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defendant cannot waive his right to trial by jury or consent to a trial by a less number than 12. A trial without a jury is a trial without jurisdiction. The state and the defendant cannot agree upon the facts and submit them to the judge for his decision. Some of the cases merely decide that the waiver is ineffectual in cases of felony; but it is difficult to see why the same rule should not obtain in cases of grave misdemeanors entailing heavy punishment in the event of conviction. Even the issue on a plea of former trial must be decided by a jury, and defendant's consent will not dispense with such trial. In Michigan, a conviction for murder was had, one of the jurors being an alien, which was unknown to the defendant until after verdict, and, his motion for a new trial being refused, it was held that the verdict was void; that the defendant could neither expressly nor impliedly waive his right to a jury of 12 men such as is meant by the state Constitution-a jury of his countrymen. The error into which those who hold the opposite view fall seems to be twofold: First. They ignore the distinction between, civil suits, involving property rights, and criminal prosecutions, involving the right of life or liberty. Second. They treat the mode of trial by jury as though its sole purpose and effect was to protect the particular suitor or the individual defendantas if its use or disuse were a matter of purely personal right and concerned only the litigants themselves. For, as Blackstone says, 'the king has an interest in the preservation of all his subjects.' The life and liberty of the citizen is a matter of supreme importance to the state, and it should not allow him to throw either away by failure, intentional or unintentional, to take advantage of the constitutional safeguards in a criminal trial."

sence of a statute, to impliedly prohibit the granting of a permission by the court to the defendant to dispense with a jury. And, a statute having provided a certain way of waiving a jury, that way must be pursued. A waiver can be had in no other. But, where the Constitution is silent on this matter, the decisions are at variance as to whether a legislative authorization is effectual to enable the accused to waive a jury. Upon the Upon the affirmative side of this question it is held in Alabama and Indiana that the failure to demand the privilege of a jury trial is a waiver of it. In Arkansas, in a trial for assault or other misdemeanor, by agreement of the parties, the defendant may be tried by a jury of less than 12, or by the court alone; but mere waiver of the requisite number by failing to object to less will not au thorize a trial by less than 12. In Connecticut, a statute providing that in all prosecutions the party accused, if he should so elect, might be tried by the court, instead of by the jury, and that in such cases the court should have full power to try the case and to render judgment, was held not to conflict with the Constitution. In Georgia, a defendant may waive the jury altogether, or the full number. In Illinois, a party under indictment for a felony, after pleading not guilty, may waive his constitutional right to a trial by jury, and a trial and conviction by the court alone is valid; but in a capital case the accused will not be presumed to have waived any of his rights, although he has power to waive them all. So, also, in misdemeanor cases, the jury may be waived by consent. In Iowa, if the defendant consents, 11 jurors may try the case; but he cannot waive a jury altogether and submit to a trial by the court. In Kansas, the defendant may waive or insist on trial by jury at his option. In Michigan, a waiver of jury trial in a prosecution for assault and battery before a justice of the peace is binding. So, also, in Kentucky, Missouri, and Nevada, in misdemeanor cases the defendant may consent to be tried by less than a full jury. And, in New York, an infant accused of petit larceny may waive his right to trial by jury and elect to be tried by a court of special sessions. In Ohio, where the offense is a petty one triable in the police court, a failure to demand a jury is a waiver. In Texas, a waiver may be effected by the entry of a plea of guilty. In Wisconsin, the defendant was held to have waived his right of jury trial by obtaining a change of venue." In section 151 the author reviews the opposite holdings, and says: "Notwithstanding the many ably reasoned opinions to be found in the cases collated in the preceding section, an examination of the decisions holding the contrary doctrine has led the writer to the conclusion that the weight of authority, as well as the better opinion, is that, in prosecution for crime other than minor misdemeanors and petty offenses, the

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In Wharton's Criminal Pleading and Practice (8th Ed.) § 733, discussing consent and waiver, the author says: "But such consent does not, it has been held, operate to legalize a trial by 11 instead of 12 jurors; nor can a defendant, without an express statutory authority, waive his right to a trial by jury on a plea of not guilty." In the law of Crimes and Criminal Procedure, by Hochheimer, it is stated: "Statutes authorizing the submission of a case to the determination of the court are valid; but, in the absence of statutory provision, the parties cannot by consent confer upon the court power to determine the facts." Mr. Clark, in his Criminal Procedure, says (page 434): "The right of every person charged with crime to a trial by jury has from the earliest period existed at common law. It was recognized and secured to the English people by the Magna Charta and with us it is guaranteed by our federal and state Constitutions. The language of the different provisions varies to some extent; but their object and effect is the same, namely, to secure to every person charged with

a crime the same right to a jury trial, and
only the same right, as had always existed
at common law. No new right is conferred;
but the common-law right is guaranteed, so
that the Legislature cannot take it away nor
impair it. The Legislature may regulate the
mode of trial by jury, provided it does not
deprive the accused of his substantial com
mon-law rights; but it cannot take away a
single one of these rights. At common law
a person accused of petty offenses, such as
vagrancy, disorderly conduct, violation of
municipal ordinances, and trivial breaches
of the peace, of which justices of the peace
and police magistrates had jurisdiction, had
no right to demand a trial by jury, and by
the weight of authority he has no such right
under the constitutional guaranty; for, as we
have seen, it was only intended to guarantee
the same right as had always existed at
common-law. Whether or not the right of
trial is a right which the defendant can
waive is a question upon which the authori-
ties are conflicting. Some of the courts have
held that a jury may be waived in all cases.
provided there is a statute authorizing the
court to try the case without a jury; that the
constitutional right to a trial by jury is not
infringed when the accused may have it
or not at his election. Many of the cases so
holding were cases of felony, but most of
them were cases of misdemeanor, and it is
probable that the court in some of the latter
cases did not intend to lay down any such
rule for cases of felony. Many of the cases
hold that trial by jury cannot be waived in
prosecutions for felony. It is difficult to un-
derstand how there can be any distinction
in this respect between a prosecution for a
felony and a prosecution for such a misde-
meanor as at common law entitled the de-
fendant to a jury trial. It would seem in
reason that if a jury cannot be waived in
one it cannot be waived in the other, and.
that if it can be waived in one it can be waiv-
ed in the other. The grade of the crime
should be immaterial, provided it is such a
crime as entitled the defendant to a jury
trial at common law; for, as we have seen,
the Constitutions guarantee the same right as
existed at common law. If, therefore, a jury
trial cannot be waived in one case in which
it was necessary at common law, it cannot in
reason be waived in another. Where the
Constitution or a statute expressly requires a
jury trial, and does not merely give the ac-
cused the right to such a trial, a jury can
in no case be waived; for it is intended to
protect the state as well as the defendant.
Where the right to a jury trial is given by
statute in cases which could be tried with-
out a jury at coramon law, as in prosecu-
tions for petty misdemeanors before inferior
tribunals, the right may, of course, being had a trial by jury, the judgment can-
waived."

| his right to a jury trial is guaranteed under
the Constitution of the United States. Our
statute contains the same guaranty. Section
5434: "An issue of fact arises, first, upon a
plea of not guilty.
Issues of fact
must be tried by a jury." Section 5158: "No
person can be convicted of a public offense
unless by verdict of a jury, accepted and re-
corded by the court, or upon a plea of guilty,
or upon final judgment for or against him up-
on a demurrer to the indictment, or upon a
judgment of a police or justice's court in
cases in which such judgment may be law-
fully given without the intervention of a
jury or grand jury." The last clause of this
section evidently refers to the class of petty
misdemeanors and violations of municipal
ordinances which were triable at common
law without a jury; so that our statute pre-
scribes the same rule which is found in the
authorities cited, and, there being no statute
in this territory which authorizes a defend-
ant in a criminal case to waive a jury trial,
it follows that such a case cannot be tried
upon a plea of not guilty without a jury,
unless it comes within the class of cases
in which no jury was required at common
law, and which, in our statute, are designat-
ed as cases triable in a justice or police
court, in which judgment may be lawfully
given without the intervention of a jury.

It is clear from the foregoing authorities that, if one charged with a crime would have been triable by jury at common law, then

Does the charge against the petitioner come within these classes? He was charged by information before the probate court with a violation of the game law, in shipping 3,000 quail during the closed season, in violation of law. He pleaded not guilty. The court found him guilty, and assessed against him a fine of $100 and $88.60 costs of prosecution, and ordered him committed until the fine and costs were paid, or until he should serve one day for each $2 of such fine and costs. This prosecution was under section 3079, Wilson's Rev. & Ann. St. 1903, which provides a penalty for its violation by a fine of not less than $50 nor more than $500 and costs of the prosecution. Section 5578, Wilson's Rev. & Ann. St. 1903, further provides: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every $2 of the fine." This is a general statute and applicable to all criminal prosecutions where a fine may be imposed as a penalty for a crime. Petty misdemeanors at common law were unimportant, trifling offenses, such as vagrancy, disturbing the peace, desecrating the Sabbath, profanity, and kindred offenses. We think the offense charged against the petitioner here rises above the dignity of a petty misdemeanor and entitled him to a trial by jury, and, not hav

not be enforced, and that his imprisonment thereunder was illegal.

The petitioner is ordered discharged from the commitment. and, as he is now on bail

to respond to such order as this court may make, that he appear at such time as shall be designated by the probate court to answer the charge in said information, and for such further proceedings in said cause as may be in conformity to law. All the Justices concur, except IRWIN, J., absent.

(19 Okl. 361)

ST. LOUIS & S. F. R. CO. v. McGIVNEY. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. CARRIERS-INJURY TO FREIGHT PRESUMP

TIONS.

Where goods shipped over several connectlug lines are found to be injured when they reach their destination, there is no presumption that the injury occurred while the goods were in the hands of the first carrier.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 841.]

2. SAME DELIVERY TO CONNECTING CARRIER.

If a common carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon his making such delivery.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 9, Carriers, § 751.]

3. SAME LIABILITY OF FIRST CARRIER.

If freight addressed to a place beyond the usual route of the common carrier who first received it is lost or injured, the shipper may demand satisfactory information from the first carrier that the injury or loss did not occur on its line, and if such carrier fails to furnish within a reasonable time the proof, in its possession or under its control, tending to show that it was not responsible for the injury or loss, it will be held liable therefor, regardless of whether or not it was in fact responsible for such injury or loss.

4. SAME-ACTION AGAINST FIRST CARRIER.

The right of a shipper under section 511 of the Statutes of Oklahoma of 1893 to demand of a first carrier proof that loss of or injury to freight addressed to a point beyond its usual route, where it has been delivered to a connecting carrier, to the effect that the loss or injury did not occur on its line, does not prohibit a shipper in the first instance, without such demand, from bringing an action for damages for an alleged loss or injury.

5. SAME.

The purpose of the statute is to put the shipper in possession of the information which is in the possession or under the control of the first carrier, so that he may determine what carrier caused the injury, and obtain satisfaction therefor without being compelled to bring a multiplicity of actions.

6. APPEAL - DETERMINATION-REMAND FOR NEW TRIAL.

Where a plaintiff fails to offer any evidence in support of an allegation of a petition which, if proven, would authorize a recovery, and the case is appealed to this court, such allegation, for the purposes of the appeal, will be deemed to have been waived; and while, in case of a reversal and remanding for a new trial, evidence might, on such second trial, be offered in support thereof, this court will not order a new trial for the purpose of affording such opportunity, as it is the duty of a litigant to offer all of his evidence at the first trial at which the law permits him to do so.

[Ed. Note. For cases in point, see Cent. Dig rol. 3, Appeal and Error, § 4609.]

(Syllabus by the Court.)

Error from District Court, Grant County; before Justice James K. Beauchamp.

Action by L. W. McGivney against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed. Action dismissed.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error. Mackey & Mackey, for defendant in error.

BURWELL, J. The appellee, L. W. McGivney, shipped a car of corn from Salt Fork, Okl., to Henrietta, Tex., according to the bill of lading as follows: "From Salt Fork, Oklahoma, to Sherman, Texas, over the St. Louis & San Francisco Railroad Company; from Sherman, Texas, to Ft. Worth, Texas, over the Houston & Texas Central Railroad Company; and from Ft. Worth, Texas, to Henrietta, Texas, over the Ft. Worth & Denver City Railroad Company." There was a delay in delivery, and, when the car finally reached Henrietta, over the Ft. Worth & Denver Railroad, it was so damaged that the consignee refused to receive it. The appellee made a claim to the Ft. Worth & Denver Company, which was by that company referred to the appellant company and investigated by it, and finally the appellee brought suit for the value of the corn.

There is absolutely no evidence in the record that in the slightest degree indicates the corn was damaged while in transit over the appellant's road, and the fact that the car was received by a connecting line carries with it the presumption that it was in good condition when delivered by the appellant to such connecting road. The appellee has proceeded upon the theory that, because the appellant company received his corn for shipment and loss occurred, it is primarily liable to him, without regard to negligence on the part of appellant. Such is a mistaken theory of the law. Where a common carrier receives freight for transportation to a point beyond its line, under a contract that it will deliver it to a connecting carrier and will not be liable for damages not occurring on its own line, and the goods are received by the connecting carrier without objection, the presumption of law is that the freight was in the same condition when delivered to the connecting carrier as it was when received by the initial carrier; and if the freight is damaged when it reaches its destination, in the absence of proof, the presumption is that the damages occurred while the property was in the possession of the last carrier. This identical question was decided by the Supreme Judicial Court of Massachusetts in the case of Farmington Mercantile Co. v. Chicago, B. & Q. R. Co., 166 Mass. 154, 44 N. E. 131. Mr. Justice Holmes, the present member of the Supreme Court of the United States, participated in the opinion, although it was written by Mr. Justice Allen. The court said: "When goods shipped over several connecting lines are found to be injured when they reach

their destination, there is no presumption that the injury occurred while the goods were in the hands of the first carrier." The Supreme Court of Alabama, in the case of Louisville & N. R. Co. v. Jones, 100 Ala. 263, 14 South. 114, said: "Where goods are delivered to a carrier for transportation to a point beyond its own line under a through bill of lading, which stipulates against liability for injury beyond its own line, and the goods are in a damaged condition when delivered by the connecting carrier to the consignee, the presumption is that the receiving carrier delivered them to the connecting carrier in good condition, and the presumption must be overcome before the consignor can recover for such damage from the receiving carrier."

In 6 Cyc. p. 490, § 7, the law is declared as follows: "Under the American rule that, in the absence of partnership relations or contract for through transportation, each of the carriers is alone liable for loss or damage occurring during his part of the transportation, the action may be brought directly against the carrier on whose line the loss or injury occurred. To render the first carrier liable, it must appear that he failed to deliver the goods to the connecting carrier, or delivered them in damaged condition. The second or subsequent carrier is not to be held liable in an action against him until it appears that he received the goods in sound condition and that loss or injury happened to them while in his possession. But on proof of delivery to the first carrier in good condition and receipt by the second carrier without objection, it will be presumed, in an action against the second carrier, that the goods were still in the condition in which they were received by the first carrier. Indeed, the weight of authority seems to be in support of the general proposition that, if the goods are delivered by the last carrier in damaged condition, the presumption arises, without further evidence, that the damage occurred while in the possession of the last carrier, and that the burden is upon him to prove that they were in the damaged condition when received by him; the double presumption being entertained that they were accepted in good condition by the first carrier and that such good condition continued until their receipt by the last carrier, notwithstanding transportation over intermediate lines."

Under the law a common carrier is not bound to receive goods from a connecting carrier for transportation which are damaged, or, if it receives them, it is entitled to have the receipt given therefor, or the records of shipment show the real condition of the goods when it received them; and the presumption is that a second carrier, or any carrier, will not receipt a former carrier for goods as being in good condition when they are already damaged. It is because of the right of a subsequent carrier to have the record speak the truth that the law, in the absence of a record or proof to the contrary,

presumes that goods or freight were in good condition when received from a connecting carrier. The Legislature of this territory has recognized the rule stated above, as will be seen from the following sections of the Statutes of Oklahoma of 1893:

"Sec. 510. If a common carrier accepts freights for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier, carrying to the place of address, or connected with those who thus carry, and his liability ceases upon his making such delivery.

"Sec. 511. If freight, addressed to a place beyond the usual route of the common carrier who first received it, is injured or lost, he must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor."

From section 510 it will be seen that the liability of the first carrier ceases when it delivers freight to a competent connecting carrier carrying freight in the direction of the destination thereof. And section 511 provides that where freight is received by a common carrier, and its destination is beyond the usual route of the carrier first receiving it, and such freight is lost or injured, the first carrier must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in its charge, and if it fails to furnish such proof it will itself be liable therefor.

It is insisted that the word "demand" meant by the statute is a demand for payment for the loss. We do not think so. The statute, recognizing that the first carrier can easily furnish proof as to whether or not the loss occurred on its line, has provided that it must furnish the shipper with satisfactory proof within a reasonable time that it was not responsible for such loss. The shipper, under the statute, may go to the first carrier and request it to furnish proof that the injury did not occur on its line, so that it may be able to locate the carrier responsible for the injury and sue it, if necessary; but if the first carrier fails to furnish the proof within a reasonable time, showing that the loss did not occur on its line, then it will be held liable therefor, regardless of whether or not it was, in fact, responsible for the injury to the freight. And under this section the shipper is entitled to full and complete information regarding the shipment so far as known to the first carrier, which could be used by such carrier in defending an action for damages therefor; that is, to all of the proof in its possession or under its control at the time that would tend to show that the first carrier was not responsible for the loss. The penalty for failing to furnish such proof is absolute liability on its own part to pay the damages sustained. It must, however, be observed that this statute is not intended to

prohibit one who has sustained loss by reason of injury to freight from suing the first carrier without such demand; but, when he does so, the burden is on the shipper to show by a preponderance of the evidence that the injury was the result of the negligence of such first carrier. The statute was enacted primarily for the benefit of the shipper; but when he fails to avail himself of its conditions in the first instance, and sues the first carrier without such demand, he cannot then take advantage of its provisions, after the first carrier has been put to the trouble and expense of defending an action against it. The statute is intended to require the first carrier to furnish to the shipper on demand that information which, in the absence of the statute, the shipper could only compel in an action against it or some other connecting carrier.

The appellant has made other assignments of error, such as the barring of the cause of action by reason of the statute of limitation, and misdirecting the jury on questions of law; but it is not necessary to discuss them, as under the record presented the plaintiff must fail to recover. There are some allegations of the petition which, if proven, would make the appellant liable in damages; but, as there was absolutely no evidence offered as to them so far as this appeal is concerned, they are deemed to have been waived. If the case were reversed and remanded by reason of error committed in the trial below on those issues which were litigated, the appellee would not be precluded from offering evidence on another trial, under any proper allegation of his petition. But, when, on the trial of a case in the lower court, a party omits to offer evidence on an issue formed by the pleadings, and this court finds that he must fail under the evidence offered, and that he cannot recover on any of the issues tried, this court will not remand the case for a second trial under the theory that he might possibly make out a case or defense under allegations of his petition or answer which he did not support by evidence on the former trial. It is the duty of a party on a trial to litigate his whole case and each and every part thereof at the first opportunity, and if he fails to do so he cannot complain if the appellate court deems those issues not litigated as waived.

The judgment of the lower court is hereby reversed, at the cost of appellee, and the cause dismissed, with prejudice. All of the Justices concurring, except IRWIN, J., absent.

(19 Okl. 159)

BANK OF INDIAN TERRITORY v. ECK-
LES, County Treasurer.
(Supreme Court of Oklahoma. Sept. 5, 1907.)
COUNTIES-POWERS INCURRING DEBTS.

By the provisions of the act of Congress approved March 3, 1901 (8331 Stat. 1093, c. 846), the board of county commissioners of Comanche

county, Okl., had no power or authority to allow any claim against the county revenues and issue a warrant prior to December 15, 1903, unless the contracting or incurring of such indebtedness was first authorized by the Secretary of the Interior.

(Syllabus by the Court.)

Error from District Court, Comanche County; before Justice F. E. Gillette.

Application by the Bank of Indian Territory for a writ of mandamus to James R. Eckles, county treasurer of Comanche county. Judgment for defendant. Plaintiff brings error. Affirmed.

Stevens & Myers, for plaintiff in error. S. M. Cunningham, for defendant in error.

BURFORD, C. J. The Kiowa, Comanche, and Apache Indian country was opened to settlement on August 6, 1901, and Comanche county is composed of territory which originally was a portion of said Indian reservations. The county government was organized immediately after the opening of said reservation to white settlement, and W. W. Painter was by the Governor appointed and qualified as sheriff of said county, and proceeded to discharge the duties of said office until his successor was elected and qualified in January, 1903. This proceeding is for a peremptory writ of mandamus to compel the treasurer of said county to pay four several warrants issued by the board of county commissioners to Painter, and by him assigned to the plaintiff. The petition for an alternative writ avers that on January 5, 1903, the board of county commissioners of Comanche county, Okl., issued to W. W. Painter warrant No. 64 for $10.40, warrant No. 65 for $1.15, warrant No. 46 for $985.80, and warrant No. 47 for $1.687.90; that there was at the time ample funds in each of the funds upon which said warrants were issued to pay all indebtedness against said funds, including these warrants; that the county treasurer refused to pay them; that the Bank of Indian Territory was the owner of each said warrants by assignment from Painter for a valuable consideration; and it was asked that an alternative writ issue, directing the treasurer to pay said warrants from the funds in his hands or show cause why he refused. The county treasurer, by way of return to the alternative writ, admitted all the averments contained in the petition, but alleged that each of said warrants were issued by the board of county commissioners without authority of law and in payment of claims for which Comanche county was not liable; that all of said warrants were for indebtedness incurred prior to the time for collecting county taxes in the calendar year next succeeding the opening, and that the incurring of said indebtedness had never been authorized by the Secretary of the Interior; that warrant No. 65, for $1.15, was issued to Painter for repairs on the county jail, furnished on October 24, 1902; that warrant No. 64, for

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