KANE, C. J., and TURNER, WILLIAMS, menced by the territory of Oklahoma, as and HAYES, JJ., concur.

CHICAGO, R. I. & P. RY. CO. v. TERRI-
TORY OF OKLAHOMA.

(Supreme Court of Oklahoma. Nov. 11, 1909.)
1. VENUE ( 9*) RECOVERY OF STATUTORY
PENALTY "OFFENSE."

The violation of section 4, c. 15, p. 168, Laws Okl. T. 1903, which provides: "It shall be unlawful for any railroad company, express company, or other common carrier, their officers, agents, or servants, to accept or receive within this territory any of the game mentioned in section 1 of this act, for the purpose of carrying or transporting the same to any other place, either within or beyond the limits of this

had no jurisdiction over the defendant or subject-matter, that the petition did not state facts sufficient to constitute a cause of action against the defendant, and a general denial. Thereafter trial was had before the court and jury, resulting in a verdict for the plaintiff in the penal sum of $500 and $100 attorney's fee, upon which verdict judgment was duly rendered. At the time of rendering the verdict, the jury made special findings as follows: "(1) If you find that defendant company accepted and received any quail as charged, state when and where it received them. A. On or about November 28, 1906, Okeene, Blaine county, Okl. (2) Did the defendant company, or any of its agents, know at the time it received said quail, if you find any were received, that such quail were being received as charged? A. They could have known." Thereupon the plaintiff moved the court for judgment upon the special findings, and later moved the court to set aside the verdict herein and grant a new trial for the following reasons: First, misconduct of the territory's counsel in testifying to and commenting upon the pretended agency of the drayman and shipper of the game involved in this suit; second, excessive damages appearing to have been given under the influence of passion and prejudice; third, that the verdict is not sustained by sufficient evidence; fourth, that the verdict is contrary to law; fifth, errors of law occurring at the trial and excepted to by the party defendant. Thereafter the court overruled the defendant's motion for a verdict on the special findings, and overruled defendant's motion for a new trial, to which rulings defendant duly excepted, and on the same day judgment was rendered on the verdict in favor of the plaintiff and against the defendant for the penal sum of $500 and $100 for the use of the attorney for the plaintiff, with costs of suit. To reverse the order overruling the defendant's motion for new trial and judgment on the special findings, defendant instituted its proceeding in error in this court.

shall, through itself, himself, or its agent, | defendant excepted. Thereafter the defendservant or employé, violate any of the pro- ant filed its answer, alleging that the court visions of this section, shall forfeit and pay to the territory of Oklahoma, for each violation thereof, the sum of five hundred dollars, to go to the common school fund of said county, together with all costs of suit, including a fee of one hundred dollars to go to the county attorney of the county wherein said suit is brought, which sum of five hundred dollars, and costs of said suit, shall be collected upon execution as in civil cases." The petition was filed in the district court of Garfield county, and alleged, in substance: That the defendant is a corporation, organized under the laws of a state of the United States; that on the day of November, 1906, through its agents, servants, and employés, at the city of Okeene, county of Blaine, Okl. T., it did then and there unlawfully accept and receive a large amount of quail for the purpose of carrying and transporting the same from the city of Okeene, Blaine county, territory of Oklahoma, to the city of Chicago, state of Illinois, and on the 30th day of November, 1906, was handling, carrying, and transporting the same in and through Garfield county, Okl. T., contrary to the provisions of section 4, c. 15, p. 168, Laws Okl. T. 1903, and prayed judgment against the defendant for the sum of $500, for the use and benefit of the common school fund, together with an attorney's fee of $100. Thereafter the defendant appeared and demurred to the petition filed therein for the reasons: First, that it appears on the face of the petition that the court had no jurisdiction of the subject of said action; second, that said petition does not state facts sufficient to constitute a cause of action. Thereafter the demurrer to plaintiff's petition was overruled, and defendant permitted to file a motion to make petition more definite and certain. On the 7th day of January, 1907, defendant filed a motion to make petition more definite and certain, by requiring plaintiff to state the day on which said quail were received by the defendant, to require plaintiff to state the party from whom said quail were received, and to allege the number of said quail, and the manner in which they were packed and shipped, which motion was by the court sustained. Plaintiff amended its petition by interlineation, alleging that defendant received the quail on the 30th day of November, 1906, and that the quail were packed in egg cases or boxes and loaded in a freight or box car, to which amended petition defendant filed a demurrer, on the grounds: First, that the court had no jurisdiction of the person of the defendant, or the subject of the action; second, that there is a defect in parties plaintiff; third, that several causes of action are improperly joined; fourth, the petition does not state facts sufficient to constitute a cause of action. Later said demurrer

At the commencement of the trial, and before any evidence had been introduced, counsel for the defendant moved the court to require the territory to elect upon which one of the two charges contained in the petition it would stand, and counsel for the plaintiff stated: "I am standing upon that petition— that it does not charge two offenses. It charges the offense of accepting and receiving quail for the purpose of transportation and carriage; that on the same day they were transporting them through this county." The contention of counsel for plaintiff in error is that the offense defined in section 4 is the accepting or receiving of the game for the purpose of carrying or transporting. The offense is committed when the carrier

punishment for a breach of a penal statute, and it might have been prosecuted in form as a criminal action. See said section 307, Gen. St. 1868, p. 383, c. 31. Besides, courts look to the substance of things, and not to mere forms. This is especially true when construing great and important constitutional provisions. The procedure for the trial of causes is a very unimportant thing in determining the nature and character of such causes. The Legislature might change the procedure for the trial of cases of murder in the first degree, or for any other crime, so as to make such procedure similar in almost all respects to that for the trial of civil actions, and might call such action a civil action; and yet, by merely so changing the procedure and the name of the action (not changing the punishment), it could not deprive the defendant of his right under the Constitution to a trial by a jury, to meet the witnesses face to face, to be tried in the county or district where the offense was committed, or to refrain from being a witness against himself. The offense would still be a criminal offense under the Constitution, whatever the procedure, or whatever the offense might be called."

der section 10 of the Organic Act (Act Cong. | civil or criminal. It is actually prosecuted May 2, 1890, c. 182, 26 Stat. 87), which pro- in the name of the state of Kansas, as a vides: "All offenses committed in said territory, if committed within any organized county, shall be prosecuted and tried within said county"-this offense ought to have been prosecuted and tried in Blaine county, and therefore the district court of Garfield county was without jurisdiction therein, notwithstanding the form of action for the recovery of the penalty may have been a civil action. That the violation of section 4, supra, constitutes an offense, is plain. An "offense" is defined in 21 A. & E. Enc. of Law, p. 830, as follows: "An offense is a breach of the law established for the protection of the public, as distinguished from an infringement of mere private rights. *** The word is used as a genus, comprehending every crime and misdemeanor, or as a species, signifying a crime not indictable but punishable summarily or by the forfeiture of a penalty." A great many authorities are cited in support of this doctrine. It seems that the fact that a statute penalty is made recoverable by a civil action does not change the penal character of the recovery. In the case of United States v. Chouteau et al., 102 U. S. 603, 26 L. Ed. 246, the Supreme Court of the United States held: "The term penalty involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution." The same question was under consideration in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, where the rule is stated as follows: "The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual. According to the familiar classification of Blackstone: 'Wrongs are divisible into two sorts or species: Private wrongs and public wrongs. The former are in infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries. The latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community, and are distinguished by the harsher appellation of crimes and misdemeanors.'"

A case which to us seems to be in point is Atchison, T. & S. F. R. Co. v. State ex rel. Marion Sanders, 22 Kan. 1, where the Supreme Court of that state uses the following language: "Counsel for Sanders seem to contend that the penalty imposed in the present case is not a fine because it is not imposed in a criminal action, but is imposed in a civil action. It is true that the present action is in form a civil action; and, without stopping to inquire whether it is rightfully so or not, we would say that we think

Applying the principles laid down in the foregoing cases to the case at bar, it follows that the violation of section 4, supra, charged against the railroad company, constitutes an offense committed in said territory, and, as it was committed in an organized county, it must be prosecuted and tried in such county whether the offense is in form civil or criminal, as provided by section 10 of the Organic Act. The petition charged, and the evidence proved, and the jury in the special findings declared, that the quail were received for the purpose of shipping them from Okeene, Okl. The offense should have been prosecuted and tried within that county. The Attorney General, in his brief, states that: "While successful action might have been maintained by the officers of Blaine county as to this particular shipment, their failure to act would not defeat the rights of the state, nor preclude the officers of Garfield county from acting when the same continuing act ripened into an offense in the latter county. * That the handling, carrying, and transporting of the forbidden quail through Garfield county was an offense therein, and is the specific charge for which the penalty was laid in this case." This was not the theory of the prosecution in the court below. Upon the defendant's moving the court to require the territory to elect upon which one of the two charges contained in the petition it would stand, counsel stated: "I am standing upon that petition-that it does not charge two offenses. It charges the offense of accepting and receiving quail for the purpose

same day they were transporting them through | ing and sustaining defendant's motion and this county." We agree with counsel in this affidavit for the reason that the truthfulness statement. We think the petition states but one offense, and that it charges the offense of receiving and accepting quail for the purpose of transportation and carriage.

As this offense was committed in Blaine county, it follows that the judgment of the court below must be reversed, and the cause remanded, with directions to dismiss the same for want of jurisdiction.

of the affidavit for replevin cannot be attacked by motion. Counsel for neither party cite any authorities directly in point.

Section 153, art. 10, c. 66, par. 4351, Wilson's Rev. & Ann. St. 1903, provides that: "A plaintiff, in an action to recover the possession of specific personal property, may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this chap

DUNN, WILLIAMS, HAYES, and TURN- ter." This section is followed by one requirER, JJ., concur.

PERRYMAN v. BROWN. (Supreme Court of Oklahoma. Nov. 9, 1909.) 1. REPLEVIN (§ 63*)-FALSITY OF AFFIDAVIT NECESSITY OF ANSWER.

Where, in an action of replevin, the falsity of the replevin affidavit is relied on by defendant to recover the property taken on a writ issued and based thereon, the issue cannot be raised by or on a motion, but by answer.

[Ed. Note.-For other cases, see Replevin, Dec. Dig. § 63.*]

2. REPLEVIN (§ 49*)-REMEDY OF DEFENDANT

-REDELIVERY BOND.

A redelivery bond is the remedy afforded defendant by the statute to secure speedy relief where property is wrongfully seized in replevin. [Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 180-185; Dec. Dig. § 49.*]

(Syllabus by the Court.)

Error from Okmulgee County Court; J. L. Newhouse, Judge.

Action by Douglas Perryman against Kookey Brown. Judgment for defendant, and plaintiff brings error. Reversed.

W. W. Momyer and Mont. M. Sharp, for plaintiff in error. G. E. Cassity, for defendG. E. Cassity, for defendant in error.

ing plaintiff to file an affidavit in which certain averments must be made, and a bond with approved sureties is also provided for, whereupon a writ is issued and placed in the hands of an officer, and the property, unless defendant makes a redelivery bond which stands in its stead, is then placed in possession of plaintiff. The facts required by the statute to be averred in the affidavit must exist as facts, and must be true; but their truth or falsity are not necessarily issues in the cause. Wells on Replevin, § 658; First National Bank of Pond Creek v. Cochran, 17 Okl. 538, 87 Pac. 855. The fact that the property may not have been taken by virtue of any legal process against the plaintiff must exist as a fact, and in some sense must be established; but the affidavit being filed stating that the property was not so taken, and this statement going unchallenged by the defendant, will be presumed as a fact and taken as true. If it was so taken, it devolves upon the defendant to show it affirmatively. Hoisington v. Armstrong, 22 Kan. 110; Crawford v. Furlong, 21 Kan. 698. But when and how may defendant show it affirmatively is the question here submitted. It would seem, from the language used by Justice Valentine in the Hoisington v. Armstrong Case, supra, that it would be on answer and at the final trial, and with this we are inclined to agree.

In the first place, the plaintiff's claim to the property and his right to its possession is predicated upon the sanctity of an oath, and the statute provides (section 155, art. 10,'c.

DUNN, J. This action presents error from the county court of Okmulgee county. Plaintiff in error, as plaintiff, brought his action of replevin against the defendant in error, as defendant. An affidavit of replevin was filed in which plaintiff averred that the prop-66, par. 4353, Wilson's Rev. & Ann. St. 1903) erty mentioned was not taken in execution of any judgment or order against him. Whereupon a writ of replevin was issued, served, and the property delivered to plaintiff. Defendant filed motion and affidavit setting up that the affidavit of replevin was not true, and that the property involved had in fact been taken from plaintiff in execution of judgment against the plaintiff in another court. On the hearing of this matter, the county court sustained the motion, quashed the writ, and discharged the property, and the plaintiff has brought the action to this court by petition in error and case-made, presenting here for our consideration the one proposition that the court erred in entertain

that the order of delivery shall be issued by the clerk only after there has been filed in his office by approved sureties of plaintiff an undertaking in not less than double the value of the property as stated in the affidavit, to the effect that the plaintiff will prosecute the action and pay all costs and damages which may be awarded against him, and, if the property be delivered to him, that he will return the same to the defendant if a return be adjudged. It is then, as we see, upon an oath and a bond that plaintiff secures possession of the property. Yet this possession is not unqualified so far as the defendant is concerned, for the statute provides him a speedy remedy (section 159, art. 10, c. 66, par. 4357,

peach the reputation for truth and veracity of witnesses for the state.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2331, 2332; Dec. Dig. §

942.*]

(Syllabus by the Court.)

Appeal from District Court, Carter County; Stilwell H. Russell, Judge.

W. T. Caple was convicted of crime, and appeals. Amended and affirmed.

Pruiett & Sniggs, E. G. McAdams, and E. B. Askew, for appellant. Charles L. Moore, Asst. Atty. Gen., for the State.

Wilson's Rev. & Ann. St. 1903), in that the sheriff who takes the property may, within 24 hours after levy, accept from him a bond with approved sureties in double the value of the property as stated in the affidavit of plaintiff, and the property is again returned to the defendant. This then appears to be the statutory method whereby defendant, if he desires, may secure speedy and prompt relief and again recover his property if wrongfully taken from him on a false affidavit or otherwise. It is true that a motion, as is contended for by defendant in error, is a request addressed to a court or judge for an order, and that relief in certain actions mentioned by him may be secured through the office of such a process; but replevin does not appear to be among these, and we find in the statute no warrant for its exercise in the situation here presented. That informali-lahoma v. W. T. Caple." This question was ties and defects in the affidavit wherein it departs from the requirements of the statute may be reached by motion is held by many authorities; but the truthfulness of the affidavit may be assailed by the defendant only when he comes to make an answer.

FURMAN, P. J. First. The first ground relied upon by the defendant is that the caption of the indictment is "State of Oklahoma v. W. T. Caple"; the contention being that it should have been "The State of Ok

passed upon and settled contrary to the contention of the defendant in another case against this defendant, 3 Okl. Cr., 104 Pac. 493. Pac. 493. This court there held that the omission of the word "the" before the words "State of Oklahoma" in the caption of an inThe order of the county court is, accord- dictment was not fatal to the indictment. ingly, reversed.

KANE, C. J., and TURNER and HAYES, dict. JJ., concur.

CAPLE V. STATE.

Second. The next ground relied upon is that the evidence does not support the verIt appears from the evidence, that the defendant at the time of the trial was 35 years of age, and Mrs. Anderson, the prosecuting witness, 17. Mrs. Anderson had been married but a few months, and had recently come with her husband from their former

(Criminal Court of Appeals of Oklahoma. Dec. home in Tennessee, and they were engaged,

18, 1909.)

1. INDICTMENT AND INFORMATION (§ 28*)

SUFFICIENCY.

The omission of the word "the" before the words "State of Oklahoma" in the caption of an indictment is not fatal to the indictment.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 117; Dec. Dig. $ 28.*]

2. CRIMINAL LAW (§ 1159*)-RAPE (§ 51*)APPEAL-REVIEW-VERDICT.

(a) The statute makes the jury in the trial court the exclusive judges of all matters of fact, and this court will not disturb their finding, unless it is so clearly unsupported by testimony as to create a strong presumption that the jury was influenced by improper motives in reaching a verdict.

(b) For facts supporting a conviction for rape see opinion.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159;* Rape, Čent. Dig. §§ 71-77; Dec. Dig. § 51.*]

3. CRIMINAL LAW (§ 942*)-NEW TRIALNEWLY DISCOVERED EVIDENCE.

(a) When parties are indicted, they must recognize the fact that it is a serious matter, and be diligent in preparing for trial. It is too late after conviction to begin to investigate the character of the witnesses for the state, of whom they have notice before trial.

(b) A new trial will not be granted on the ground of newly discovered evidence to im

at the time of the alleged offense, in farm-
ing at Chagris, some distance from Ardmore.
Both were entirely unacquainted at Ard-
more, except with a family named Byers, at
whose home Mrs. Anderson was stopping at
the time of the alleged crime. It appears
from the testimony of Mrs. Anderson that
her husband had been arrested on a charge
of mortgaging a team belonging to his cousin,
but with his authority, and was confined in
the county jail at Ardmore. The wife had
come to Ardmore to employ counsel and pro-
She had gone in the
cure bond for him.
forenoon to the office of Attorney Coleman,
who was representing Mr. Anderson, to see
about the bond. The defendant was present,
learned of the circumstances, and a few min-
utes after she had left the attorney's office
approached her in a friendly way, assuring
her that he had a friend, Charlie Thomas, a
well to do farmer living out from Ardmore
a few miles, whom he felt would sign the
bond, and that he (the defendant) would
also sign the bond, but could not schedule for
enough alone without his friend Thomas, and
proposed that they would drive out and see
him. It was accordingly arranged that after
dinner they would go and see Thomas and
arrange for the bond. They started to Thom-
as' place seven or eight miles southeast of