clerk of the district court, without delay, to deliver the indictment in all cases transferred, together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases. (5552 R. L. 1910)

828. Cases to Be Tried-All cases transferred from the district court shall be entered on the docket of the court to which they are transferred, and all process thereon shall be issued, and the defendant tried in the same manner as if the cause had originated in the court to which they have been transferred. (5553 R. L. 1910)

829. Re-Transfer in Case of Error-When a cause has been improperly transferred to a court which has no jurisdiction of the same, the court to which it has been transferred shall order it to be re-transferred to the proper court, and the same proceedings shall be had as in the case of original transfer. In such case the defendant and the witnesses shall be held bound to appear before the court to which the case has been re-transferred, the same as they were bound to appear before the court so transferring the same. (5554 R. L. 1910)

830. Transfer to County of Proper Venue-In all criminal cases pending in any county where the venue properly lies in another county, the court may, upon motion of the county attorney, or upon its own motion, transfer such cause to the county of proper venue; such transfer, in all respects, shall be made in the manner provided by law. (5555 R. L. 1910)

831. Issue of Fact Arises, When-An issue of fact arises: First. Upon a plea of not guilty; or,

Second. Upon a plea of a former conviction or acquittal of the same offense. (5822 R. L. 1910)

832. Issue of Fact, How Tried-Issues of fact must be tried by a jury. (5823 R. L. 1910)

833. Defendant Must Be Present, When-If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial. (5824 R. L. 1910)

Defendant being present when court convened, his presence will be presumed on reconvening. Flohr v. Terr., 14 Okla. 480; Woodring v. Terr., 15 Okla. 310.

In felony cases the defendant must be present during the trial, and when his personal presence is necessary in point of law, the record must affirmatively so show. Day v. Terr., 2 Okla. 409; LeRoy v. Terr., 3 Okla. Cr. 596; Humphrey v. State, 3 Okla Cr. 504, 106 P. 978.

If record shows defendant present and announced ready for tria), and on return of verdict, it will be presumed that he was present during time that record is silent on his presence. Wood v. State, 4

Okla. Cr. 437; Bowen v. State, 9 Okla. Cr. 577, 132 P. 824; Henry v. State, 10 Okla. Cr. 369, 136 P. 982.

In a misdemeanor case, defendant may be tried in his absence when the punishment is a fine only, but when the minimum punishment includes imprisonment, he must be personally present. Stewart v. State, 6 Okla. Cr. 27.

When record fails to show defendant present during trial, the question cannot be presented for first time on appeal. Burns v. State, 8 Okla. Cr. 555, 129 P. 657.

Not necessary that defendant be present when a motion for a change of venue, or a motion for continuance, or motion for new trial is argued and submitted. Henry v. State, 10 Okla. Cr. 370, 136 P. 982; Ward v. Terr., 8 Okla. 12.

834. Order of Trial Proceedings-The jury, having been impaneled and sworn, the trial must proceed in the following order:

First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.

Second. The county attorney, or other counsel for the State, must open the case and offer the evidence in support of the indictment or information.

Third. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.

Fourth. The parties may then, respectively, offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case.

Fifth. When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge; if modified, modification shall be shown in the instruction. When the instructions are thus settled the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury.

Sixth. Thereupon, unless the case is submitted to the jury without argument, the counsel for the State shall commence and the defendant or his counsel shall follow, then the counsel for the State shall conclude the argument to the jury. During the argument the attorneys shall be permitted to read and comment upon the instructions as applied to the evidence

.

given, but shall not argue to the jury the correctness or incorrectness of the propositions of law therein contained. The court may permit one or more counsel to address the jury on the same side, and may arrange the order in which they shall speak, but shall not without the consent of the attorneys limit the time of their arguments. When the arguments are concluded, if the court be of the opinion that the jury might be misled by the arguments of counsel, he may, to prevent the same, further instruct the jury. All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case. R. L. 1910)

(5870

An assistant county attorney may read the charge to the jury and state his plea thereto. Canada v. Terr., 12 Okla. 409.

Within discretion of court to reopen case after argument has been commenced, and permit state to introduce further evidence. v. Terr., 11 Okla. 157.

Harvey

Cause may be reopened after both sides have rested and permit cross-examination by state. Cochran et al. v. U. S., 14 Okla. 109; Shires v. State, 2 Okla. Cr. 90, 99 P. 1100.

Not error for private counsel to participate in prosecution. v. State, 2 Okla. Cr. 590, 103 P. 1042.

Reea

Not error for county attorney to read information and verification thereof, to the jury in his opening statement. Okla. Cr. 363, 102 P. 57. Sturgis v. State, 2

Trial begins when jury is called into the box for examination. Caples v. State, 3 Okla. Cr. 73, 104 P. 493; Simmons v. State, 4 Okla. Cr. 490.

When state announces its close, and defendant likewise for the purpose of interposing a motion or demurrer, it is error to refuse to reopen case and permit defendant to introduce evidence. State, 5 Okla. Cr. 660. Frisby v.

If in doubt as to what the evidence was, jury may have witness recalled and state what his evidence was, or may have reporter read his notes as to such evidence. Williams v. State, 4 Okla. Cr. 524; Gun

nells v. State, 7 Okla. Cr. 98, 122 P. 264.

A witness who remains in the court room during trial is not thereby disqualified from testifying, but such may be shown for the purpose of affecting his credibility, and he is also subject to punishment for contempt. Price v. U. S., 1 Okla. Cr. 291, 97 P. 1056.

Remarks and conduct of court-character and probable result of. Miller v. Terr., 15 Okla. 423; Wishard v. State, 5 Okla. Cr. 612; Nicholson et al. v. State, 13 Okla. Cr. 123, 162 P. 447; Kline v. State, 15 Okla. Cr. 351, 176 P. 414.

835. Court to Decide the Law-The court must decide all questions of law which arise in the course of the trial. (5871 R. L. 1910)

836. Province of Jury in Libel Case-On the trial of an indictment or information for libel, the jury shall determine the facts under the instructions of the court as in other cases. (5872 R. L. 1910)

837. Jury Limited to Questions of Fact-On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court. (5873 R. L. 1910)

838. Restriction of Argument-If the indictment or information is for an offense punishable with death, three counsel on each side may argue the case to the jury. If it is for any other offense the court may, in its discretion, restrict the argument to one counsel on each side. (5874 R. L. 1910)

839. Defendant Presumed Innocent-A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. (5875 R. L. 1910)

"Reasonable Doubt," is not a technical term and needs no definition. Douglass v. Terr., 1 Okla. Cr. 583, 98 P. 1023; Reeves v. Teri., 2 Okla. Cr. 352, 101 P. 351; Nelson v. State, 5 Okla. Cr. 369, 114 P. 1124.

Erroneous definition of "Reasonable Doubt." Abbott v. Terr., 1 Okla. Cr. 1, 94 P. 179; Gibbons v. Terr., 1 Okla. Cr. 198, 96 P. 466; Price v. State, 1 Okla. Cr. 359, 98 P. 447; Morgan v State, 7 Okla.' Cr. 45, 121 P. 1088; Browder v. State, 11 Okla. Cr. 174, 144 P. 188; Reeves v. Terr.. 2 Okla. Cr. 82, 99 P. 1021; Kiggins v. State, 15 Okla. Cr. 306, 176 P. 413.

Approved definition of "Reasonable Doubt." Okla. Cr. 278.

Saunders v. State, 4

Error to cast on defendant the burden of disproving any material allegation. Frazier v. U. S., 2 Okla. Cr. 657, 103 P. 373; Rea v. State, 3 Okla. Cr. 270, 105 P. 381; Wood v. State, 11 Okla. Cr. 176, 144 P. 391; Adair v. State, 15 Okla. Cr. 619, 180 P. 253.

"Presumption of innocence" is not evidence. It merely fixes the burden of proof in the first instance. It remains with defendant only until overcome, not necessarily throughout the whole trial. Culpepper v. State, 4 Okla. Cr. 103.

After conviction the presumption of innocence is removed. On ap peal the presumption of guilt prevails. Edwards v. State, 9 Okla. Cr. 306, 131 P. 956.

840. Doubt as to Degree of Guilt-When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only. (5877 R. L. 1910)

If the crime is distinguished into degrees, jury must find degree of guilt, if they convict defendant. Smith v. Terr., 14 Okla. 162.