Coleman v. State , 6 Okla. Crim. 252 ( 1911 )

There are 15 assignments of error in this case, but in the brief of counsel for appellant they are grouped, discussed, and considered as three propositions, which are as follows:

"First. Was the alleged communication with H.N. Roberts, which the state contends defendant denied as a witness before the grand jury, and which serves as one of the foundations upon which the indictment in this case rests, material to investigation of the charges of gaming against Oscar Eskew, Will Rose, Vernon Bell, Walter Rogers, George Hinson, Vernon Badgett, and Ed Goosby by grand jury, and to which investigation the defendant or appellant herein was not a party? Was not the submission of the question as to the materiality of the said alleged statement error?

"Second. Was not the refusal of the court to give defendant's or appellant's special request for instruction No. 1, as to the consideration of good reputation of the appellant, and the giving of instruction No. 9 as to good reputation, error on the part of the court?

"Third. Will the verdict of the jury assessing a punishment against the appellant unauthorized by the law support a sentence and judgment against the appellant?"

We will consider these questions in the order presented.

First. At the May term, 1908, in the district court of Bryan county, the grand jury was investigating charges of gambling against Oscar Eskew, Will Rose, Vernon Bell, Walter Rogers, George Hinson, Vernon Badgett, and Ed Goosby, and appellant was summoned before said grand jury to testify in this investigation. He stated, in substance, that about 11 o'clock on the night in question he heard some talking in a dug-out, and he went down to see what was going on there. He said that Oscar Eskew, Will Rose, Vernon Bell, and Ed Goosby were in the cellar. He said that he did not know what they were doing, but did not see any dice or money, and that no craps was being played there; that the officers came to where they were; and that he, the witness, did not say to H.N. Roberts that he was shooting craps trying to win a piece of money, and did not say, "I am ready to pay my fine." It was proven upon the trial of the cause that at the time inquired about by the grand jury the parties above named were in a cellar or stormhouse at or near Colbert, in Bryan county, Okla., and that they were there engaged in a game of craps, and that upon being arrested by H.N. Roberts and others, the defendant stated to the said Roberts that the parties had been engaged in gambling; that he was there shooting craps, trying to win a piece of money; and that the defendant stated that he wanted to pay a fine that night.

The contention of counsel for appellant is that the statements made by appellant were not material to the question being investigated by the grand jury, and that, even if they were material, this should have been determined by the trial court, and that it was error for the trial court to submit the materiality of these statements to the jury. The question at issue before the grand jury was as to whether or not certain parties at a certain time and place were engaged in violating the law by shooting craps. The appellant appeared before the grand jury, and admitted that he was present at the time and place under inquiry, but testified positively that he did not see any dice or money, and that no one was playing craps there. This testimony was evidently offered for the purpose of preventing an indictment being found by the grand jury. As to whether or not the statements of the defendant given before the grand jury were true was material to the issues involved upon the investigation. He was then asked if he had not stated to H.N. Roberts immediately after his arrest that the parties in the cellar or dug-out, just before the arrest, had been engaged in gambling, and that he was there shooting craps trying to win a piece of money, and that if he, the defendant, had not at that time stated to said Roberts that he wanted to pay a fine for gambling. This he denied. If he had admitted having made these statements, it would have entirely destroyed the effect of his previous statements to the effect that he did not see any dice or money in the dug-out, and that no games were being played there by the parties whose conduct was under investigation. The question as to whether or not any particular statement is material in a prosecution for perjury depends upon the nature of the proceeding in which it is made and the matter that is at issue. If the statement assigned as perjury could not have influenced the grand jury in determining the issue before them, it was not material, but, if the statement was made for the purpose of influencing the grand jury and was such that it might have had this effect, then it was material. It is not necessary that the matter sworn to be directly and immediately material in order to constitute the offense of perjury. It is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material by giving weight or probability to or detracting from the testimony of a witness thereto. This is sufficient, and makes the testimony material. It has therefore been held that perjury may be assigned upon false statements affecting a collateral issue as to the credibility of a witness; this being material to the main issue. This was directly passed upon by the Supreme Court of Kansas in the case of State v. Park, 57 Kan. 432,46 P. 713.

The Supreme Court of that state there laid down the true rule as follows:

"To constitute perjury, the false statements must be material to the subject under consideration, or such as would tend to influence the determination of the issues to be decided. The question whether the defendant had been previously prosecuted and punished for committing grand larceny in Missouri, although in a certain sense collateral to the question on trial, can hardly be treated as immaterial. In the trial wherein false statements are alleged to have been made, Park voluntarily became a witness in his own behalf, and he was therefore subject to the same rules on cross-examination as any other witness. He having assumed the position of a witness, it was competent for the state upon cross-examination to test his veracity and credibility. It is well settled in this state that a defendant may be asked questions disclosing his past life and conduct; and the state may even go to the extent of inquiring if he has ever been convicted of the same offense as that for which he is upon trial. State v.Pfefferle, 36 Kan. 90 [12 P. 406]; State v. Probasco,46 Kan. 310 [26 P. 749]; State v. Wells, 54 Kan. 161 [37 P. 1005]. Not only was the statement of the witness therefore competent, but it had an important bearing upon the credit to be given to his whole testimony; and it is generally held to be perjury to swear falsely to anything affecting the credibility of the witness himself or the credibility of another witness in the case. In Wood v. People, 59 N.Y. 117, it is held that `it is not necessary that the false statement tends directly to prove the issue in order to sustain an indictment for perjury. If circumstantially material, or if it tends to support and give credit to the witness in respect to the main fact, it is perjury.' The Texas Court of Appeals has held that perjury may be predicated on a false answer of a witness that he had never been convicted of a felony, as such answer affects his credibility, and is therefore material to the issue. Williams v. State, 28 Tex. App. 301[28 Tex.Crim. 301] [12 S.W. 1103]. See, also, United States v.Landsberg [C.C.] 23 F. 585; Washington v. State, 22 Tex. App. 26[22 Tex.Crim. 26] [3 S.W. 228]; 2 Bishop's New Crim. Law, § 1032; Clark's Crim. Law of Canada, 389; Tiffany's Crim. Law, 850."

The degree of materiality is of no importance. Any false statement made by a witness which detracts from or adds weight and force to testimony as to matters that are directly material, thereby becomes material itself and may constitute perjury. Section 195, 3 Greenleaf on Evi., is as follows:

"As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the judge or jury to give readier credit to the substantial part of the evidence. But the degree of materiality is of no importance; for, if it tends to prove the matter in hand, it is enough, though it be but circumstantial. Thus falsehood in the statement of collateral matter, not of substance, such as the day in an action of trespass, or the kind of staff with which an assault was made, or the color of his clothes, or the like, may or may not be criminal, according as they may tend to give weight and force to other and material circumstances, or to give additional credit to the testimony of the witness himself or of some other witness in the cause. And therefore every question upon the cross-examination of a witness is said to be material. In the answer to a bill in equity matters not responsive to the bill may be material. But where the bill prays discovery of a parol agreement, which is void by the statute of frauds, and which is denied in the answer, this distinction has been taken: That, where the statute is pleaded or expressly claimed as a bar, the denial of the fact is immaterial, and therefore no perjury, but that where the statute is not set up, but the agreement is incidentally charged, as, for example, in a bill for relief, the fact is material, and perjury may be assigned upon the denial."

On these authorities and upon reason we cannot agree with the statement of counsel for appellant that the testimony pointed out under the first proposition in his brief was not material.

Counsel next take the position that, if this testimony was material, it was error for the trial court to submit its materiality to the jury. We agree with counsel that as a general rule the materiality of testimony is a question of law for the court, but cases may arise where this materiality depends upon disputed facts, and then becomes a mixed question of law and fact, to be submitted to the jury under proper instructions. We are sustained in these views by one of the greatest modern writers on criminal law. Section 1039, 2 Bishop's New Crim. Law, is as follows:

"The materiality of the testimony is a question of law, not of fact. But, like any other question of law, it may be so mingled with fact that it should be submitted under due instructions to the jury."

This paragraph has been cited with approval in the case ofYoung v. People, 134 Ill. 37, 24 N.E. 1070, and also the case ofWashington v. State, 23 Tex. App. 336[23 Tex.Crim. 336], 5 S.W. 119. We can well see the justice of this rule as applied to the facts of the case now before us. Here the materiality of this testimony depended upon the testimony of other witnesses, which, if true, would make this testimony material. We therefore think that it was proper for the trial court to submit to the jury upon the entire testimony in the case the question of the materiality of this testimony. But there is another view which is also a conclusive answer to the question taken by counsel for appellant. Suppose we concede that the court did err in submitting the question of the materiality of this testimony to the jury, what possible harm was thereby done to appellant? It simply gave him an additional opportunity of escaping punishment, for the jury might have erroneously decided that the evidence was not material. The doctrine of this court is that no man can be heard to complain of the commission of an error upon his trial, unless he can reasonably show by the record that he has suffered injury on account of such error. To secure the reversal of a conviction in this court, the burden is on the appellant to show both error and injury therefrom. In other words, before error committed on a trial will be ground for reversal, it must reasonably appear from an inspection of the entire record that such error deprived appellant of some substantial right, and thereby worked to his injury. This doctrine has been vigorously assailed, and as a matter of respect for the able counsel in this case we will re-examine the ground upon which it rests. We are entirely willing and anxious to correct any errors we may have made, and will thank the person who points them out for so doing. We are also willing to reply to any fair criticism of any position which we may occupy. Where error has been committed in the trial court, counsel for the defense always say: "How do you know that the defendant was not injured by the commission of this error?" This is the shibboleth of the defense in every case upon this question. If it be true that it is the duty of this court to know that an error has not injured an appellant, before we can affirm a conviction in which it occurred, then this question entirely demolishes our position, and it is our duty to recede therefrom.

Before answering this question, let us ask and answer one or two similar questions which involve the same principle, and then we will see more clearly the far-reaching consequences involved in the question presented. We will suppose a case where the testimony is all in favor of the state, and is direct as to the guilt of the appellant, could not counsel for appellant with equal force say, "How do you know that the witnesses for the state did not all perjure themselves?" Is it not true that Naboth, the Jezreelite, was convicted and stoned to death at the instance of Jezebel upon suborned and perjured testimony? And is it not true that Stephen, first martyr to the Christian religion, was condemned and stoned to death on perjured testimony? How do you know that the testimony against the defendant in this case is not false? Then, again, suppose a case where the testimony was conflicting and presented two issues, one of guilt and one of innocence, which justified a jury either in convicting or acquitting a defendant, could not counsel for the defendant with equal force ask, "How do you know that the jury was not actuated by improper motives in convicting this defendant, and were not influenced by passion or prejudice in arriving at the verdict?" It is at once seen that, if such questions as these are to be answered and acted upon by this court, they would soon put an end to the enforcement of criminal law in Oklahoma. What is the answer to all such questions? Law is not based upon fixed and unchangeable facts, and therefore is not, and cannot become, an exact science. It never has required mathematical certainty either on the part of courts or juries. In the very nature of things, more should not be required than moral certainty of the guilt of a defendant before inflicting legal punishment, and moral certainty admits the possibility of error in every case. It is largely on this ground that the pardoning power is placed in the hands of the Governor. This is done principally to enable him to give a prisoner the benefit of any new discoveries that may be made favorable to him after his conviction. It is manifest that no one can say as a matter of knowledge that any given person is guilty of a crime for which he has been convicted. It is always possible in any case that the witnesses for the prosecution may have committed perjury or they may have been mistaken as to the facts with reference to which they have testified; and it is also always possible that jurors may have been influenced by improper motives or they may have misunderstood and misapplied the evidence in the case, and it is also always possible that in any case the appellate court may be mistaken as to the law or mistaken as to its application to the facts of the case. If knowledge was required of courts or juries, it would be impossible to have society, government, and law. Matters of knowledge relate to common-place things of life. Matters of belief relate to the sacred things of life. The most of the things we believe are spiritual. Herein lies the true distinction between brutes and human beings. The brute knows; the human being not only knows, but also believes and exercises faith. Experience shows that a man is far more apt to be right when he places his belief and faith and action upon a reasonable basis that he is apt to be right when he thinks that he is acting upon his personal knowledge. Of necessity nearly all of our acts are based upon belief, and but few of them are based upon knowledge. If we only acted on knowledge, we would not accomplish much in life. There are very few things we know for certain. No man knows as a fact that his wife loves and is faithful to him; but most men would stake their lives upon their faith in their wives. Without this faith the marital relation would not be endurable, and would soon cease to exist, and society itself would crumble to pieces, and the world relapse into the darkness of barbarism. Our everyday experience confirms the statement of inspiration that "by faith we live, move, and have our being." The truth is that the only possible standard of action for the enforcement of law is that we must believe to the same degree of moral certainty that we act upon in matters of the gravest concern to ourselves, and, when we so believe and act, we meet the full measure of our duty.

In the trial of a criminal case the defendant is not entitled to any presumption other than that of innocence, and when a jury has found from the evidence, beyond a reasonable doubt, that he is guilty as charged, this presumption is entirely wiped out and destroyed, and the contrary presumption confronts him, viz., that his conviction was right, and the burden is then on him to show that on the trial he was deprived of some substantial right to his injury. Unless he can do this, the judgment of the lower court should be affirmed. The presumption of innocence is based upon human experience which teaches us that men do not ordinarily violate the law. The presumption that the verdict of the jury in a court of record is right is also based upon human experience. Ordinarily men sympathize with those who are falsely charged with crime, and the presumption is that the jury would not convict a man unless he was really proven guilty. This presumption is much stronger than that of the innocence of a defendant, for it is much more improbable that 12 men would do wrong than it is that one man would do wrong. In a felony case a defendant is tried by 12 jurors, in the selection of which he participates. By selecting these jurors he vouches for their intelligence, fairness, and integrity. Which presumption should be the stronger — that the defendant is innocent or that 12 such men are mistaken or have perjured themselves? So it is seen that the presumption in favor of the verdict of the jury is not only based upon necessity, but is also supported by reason and experience. Trial judges are not selected by chance. They are either agreed upon by the defendant or selected in such manner as to settle the question of their intelligence and integrity. Some appellate courts act as though it was their duty to hold that everything done in the trial court was irregular until it was proven by the state that the proceedings were strictly regular. Some of them also hold that the commission of error presumes injury to the defendant. We think the safer and better rule is to presume that everything done in a court of record is regular until the contrary is made to appear, and to place the burden upon the party complaining of the action of the trial court to show how he was injured thereby. This, as we understand it, is the groundwork and foundation of the doctrine of harmless error. If we are wrong in these views, we earnestly invite the bar of the state of Oklahoma to show us wherein we are wrong, and we will thank them for so doing. We will be glad to consider a brief filed in any case by any reputable attorney in reply to these views. This court is always ready and willing to correct any material error which it may have committed. It is our judgment that, if the doctrine of harmless error is wrong, then the enforcement of the criminal law of Oklahoma will become a farce, a mockery, and a delusion. We are not without authority supporting these views.

An instructive decision upon this subject was rendered by the Court of Criminal Appeals of Ireland in the case of Regina v.James Courtney, which will be found in Cox's Crim. Law Cases (English) vol. 7, p. 111. The opinion is by Chief Justice Monahan. The opinion is too long to be copied in full, but we have carefully compared the syllabus with the opinion, and find that the syllabus correctly states the law as decided. The syllabus is as follows:

"Perjury assigned on answers of the prisoner that he had not tasted any intoxicating drink, or been in a public house on a particular evening. These answers were given on an inquest held on the body of a man who had been found dead, but without any marks of violence or anything to cause suspicion of his having died from other than natural causes. Held, nevertheless, directly material, as the coroner was bound to inquire into all the circumstances attending death. On the trial the judge had left the question of materiality to the jury, who found the prisoner guilty. Held, under these circumstances, that, whether materiality be a question for the judge or the jury, the conviction was right."

If the appellate courts of the United States would take the same view of the enforcement of law that the English courts take, there would be more respect for law and more confidence in our courts, and life and property would be as safe here as they are in England. What the United States need is more plain common-sense justice that the people can understand, and not so much regard for technicalities, which constitute only so much learned nonsense and which no man can understand, unless he be a skilled lawyer. Too much regard for technical rules sacrifices substance to form, and makes the shadows and cobwebs of antiquity more important than the enforcement of justice and the punishment of criminals. Other appellate courts may do as they please, but we are determined to decide every case submitted to us in the light of the moral atmosphere which surrounds it, and as near as possible to base our decisions upon the very truth and justice of each case. Owing to the great volume of business in our court, there are now something like 500 cases on our docket, and the constant interruptions to which we are subjected, and the further fact that we did not have a single precedent when this court was established, but were forced to reconcile two separate and conflicting systems of criminal jurisprudence, and form them into one system, we cannot give every question involved in each case that investigation and consideration which it should receive. We know that we have made mistakes, but we are correcting these mistakes as rapidly as possible. We believe it to be our duty to give to the people of Oklahoma as nearly as we can do so a system of criminal jurisprudence based alone upon justice and supported by reason, which will secure to every man, be he poor or rich, beggar or millionaire, full protection in his rights, and also secure to the people at large the due execution of the criminal laws of the state.

The Court of Criminal Appeals of Ireland in the case above cited held that while it was true that the materiality of the testimony was for the court, and not for the jury, and that the trial court should not have submitted the question of materiality of the testimony to the jury, yet, as the verdict of the jury was right, the conviction was affirmed. This meets with our entire approval. So, even if we felt in this case that the trial court had erred in submitting the question of the materiality of this testimony to the jury, still, as we find from the evidence that the verdict of the jury was right, we would hold that the error was harmless. But, as heretofore stated, we think that the trial court had the right, under the facts in this case, to submit the materiality of the testimony to the jury, as it was a mixed question of law and fact.

Second. Upon the trial of this cause, the defendant requested the court to charge the jury as follows:

"The defendant in a criminal action, who has introduced testimony showing his previous good character, has a right to have such testimony considered by the jury in determining whether reasonable doubt exists as to his guilt. If, from all the other evidence in the case, the jury would be satisfied of the guilt of the defendant, they must still determine whether or not the previous good character of the defendant, when weighed with all the other facts and circumstances in the case, raises a reasonable doubt as to his guilt; and, if such reasonable doubt remains in the minds of the jurors, they must acquit."

It was not error for the court to refuse this instruction, because it is not applicable to the facts and issues in this case. The instruction requested is entirely too broad. Where a defendant is being tried for perjury, it is immaterial as to what his previous character has been except upon the issue of truth and veracity. Under the law, although the jury may have found that the defendant had always borne the reputation of being a quiet, peaceable, and inoffensive citizen, yet proof of such good character would not even tend to raise an issue in a perjury case favorable to the defendant. The court instructed the jury as follows:

"If the jury believes from the evidence that prior to the occasion in question the defendant's reputation in the community in which he lived for truth and veracity was good, then the jury may consider that fact in determining the question of the defendant's guilt or innocence of this charge. But, if upon a consideration of all the evidence in the case you believe beyond a reasonable doubt that the defendant is guilty as charged, then his previous good reputation would neither justify nor excuse the offense."

This instruction was directly applicable to the issues in the case and was all that the defendant had a right to ask. Our views upon this subject are expressed in full in the case of Morris v.Ter., 1 Okla. Cr. 617, 99 P. 760, 101 P. 111. The leading authorities on this subject are there cited and discussed. The instruction of the court given in this case is directly in harmony with the conclusions which we there reached. We therefore hold that no error was committed by the trial court in refusing to give the special instruction requested and in the instruction that was given by the court to the jury.

Third. Appellant was found guilty by the jury of having committed perjury in proceedings before the grand jury, and his punishment was assessed by the jury at imprisonment in the penitentiary for the period of one year. Section 2176, Snyder's Comp. Laws Okla. 1909, defines perjury as follows:

"Every person who having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states any material matter which he knows to be false, is guilty of perjury."

Section 2184, Snyder's Comp. Laws Okla. 1909, prescribes the punishment for perjury as follows:

"Perjury is punishable by imprisonment in the state prison as follows: (1) When committed on the trial of an indictment for felony, by imprisonment not less than ten years nor more than twenty. (2) When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than five nor more than ten years. (3) In all other cases by imprisonment not more than five years."

Counsel for appellant in their brief state their position as follows:

"It is our contention that the crime with which the appellant has been charged in this case falls within the second subdivision of the statute above quoted, and is a case of perjury, committed, if committed at all, `on any other trial or proceeding in a court of justice,' and that consequently the punishment to be assessed therefor is imprisonment not less than 5 nor more than 10 years. We submit that perjury committed before the grand jury is perjury committed in a proceeding in a court of justice."

Suppose we concede that appellant's punishment should have been inflicted under the second subdivision of section 2184, which would have required the jury to assess his punishment at not less than 5 nor more than 10 years' imprisonment, and that the court erred in instructing the jury that they might assess his punishment under the third subdivision of this section, which provides that the punishment should not exceed five years; would this error on the part of the court be one which appellant could complain of? Here, again, appellant is confronted with the doctrine of harmless error, because, if it was an error, it did not deprive him of any right, but clearly inured to his benefit. Upon this feature of the case we are supported by the following authorities:

"Accused, who was charged with the offense of selling liquor in violation of a city ordinance, cannot complain that the penalty imposed by the police court was that prescribed by the state statute for the same offense, instead of the greater penalty prescribed by the ordinance, as he was not prejudiced thereby." (Orme v. Commonwealth, 55 S.W. 195, 21 Ky. Law. Rep. 1412.)

In the case of Nichols v. State, 127 Ind. 406, 26 N.E. 839, the court said:

"Finally, it is contended by appellants that the court erred in rendering judgment against them on the verdict because the jury failed to assess a fine against them as part of the punishment. The verdict, with this exception, is perfect on its face. Of this objection we think it sufficient to say that the appellants should not be heard to complain of the fact that they did not receive all the punishment contemplated by the law which the jury found they had violated. In the case of Griffith v.State, 36 Ind. 406, it was said by this court: `It will hardly be contended we presume that the prisoner can successfully object that the punishment imposed was less than might legally be inflicted.' While it is true that the jury might have imposed a fine in this case in addition to the punishment fixed by their verdict, their failure to do so was error in favor of the appellants and gives them no cause for complaint in this court."

The Supreme Court of Arkansas held:

"A sentence to a fine less than the minimum fixed by statute is an error of which the accused cannot complain; Mansfield's Dig. Ark. § 2468, providing that a judgment shall be reversed only for error to the prejudice of the accused." (Bishop v. State [Ark.] 14 S.W. 88.)

In McQuoid v. People, 8 Ill. 76, the Supreme Court of that state said:

"Properly the plaintiff should have been imprisoned as well as fined. No imprisonment is imposed upon the plaintiff. We consider the law upon this point as settled by this court that a defendant in a civil or criminal prosecution cannot assign for error a decision, order, or judgment of a court which is manifestly in his favor," — citing cases.

In the case of Covy v. State, 4 Port. (Ala.) 186, the court said:

"The only objection that can be assigned for error on the latter motion (in arrest of judgment) is that the fine assessed by the jury was less than the law of 1826 authorized. To this it may be replied that defendant cannot complain if the fine is less than what the law considers their just deserts. No one can allege error in his own favor."

In the case of Ooton v. State, 5 Ala. 465, the court said:

"The judgment in the present case is for the fine assessed by the jury, and 30 days' imprisonment as a punishment for the offense. * * * The defendant cannot object to the irregularity of the judgment; for instead of injuriously affecting his legal rights, it is certainly more beneficial to him than the law authorized."

In the case of People v. Bauer, 37 Hun (N.Y.) 407, the court said:

"It had jurisdiction of the person of the defendant and of the subject-matter, and the sentence conforms to the provisions of the statute. The only objection being that the length of term is insufficient, there was therefore no attempt to exert power beyond its jurisdiction. It did not exceed the time authorized by the statute."

In the case of People v. Rouse, 72 Mich. 59, 40 N.W. 57, it was held:

"It is no ground of error that a sentence is less than it might have been, so long as it does not involve a different kind of punishment than that allowed by law. * * * In Wattingham v.State, 37 Tenn. (5 Sneed) 64, the respondent was convicted of larceny, and sentenced to two years' imprisonment. The minimum fixed by the statute was three years. The court held that the rule that a party cannot assign for error that which is for his own advantage applies as well to criminal cases as to civil proceedings; that the error was formal merely, and could not avail the prisoner. Other cases to this effect are the following:Barada v. State, 13 Mo. 94; People v. Burridge, 99 Mich. 343 [58 N.W. 319]; Harmison v. City of Lewiston, 153 Ill. 313 [38 N.E. 628, 46 Am. St. Rep. 893]; State v. Evans, 23 La.Ann. 525; Peoplev. Trainor, 57 A.D. 422, 68 N.Y. Supp., 263."

But is an investigation before a grand jury a "proceeding in a court of justice"? A grand jury investigation is strictly a secret ex parte proceeding. The accused has no notice of it, and is not allowed to be present, and no one is permitted to be there to represent him, and no one can be present during a grand jury investigation except the witness being examined and the county attorney or some one expressly authorized by law to represent him. See Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343;State v. Maben, 5 Okla. Cr. 581, 114 P. 1122. The powers of the grand jury are plenary, and, after the grand jury has been duly organized, the largest part of their legitimate functions are performed by them as a separate and independent body, acting by themselves and separate and apart from the court, and in their deliberations or actions they are not subject to the control of the court or directions from the court other than that which they may receive in the charge of the court before they proceed to enter upon their duties or by instructions subsequently given them in open court. They can properly exercise their functions without the presence of the court. In the exercise of their powers, they cannot be interfered with or controlled by the court, but it is their duty to deliberate and to act by themselves. We are supported in these views by the following authorities:

In the case of Commonwealth v. Bannon et al., 97 Mass. 218, the court said:

"It is true, as the defendant contends, that the grand jury is a constituent part or branch of the court, and that it can be organized and empowered to discharge the legal functions imposed on it only by virtue of the authority which it derives as a body of men sworn and impaneled in open court in the mode prescribed by law (Gen. Stat. c. 171, §§ 1-6), and that the exercise of their functions is limited to the time during which the term of the court at which they are summoned to attend continues. But it is also true that, after they are duly organized, the larger part of their legitimate functions is to be performed by them as a separate and independent body acting by themselves apart from the court, and that in their deliberations and actions they are subject to no control or direction other than that which they may receive in the charge of the court before they proceed to enter on their duties (Gen. Stat. c. 171, §§ 7-10), or by instructions subsequently given to them in open court. No doubt they may, if they see fit, invoke the powers of the court to assist or protect them in the performance of their duties. Heard v. Pierce, 8 Cush. 338 [54 Am. Dec. 757]. This is a right which appertains to the body as an `appendage' or branch of the court, and is essential to enable it to perform its legal duties with efficiency and without interruption or molestation. But the existence of such right does not lead to the inference which the counsel for the defendant seeks to draw from it. It does not follow that the grand jury can properly exercise none of their functions without the actual presence or aid of the court, because they cannot issue process to compel the attendance of witnesses or to punish disorderly and contemptuous behavior. In all matters within the scope of their authority, on which it is their legal duty to deliberate and act by themselves, their power is plenary. Its exercise cannot be controlled or interfered with by the court. If the jury are duly summoned and impaneled, if all their proceedings are regular, and their presentments are duly made to the court, we are at a loss to see on what ground it can be plausibly maintained that any legal formality is wanting which is necessary to give validity to their action. Certainly no essential right or privilege of an accused party can be said to be in any degree violated or infringed. No part of the proceeding would have been different, if the court had continued in actual session during the entire time while the jury were engaged in the transaction of the business before them. The temporary absence of the judge from the city and county, while the term of the court was held, can have had no possible effect on the proceedings."

In the case of State v. Bowman, 90 Me. 368, 38 A. 333, 60 Am. St. Rep. 266, the Supreme Court of Maine had the following to say:

"Another consideration should not be lost sight of. The object of an investigation by a grand jury is not only to bring the guilty to trial, but also to protect the innocent from groundless accusation. The duties of grand jurors are important and responsible. They should be entirely independent. They should be uninfluenced by any consideration except a desire to `diligently inquire and true presentment make of all matters and things' given them in charge, according to their oaths and their consciences. If it be competent for the court to order a stenographer to be present and take stenographic notes of the testimony of witnesses, for such future use as the court might order or the law allow, it might be done in one case only during a whole session, while all other matters were investigated in the ordinary way. Should that be done, we cannot tell what influence such a discrimination might have upon the jurors. We think that in some cases it might affect their independence and impair the rights of the accused."

In the case of Finley v. State, 61 Ala. 201, the court said:

"If the court was correct in limiting the summoning to the bystanders in the courtroom, it has an unlimited power in this respect, and would then have unlimited power and influence in the selection of the persons who were to fill deficiencies in the panel and to serve in the capacity of grand jurors. With equal propriety, the court could have designated the particular bystanders from whom the deficiencies were to be supplied. The exercise of such a power by the court would be in violation of the spirit of all our legislation, and would convert the grand jury from a distinct, independent body, drawn and summoned by officers specially charged with that duty, into a mere dependency of the court, chosen by its absolute will. The practical results of such a power are too apparent to require discussion or statement. There is no reason for imputing to the court in this instance more than mere error; but the power exercised in the hands of a capricious or an unscrupulous judge, would destroy the purity and independence of the grand jury, and pervert it from all the purposes of its institution. O'Byrnes v. State [51 Ala. 25] supra; Portis v.State, 23 Miss. 578; Keitler v. State, 4 G. Greene (Iowa) 291."

In the case of State v. Walcott, 21 Conn. 279, the court said in speaking of grand juries:

"Grand juries have a right to investigate offenses, and present bills of indictment against persons at large as well as those in custody or on bail. They have a right to originate charges against offenders without forewarning them of their proceedings against them."

In the case of U.S. v. Belvin (C.C.) 46 Fed., at page 384, the court there said:

"The function of the grand jury is not to try persons accused of crime, but merely to examine whether and what crimes have been committed, to designate the persons at whom the evidence points as criminal, and by indictment to charge such persons before the court and country as answerable for the crimes committed within the county."

In the case of U.S. v. Kilpatrick (D.C.) 16 Fed., at page 769, the court said:

"A grand jury is a competent part of the court, and is under its general supervision and control, and grand jurors may be indicted, or punished for contempt, for any wilful misconduct or neglect of duty; but they are independent in their action in determining questions of fact."

In the case of People ex rel. Pickard v. Sheriff, 11 N.Y. Civ. Proc. R., on page 183, the court there said:

"A `grand jury' is defined by the statute to be `a body of men, returned at stated periods from the citizens of the country, before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county.' Code. Cr. Proc. § 223. Note the language, `returned before a court.' All through the chapter of the Code of Criminal Procedure devoted to the grand jury, it is recognized as a body separate and distinct from the court before which it is returned. It is no part of the court. The court can exist without it. The court of oyer and terminer is composed of a justice of the Supreme Court without an associate. The grand jury is there, in a certain sense, under the instructions of the court, for the purpose of inquiring as to crimes and making presentments to the court. It is required after the court have advised it as to its duties to retire to a private room, and it may there stay until it is through with its inquiries or until the final adjournment of the court. The court has no control over it in regard to when and how long it may sit. The court is the adviser of the jury; the jury the assistant of the court."

Proceedings before a grand jury may constitute part of the proceedings of the district court in which the grand jury was impaneled, but it is equally clear that proceedings before a grand jury do not constitute a trial or proceeding in a court of justice, as is contemplated by the second subdivision of the statute prescribing the punishment for perjury. A trial or proceeding in a court of justice necessarily means that the parties at interest have been forewarned, and have been given notice to be present at such proceeding, and also have an opportunity to introduce testimony if necessary, and be heard by counsel in open court for the protection of their interests. The presence of the presiding judge is absolutely necessary and essential during the entire time of a trial or proceeding in a court of justice. In criminal cases the judge must have the court under his immediate control during every moment of time in which a trial or proceeding is being conducted. If he loses this control, the entire trial or proceeding is thereby rendered invalid. See Cochran v. State, 4 Okla. Cr. 379, 111 P. 974. All trials or proceedings in a court of justice are subject to review upon appeal. None of these things are necessary or possible in proceedings before a grand jury. We therefore hold that the trial court did not err in submitting the punishment in this case to the jury under the third subdivision of the statute prescribing the punishment for perjury. In other words, perjury committed in proceedings before a grand jury is not committed in a trial or proceeding in a court of justice, and can only be punished under the third subdivision of this statute.

Fourth. We do not know as a matter of fact that appellant is guilty, but we are satisfied from the testimony in the case beyond all question that merely for a purpose of protecting some of his companions and associates from the payment of a fine for violating the gambling laws of the state appellant has committed wilful, wicked, and corrupt perjury, for which he must now serve a term in the state penitentiary. Next to the crimes of seduction and rape, perjury is the most serious offense against the laws of the state, and the most infamous in its character that can be committed, and especially the kind of perjury for the commission of which appellant now stands convicted. We can have some respect for a man, who for a real or fancied wrong enters into a fair combat in which he takes the life of his adversary. We can even sympathize with an aged widowed mother or a devoted wife, sister, or daughter, who, through love for a son, a husband, or brother, or a father, is driven to the commission of perjury to save such loved one from the hangman's noose. We can understand how perjury in cases of this kind may not indicate an utter want of moral character, but we cannot find language strong enough to express our detestation of the crime for which appellant has been convicted. The smallness of the cause for which perjury is committed is a true indication of the moral depravity of the man who commits it. The fact that the jury did not give appellant the full limit of the law is the only thing about this case worthy of criticism. We think that the smaller the inducement for perjury the greater the punishment should be. The man who will commit perjury to shield a crap shooter or a bootlegger is a most dangerous man to society. The longer he can be locked up the better it will be for the interests of public justice. From the records which we have examined in bootlegging and gambling cases, we are impressed with the idea that this kind of offense is common in this state. In fact, it appears that these cases are largely schools for perjury. The county attorneys and judges and grand and petit juries of the state cannot be too diligent in bringing such parties to justice. There is too much of a disposition to look upon perjury in these cases as something to be expected, and as being of but small importance. Men who perjure themselves in these small cases will not hesitate, if an inducement is offered, to perjure themselves in order that they may cheat the gallows of its due or consign innocence to a felon's cell, or rob widows and orphans of their property. Perjury attacks the integrity of all legal proceedings, and thereby endangers the institutions of our country; and we again call on county attorneys and all other officers to exercise the utmost diligence in prosecuting these offenders, with the assurance that, when they are fairly tried and proven to be guilty, this court will not hesitate to do its full duty in each case. No class of offenders should be more vigorously and relentlessly prosecuted or severely punished. County attorneys are requested to urge these views upon juries in all perjury prosecutions. Let all unite in a determined effort to make perjury dangerous even in the smallest case. When this is done, there will be more respect for law and not so many miscarriages of justice in our courts.

We find no error in the record. The judgment of the lower court is therefore in all things affirmed.

DOYLE, J., concurs; ARMSTRONG, J., absent and not participating.