homa, the state courts could acquire no juris- | view when it was adopted. But it may be diction of the offense.

"Sections 7050, 7051, and 7052, Snyder's Ann. St. Okla. 1909 (sections 5710, 5711, and 5712, Wilson's Rev. & Ann. St. 1903), are as follows:

""The court may either of its own motion or upon the application of the district attorney, and the furtherance of justice, or der an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.

""The entry of a nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.

said that if a justice of the peace has the right to hold an examining court he also has the right to enforce the attendance of witnesses and compel answers to questions. Within reasonable bounds this is true. But if a justice of the peace permits illegal questions to be asked a witness, and attempts to force answers to them and commits the witness for contempt for refusing to answer such questions, the remedy of the witness is by habeas corpus. See Ex parte Gudenuoge, 2 Okl. Cr. 110, 100 Pac. 39. But if a witness answers illegal questions, and such answers are not voluntary, this would not grant the witness immunity, and such evidence could not be used against him in any other proceeding because it would not be a voluntary statement freely made.

"An order for the dismissal of the action, as provided in this chapter, is not a bar to While a justice of the peace, if there is no any other prosecution for the same offense.' evidence against a party charged with mur"There is no contention made here that der from which it appears that he is probathis defendant was in jeopardy, and under bly guilty, may discharge the defendant, certhe plain letter of these sections of the stat- tainly no one will contend that a justice of utes the dismissal was no bar to a further the peace can enter any order which would prosecution for the same offense. Certainly amount to an acquittal of a defendant chargthe reimbursement of the person injured by ed with murder and prevent his subsequent the forgery would not be a bar to a further prosecution. If he cannot do this directly, prosecution. His offense was against public but if a witness be allowed immunity on acsociety, and not against the individual whose count of being compelled to answer questions name he forged. The agreed statement of in a justice court which may incriminate facts also discloses that the agreement to him, and on account of such answers receives dismiss the case was had without the knowl-immunity, it would be permitting a justice edge or notice to the prosecuting witness. But it would be immaterial whether he had such notice. This is not such an offense as could be compromised for a money consideration."

of the peace to do indirectly that which he cannot do directly. This would be an absurdity upon its face. There is no logical escape from the conclusion that under our constitutional provisions and our statutes imIf a county attorney cannot discontinue or munity can only be secured by the action of abandon a prosecution for a public of a court having jurisdiction to finally try the fense, except with the consent and approv- matters with reference to which the immual of the court, and if a case can be renewed, nity is claimed. In a trial before a jusand if such dismissal, though made with the tice of the peace he may compel a witness approval of the court, does not bar another to answer questions which would incriminate prosecution for the same offense, with what such witness as to any matter within the jushow of reason can it be said that a county risdiction of the justice of the peace for final attorney or any inferior tribunal can grant trial, but beyond, this he cannot go. If he a defendant immunity and absolutely bar a could, he would have power to bind the councourt of competent jurisdiction from prose- ty court, the superior court, the district cuting and punishing a criminal? Such a court, and this court. In states in which a construction would enable a county attorney, county attorney may enter a nolle prosequi or a justice of the peace, or a county judge, without the consent of the court he may to absolutely bind the district court and grant immunity by contract without the apconclude its action, which would often re- proval of the court, but he cannot do so in sult in the defeat of justice. One illustra- this state. Under our system immunity is tion will demonstrate this: Suppose A. and a judicial question which must be passed B. engage in a mutual combat in which each upon and decided alone by the court having tries to kill the other. Suppose they are jurisdiction to finally try the matters inboth arrested and have an examining trial volved in the immunity claimed. If a witbefore a committing magistrate, and such ness has secured immunity by answering incommitting magistrate requires A. to testi- criminating questions upon the order of a fy against B. and then requires B. to testify court of competent jurisdiction, or if a witagainst A. If such action is legal, then both ness has an agreement with the prosecuting A. and B. would secure immunity. This attorney approved by such a court, then this would reduce the law to an absurdity and court will see that he is protected in his defeat the very purpose which was had in rights; but this court is not going to permit

the doctrine of immunity to be used as an [ avenue of escape to guilty men or as a cloak of protection for criminals.

Section 5800, Rev. Laws 1910, is as follows: "Pleas, Classified. There are three kinds of pleas to an indictment or information. A plea of: First. Guilty. Second. Not guilty. Third. A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty."

This is a limitation upon the issues which may be submitted to a jury. The defense of insanity, or of an alibi, or any other plea which involves the guilt or innocence of a defendant, and to which the doctrine of reasonable doubt is applicable, is included in and should be presented under a plea of not guilty. The only exception to this rule is found in the third clause of the statute prescribing what issues may be submitted to a jury, and that is a former judgment of con

This is an arbitrary provision of the statute, and is not open for discussion. Yet it has always been held that a plea of former jeop

stitute a defense, should not be submitted to the jury, but should be stricken from the record by the court. See Johnson v. State, 1 Okl. Cr. 321, 97 Pac. 1059, 18 Ann. Cas. 300; Morris v. Territory, 1 Okl. Cr. 617, 99 Pac. 760, 101 Pac. 111; Havill v. United States, 5 Okl. Cr. 334, 115 Pac. 119; Hamlin v. State, 8 Okl. Cr. 187, 126 Pac. 704; Kent v. State, 8 Okl. Cr. 188, 126 Pac. 1040.

We desire to emphasize the principle contained in the decision of the Court of Criminal Appeals of Texas in the case of Heinzman v. State, 34 Tex. Cr. R. 76, 29 S. W. 156, 482. In this case the appellant had filed a plea in abatement upon the ground that she had a legal contract in which she was to become a witness for the state in a case pending against Maggie Toomey, in which said Maggie Toomey was charged with murder, and that she had so testified for the state. The court overruled this plea in abatement upon the ground, among others, that the defendant had committed perjury in the Toomey Case. The Court of Criminal Appeals approved the action of the trial court in denying the plea in abatement, say-viction or acquittal must be so submitted. ing: "If the testimony of a witness is corrupt, he is entitled to nothing by such agreement." This is in harmony with the views herebefore expressed by this court, that beardy, when it does not state facts which confore a witness can claim immunity on account of his testimony he must act in good faith with the state and must tell the truth. This rule does not do an injustice to any one. At best the testimony of an accomplice is looked upon with grave suspicion and distrust by juries, and the lawyers for the defense always argue that the accomplice is swearing a lie as the price of his liberty, and is trying to convict the defendant against whom he testifies in order that he, the accomplice, may go free. To allow such a witness immunity when he has testified falsely would be to encourage and place a premium upon perjury. But the doctrine established in Texas, and which we intend to see enforced in Oklahoma, is that if a witness willfully swears falsely, immunity shall not be extended to him. This court will never recognize any alleged right founded upon perjury. When this is understood all inducements upon the part of an accomplice to swear falsely will be taken away, and courts and juries will be able to depend with more confidence upon their testimony, because, if it is proven that such a witness has sworn falsely, he would be subject to trial and conviction upon his own testimony. This is the best possible guaranty we can give against the commission of perjury upon the part of accomplices, for when they know that falsehood can do them no good they will be disposed to consult their own interests by telling the truth, and nothing but the truth.

[5] How shall the plea of immunity be interposed, and by whom shall it be decided? It cannot be presented by demurrer because this plea is not based upon any real or supposed deficiency in the indictment or information. There is no provision of our law which authorizes the submission of this plea

In the case of Petitti v. State, 3 Okl. Cr. 587, 107 Pac. 954, in an opinion by Judge Owen, it was declared that a plea of former acquittal, which was not entered as directed by statute, could not be considered by the court and would not avail.

In the case of Loyd v. State, 6 Okl. Cr. 76, 116 Pac. 959, the court said: "Where a plea of former jeopardy has been filed and does not involve a disputed question of fact, but merely presents a question of law for the determination of the court, it is not necessary to submit such plea to the consideration of the jury, but the court should pass upon the question of law presented, and either sustain the plea and discharge the defendant, or overrule the plea and place the defendant upon trial upon the merits of said cause."

With the single exception provided for in the statute with reference to a plea of former acquittal or conviction, nothing should be submitted to a jury unless it throws some light upon the guilt of the defendant. This is the issue which the jury is impaneled to try, and which they must decide against the defendant beyond a reasonable doubt or he must be acquitted. Juries pass upon the question of the guilt or innocence of a defendant under the law as given in the instructions of the court. Rare instances arise such as where the materiality of evidence depends upon disputed facts, and in such cases the materiality of such testimony be

may be submitted to the jury under propertion is not involved either in the letter or instructions from the court. See Coleman v. spirit of our Constitution, and its recogniState, 6 Okl. Cr. 252, 118 Pac. 594. But these tion would only result in needless expense instances are rare, and do not constitute an and delay. Immunity cannot be presented exception to the rule, because they go direct- either by demurrer or under the plea of not ly to the question of the guilt or innocence | guilty. It can only be presented by a plea of the defendant and may be considered by the jury in determining whether or not a crime has been committed. With the single exception provided for in the statute, issues before a jury are: First, has a crime been committed; second, is the defendant guilty of the crime committed? Any other issue is calculated to confuse and mislead a jury, and should not be submitted to them unless expressly required by statute.

in bar in support of a motion addressed to the court to set aside the indictment or information and discharging the defendant, upon the ground that he has atoned for the crime committed and is not subject to be indicted or prosecuted for the offense charged.

This question is settled by our statute. Section 5779, Rev. Laws, 1910, is as follows: "If the defendant do not require time, as provided in the last section, or if he do, then on the next day, or at such further day as the court may have allowed him, he may, in answer to the arraignment, either move the court to set aside the indictment or information or may demur or plead thereto." Subsequent provisions of the statute enumerate a number of conditions under which an indictment or information must be set aside by the court, but these are not exclusive of the

Section 20 of the Bill of Rights of the Constitution of Oklahoma, among other things, is as follows: "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed." This is not a new provision of law. It is simply declaratory of the common law on this subject, and its meaning is well understood. It only gives a defend-grounds upon which this may be done. If ant the right of trial by jury upon the issue a defendant fails to file a motion to set aside of his guilt or innocence. The plea of im- an indictment or information upon the munity is not involved in the issue of guilt ground of immunity under our statute, he is or innocence. In fact it is practically a con- precluded from afterwards presenting this fession of guilt, and a claim of exemption | objection, unless the facts upon which it is from any trial at all. It sets up reasons based arise after he has demurred or pleaded why a defendant should not be required ei- to the indictment or information. ther to demur or plead to an indictment or information. Its purpose is to bar the state from placing the defendant upon trial for the crime charged. The submission of a plea of immunity to a jury is not only unauthorized by statute, but it is contrary to the entire philosophy of the law. Our Constitution provides that no person shall be prosecuted for a felony by information without having first had a preliminary examination before an examining magistrate, or having waived such preliminary examination. See section 17 of the Bill of Rights of the Constitution of Oklahoma.

Section 18 provides: "A grand jury shall be composed of twelve men, any nine of whom concurring may find an indictment or true bill." Suppose a defendant is prosecuted for a felony by information without first having had a preliminary examination before an examining magistrate, or having waived such preliminary examination, or suppose a defendant is indicted by a grand Jury composed of either more or less than 12 men, or that nine members of the grand Jury had not concurred in finding said bill, could either of these defects or objections be taken advantage of by a demurrer or under a plea of not guilty, and should they be submitted to the jury? Each of them would involve issues of fact, but neither of them would go to the question of the guilt or innocence of the defendant. Who will say that

If any additional argument is necessary in support of the conclusion at which we have arrived, it is found in the language of the Constitution itself, which in mandatory terms declares, that "no person shall be prosecuted

for or on account of any transaction, matter, or thing concerning which he may so testify." If a witness has earned immunity, his further prosecution is in violation of this provision of the Constitution. Upon a plea of immunity but one question is at issue, and that is as to whether or not the circumstances of the case bring it within the terms of the Constitution. If they do, the court has no option, but must set aside the indictment or information, abate the prosecution, and discharge the defendant. To say that this issue may be held in abeyance, and that the prosecution may be continued, and that both the state and the defendant may be put to the expense, trouble, and delay of trying the case upon its merits on the plea of not guilty and settling the issue of immunity in the same trial, involves an absurdity upon its very face. Common sense, reason, and both the spirit and letter of our laws and Constitution requires that the question of immunity upon a proper plea in abatement should be settled by the trial judge before the defendant is placed upon trial upon the merits of the cause.

We are in no manner responsible for the hopeless confusion in which this question is

We are not concerned in the | the agreement has been made, and defendant statutes of other states, and it is not our has testified thereunder, and the attorney business to harmonize the conflicting decisions of other courts. Our whole duty is performed when we construe and enforce the Constitution and statutes of Oklahoma according to their true spirit and meaning. We concede the right of other states to settle questions of practice for themselves. We simply desire to vindicate the right of Oklahoma to the same thing. But we are not without ample authority in support of our position. As herein before stated, the Texas Court of Criminal Appeals is noted, not only for its signal ability, but also for its zeal-withheld without violating an established ous devotion to the technical rights of a defendant. We are glad to note that this truly great court is in full harmony and accord with our views upon the issue of immunity, and also with our conclusion that this is a question which must be settled by the court and not by the jury.

to a defense of this kind is in the Holmes | on Saturday night, are two of the main cirCase, 20 Tex. App. 517, and rests upon the cumstances upon which the state relies to ground that the Code forbids any special pleas except former conviction or acquittal (Code Criminal Procedure, article 525), and that this is in the nature of a plea of estoppel. We do not think such a defense as we are here considering comes under the character of special pleas which are to be submitted and passed upon by a jury

* *

of former jeopardy (Johnson v. State, 22 Tex. App. 222 [2 S. W. 609]), but rather belongs to those matters addressed solely to the consideration of the court, and for which a nolle prosequi should be entered or the case dismissed; and, where such a defense is set up, and not denied by the state, and it appears that a valid contract was made by the proper officers representing the state, and the contract has been carried out by the defendant in good faith, the court should dismiss the cause, setting up in the judgment the reasons therefor." It is worthy of remark that Judge Hurt, one of the ablest judges of criminal law, and certainly the greatest stickler for the technical rights of a defendant that America has ever produced, was presiding judge of the court at this time and concurred in this opinion. This should settle the question in the mind of any doubter of the doctrine of harmless error that this decision is technically correct. If the judge denies the plea of immunity, the evidence in support thereof can be preserved in a bill of exceptions and incorporated in the record in case of a conviction and appeal, and can be reviewed by this court. If the judge should sustain the plea of immunity and discharge the defendant the state could appeal directly as in cases in which a demurrer to an indictment or information has been sustained. In this way the rights of both sides can be presented, which cannot be done in any other way.

convict Frank Scribner, as shown by the evidence in this case, a copy of which evidence both in the trial and on the plea of abatement is hereto attached, marked 'Exhibit A,' and made a part of this motion." The court heard the evidence and the argument in support of the plea in bar and denied the same, to which counsel for appellant excepted. The court did not err in denying the plea in bar in this case, for it does not appear from the plea in bar, or from the evidence in support thereof, that the defendant did not testify voluntarily before the grand jury. He made no objection to questions asked him, and did not claim exemption from self-incrimination, and was not compelled to answer any question. That he may have testified reluctantly would not entitle him to immunity. Therefore upon his own showing he was not entitled to immunity.

[6] Some other questions are presented in the brief of counsel, but upon an examination of the entire record we have no doubt as to the guilt of appellant, and we believe that absolute justice was done in his conviction. In fact in our judgment his acquittal would have been a miscarriage of justice.

Section 6005, Rev. Laws 1910, is as follows: "No judgment shall be set aside or new trial granted by any appellate court in this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." This relates only to matters of procedure, and is binding upon the court in When the case before us was pending in all cases from the date upon which it went the trial court, appellant filed a plea in bar, into effect. Here is a legislative acknowledgthe material portion of which is as follows: ment and establishment of the doctrine of "Comes now the defendant, Andy Scribner, harmless error for which this court has unand would ask the court to abate this cause flinchingly stood from the day of its organiand discharge the defendant for the follow-zation. Those who have been criticising the ing reasons, to wit: That he is immune from court on account of its decisions should turn prosecution in the matter, for the reason their batteries on the Legislature who passthat he was subpoenaed by the state to ap-ed this law and on the Governor who appear as a witness before the grand jury having under investigation this killing of Lillie Scribner, and that in said investigation he gave testimony as to the kind of horse he rode on Sunday, about Frank Scribner being at Mr. Dority's on Saturday night and leaving there on Sunday, and other matters tending to show the guilt of Frank Scribner. That in all things affirmed. the kind of horse the defendant was riding, and the fact that Frank was in that community, and stayed all night at Mr. Dority's cur.

proved it. It vindicates everything this court has ever said on this question, and, it matters not what the future personnel of this court may be, it settles the law of Oklahoma unless repealed by the Legislature.

We find no material error in the record.

The judgment of the lower court is therefore

ARMSTRONG, P. J., and DOYLE, J., con