Opinion
No. 593, Ind. T.
Opinion Filed February 15, 1909.
On petition for rehearing. Motion sustained.
For former opinion, see 104 S.W. 1159.
The appellant, George W. Green, was indicted for the murder of Martin Liston within the Central District of the Indian Territory. The trial was had in the United States District Court at Atoka, Indian Territory, and on October 20, 1904, he was found guilty of murder without capital punishment. On October 24, 1904, defendant filed a motion for a new trial, which motion was overruled. On November 1, 1904, defendant was sentenced to imprisonment for life in the federal penitentiary. The case was then taken by writ of error to the United States Court of Appeals for the Indian Territory, at South McAlester, where, on September 26, 1907, the judgment of the lower court was by said appellate court affirmed. Thereupon a petition for rehearing was filed, which petition was still pending upon the passing of that court with the organization of the state of Oklahoma. The case was, under the provisions of the Enabling Act and the Constitution of the state of Oklahoma, then transferred to the Supreme Court of the state of Oklahoma. When this court was created, as directed by the statute, the case was transferred by the Supreme Court to the Criminal Court of Appeals. The Presiding Judge of this court, Hon. Henry M. Furman, having been of counsel in the case, and being thereby disqualified as one of the judges of this court to hear and determine the same, this fact having been duly certified to Gov. Haskell, he thereupon appointed Hon. A.C. Cruce as special judge of the Criminal Court of Appeals for the trial and determination of said cause. Mr. Cruce having duly qualified as special judge, the case was submitted upon the petition for rehearing.
Williams Utterback, and J.G. Ralls, for appellant.
Chas. West, Atty. Gen., and W.C. Reeves, Asst. Atty. Gen., for the United States.
In the trial of this cause harmful error was committed, both in the charge of the court and in the improper exclusion of testimony. We will, however, at this time withhold discussion of the various assignments of error, in order that counsel may have an opportunity further to argue the case, if they so desire.
The motion for a rehearing will be sustained.
[See opinion following. — Rep.]