did "administer." The primary definition of "administer" is to give. The word is not a word having a strict legal or technical import. It is a word in general use, with a common and accepted meaning; and, where a person is charged with administering medicine, it is the same as charging him with giving medicine. State v. Jones, 4 Pennewill (Del.) 109, 53 Atl. 858-861; People v. Quin (N. Y.) 50 Barb. 128-134; 1 Words & Phrases, p. 195.

Her

Assignment 5B is that the court erred in defining "reasonable doubt." The instruction of the court was as follows: "By a 'reasonable doubt' is meant a real substantial doubt existing in the minds of the jury after a fair consideration of all the testimony in the case. It is such a doubt as would cause a reasonable and prudent man to pause and hesitate before acting in matters of grave importance to himself. The law does not require the prosecution to prove the guilt of the defendant to an absolute certainty, but does require it be proven to a moral certainty. If, after considering all the testimony, you are morally sure of the guilt of the defendant, then you have no reasonable doubt, and it is your duty to convict him; otherwise you will acquit him." We think this definition a good one. Counsel in the brief fail to point out their objections, except to say: "This is a clear charge upon the weight of the evidence and is not a correct definition of reasonable doubt, if competent to define the term. It worked manifest injury to the defendant." Counsel leave us to infer the injury worked, without pointing it out; neither do they advise us in what particular this instruction misstated the law.

The seventh assignment of error, and subdivisions thereof, are: First, "the court erred in not instructing the jury to consider, in weighing and determining the testimony of Barbara Brown, the fact that she had voluntarily solicited medicine and took the

was not error. It was immaterial whether Barbara Brown solicited the medicine, or whether the defendant voluntarily gave it to her. The offense was complete when he gave it to her with intent to procure the miscarriage. Whatever inducements he may have received would not be a defense. second subdivision under this assignment is that "the verdict is contrary to the law and the evidence." The case-made containing the evidence not being before the court, this assignment cannot be considered as to the weight of the evidence. The verdict was not contrary to law. Under the third subdivision of this assignment, counsel urge that the court erred in instructing the jury as follows: "If you find the defendant guilty, it will be your duty to assess the punishment at imprisonment in the penitentiary for a term of not less than one nor more than three years, or by imprisonment in the county jail for a period not exceeding one year." Counsel insist that, because the record fails to show that the defendant requested that the jury fix the punishment, this instruction was manifest error. Section 2028, Comp. Laws Okl. 1909, is as follows: "In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided." We agree with counsel that under this section the court should not have directed the jury to fix the punishment unless the defendant requested it. But did the action of the court in so directing the jury prejudice the rights of the defendant? If it did, this case should be reversed for that reason; if not, the case should not be reversed.

BAKER et al. v. STATE. (Criminal Court of Appeals of Oklahoma. Dec. 7, 1909.)

1. STATES (§ 9*)-ADMISSION OF TERRITORY.

The defendants were indicted in the district court of Pittsburg county, after the admission of the state into the Union, charged with the crime of assault with deadly weapons prior to statehood. By proper order the case was transferred to the county court for trial. Held, the county court had jurisdiction to try the case, and, on conviction, to render judgment against the defendants.

[Ed. Note.-For other cases, see States, Cent. Dig. § 4; Dec. Dig. § 9.*]

2. INDICTMENT AND INFORMATION (§ 32*)— FORM-INDICTMENT RETURNED AFTER STATE

HOOD.

The indictment should conclude "against the peace and dignity of the state," where the indictment is returned since statehood, alleging a crime committed prior to statehood.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 125; Dec. Dig. § 32.*1 3. CRIMINAL LAW (§ 1177*)-HARMLESS ER

ROR-VERDICT FIXING PUNISHMENT.

Where the jury, without authority of law, fixes the punishment, and the court, in passing sentence, assesses the punishment fixed by the jury, the verdict will not be set aside unless it is made to appear that the punishment is excessive, or that the court would have fixed a lighter punishment than that fixed by the jury. Law, Cent. Dig. §§ 3183-3189; Dec. Dig. § [Ed. Note. For other cases, see Criminal 1177.*]

(Syllabus by the Court.)

Error from District Court, Pittsburg County; R. W. Higgins, Judge.

William Baker and another were convicted of simple assault, and they bring error. Affirmed.

Plaintiffs in error, hereafter referred to as "defendants," were indicted in the district court of Pittsburg county, at the January term, 1908, charged with having committed an assault on H. R. Stile with deadly weap

was transferred to the county court of Pittsburg county. Defendants filed a motion to quash the indictment, which was overruled, and then a demurrer to the indictment, which was overruled and exceptions saved. The case was tried to a jury. The defendants were convicted of the crime of simple assault, and the jury assessed a fine of $15 against each defendant. The case is before this court on case-made.

Under this section the jury has the right to fix the punishment, whether the court so directs or not. They must fix the punish-ons on the 5th day of July, 1907. The case ment if the defendant requests it. If the court had not so instructed the jury, they could have, and might have, fixed the punishment. Under the statute, and under the instructions of the court, they could have fixed the punishment at three years' impris.onment. The verdict was for two years. There is nothing in the record to indicate to this court that, if the jury had not fixed the punishment, the court would have given a lighter sentence, and since the jury could have fixed the punishment without the instruction, and there being no showing and no contention made here that the punishment is excessive, we do not believe the defendant was prejudiced by the instruction. The judgment of the lower court is af

firmed.

Wallace Wilkinson, for plaintiffs in error. Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.

OWEN, J. (after stating the facts as above). The petition in error and the brief filed by counsel for defendants present three questions only: First, the question of the juris diction of the court to try the case; FURMAN, P. J., and DOYLE, J., concur. ond, the validity of the indictment; and,

third, that the jury assessed the punishment, | protection by reason of the form of the and not the court.

(a) The burden of proof is on the prosecution to establish the guilt of the defendant by legal evidence beyond a reasonable doubt; and, if this is not done, he is entitled to be acquitted.

one hundred dollars." The jury in this case, [ 4. CRIMINAL LAW (§§ 308, 327*)-PRESUMPunder that statute, might have fined each TIONS AND BURDEN OF PROOF-PRESUMPTION OF INNOCENCE. of the defendants $100; but the fine assessed was $15 each. Then it cannot be said that the punishment was excessive. If this case was tried under the Oklahoma procedure, the fixing of the punishment by the jury would have no binding effect upon the court. It might be considered as a recommendation to the court as to what the pun

ishment should be. If the court saw fit to follow the recommendation of the jury and fix the punishment at a fine of $15, when, under the law, he could have fixed it at $100, certainly the defendants cannot be heard to

complain. There is no contention made that the evidence did not support the verdict, or that the verdict was excessive. The judgment against the defendants was rendered by the court. Under the Arkansas procedure the court must render the judgment in the amount fixed by the jury. Under the Oklahoma procedure, in force at that time, the court determines the amount of the fine, and the mere fact that he followed the suggestion of the jury in this case certainly did not prejudice the rights of the defendants. The same question here was presented to this court in the case of Chandler v. State, 3 Okl. Cr., 105 Pac. 375, and the holding in that case is in harmony with our views here expressed.

The judgment of the lower court is af

(b) The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and, unless the jury are so satisfied, it is their duty to acquit the

defendant.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 720, 731; Dec. Dig. $$ 308, 327.*]

5. CRIMINAL LAW (§ 757*)-INSTRUCTIONSINVASION OF PROVINCE OF JURY.

1903, makes the jury the exclusive judges of Section 5518, Wilson's Rev. & Ann. St. all questions of fact. It is therefore error for the trial court to instruct the jury that they are bound to accept and act upon the testimony of an impeached witness if it has been cor

roborated.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1784; Dec. Dig. § 757.*] (Syllabus by the Court.)

Appeal from Pontotoc County Court; Joel Terrell, Judge.

Will Rea was convicted of unlawfully selling intoxicating liquor, and he appeals. Reversed and remanded.

On the 14th day of February, 1908, Will Rea, hereinafter called defendant, was convicted on a charge of selling intoxicating liquor, in the county court of Pontotoc county, Okl., on information, and his punishment was assessed at a fine of $500 and 60 days in FURMAN, P. J., and DOYLE, J., concur. jail. The case is properly before this court

firmed.

REA v. STATE.

(Criminal Court of Appeals of Oklahoma. Dec. 7, 1909.)

1. CRIMINAL LAW (§ 1134*)-REVERSAL ON ER ROR OF LAW-REVIEW OF EVIDENCE.

When an assignment of error that the evidence does not support the verdict is overruled, and the cause remanded on errors of law, the court will not discuss the evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2987; Dec. Dig. § 1134.*] 2. INDICTMENT AND INFORMATION (§ 16*)— SUCCESSIVE. INFORMATIONS.

Section 5351, Wilson's Rev. & Ann. St. 1903, which provides that, when a charge has been submitted to a grand jury, and no bill has been returned, it cannot be again submitted without direction from the court has no application to charges presented by information.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 35, 59; Dec. Dig. § 16.*]

3. CRIMINAL LAW (§ 369*)-EVIDENCE OF OTH

ER PROSECUTIONS-ADMISSIBILITY.

A defendant should be tried on the facts of the particular case before the court. Evidence of other trials, indictments, or convictions not connected with the matter then on trial should not be received.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. § 369.*]

on appeal.

Crawford & Bolen, B. C. King, and Galbraith & McKeown, for appellant.

FURMAN, P. J. First. The first assignment of error is: "The court erred in not

granting a new trial, because the verdict is contrary to the law and the evidence." cannot agree with this contention; but, as the judgment will have to be reversed and remanded for a new trial on account of errors of law committed during the trial, we do not deem it necessary to discuss the evidence."

Second. The second assignment of error is as follows: "The court erred in overruling the motion of the defendant to quash the information, to which action the defendant at the time excepted and still excepts." This motion was based upon an affidavit to the effect that this identical offense had been previously investigated by the grand jury, and that they refused to find an indictment against the defendant thereon, and that the offense had not been again referred to the grand jury by the court, and that no leave had been granted by the court to file the information herein. Section 5351, Wilson's Rev. & Ann. St. 1903, is as follows. "The dismissal of the charge does not, however,