of the Circuit Court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shows that the court below had any power to render the judgment by which the prisoner is held."

The process seems fair on its face. Where this is the case, the rule is stated in the Patswald case, supra, to be:

"If the process is valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction."

* "on or about

From the proceedings of the trial court and the return to the writ it appears that at the September, 1908, term of the District Court of McClain county petitioner was indicted for the larceny of a COW "in said county of McClain, State of Oklahoma", * the 10th day of September, 1908, and anterior to the presentment hereof" "of the value of $15.00." There was a plea of not guilty. Said indictment was based upon Snyder's Stats. of Okla., Sec. 2606, which reads:

"That if any person shall steal any stallion, mare, coit, gelding, ridgling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag, he shall be guilty of a felony and on conviction thereof shall be punished by confinement in the State penitentiary for a term (of) not less than one nor more than ten years."

In his opening statement the County Attorney stated that at the time of the taking of the animal in question was an estray and such it was conceded and the undisputed testimony shows it to be. This being the state of the record petitioner contends that the court was without authority of law to render the judgment of conviction because, he says, an estray was not a subject of larceny. Not so. To constitute larceny of an estray afterwards converted, as was this one, by defendant to his own use, by disposing of it to a butcher in McClain county, after statehood, as he admits, the felonious intent to misappropriate must exist at the time he took possession. Where such

intent or animus furandi exists he is guilty of larceny. Starck vs. The State, 63 Ind. 285; Borer v. State, 28 S. W. 951; Burger v. The State, 83 Ala. 36; Gosler v. State, 56 S. W. 51; Adolphus Cameron v. The State, 44 Tex. 652; Matt. Debbs v. The State, 43 Tex. 650; Wash Beatty v. The State, 61 Miss. 18; The State v. White, 126 Mo. 591; Michael Lamb v. State of Nebraska, 40 Neb. 312; J. B. Pitts v. The State, 3 Tex. Court of Appeals 210; Fred McCarty v. The State, 36 Tex. Crim. Rep. 135; The State of Missouri, Appellant, vs. Joseph Casteel, et al., Respondents, 53 Mo. 124; The State, Respondent, v. Martin, Appellant, 28 Mo. 530. The existence of this intent the jury found as a fact, under proper charge of the court, and in effect that the larceny was committed at the time petitioner first took the animal into his possession. This finding is conclusive on us and cannot be reviewed in this proceeding. Brown on Juris., Sec. 110, says:

"THE THREE ESSENTIAL ELEMENTS NECESSARY TO RENDER CONVICTION VALID:

**

These are, that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements are lacking the judgment is fatally defective. Where these elements exist the judgment of the court is final and conclusive as against the world, and errors in ruling on motions, demurrers, the reception or exclusion of evidence, or in the determination of the facts by the jury, cannot be tried or reviewed by the writ of habeas corpus."

It is next contended, in effect, that as the verdict of the jury fixed the larceny as having been committed at the time of the taking and the undisputed testimony showed that said taking was in Indian Territory before the erection of the State, that the venue of the offence charged was proved to have been at a place without the jurisdiction of the court and where said statute was not in force.

In other words "that the prosecution failed to

prove the venue to be in McClain county, as alleged in the indictment." Not so. Venue being a jurisdictional fact (22 En. of Pl. & Pr. 827) it deveolved upon the State to prove it as laid. Being like the animus furandi, an issuable fact, it was also put in issue by defendant's plea of not guilty. In the syllabus in People vs. Evans, 52 Cal. 470, it is said:

"The plea of not guilty puts in issue the averment in the indictment of the place where the crime was committed, and imposes on the prosecution the necessity of proving the locus delicti."

In Bouvier's Law Dictionary, under "Not Guilty", it is said:

"In criminal cases, when the defendant wishes to put himself on his trial, he pleads not guilty. This plea makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence, as stated in the indictment, information or compaint. On the other hand, the defendant may give in evidence under this plea not only everything which negatives the allegation in the indictment, but also all matters of excuse and justification."

By finding defendant guilty, as alleged, in the indictment, the jury, in effect, found that the offence.was committed in McClain county, Oklahoma, as alleged. This finding of fact is also conclusive on us and cannot be impeached in this proceeding. Church on Habeas Corpus, Sec. 368 says:

"While the writ of habeas corpus cannot be made to take the place of a writ of error, appeal, or certiorari, and can not have the force or effect of those proceedings, jurisdiction of the person, place, and subject-matter, at least, must exist in order to make a valid judgment, and if either is wanting, the judgment is void, and the imprisonment without authority of law. The question of jurisdiction over the subject-matter is one of fact, to be proved or admitted, as any other fact alleged. Ordinarily, n criminal trials, the jurisdiction of the court over the place

where the offence is alleged to have been committed is assumed. If admitted by pleading over, that ends the matter. If traversed, and the jury find that the prisoner committed the offense within the jurisdiction of the court, as alleged, the defendant can not impeach that finding on habeas corpus by showing that the place where the offense was committed is without the said territorial limits."

In Re Newton, 16 Com. B. 97, was an application for a writ of habeas corpus. The facts were that at a session of the Central Criminal Court theretofore held petitioners were tried upon an indictment containing several counts, one of which was a misdemeanor, upon which they were found guilty and sentenced to imprisonment in the county gaol for three calendar months. The indictment alleged that the offense was committed in "the rgound of the Beulah Spa at Norwood, in the Parish of Lambeth, and within the jurisdiction of said court, application was made to Creswell, J.. at chambers, for the discharge of the prisoners on habeas corpus. The writ was refused. Williams, J., speaking for the court said:

"The averment that the offense was committed within the jurisdiction of the Central Criminal Court was just as material as any other averment contained in the indictment. If the prosecutor had failed to prove it, he would have failed to sustain the indictment, and the prisoner would have been entitled to an acquital. If an application of this sort could be entertained, it would be open to a party, after a lengthened inquiry at the assizes as to whether or not the alleged offense was committed within the county, to cause himself to be brought up by habeas corpus, and have the whole matter tried over again upon affidavits. So monstrous a state of things never could be." A part of the syllabus reads:

"This court has no power to grant a habeas corpus to bring up a prisoner who has been convicted at the Central Criminal Court, on the ground that the offense charged

was committed at a place out of the jurisdiction of that court."

The court in People Ex Rel, Tweed v. Liscomb, 60 N. Y. 559, cites this case with approval and speaks of it as holding that:

"When a prisoner, convicted in a court of local limited jurisdiction, sought to be discharged on habeas corpus, on the ground that the offense was committed without the jurisdiction of the court, the application was denied, for the reason that the indictment charged the locus in quo to be within the jurisdiction of the court, and that fact must have been found by the jury, if traversed, or the jurisdiction was admitted, the court holding that the truth of the record could not be, impeached on habeas corpus. The general principle that the want of jurisdiction appearing upon the record would be good cause for a discharge, was not questioned."

In support of this doctrine see also Ex parte Edgington, 10 Nev. 215:

As there is nothing in the record by which we can be informed that the larceny in question was committed in a place other than McClain county, it is unnecessary to decide whether, if it was, the statute under which said conviction was had was in force over that place. And as there is no authority cited in support of the proposition that the offense was "nothing but a misdemeanor," and that therefore the court acted in excess of its jurisdiction in sentencing petitioner for a felony, and we can find none, the writ is discharged and the prisoner remanded to the custody of the Sheriff of McClain county.

All the Justices concur.