"did then and there unlawfully, willfully, | er.' This is necessary, so that the prisoner and feloniously 'advise' and 'procure' Ethel may know of what crime he is accused, and Carpenter, a pregnant woman, to use certain have time to prepare his defense on the facts. instruments, with the unlawful and felonious It is also necessary that the jury may be intent of him, the said Clark Greenwood, to warranted in their finding, the court in procure the miscarriage of the said Ethel its judgment, and the prisoner be protected Carpenter." To be guilty under this statute against any subsequent prosecution for the one must "use" the instrument. Does the same offense. 1 Chitty, Criminal Law, 170; "procuring" and "advising" the use of instru- Willis v. People, 1 Scam. (Ill.) 401." The ments constitute a "use" in violation of this same court, in the case of People v. Hood, 6 section? Section 2045, Snyder's Comp. Laws, Cal. 236, said: "An indictment should set 1909 (Wilson's Rev. & Ann. St. 1903, § 1948), forth the facts and circumstances of the alis as follows: "All persons concerned in the leged offense so that the accused may be precommission of crime, whether it be felony or pared for his defense." misdemeanor, and whether they directly comThe crime alleged to have been committed mit the act constituting the offense, or aid by the defendant in the case at bar was the and abet in its commission, though not pres- use of the instruments with the intent to ent, are principals." Under this statute all procure a miscarriage. The defendant adof the persons concerned in the use of the in-vised and procured their use, and thereby struments, with the intent to procure the mis- became a principal in the crime; and, uncarriage, would be guilty of using the instru- der the rule announced in the authorities ments, and could be prosecuted as principals. just quoted, it was proper for the indictIt is not necessary that the indictment should ment to set out the facts and circumstances use the exact language of the statute. On the constituting the offense. The facts consticontrary, it is better pleading to describe tuting the offense, so far as this defendant more particularly the acts of the defendant was concerned, were the advising and prowhich constitute the crime. It is a general curing, and, under the allegations here, the rule that it is not sufficient to charge in the defendant was given notice that he was indictment that the defendant has committed charged with having advised and procured, a certain specified crime, but that it must be the use of the instruments with the intent stated how he committed the crime, by recit- to procure a miscarriage. If the indictment ing the material facts and circumstances con- had alleged in the exact language of the stituting the offense. This rule is announced statute that the defendant did use the inby Joyce on Indictments, § 241, citing a num-struments, certainly the state would have

ber of authorities.

been permitted, under section 2045, Snyder's Comp. Laws 1909, above quoted, to prove that the use consisted of his advising and

It is to the

dictment in alleging, in specific terms, the
particular acts of the defendant complain-
ed of constituting the offense.
advantage of the defendant. By this allega-
tion he is informed that he violated that
section, not by using the instruments him-
self, but by advising and procuring their use.

This court, in the case of Weston v. Territory, 1 Okl. Cr. 407, 98 Pac. 360, said: "In an indictment for committing an offense against a statute the offense may be describ-procuring. There can be no fault in the ined in the general language of the act, but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime, and to acquaint the accused with what he must meet on the trial." And, in the case of Vickers v. United States, 1 Okl. Cr. 452, 98 Pac. 467, this court said: "In framing an indictment the general rule is 'that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction or acquittal on it may be pleaded in bar of another indictment for the same offense.'" The Supreme Court of California announced the same rule in the case of People v. Aro, 6 Cal. 208, 65 Am. Dec. 503. The defendant there was charged with murder, and the court said: "Murder is a conclusion drawn by the law from certain facts, and in order to determine whether it has been committed, it is necessary that the facts should be stated with convenient certainty. 'For this purpose the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the de

The

As to the failure of the indictment to allege the name of the instrument employed, and upon what portions of the body the instruments were used, we think the objections not well taken. Counsel, for authority upon the proposition, cites the case of Cochran v. People, 175 Ill. 28, 51 N. E. 845. The indictment in that case was returned under a statute very different from ours. statute in Illinois makes the person procuring or causing an abortion or miscarriage guilty of murder if death ensues, and the indictment in that case alleges that the miscarriage was performed, and by reason of such miscarriage the woman on whom the operation was performed then and there died. The indictment in the case at bar is under a different statute. Under the statute here the use of the instrument with the intent to produce the miscarriage completes the offense, whether the miscarriage is produced

There is another reason why the Illinois Indictments, § 242, and was observed in the case is not binding on this court. Section | case of Wingard v. State, 13 Ga. 396. We 6705, Snyder's Comp. Laws, 1909 (section think the indictment sufficient, and there was 5366, Wilson's Rev. & Ann. St. 1903), is as no error in the action of the trial court in follows: "No indictment is insufficient, nor so holding. can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." The defendant in this case is charged with advising and procuring the use of the instruments; and, unless that allegation tends to the prejudice of the substantial rights of the defendant upon the merits, we are prohibited by this statute from holding the indictment insufficient. In our opinion the language of the indictment does not tend to the prejudice of the substantial rights of the defendant. The proof in the case is to the effect that Ethel Carpenter was a pregnant woman; that the defendant was the cause of her condition; that the defendant procured Dr. Brewer, in the town of Lawton, to use certain instruments on Ethel Carpenter to procure a miscarriage, and that Ethel Carpenter consented to the use of the instruments; that the operation was performed by Dr. Brewer; and that the defendant provided her with $50 with which to pay the doctor for his services. These facts make the defendant guilty of "using" the instruments under the provisions of section 2045, Snyder's Comp. Laws 1909, above quoted, and the allegation of the indictment that he did "advise and procure" could not in any way mislead the defendant, or in any way prejudice his substantial rights. The proof further discloses he was not present when the instruments were used. If they were in fact used, as the result of his advising and procuring, the character of the instruments is immaterial, and, since he was not present, to allege a description of them, or the portion of her body on which they were used, would avail him nothing. He was not called upon to defend against using any particular instrument, or in any particular place he was called upon to defend against the advising and procuring. The objects in requiring particularity in setting out the facts constituting the offense are: First, in order to identify the charge, lest the grand jury find a bill for one offense, and the defendant be put upon his trial in chief for another; second, that the defendant's conviction or acquittal may inure to his subsequent protection, should he again be questioned on the same facts; third, to enable the accused to determine on the line of his defense, and prepare for it both as to the law and the facts; fourth, to put it in the power of the court to look through the record and decide whether the facts charged are sufficient to support a conviction for a particular crime, and also to regulate the appropriate punishment for the particular of

The second error complained of is there was no corroboration of Ethel Carpenter. Counsel for the defendant insists that Ethel Carpenter was an accomplice with the defendant, and that the prosecuting witness, Mrs. Kate Rose, a sister of Ethel Carpenter, and who was present when the operation was performed, is also an accomplice, and, under the rule that a conviction cannot be had on the uncorroborated testimony of an accomplice, the verdict in this case should be set aside. We are not unmindful of the rule that the defendant in a felony case cannot be convicted on the uncorroborated testimony of an accomplice. In this case it is not necessary to determine whether Ethel Carpenter is an accomplice. It is clear from the evidence as it appears in the casemade that Mrs. Kate Rose was not an accomplice, and her testimony was amply sufficient to corroborate Ethel Carpenter, or, taken alone, would amply warrant the jury in finding the defendant guilty. If she had advised, aided, and abetted in the operation she would have been an accomplice. From the mere fact that she was present when the operation was performed, unless she consented. and was there for the purpose of aiding in the operation, and encouraged the same, she would not be an accomplice. is to the effect that the defendant arranged with Dr. Brewer to come to her residence and perform the operation, and that, when she learned of that, she telephoned Dr. Brewer that he could not perform the operation at her residence, and that she advised her sister against the operation, warning her of the dangers attached, and urged the defendant to marry her sister, and that, on her sister's earnest request, she accompanied her to the doctor's office, but never at any time consented to it. In our opinion she is not to be adjudged an accomplice solely because, through her sisterly affection, she went with her sister to the doctor's office, when the proof is she did not give her consent to it, but did all in her power to prevent the operation. The trial court instructed the jury that a conviction could not be had on the testimony of an accomplice, uncorroborated by other evidence, and the instruction clearly defines the term "accomplice," and told the jury, if they had a reasonable doubt as to whether Mrs. Rose was an accomplice, they would resolve the doubt in favor of the defendant and acquit him. no exceptions taken to the instruction of the court. This question was properly submitted to the jury.

Her testimony

The judgment of the lower court is affirmed.

STEWART et al. v. STATE.

ror with case-made attached. There was also filed in this court proof of service of no

(Criminal Court of Appeals of Oklahoma. Dec. tice upon Geo. G. Graham, county attorney of

1, 1909.)

1. CRIMINAL LAW (§ 1081*)-NOTICE OF AP-
PEAL FROM COUNTY COURT-SERVICE UPON
JUDGE.
Under the provisions of section 6949, Sny-
der's Comp. St. 1909, the notice that defendant
appeals from the judgment is properly served
upon the county judge as ex officio clerk of the
county court. There is no clerk of the county
court in the sense that there is a clerk of the
district court.

Cleveland county, and N. E. Sharp, county judge of said county, that said defendants appeal from the judgment to the Criminal Court of Appeals of Oklahoma.

The Attorney General's office, on November 16, 1909, filed a motion to dismiss said appeal for two reasons:

"First. Because no notices of appeal were served, as required under the statute." This

[Ed. Note. For other cases, see Criminal contention is based upon section 6949, SnyLaw, Dec. Dig. § 1081.*]

2. CLERKS OF COURTS (§ 3*)-APPOINTMENT PERMISSIVE STATUTE.

Section 1995, Snyder's Comp. St. 1909, authorizing the appointment of clerks for county courts, is permissive merely, and there may or there may not be a clerk of a county court, at the option of the county judge with the approval of the board of county commissioners. When a clerk is so appointed, the county judge is not disqualified or excused from performing any act that by law he might perform if no clerk had been appointed.

[Ed. Note.-For other cases, see Clerks of Courts, Dec. Dig. § 3.*]

3. CRIMINAL LAW (§ 1099*)-CERTIFICATE OF SETTLEMENT OF CASE-MADE-SUFFICIENCY. Section 6951, Snyder's Comp. St. 1909, provides: "The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached." Held that a certificate of the settlement of a case-made from a county court is sufficient, when signed and sealed by the judge thereof, without being attested by a clerk of the county court.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1099.*]

4. COURTS (§ 48*)-APPEAL-AUTHENTICATION OF RECORD-SEAL-COUNTY COURT.

der's Comp. St. 1909, which provides that: "An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney"-In that the notice of appeal should have been served upon the clerk of the county court, and not upon the judge thereof. No contention is made that the notice of appeal does not comply with the statute in all other respects. There is no merit in this objection. There is no clerk of the county court in the sense that there is a clerk of the district court. The laws of this state do not require that there shall be a clerk of the county court.

Section 1995, Snyder's Comp. St. 1909, provides: "The county judge may appoint a clerk of the county court in each county of this state having a population of more than ten thousand inhabitants subject to the approval of the board of county commissioners if, in their judgment, said board finds that the public interest requires the appointment of such clerk. Said clerk shall have authority to issue all process and notices from the county court, to issue marriage licenses, and to perform such other duties, ministerial in character, as are performed by the clerk of the district court." This statute is merely permissive, and authorizes the appointment of a clerk of the county court where the public interest requires it. In appeals from county courts it is sufficient where the notice of appeal has Appeal from Cleveland County Court; N. been served upon the county judge, as he is E. Sharp, Judge.

Section 24, Schedule of the Constitution, provides: "Until otherwise provided by law the seal of the probate courts in the counties of the territory of Oklahoma shall be the seal of the county courts." Held, that this clause of the Constitution, in the absence of other legislation, makes the seal of the probate court the official seal of the county court of said county. [Ed. Note. For other cases, see Courts, Dec. Dig. § 48.*1

(Syllabus by the Court.)

Fred Stewart and others were convicted of

ex officio clerk of his own court.

"Second. Because the judge's signature on the certificates to the case-made is not attestMo-ed by the clerk, as required by law." The

disturbing the peace, and they appeal, and the State moves to dismiss the appeal.

tion denied.

Williams & Williams and S. A. Norton, for appellants. Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the State.

record shows that the certificate of the settlement of the case-made is attested as follows: "Witness my hand this 19th day of September, 1908. N. E. Sharp, County Judge, Cleveland County." Seal attached bearing the impress: "Seal Probate Court, Cleveland Co., Okl." "Filed in county court or Cleveland county, Oklahoma, Sept. 19, 1908. N. E. Sharp, County Judge." Section 6951, Snyder's Comp. St. 1909, provides: "The case and amendments shall be submitted to

DOYLE, J. The plaintiffs in error were tried and convicted in the county court of Cleveland county for disturbing the public peace, from which conviction an appeal was taken by filing in this court a petition in er

[Ed. Note.-For other cases, see Criminal For the reasons stated, the motion to dis- Law, Cent. Dig. §§ 2746-2751, 2757, 2766, miss is hereby overuled.

2782-2802; Dec. Dig. § 1088.*

For other definitions, see Words and Phrases, vol. 7, pp. 6008-6014; vol. 8, p. 7781.] 7. WORDS AND PHRASES-"ADMINISTER."

The word "administer" has not a strict legal or technical import, but is a word in general use with a common and accepted meaning; the primary definition being "to give"

(Criminal Court of Appeals of Oklahoma. Dec. (citing Words and Phrases, vol. 1, p. 195).

Error from District Court, Seminole Coun

1. CRIMINAL LAW (§ 1099*)-APPEAL-CASE-ty; Malcolm E. Rosser, Judge.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. 119.*] 3. INDICTMENT AND INFORMATION (§ 161*)-ber, 1908, after the trial had begun, amended

raised in the court below, and even cases to which the attention of the circuit court was never called.' See, also, People v. Ferguson, 34 Cal. 310; Cohen v. Trowbridge, 6 Kan. 388." The motion to dismiss must be sustained so far as it relates to the case-made.

OWEN, J. (after stating the facts as above). | usual in such matters, stipulated and agreed It appears that this case was tried before that the case-made contained a true, full, Malcolm E. Rosser, at a special term of the and correct copy of all the proceedings in district court of Seminole county, and that the cause. The statute requires the casethe case-made was settled and signed by A. made to be authenticated by the court. The T. West. The Attorney General urges that case of Hodgden v. Commissioners, 10 Kan. the case-made is not properly before this 637, seems to be directly in point. In that court, for the reason that the case-made must case the case-made was never signed or setbe signed and settled by the judge who tried tled by the judge; but in lieu thereof this the case. Section 6074, Comp. Laws Okl. stipulation appears at the close: "This case 1909 (section 4741, Wilson's Rev. & Ann. St. and exceptions is agreed to be correct. S. 1903), provides, among other things, as fol- Atwood, Attorney for Defendants. Theodore lows: "The case and amendments shall be Sternberg, Attorney for Plaintiffs." The submitted to the judge who shall settle and court, in passing on the question, said: "This sign the same, and cause it to be attested by paper is not authenticated as required by the clerk, and the seal of the court to be the statute to constitute it a case-made. The thereto attached. It shall then be filed with signature of the judge is as essential to a the papers in the case." Section 6075, Comp. case as to a bill of exceptions. Without such Laws Okl. 1909 (section 4742, Wilson's Rev. statutory authentication we cannot examine & Ann. St. 1903), among other things, pro- into it. The agreements of counsel cannot vides as follows: "The court or judge may, make a case, or a bill of exceptions. That upon good cause shown, extend the time for can be done only in the manner provided by making a case and the time in which the the Code. As was said by the court in Leoncase may be served; and may also direct no- ard v. Warriner, 20 Wis. 42: 'We cannot tice to be given of the time when a case permit the stipulation of the attorneys to may be presented for settlement after the take the place of or do away with the nesame has been made and served, and amend- cessity of such signing by the judge. If this ments suggested, which when so made and practice were allowed, attorneys might send presented shall be settled, certified and sign-up to this court for decision questions never ed by the judge who tried the cause; *** and in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired," etc. This question was presented to the Supreme Court of the territory of Oklahoma, in the case of City of Enid v. Wigger, 15 Okl. 507, 85 Pac. 697. The court in that case said: "It must be conceded that the settling and signing of a case-made (by the judge trying the cause) is the exercise of a judicial power, and a judicial function, and one which the law has conferred upon the judge trying the cause and upon no one else. Another judge, The first assignment is that the court erred while acting as judge of the district, may ex-in entertaining jurisdiction of the cause; the tend the time within which it is to be done; but the judge who tried the case must pass upon a motion for a new trial, and must settle and sign the case when prepared for the Supreme Court." We agree with the holding of the court in that case. There is every reason why the case-made should be settled by the judge who tried the case. He alone knows what proceedings were had. In this case Judge Rosser was acting judge for that district. The case-made should have been signed and settled by Judge Rosser, who tried the case. Judge West could not possibly have known what took place except from hearsay. It would not be fair to one trial judge to permit another judge to sign and settle the case-made. The purpose of signing and settling a case-made is to present an authentic record to this court. It is

We find that the transcript is properly before the court, and the record proper, under the transcript, will be considered. The record proper, under our statutes, includes the information, the plea of the defendant, the verdict of the jury, the sentence of the court, the instructions given by the court, and those requested by the defendant, together with all indorsements made thereon. Reed v. United States, 2 Okl. Cr. -, 103 Pac. 371.

same being a misdemeanor and not a felony. The first count of the information in this case, and the one relied on by the county attorney, is as follows: "Comes now Aubrey M. Fowler, the duly elected and acting county attorney within and for the county of Seminole, and state of Oklahoma, and informs the district court of the Seventh judicial district of the state of Oklahoma, sitting within and for the said county of Seminole, in said state of Oklahoma, that on the 30th day of January, A. D. 1908, the said above-named defendant, J. J. Chandler, was upon complaint duly made and verified, charging the said defendant with procuring an abortion, brought before, H. M. Tate, a justice of the peace within and for said Seminole county. state of Oklahoma, an examining magistrate, duly qualified and acting,