PER CURIAM. This is an appeal from the county court of Pawnee county wherein the defendant, Ferd Morgan, was convicted of maintaining a liquor nuisance and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days. From this judgment he has appealed to this court and has assigned sever al grounds of alleged error as reasons for reversing the judgment. time and the state can elect that date to prove the time. The Court: Overruled. Mr. McNeill: Note an exception. Mr. McCollum: If the court please, just a moment. The counsel just referred to the complaint, the information has been filed with the clerk here since the 2d day of October, and he has failed to place the filing mark on it, and I would like the record to show the clerk put the filing mark on it. Mr. McNeill: Objected to; the only thing he pleaded to was the complaint, the filing of the information after the jury had been impaneled cannot be proper. The Court: Overruled; let the information Among the grounds relied upon is that be marked filed. Mr. McNeill: Note an excepthe court erred in overruling the defendant's tion. The Court: Let the information be marked motion to discharge the jury and continue filed. Mr. McNeill: To which the defendant obthe case for the purpose of granting the de-jects and moves the court to dismiss the jury and continue the case for the reason the information fendant the right to plead to the informa- was not read to the defendant, and the defendant tion. has not entered a plea to the information, and the [1, 2] The county attorney evidently pro-information cannot be filed after selecting the ceeded upon the theory that this prosecution can be instituted in the county court upon a duly verified complaint. This form of procedure in criminal actions is not permissible in courts of record. Section 17, art. 2, Con stitution. The record shows that a verified complaint charging the defendant with this crime was filed in the county court of Pawnee county on the 7th day of September, 1916, and a warrant was issued for the defendant. He was brought before the court, and on the 9th day of September, 1916, entered a plea of not guilty to said complaint. Thereafter on the 2d day of October, 1916, the county attorney filed an official information with the clerk of the county court of Pawnee county, but the defendant was never arraigned or required to plead to such information, nor did he ever have a copy of the same before the trial commenced as provided by section 20, art. 2, of the Constitution. It follows that defendant was never legally informed of the nature and cause of the accusation against him within the meaning of the aforesaid section of the Constitution. On October 4, 1916, the case was called for trial, and a jury was impaneled and sworn to try the issues, the witnesses for both the state and the defendant were called, sworn, and placed under the rule, the county attorney made an opening statement on behalf of the state, and the attorney for the defendant made an opening statement on his behalf, and also objected to proceedings to trial, among other reasons, for the reason that the court had no jurisdiction to hear and determine the said offense; which objection was overruled, and the court proceeded with the trial, and during the examination of the second witness placed upon the stand by the state, the following proceedings were had: "Q. In the last five or six months, have you purchased or drank any whisky or beer there? Mr. McNeill: Objected to as indefinite and uncertain, incompetent, irrelevant, and immaterial, for the further reason putting the defendant under a complaint which is contrary to law, not proving first any connection of the defendant with the building. The Court: Overruled. Mr. McNeill: Note an exception, and for the further time to file the information, simply placing the jury. The Court: There is no attempt at this filing mark on does not constitute filing. The court has personal knowledge of the information being on file since the 2d day of October. The mere placing, marking the date of filing does not constitute filing. Mr. McNeill: You can't put papers in a jacket and say the defendant takes knowledge of these things, never asked to plead conforms to the language of the complaint? Mr. to it. The Court: Overruled. This information McCollum: Yes, sir; verbatim. The Court: Overruled. Mr. McNeill: Note an exception." [3] Before the filing of the information charging this offense, the court never acquired jurisdiction of the subject-matter of the offense. The prosecution therefore was never legally commenced until the 2d day of October, 1916, when the information charging the offense was filed with the clerk of the court, although prior thereto, the defendant may have pleaded not guilty to a verified complaint, there was no issue lawfully joined upon the trial of which jeopardy would have attached, and a legal judgment of conviction be based. As soon as the information was filed, the defendant should have been required to enter his plea thereto so that an issue could have been formed, a trial had, and a legal judgment rendered. We are aware of the fact that it has been held by this court that in misdemeanor cases a defendant may waive arraignment and plea and does so if he proceeds to trial without either arraignment or plea and without objection. But that condition is not presented by this record. Here the defendant objected to the jurisdiction of the court in proceeding to trial and upon the discovery and upon the first intimation that defendant had that an information had been filed in the case, he moved the court to discharge the jury, which motion was overruled, and to which he saved an exception at the time. It is our opinion that, under such circumstances, the defendant did not waive his constitutional and statutory rights to be informed of the nature and cause of the accusation against him, and to have a copy thereof and to be properly presented in court by being notified before trial of the filing of a valid information. For this reason we think the judgment of conviction should be reversed and cause county, in order that the defendant may be 15. CRIMINAL LAW 195(1) DOUBLE JEOP- While there is ample evidence in this record to show that a whisky nuisance was kept and maintained on the premises alleged, there is very little evidence to the effect that the defendant was the keeper of such nuisance or aided or abetted in keeping or maintaining the same. The evidence is not of that satisfactory or convincing nature which should be forthcoming before a person should be deprived of his property or liberty. The judgment is reversed. (17 Okl. Cr. 69) HARRIS v. STATE. (No. A-2645.) (Criminal Court of Appeals of Oklahoma. Nov. 2, 1918.) (Syllabus by the Court.) 1. CRIMINAL LAW 292(1) - PLEA OF FORMER JEOPARDY-FORM-EFFECT. Where a plea of former jeopardy is interposed in the form of a plea in abatement, it should be treated as a plea in bar to the action, unless it clearly appears from the plea itself as a matter of law it is insufficient. 2. CRIMINAL LAW 739(4)-PLEA OF FORMER ACQUITTAL-ISSUE FOR JURY. Where the plea of former acquittal shows an acquittal of an offense other than that for which defendant is informed against and placed on trial, the failure of the trial court to submit the issue of former acquittal to the jury under such circumstances was not error. 3. EMBEZZLEMENT 11(2) REGISTER OF DEEDS STATUTE-SEPARATE PROSECUTIONS. The Register of Deeds was required to make a monthly report of the fees earned and collected by him, and to pay the same monthly into the county treasury. His failure or refusal so to do (pay all of such fees into the county treasury at the end of each month) constituted an embezzlement on his part, for which crime he was liable to a separate prosecution for each and every month for which he had failed so to account. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Embez zlement.] 4. CRIMINAL LAW 198-PLEA OF FORMER ACQUITTAL-SAME OFFENSE-BAR. The constitutional provision against a second jeopardy is merely declaratory of the ancient principle of the common law. In applicafor the identical act and crime, both in law tion it is limited only to a second prosecution and fact, for which the first prosecution was instituted. 6. CRIMINAL LAW 295-PLEA OF FORMER ACQUITTAL-BURDEN OF PROOF. that his plea of former acquittal and former The burden is upon the defendant to show jeopardy is well founded, both in law and fact. 7. CRIMINAL LAW 11661⁄2 (12)-REMARKS OF TRIAL COURT-NEW TRIAL. Where it is clear, from an examination of the entire record, that remarks of the trial court indulged in when ruling upon the admissibility of evidence, have not injured the defendant, such remarks will not be considered alone as a sufficient ground for granting a new trial, especially where no request was made to withdraw the same from the consideration of the jury, and no ruling of the trial court therewhich was excepted to at the time. on, Appeal from District Court, Marshall County; George C. Crump, Judge. G. C. Harris was convicted of the crime of embezzlement, and he appeals. Affirmed. F. E. Kennamer, of Madill, James Bolen and C. C. Williams, both of Ada, and Ben F. Rogers and E. S. Hurt, both of Madill, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. MATSON, J. This is an appeal from the district court of Marshall county, wherein the defendant was convicted of the crime of embezzlement, and sentenced to serve a term of one year and one day in the state penitentiary. From such judgment of conviction he prosecutes an appeal to this court, and asks that the judgment be reversed upon two grounds: First, that the court erred in overruling his plea in abatement, which set up former jeopardy and former acquittal of the offense charged in the information on which this conviction was based; second, error of the trial court in making certain statements and remarks during the trial of the cause over the objection and exception of the defendant, which were prejudicial to his substantial rights. In order to understand the facts upon which the plea of former jeopardy is based, it will be necessary to set out in this opinion a copy of the information upon which this trial is had and conviction rendered, as well as a copy of the plea of former jeopardy interposed, which was overruled by the trial court: Where, on the trial for embezzlement of fees by a register of deeds alleged to have been committed on or about a designated date, the evidence showed distinct appropriations by the accused of certain sums of money during several different months of his term of office, and that the defendant moved the court to require the state to elect on which particular month's shortage it would rely for a conviction, which motion was sustained, and the state elected to rely upon the failure to report for the month of January, 1914, and the instructions of the court filed in support of the plea of former jeopardy show conclusively that the jury was limited in considering guilt to a particular embezzlement for January, 1914, and the verdict of the jury return acquits the defendant only of embezzlement of funds received during the month of January, 1914, it appears conclusive- "State of Oklahoma, Plaintiff, v. G. C. Harris, ly that the defendant was only charged, tried for, and acquitted of an embezzlement of fees collected during the month of January, 1914. Such an acquittal was not a bar to subsequent prosecution for the embezzlement of fees collected during the month of January, 1913. "Information. Defendant. "In the District Court in and for Marshall County, State of Oklahoma. "Comes Geo. L. Sneed, the duly qualified and acting county attorney in and for Marshall G. C. Harris. "State of Oklahoma, Marshall County. "G. C. Harris, of lawful age, being first duly sworn, upon oath says that he is the de fendant above named, that he has read the foregoing plea, and that the facts and statements contained therein are true and correct. "G. C. Harris. "Subscribed and sworn to before me this 12th day of September, 1915. "[Seal.] R. D. Stone, Deputy Court Clerk." "Exhibit A. county, Oklahoma, and gives the district court prosecuted in this cause, and that he is ready of Marshall county and the state of Oklahoma to verify and make proof of the things herein to know and be informed that the above-named alleged. defendant, G. C. Harris, late of Marshall coun- "Wherefore defendant prays that said plea ty, did, in the said county and state, on or be sustained in every respect, and that he be about the day of February, A. D. 1913, discharged from the judgment and plea of this commit the crime of (G. C. Harris) in the man-court, and for such other and further relief as ner and form as follows: That is to say, the the court may deem just. said defendant did, in the county and state aforesaid, at the time and date above named, then and there, unlawfully, willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the sum of $35.75 to his own use and to a use and purpose not in the due and lawful execution of the trust then and there imposed in him; that is to say, the said defendant on the date above named was the duly elected and acting register of deeds of Marshall county, Oklahoma, and by reason of the said official position received in custody for said county certain sums of money, to wit, fees charged and collected for the filing and recording of instruments in said office, and of "State of Oklahoma, Plaintiff, v. G. C. Harris, said funds so received and collected by the said G. C. Harris he did on the day and year abovenamed then and there willfully, wrongfully, fraudulently, and feloniously embezzle, convert, and appropriate the sum of thirty-five and 75/100 dollars to his own use, and to uses and purposes not in the due and lawful execution of said trust, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state. "Geo. L. Sneed, County Attorney." "State of Oklahoma, County of Marshall. In the District Court. "State of Oklahoma, Plaintiff, v. G. C. Harris, Defendant. "Plea of Former Acquittal and Jeopardy. "Comes now the defendant, G. C. Harris, and for his special plea and bar herein says that the state of Oklahoma should not prosecute further this cause against him, because he says that heretofore, to wit, on the 7th day of December, 1914, in the district court of Marshall county, state of Oklahoma, there was duly and legally presented and filed in said court a valid information against him for the crime of embezzlement, a copy of which is hereto attached, marked Exhibit A, and made a part of this plea. "And that on the 5th day of May, 1915, the said accusation against this defendant, G. C. Harris, in said cause No. 303, was legally tried upon its merits in said court by a jury drawn and impaneled, and the said G. C. Harris was by the verdict of said jury and the judgment of said court duly and legally acquitted of said accusation of said embezzlement, a copy_of which verdict is hereto attached marked Exhibit B and made a part of this plea. And also a copy of the instructions of said court to the said jury in said cause No. 303 is hereto attached and marked Exhibit C and made a part of this plea and bar herein. "That said judgment and verdict still remains in full force and effect, and not in the least reversed and made void, and is the verdict and judgment of a court of competent jurisdiction. And the defendant G. C. Harris in fact says and alleges that he, the said G. C. Harris, and the said G. C. Harris so accused and acquitted as last aforesaid, are one and the same person, and no other and different person, and that the offense of which he, the said G. C. Harris, was so acquitted as aforesaid and the offense charged against him in the information herein, and for which he is now being prosecuted, is one and the same transaction or offense and identical in both law and fact. "And the defendant, G. C. Harris, further says that he has been duly and legally acquitted formerly as aforesaid, and that, in the manner and form aforesaid, he was placed in jeopardy Defendant. "In the District Court in and for Marshall "Comes Chas. A. Coakley, the duly qualified and acting county attorney in and for Marshall county, Oklahoma, and gives the district court in Marshall county and the state of Oklahoma to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did, in the said county and state, on or about the 11th day of July, 1914, commit the crime of embezzlement in the manner and form did, in the county and state aforesaid, at the as follows: That is to say, the said defendant time and date above named, then and there being the duly qualified and acting register of deeds of Marshall county, state of Oklahoma, and being then and there, and by virtue of such office, charged with the collection, receipt, and safe-keeping of certain public money and received by said G. C. Harris as such register property of said Marshall county, to wit, fees of deeds for filing and recording instruments required and authorized by law to be filed and recorded in the office of the register of deeds of the county, and having collected said money so belonging to said county of Marshall, he, the said G. C. Harris, did unlawfully and feloniously convert to his own use said public money so collected, in the amount of one thousand four hundred eighteen and 89/100 dollars, contrary to the form of statutę in such cases made and provided, and against the peace and dignity of the state of Oklahoma. "2d Count: The said county attorney gives said district court further to know and be informed that the above-named defendant, G. C. Harris, late of Marshall county, did in said county and state, on or about the 11th day of in the manner and form as follows: That is to July, 1914, commit the crime of embezzlement say, the said defendant did in the county and state aforesaid, at the time and date abovenamed, then and there being the duly qualified and acting register of deeds of Marshall county, in the state of Oklahoma, and being then and there and by virtue of such office charged of certain public moneys, to wit, the fees rewith the collection, receipt, and safe keeping ceived in such office for filing and recording written instruments required or authorized by law to be there filed at a fixed fee, and having collected said money by virtue of such office, he, the said G. C. Harris, did then and there aid and knowingly participate in converting said funds so collected, to the amount of $1,418.39, to the use of said G. C. Harris and other persons unknown to your informant, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. "State of Oklahoma, Marshall County. "I, Chas. A. Coakley, being duly sworn, on oath do state that I have read the foregoing information, and that the statements and allegations therein set out are true. "Chas. A. Coakley. "Subscribed and sworn to before me this the 7th day of December, A. D. 1914. "Clerk of the District Court. "Filed Dec. 7th, 1914. W. C. Campbell, Clerk." "Exhibit B. "In the District Court of Marshall County, Oklahoma. of the aforesaid money in excess of $20.00, then it would be your duty to convict the defendant of the crime charged." "4. In case you find the defendant guilty, it will be your duty to fix his punishment at a term in the penitentiary of not less than three years thereto assess a fine against him of double the nor more than twenty-one years, and in addition amount of money you may find he embezzled about the month of January, 1914. If you have a reasonable doubt, however, of the defendant's guilt, or of the existence of any element of the crime, as I have set it out in instruction No. 3, then it will be your duty to acquit the defend ant. "5. The court has permitted evidence to be in "State of Oklahoma, Plaintiff, v. G. C. Harris, troduced before you tending to show discrepan Defendant. "Instructions to the Jury. "Gentlemen of the Jury: The defendant, G. C. Harris, stands charged by information with the crime of embezzlement, alleged to have been committed in this county and state on or about the 11th day of July, 1914, while he was register of deeds of this county, by converting to his own use public money belonging to this county, which he had received as fees by virtue of his office as register of deeds. The county attorney has elected to rely for conviction upon an act of embezzlement alleged to have been committed about January, 1914. To the charge contained in this information the defendant has pleaded not guilty, which puts in issue every material allegation therein. cies between the amounts which the reception record of the register of deeds office under the control of the defendant and the amount which the defendant each month turned into the county treasury and reported to the county commissioners, other than the money collected during the month of January, 1914. You cannot convict the defendant for any misappropriation other than for the month of January aforesaid, but you may consider that evidence, along with the other facts in the case, for the purpose alone of showing the intent of the defendant, if you find that it tends to do that in conduct and disposition of the funds collected by him by virtue of his office for the month of January, 1914." Other general instructions given and made "As the law which shall be your guide in arriv- a part of the plea are not necessary to be ining at a verdict you are given the following in-serted here. structions: "1. You cannot convict the defendant for any act or acts of embezzlement, under the information and the election of the county attorney in this case, except such act as involves embezzlement of funds, or a part thereof, collected by virtue of his office by the defendant for the month of January, 1914. "The issue in this case is whether or not the defendant committed the crime of embezzlement of the funds or a portion thereof received by him as an official for that month. The fact that the information charges the offense as having been committed about the 11th day of July, 1914, is not material. Proof of the defendant's guilt beyond a reasonable doubt of the said crime alleged about January, 1914, is sufficient to satisfy the law as to time. "2. If any officer charged with the collection, receipt, safe-keeping, transfer, or disbursements of the public money, or any part thereof, belonging to the state or to any county, shall convert to his own use in any way, whether any such public money received, controlled, or held by such officer by virtue of such office for safekeeping, transfer, or disbursement, he shall be deemed guilty of embezzlement, and upon conviction thereof shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three nor more than twenty-one years, and also to pay a fine equal to double the amount in money so embezzled. "Verdict Criminal. "State of Oklahoma, Marshall County. In the "J. Gumm, Foreman. [1, 2] The plea of former jeopardy was not controverted by the state. Section 21 of article 2 of the Constitution provides: "No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense." The third subdivision of section 5802, Revised Laws 1910, provides: "If he plead a former conviction or acquittal: The defendant pleads that he has already been convicted (or acquitted, as the case may be) of the offense charged in this indictment or information by the judgment of the court of (naming it), rendered at place), on the day of (naming the 3. Now, in this case, if you believe from the evidence beyond a reasonable doubt that the defendant, G. C. Harris, about the month of January, 1914, was the duly qualified and acting register of deeds of this county and state, and Section 5809, Id., provides: that he was then and there, by virtue of such "When the defendant shall have been conoffice, charged with the collection, receipt, and victed or acquitted upon an indictment or inforsafe-keeping of certain public money the proper- mation, the conviction or acquittal is a bar to ty of Marshall county, same being fees received another indictment or information for the offense by him as such register of deeds for filing in-charged in the former, or for an attempt to comstruments required and authorized by law to be filed and recorded in his office, and having collected said money so belonging to this county the said defendant in this county and state did In Johnson v. State, 1 Okl. Cr. 321, 97 Pac. unlawfully and feloniously convert to his own use said public money so collected in the amount 1059, 18 Ann. Cas. 300, it was held that a of fourteen hundred and eighteen dollars and plea of former conviction or acquittal raisthirty-nine cents ($1,418.39), or any other sum es a question of fact for the jury to deter mit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information." mine, unless the said plea is wholly insuffi-, office; and if any officer neglect or refuse to cient as to matters of law. Also in Newton v. State, 170 Pac. 270, it was held: "Upon the interposing of a plea of former jeopardy in the trial of any criminal case, a question of fact ordinarily arises which should be submitted to the jury for determination, unless the court is satisfied as a matter of law that the plea interposed is insufficient to raise the question of former jeopardy. In such event it is not error for the court to refuse to submit said plea to the jury if as a question of law it is insufficient." See, also, Morris v. Territory, 1 Okl. Cr. 618, 99 Pac. 760, 101 Pac. 111. While the plea of former jeopardy in this case was not interposed in the form provided by statute, but was addressed to the trial court in the form of a plea in abatement clearly from the former opinions of this court, it should have been treated as a plea in bar unless from the face of said plea it clearly appeared as a matter of law that said plea was insufficient. The trial court did not submit any issue of fact to the jury, but considered said plea in abatement to said action, and heard evidence thereon tending to support the same. The court overruled said plea in abatement, to which action the defendant excepted. charge the fees provided by law, he shall for And said sections are to be considered in been entrusted." "If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement." The register of deeds was required to make a monthly report of the fees earned and collected by him, and to pay the same monthly into the county treasury. His failure or refusal so to do (pay all of such fees into the county treasury at the end of each month) constituted an embezzlement on his part, for which crime he was liable to a separate prosecution for each and every month for which he had failed so to account. Warner v. Mathews, Judge, 11 Okl. Cr. 122, 143 Pac. 516. [3-5] The question presented for consideration, therefore, is whether or not the plea interposed was sufficient in law to raise a question of fact as to the identity of the of fense for which a former acquittal had been had with the offense charged in the information upon which this trial and conviction are based. If the facts pleaded in said plea uncontroverted show an identity of offenses, or the pleading is sufficient to create a doubt as to whether or not the defendant had theretofore been placed in jeopardy for the same offense charged in this information, Under our form of criminal pleading the then the court should have submitted the is- indictment or information must charge but sue to a jury under proper instructions, unone offense, unless the same acts may constiless the evidence in support of the plea es-tute different offenses, or the proof may be tablished the fact that there was no identity of offenses and no former jeopardy. The question here presented is one difficult of solution. The defendant was the register of deeds of Marshall county, Okl., and the embezzlement charged is that of fees received and collected by him as such officer for recording certain deeds, mortgages, and other instruments required by law to be filed and recorded in his office. The particular sections of the statute in force at the time that this prosecution was instituted are 3213 and 3214, Revised Laws 1910, which provide, respectively, as follows: "Any county, township and district officer who is required by law to make monthly or quarterly reports to the board of county commissioners who fails or refuses to make such reports, or who makes a false or fraudulent report, shall be deemed guilty of a misdemeanor and in addition to his punishment he shall forfeit his office; and when any such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement, and in no case shall uncertain as to which of two or more offenses the accused may be guilty of, in which case the different offenses may be set forth in separate counts in the same indictment or information, and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts. Section 5741, Revised Laws 1910. Also it is provided that the particular time at which an offense is committed need not be alleged in the indictment, unless time is of the essence of the offense charged. Section 5742, Id. In a charge of embezzlement time is not of the essence of the offense except that the alleged crime must appear from the face of the indictment or information to have been committed within the period of the statute of limitations, unless facts are pleaded extraneously which toll the limitations stat |