Dobbs v. State
| Decision Date | 02 May 1911 |
| Citation | 115 P. 370,5 Okla.Crim. 475,1911 OK CR 102 |
| Parties | DOBBS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
(a) Where a judge of one district of the state is assigned by the Chief Justice of the Supreme Court to hold court in another district of the state, such judge, while so holding such term of court, is a "judge pro tempore" of such district.
(b) A judge of any district of this state has no right or power to perform judicial acts affecting cases pending in any other district, unless he is authorized to do so by some constitutional or statutory provision.
(a) This court will take judicial notice of the seal of a district court in this state, but not of the signature of a clerk of such court, unless such signature is verified by the seal of the court.
(b) A certificate to a transcript of the record from a district court, not verfied by the seal of such court, is no more than so much blank paper, and will not give this court jurisdiction to consider an appeal upon such pretended transcript of the record.
(c) It is the duty of attorneys who desire to appeal cases to this court to see that their records are properly prepared and verified in compliance with the law, before filing them in this court.
(d) While an appeal is a constitutional right, yet the manner of taking it is subject to legislative control, and a failure upon the part of attorneys to comply with the legislative provisions relating to an appeal will be fatal to such appeal.
(e) Where an attempt has been made to appeal a case, and the provisions of law regulating the manner of taking an appeal are not complied with, this court does not obtain jurisdiction of such case, and the attorneys for the state cannot, by consent, give this court jurisdiction, and cannot by any action of theirs waive a want of jurisdiction.
(f) Where the case-made has been stricken out and the appeal is being considered alone upon the transcript of the record, we only can consider such objections to the instructions of the court as would be erroneous under any statement of facts that might have been proven.
(g) Where the court instructs the jury that if, upon a consideration of all the evidence, facts, and circumstances presented upon the trial, they entertain a reasonable doubt as to the guilt of the defendant, they should acquit him will not warrant a reversal of a conviction, upon the ground that it does not authorize the jury to find the defendant not guilty, on account of the lack of evidence against him. Moore v. State, 4 0kl. Cr. 212, 111 P. 822 reaffirmed.
(Additional Syllabus by Editorial Staff.)
The words "pro tempore" mean for the time being.
On motion for rehearing. Denied.
For former opinion, see 114 P. 358.
Forrest for appellant.
Smith C. Matson, Asst. Atty. Gen., and Claude Weaver, for the State.
We have been favored with able and exhaustive briefs and oral arguments supporting and in opposition to the motion for a rehearing.
First. It is admitted by counsel for appellant that the rule is correctly stated in Rasberry's Case, 4 Okl. Cr. 613, 103 P. 865, to the effect that a judge pro tempore may fix the time within which a case-made may be prepared and served, and that when such time has expired, or he has vacated the bench as such judge pro tempore, he has no power to extend such time. But counsel earnestly contend that Judge James R. Tolbert was a judge of the state of Oklahoma, and that he was not therefore a judge pro tempore. In the case of Bank of Minco v. Struss, 4 Okl. 162, 44 P. 278, this question was decided against the contention of counsel for appellant. In that case Judge McAtee had been assigned to the Fifth judicial district of the territory of Oklahoma. Judge Burford had been assigned to the Second judicial district of the territory of Oklahoma. Both of these judges were regular judges of the territory of Oklahoma. Acting under and by virtue of an order of the Honorable Frank Dale, Chief Justice of the Supreme Court of Oklahoma Territory, Judge McAtee was appointed to sit, try, hear, and determine a case in the Second judicial district of the territory of Oklahoma, and did so. The matter coming later before the Supreme Court of Oklahoma Territory, it was in express terms decided that Judge McAtee, while holding court in the Second judicial district, was a judge pro tempore. The same question was decided against the contention of appellant by the Supreme Court of Kansas in Re Millington, 24 Kan. 214, by Judge Brewer, who was afterwards a distinguished member of the Supreme Court of the United States.
Under our Constitution, § 9, art. 7, the state of Oklahoma is divided into judicial districts, and one or more judges are elected to preside over the district courts in each of such districts. It further provides that in case of the illness of any judge elected in any district, or if for any other cause he shall be unable to preside in the district in which he was elected, the Chief Justice may designate any district judge in the state to hold any term of court in said district, in lieu of the judge elected to hold the courts of said district. In compliance with this provision of the Constitution, the Chief Justice of the Supreme Court of the state of Oklahoma, on the 22d day of July, 1908, caused the following order to be entered on the court journal of said Supreme Court: "It is hereby ordered, that the Honorable J. R. Tolbert, judge of the 17th district court judicial district of the state of Oklahoma, is hereby appointed, designated and assigned to hold court in the 18th district court judicial district of said state at Cheyenne, in Roger Mills county, commencing with the 14th day of September, A. D. 1908, and to continue to and include the 26th day of September, A. D. 1908: Provided, that nothing in this order shall effect or invalidate any proceedings, process, or orders heretofore had, issued or made in said court."
The judge of any district of the state has no right or power to perform judicial acts in cases pending in any other district of the state, unless he is authorized to do so by some constitutional or statutory provision. Judge Tolbert's power to hold court in the Eighteenth judicial district rested entirely upon the order of the Chief Justice of the Supreme Court of Oklahoma above quoted, and was limited to the time mentioned in said order. Beyond controversy Judge Tolbert was a judge pro tempore of the Eighteenth judicial district from the 14th day of September, 1908, to the 26th day of September of said year, and when said time expired all of the powers which he derived by virtue of such order also expired, except the power to settle and sign a case-made in a case tried before him during such time. This power is conferred upon him by an express provision of our statutes.
If, acting under constitutional or legislative provisions, any attorney is agreed upon by the parties to a case, to act as judge in the trial of said cause, or is elected to try said cause in the manner provided by law, such person so agreed upon or elected would, for the purposes of such trial, have all of the powers exercised by the regular judge of the district, and he would be as much the judge of that district and the court as the regularly elected judge would be, if presiding. There is no difference whatever in the powers of the regular judge and judge pro tempore, so far as the trial of the case in question is concerned.
The words "pro tempore" mean for the time being, and they distinguish the judge who tries a single case, or who holds court in a district for a limited period of time, from the regular judge of the district. We therefore cannot agree with the contention of counsel for appellant that Judge Tolbert was not a judge pro tempore as applicable to...
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