(202 P.) Construing the provision the Kentucky which such defense is based are peculiarly withcourt in the syllabus to the opinion held: in the knowledge of the defendant, he will be "Where an indictment is dismissed for in-held to establish those facts to the satisfaction of the jury, by the preponderance of the evisufficiency, with leave to resubmit to the grand dence, before he is entitled to an acquittal." jury, and the matter is again submitted without releasing accused, and a new indictment is returned, the prosecution is continuous, and dates from the first indictment." [5] The question presented not having been determined heretofore by us, this court now announces the rule that, where a demurrer is sustained to an indictment or information for a felony, and the court, at the time of sustaining the demurrer, directs the case to be resubmitted to the same or another grand jury or that a new information be filed and a new indictment is returned or a new information is filed in obedience to such direction of the court, the prosecution is continuous and relates back to the time of the return of the defective indictment or, in case of an examining trial, to the original commencement of the trial before the examining magistrate. Next the defendant urges that the state failed to prove the averment in the information that the defendant was a nonresident of the state and had not been an inhabitant of or usually resident thereof during the three years next preceding the filing of the information. The court gave liberal instructions in favor of defendant to the jury on the question of defendant's inhabitancy and residence of the state during the period of limitations. Having held that the prosecution was commenced within the statutory period, it follows that the court should not have given the instruction. Plaintiff in error, however, cannot complain, and, if it were necessary for us to pass upon the question of the alleged insufficiency of the evidence in that respect, we would be forced to find the same sufficient. There was testimony showing statements of the defendant that he was a resident of Kansas City, Mo., and there was also introduced, without objection on the part of defendant, an affidavit filed in the district court of Okfuskee county, by defendant in a civil action in which defendant was interested, stating that he was a resident of Kansas City, Mo. There was also testimony, in addition to his own, tending to show that he was a resident of Oklahoma City. It was the Jury's province to determine the question of fact. It is well settled that, where the statute of limitations is relied upon for a defense in a criminal action, the burden is upon defendant to prove by a preponderance of the evidence any matter showing that the statute of limitations is not tolled. In Coleman v. Territory, 5 Okl. 201, 47 Pac. 1079, the court says: "Where, in a criminal case, the defense is extrinsic, not traversing any of the material elements of the defense, and the facts upon And it was there held that, in a criminal case, the question of inhabitancy or residence of a defendant as affecting the statute of limitations is extrinsic, and does not traverse any of the material elements of the offense. To the same effect is Rea v. State, 3 Okl. Cr. 281, 105 Pac. 386, 106 Pac. 982. Next the plaintiff in error assigns that the verdict is not sustained by, and is contrary to, the evidence on the question of defendant's guilt. Apropos, the defendant has much to say concerning the witness Kiker, an accomplice, who was one of the principal witnesses for the state. It is asserted that there is no evidence corroborating the testimony of Kiker. The evidence in this case is intricate and voluminous. The record thereof in large part consists of testimony as to and copies of the files, records, tax receipts, tax certificates, tax rolls, bank deposits, and other kindred matters pertaining to the office of county treasurer of Seminole county. We have examined the same over and over, and find that it would consume too much time and would be of no avail to incorporate in this opinion anything more than a résumé of the most salient and vital matters in evidence. It appears: That practically all of the land in Seminole county was Indian land, and that since statehood, and up to the year 1912, the collection of taxes on such lands had been held up by an injunction in the federal court, which injunction was dissolved in the year 1912. That the lands had been regularly assessed for taxes, but no collection of taxes had been made thereon because of the pendency of the injunction proceedings. That, after the dissolution of the injunction, there was due and unpaid taxes on said lands for the years 1908, 1909, 1910, and 1911, and also that taxes for year 1912 were soon to become due. That, in 1912, the treasurer advertised said lands for sale for the purpose of collecting the taxes and penalties due and accrued thereon; and that on November 6, 1912, and for several days following, such lands were sold and bought in almost entirely by Seminole county. That prior to the time of the sale, the defendant came to Seminole county and had an interview with Mace Herndon, the county treasurer, with reference to the purchasing of some of said lands at the tax sale. That he drove over the country, in some instances in company with Vernon Kiker, deputy county treasurer, and selected a list of several hundred tracts of land, and afterwards agreed with the county treasurer for the county to purchase said lands, obtaining tax sale cer tificates in the name of the county, with the [ assigned certificates as the redemption monunderstanding that defendant would furnish ey came in, thus enabling Davenport to meet a list of the lands that he wished to purchase and thereafter obtain assignments of the tax sale certificates. That on November | 7, 1912, he presented to the treasurer a list of the lands and placed in the treasurer's hands his personal checks totaling $30,000; it being claimed by defendant that such sum was the estimated amount required to pay the county for the assignments of the tax sale certificate to the lands he desired. the payments required from time to time; that the treasurer, the deputy treasurer, and Davenport, acted throughout in accord with this agreement; that later and about June, 1913, the county treasurer's office began to issue assigned tax sale certificates to Davenport without the payment of any money therefor, on agreement that, as the redemption money was paid in, the same would be turned over to Davenport to be divided between Davenport and Kiker; that the check for $2,510.55, delivered by the treasurer to Davenport and collected by Davenport, was redemption money for 44 certificates, for some of which no money was paid; that it was the agreement between himself and Davenport that he (Kiker) should have one-half of the proceeds of the certificates for which no money had been paid; that the check for $2,510.55 was delivered to Davenport on August 16, 1913, and paid August 20, 1913, out of money in the redemption fund of Seminole county; that, pursuant to said agreement, Davenport delivered to witness Kiker his check for $540.16, for his one-half interest in the tax sale certificates for which no money had been paid. It appears that the treasurer did not cash the checks of defendant, nor in any manner place the same to the credit of Seminole county, but that they were placed in a bank at Wewoka, in said county, and there remained in escrow, never at any time being cashed or turned over to the county by the treasurer. Defendant claims that said checks were placed in the hands of the treasurer in good faith with a view to his becoming the lawful owner of the tax sale certificates from November 7, 1912; that the treasurer, on account of the rush of business in his office, was unable to prepare the tax sale certificates and execute assignments for some months after the date of the alleged purchase thereof; that afterwards, as the treasurer would issue the certificates, and as a There is corroborative evidence showing matter of convenience to the treasurer, he that in March, 1913, the treasurer began to would pay for the certificates as they were issue tax sale certificates to Davenport as issued by other checks made by him. The of date November 7, 1912, and that, as lands evidence shows that in March or April, 1913, were redeemed, the redemption money as coland from time to time, thereafter, the treas-lected, including the entire penalty from Nourer began and continued to deliver to de-vember 7, 1913, was turned over to Davenfendant tax sale certificates dated November | port and reinvested in other certificates dated 7, 1912. This practice continued during the November 7, 1912. year 1913. The witness Kiker, who was deputy treasurer at the time of the coming of defendant into Seminole county and during all the time up to and including the acts alleged in the information, testifies that there was an agreement with the treasurer and defendant that the $30,000 in checks delivered by defendant to the treasurer would not be cashed and would not be turned into the county, but would be merely held by Mace Herndon individually to protect him in the issuance and delivery of the assignments and in his part of the profits of the transactions; that, immediately after the sale of the lands for taxes, the landowners began to come in, and continued to come in throughout the year 1913, and redeem their lands; that there was an agreement for the treasurer to protect defendant in his tax sale certificates as of the date November 7, 1912, and issue all tax sale certificates to Davenport as of that date; that the 18 per cent. per annum penalty accruing, under the law, on said tax sale certificates after November 7, 1912, was to be divided equally among the treasurer, was to protect Davenport by delivering the It is not disputed that all the certificates embraced in the redemption money for which the check for $2,510.55 was delivered to Dayenport on August 16, 1913, were obtained long after November 7, 1912, though executed as of that date, and the records introduced show that there was nothing paid into the county for some of these tax sale certificates until after said check was cashed by Davenport. It also appears that it is the custom of county treasurers, and was the custom of the county treasurer of Seminole county, at the time of the assignment of tax sale certificates, to issue to the purchaser back tax receipts for the previous years for which the land had been sold for taxes, it being the practice to execute these receipts in triplicate, one to be delivered to the purchaser and the others to be retained, one for the office of the county clerk and one for the office of county treasurer, and that, based upon these back tax receipts, the funds were distributed to the state and county and to the various political subdivisions thereof. There were a number of back tax receipts introduced in evidence dated September 4, 1913, for identi (202 P.) cal back taxes covered by some of the tax sale certificates involved in the check for $2,510.55. The evidence shows that Davenport knew all along that the checks for $30,000 made by him were not cashed, and that neither the proceeds nor the checks were turned over to the county. The check for $540.16 delivered to Kiker by Davenport on August 19, 1913, was drawn on the City National Bank of Oklahoma City, and, on the same day, deposited by Kiker, together with an additional sum of $500, in said bank. Said check was made payable to Kiker personally, and not to Mace Herndon, treasurer of Seminole county. Davenport claims that the check was delivered to Kiker for the payment of tax sale certificates that he wished to purchase, but he does not state what certificates, nor claim that he ever received or demanded any certificates for this money. At the trial of the case, he introduced in evidence a great number of canceled checks made to Mace Herndon in various and divers amounts, claimed to be in payment for tax sale certificates, but this particular check he was unable to produce and did not have present at the trial. The evidence of the cashier of the bank shows that the check and other money was deposited by Kiker to his credit in said bank on August 19, 1913, and the bank's books showed the same. Kiker says that he not only turned over the proceeds of said check but the $500 which he states he received from similar deals in the payment of taxes to the county; his testimony being to the effect that he paid this money to the county afterwards with a view to protect himself, and not at the request of Davenport. There is testimony by R. J. Moore, deputy county treasurer of Okfuskee county, that Davenport, at a time when he was purchasing tax sale certificates, stated to Moore, who was then making the race for treasurer, that he had just as well go out of the office worth $50,000 as to go out a pauper. There is also testimony that Davenport, during the time he was engaged in the handling of the tax sale certificates in Seminole county, stayed a great portion of the time in the treasurer's office, and assisted the treasurer in the duties of the office, carrying with him his stenographer from Oklahoma City, who also worked in the office under Davenport's directions; that many certificates were written and other clerical work of the office done by defendant or under his direction; and that, at all times, he was in a position to know just how the office of county treasurer was being conducted. The evidence also shows that both the county treasurer and Kiker, the deputy, had been convicted for discrepancies arising in the office at the time of the trial; but they had not been tried upon the information herein. We think that the testimony of Kiker was fully corroborated by facts and circumstances shown by other evidence than his own testimony and by the conduct and admissions of defendant, Davenport. It is unnecessary to discuss at length the law as to the corroboration of an accomplice. This question has been before this court to such an extent, and so many opinions have been written on the subject, that the law ought by this time to be familiar to both the bench and bar of the state. The rule, simply stated, is that the testimony of an accomplice must be corroborated by other evidence tending to connect defendant with the commission of the offense; that it is not necessary that such testimony, standing alone, should be sufficient to convict defendant; and that incriminating circumstances shown by the evidence are sufficient, if they tend to connect the defendant with the commission of the offense. It is possible that, if the defendant had deposited with the treasurer of Seminole county, on November 7, 1912, good and valid checks, with authority on the part of the treasurer to cash the same and turn the proceeds to the county, sufficient to cover tax sale certificates which he now claims he at that time purchased, and that he actually parted with the title to the money represented by the checks at the time of delivering same and acted throughout in good faith, he would have been entitled to the benefit of the assignment of such tax sale certificates dated November 7, 1912, and that, if the treasurer was unable to perform the clerical duties of writing up the certificates, assigning same and issuing back tax receipts, the assignments might have been properly executed as of date November 7, 1912, and the rights of Davenport in and to the same would have obtained as of that date. In paragraph 6 of the court's instruction, this question was fairly submitted to the jury, and we think the evidence fully supports the jury in finding that Davenport did not act in good faith. It is evident that the checks for $30,000 were placed in the hands of the treasurer with the understanding not to cash the same and as a pretext for converting property belonging to the state and county to the use of the conspirators and that each of the transactions thereafter was a part and parcel of and together constituted a system of fraud begun and continued by the treasurer, his deputy, and defendant, Davenport. The records of the treasurer's office introduced in evidence show in many places that the amounts, accredited as paid by Davenport at different times, were even less than the back taxes and penalties due on November 7, 1912. The fact that the tax receipts introduced showed the back taxes on many tracts of the lands included in the check for $2,510.55 to have been paid September 4, 1913, after Davenport had received and cashed the check, tends strongly to prove fraud. Recurring, county in furtherance of fraud, is in no poagain to the evidence, we may say that there is testimony to show that the back tax receipts issued September 4, 1913, were paid for by the surrender to the county treasurer of what was called a "certificate of error" for $415, which certificate was issued by the board of county commissioners to Davenport on September 3, 1913, for taxes which were alleged to have been paid erroneously on other lands. The receipts issued were dated September 4, 1913, and showed that said back taxes were paid with the "certificate of error," which he did not receive until September 3, 1913. There is evidence also to show that the certificate of error was obtained fraudulently. The fact that, immediately after receiving the check for $2,510.55, on August 16, 1913, Davenport made the check for $540.16 to Kiker, the deputy treasurer, raises more than a suspicion against the defendant. There is no evidence that any other check made by Davenport for tax sale certificates was payable to any other person than Mace Herndon, county treasurer, though the defendant introduced many such checks in evidence. In dealing with the treasurer of the county, it is remarkable that a check should be made payable to his deputy, Davenport, though requested on cross-examination, could not or did not produce the check, notwithstanding the information itself apprised him that it would be in issue. The defendant was a man of business experience and education, having at one time practiced medicine, and, under the circumstances, the jury had a right to consider the fact that, with his knowledge | and implied consent, the checks for $30,000 were not cashed and turned into the county as going to the question of whether or not he acted in good faith. It is impossible, from the record, to discover with exactness what money Davenport paid into the county and what money was received by him. It would run into thous- | ands of dollars on either side. But, if the testimony supporting the state's contentions is true, and in view of the verdict, we must so assume Davenport acquired the tax sale certificates out of which he realized the sum of $2,510.55, being the item upon which he was tried, under a system of fraud perpetrated against the state and Seminole county in which he was one of the chief actors. The whole scheme being conceived in fraud, each and every transaction growing out of the same was tainted with the original fraud, and hence he could not and did not acquire any title to such certificates. In addition to the original fraudulent inception, there is convincing evidence of immediate fraud. The officers and not the county itself participated in the fraud. In this case the county does not stand in the same shoes as the officers. Davenport, having paid money into the sition, legally or equitably, to complain. This court cannot attempt to strike a balance. The county, being the owner of the certificates, was entitled to retain the redemption money derived from same. Under section 7437, R. L. 1910, any person aiding or assisting the county treasurer or his der uty in appropriating such money to the use of the officer or to his own use is guilty of embezzlement to the extent of the value of the property or money embezzled. There is no merit in the contention of counsel that the defendant, if prosecuted at all, should have been prosecuted for obtaining property under false pretenses. The statute under which the defendant is prosecuted, in addition to punishment in the penitentiary, provides for a fine of double the value of the property embezzled, and the jury assessed the fine at $5,021.10, being double the proceeds of the check received by defendant on August 16, 1913. Counsel do not assign any error as to the amount of the fine imposed, but suggest in their brief that the evidence does not warrant the amount. Because there was no assignment of error in such respect, it would not be necessary for us to consider the fine imposed in this case. Be that as it may, in view of what we have just said, the defendant, not having acquired title to the tax certificates, the title remaining in the county, was guilty, if guilty at all, of embezzling the entire amount of money represented by such certificates; it being immaterial what money he paid into the county, either before or after realizing on the certificates. The money, if any, paid in, was paid in furtherance of a fraudulent transaction and gave the defendant no equity or claim in any property of the county. [9] We hold that the verdict of the jury is sustained by the evidence on the question of guilt, and that the testimony of the witness Kiker was sufficiently corroborated. [8] The next error urged by the defendant is that the court erred in permitting the witness Vernon Kiker to testify in this case, his name not being indorsed on the information at the time the trial begun. The case-made shows that Kiker was sworn as a witness and had testified at length before any objection to his testimony was made by defendant. After so testifying, the attorney for defendant stated to the court that his attention had just been called to the fact that the name of the witness was not indorsed on the information, and an objection was made to his testifying at that time. The prosecution asked permission to indorse his name on the information. The attorney for defendant then used the following language: "We state we are surprised at the state calling this witness." The court ordered the name to be indorsed, and an exception was (202 P.) taken by defendant. This is all the record name should be indorsed. We think that, upon this question. to all intents and purposes, the name was indorsed upon the information by the order made by the court, and that the manual act of indorsing the name would not have given any further force to the order made. The law requiring the names of witnesses for the state to be indorsed upon the information is a salutary one, and for the benefit of defendant, but it was not intended as a mere technical requirement licensing those accused of crime, by invoking the rule, to impede the trial when there is no showing of prejudice. The failure by the state to comply with the rule is not prejudicial per se. The defendant must show that his substantial rights are thereby affected. When the witness was called, defendant should then have made his objection. It is evident from the record that defendant knew all along that Kiker would be used as witness. The record shows that he was used as a witness in the examining trial, and defendant well knew he would be called by the state; yet he was permitted to testify at considerable length before objection was made. While it was stated by the attorney for defendant that he was surprised, there was no showing of surprise, no motion made for a postponement or a continuance of the case, because of such surprise, and no showing of prejudice to defendant. These matters have been before this court on numerous occasions, and the law is wellsettled. In Star v. State, 9 Okl. Cr. 210, 131 Pac. 542, it is held: "If, after announcing ready for trial, the court permits the names of additional witnesses to be indorsed upon an indictment or information, and if the defendant is surprised thereat, and if the indorsement of the names of the additional witnesses requires the production of further testimony upon the part of the defendant, the defendant should withdraw his announcement of ready for trial and file a motion for a continuance, in which he should set up the facts constituting such surprise and what evidence, if any, he could produce if the case were continued, to rebut the testimony of such additional witnesses for the state." The following decisions of this court also support this view: Colbert v. State, 4 Okl. Cr. 500, 113 Pac. 558; Clark v. State, 5 Okl. Cr. 189, 113 Pac. 992. In Colbert v. State, the court says: "An objection to the testimony of a witness because his name is not indorsed on the indictment comes too late if the witness has been sworn and examined at length." The defendant calls attention to the fact that none of the witnesses appear to have been indorsed on the information as the same is set forth in the case-made. We are not in a position to say whether or not this was an oversight on the part of the stenographer who prepared the case-made; but, as counsel say in their brief, the record imports absolute verity. This fact, however, is unfortunate for the contention of defendant, for it is held in Herrell v. State, 10 Okl. Cr. 131, 134 Pac. 1139, as follows: "Where there are no indorsements on an in formation or indictment of names of the witnesses for the prosecution, and the defendant goes to trial without taking any action to secure the indorsements of such names as directed by statute, he cannot be heard to complain that the names were not so indorsed. And an objection to the testimony of a witness upon the ground that it was not indorsed should be overruled." The trial court very properly permitted the state to use the witness Kiker. The remaining errors assigned relate to the court giving instruction numbered 3, and the refusal of the court to give defendant's requested instruction numbered 4. Defendant's brief gives no more than passing attention to the objection made to instruction numbered 3, nor do we think the point raised is important. It is sufficient to say that the court in said instruction briefly and fairly set out the elements of the offense charged, and we find no prejudicial error therein. In defendant's instruction numbered 4 the defendant seeks to have the court submit to the jury the question of the claim of title in good faith to the check for $2,510.55, on the part of the defendant. Aside from the claim of a judgment bar and the statute of limitations, the entire defense offered in this case is based upon the proposition made by counsel for defendant in his opening statement to the jury that the defendant deposited in good faith on November 7, 1912, his checks for $30,000 for tax sale certificates which he claimed to have purchased at that time. The assignments of all tax sale certificates thereafter But defendant says that, according to to the defendant were dated November 7, the copy of the information in the case-made, 1912. The good faith, if any, relates necesthe name of the witness Kiker was never sarily to the alleged original purchase of actually indorsed upon the information. We the certificates involved in the information. cannot see how defendant could be prejudiced We think that paragraph 6 of the court's by the failure of the clerk to indorse the charge to the jury fairly submitted this name of the witness after he and his attor- issue. The court therein instructs the jury ney had been informed in open court of the that, if the defendant in good faith made order of the court to the effect that the a contract with the county treasurer for |