When the jury fails to fix the punishment, the court should do so. Blair v. State, 4 Okla. Cr. 360.

879. Excess Punishment to be Disregarded-If the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict the defendant, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case. (5935 R. L. 1910)

880. Jury to Assess Punishment on Appeal-If upon the trial in the district, superior or county court upon appeal, the defendant be convicted, the jury must assess the punishment and the court render judgment against the defendant accordingly, which must include the costs in all courts, and order that the defendant secure the same or stand committed, at the per diem allowed by law, until the amount of the fine and costs are liquidated. (6165 R. L. 1910.)

881. Subpoena Defined-The process by which the attendance of a witness before a court or magistrate is required, is a subpoena. (6009 R. L. 1910.)

882. Magistrate May Issue Subpoena-A magistrate before whom complaint is laid, or to whom a presentment of a grand jury or information is sent, may issue subpoenas, subscribed by him, for witnesses within the State, either on behalf of the State or of the defendant. (6010 R. L. 1910.)

883. County Attorney to Issue Subpoenas for Grand JuryThe county attorney may issue subpoena, subscribed by him, for witnesses within the State, in support of the prosecution, or for such other witnesses as the grand jury may direct, to appear before the grand jury upon an investigation before them. (6011 R. L. 1910.)

884. Same for Trial-The county attorney may in like manner issue subpoena, for witnesses within the State, in support of an indictment or information, to appear before the court at which it is to be tried. (6012 R. L. 1910)

885. Clerk to Issue for Defendant-The clerk of the court at which an indictment is to be tried, must, at all times, upon the application of the defendant, and without charge, issue as many blank subpoenas, under the seal of the court and subscribed by him as clerk, for witnesses within the State, as may be required by the defendant. (6013 R. L. 1910)

886. Form of Subpoena-A ́subpoena, authorized by the last four sections, must be substantially in the following form:

THE STATE OF OKLAHOMA. To---

Greeting: You are commanded to appear before C. D., a justice of the peace of---

(or the grand jury of the county of the district court of

the case may be), on the

at

or

county, or as

(stating day and hour),

and remain in attendance on and call of said__ from day to day and term to term until lawfully discharged, as a witness in a criminal action prosecuted by the State of Oklahoma against E. F. (or to testify as the case may be). (6014 R. L. 1910.)

887. Subpoena Duces Tecum-If the books, papers or documents be required, a direction to the following effect must be continued in the subpoena:

And you are required to bring with you the following: (Describe intelligently the books, papers or documents required.) (6016 R. L. 1910.)

888. Subpoena Served by Whom-A peace officer must serve in his county, city, town or village, as the case may be, any subpoena delivered to him for service, either on the part of the State or of the defendant, and must make a written return of the service, subscribed by him, stating the time and place of service without delay. A subpoena may, however, be served by any other person. (6017 R. L. 1910.)

889. Subpoena How Served-Subpoenas shall be served as provided in Section 890. (6018 R. L. 1910.)

890. Service of Subpoena-Service of subpoenas for witnesses in civil and criminal actions in the district, superior, county and justice of the peace courts of this state shall be made by the officer, or other person making the service, by either personal service or such subpoena containing the time, place and the name of the court, and the action in which he is required to testify, or by mailing a copy thereof by registered mail, not less than three days before the trial day of the cause upon which said witness is required to attend, and the person making such service shall make a return thereof showing the manner of service, and if the same be by registered mail, he shall file with such return the registry receipt; provided, that the person or county attorney issuing the praecipe for a subpoena shall state therein the manner in which the witness or witnesses shall be served, and the officer or person serving such subpoena shall serve the same in the manner directed by the praecipe, and make his return in

accordance therewith; provided, further, that if the praecipe calls for serving such subpoena by registered letter, then the clerk shall serve the same as provided for the serving of jurors. (S. L. 1913, 114.)

891. Expenses of Witnesses-When a person attends before a magistrate, grand jury or court as a witness on behalf of the State upon subpoena, or pursuant to an undertaking, and it appears that he has come from a place out of the county, or that he is poor, the court, if the attendance of a witness be upon a trial, by, an order entered upon its minutes, or in any other case, the district judge, by a written order, may direct the county treasurer to pay the witness a reasonable sum, to be specified. in the order, for his expenses. (6019 R. L. 1910.)

892. Payment of Same-Upon the production of the order, or a certified copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury. (6020 R. L. 1910.)

893. Witness Must Take Notice of Continuances-Every witness summoned in a criminal action pending in a district, superior or county court shall take notice of the postponements and continuances and when once summoned in such action, shall, without further notice or summons, be in attendance upon such action, as such witness, until discharged by the court. (6015 R. L. 1910.)

894. Disobedience to Subpoena-Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt, in the manner provided in civil procedure. (6022 R. L. 1910)

895. When Witness for Defendant Disobeys Subpoena-A witness disobeying a subpoena issued on the part of the defendant, also forfeits to the defendant the sum of fifty dollars, which may be recovered in a civil action. (6023 R. L. 1910.)

896. When a Witness Resides Out of County-No person is obliged to attend as a witness, before a court or magistrate out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness. (6021 R. L. 1910.)

897. Witnesses for Pauper Defendant-In all cases wherein a defendant is charged with a felony or misdemeanor, and said defendant is unable by reason of his poverty, to pay necessary witnesses to be used by said defendant in the trial of a case against him, the judge may, in his discretion, make an order allowing not to exceed three witnesses on behalf of the defendant, who shall attend before the district or county court, either pursuant to an undertaking or in obedience to a subpoena upon the trial of a felony or a misdemeanor, and shall be paid the same fees and mileage as witnesses for the State are paid, by the county in which the prosecution was instituted, the same to be taxed as costs in the case and collected as other costs are collected: Provided, that at the time of making application for the issuing of said subpoena, the defendant or his counsel shall file an affidavit setting out the names of the witnesses and that the defendant, by reason of his poverty, is unable to pay said witnesses their fees allowed by law, and that the testimony of said witnesses is material and their attendance at the trial necessary for the proper defense of said defendant. (6024 R. L. 1910.)