text:
    GEORGE JULIAN v. STATE.
    No. A-3414.
    Opinion Filed Jan. 10, 1920.
    (186 Pac. 244.)
    Appeal from County Court, Comanche County; R. J. Ray, -Judge..
    George Julian was convicted of a violation of the prohibitory liquor law, and he ajppeals.
    Affirmed.
    W. C. Henderson and J. A. Diffendaffer, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, George Julian, was tried and convicted on an information charging that in Comanche county, on the 12th day of February, 1918, be did unlawfully transport two pints of whisky from a point unknown to the corner of Fifth street and F avenue, in the city of Lawton, and in accordance with the verdict of the jury he was sentenced to be confined for 60 days in the county jail, and to pay a fine of $250 and the costs. No brief has been filed. When the case' was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. Which motion is sustained, and the judgment of the lower court affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MORRIS BROWN v. STATE.
    No- A-2966.
    Opinion Filed June 9, 1919.
    Rehearing Denied Jan. 12, 1920.
    Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.
    Morris Brown and Tom Mundy were jointly informed against for knowingly and unlawfully having possession of intoxicating liquors and defendant Mundy was acquitted, and defendant Brown was convicted, and the latter appeals.
    Modified and affirmed.
    P. A. Gavin, McAdams & Haskell, and J. Fentress Wisdom, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Morris Brown, and Tom Mundy were jointly informed against, and tried upon an information charging that in Muskogee county on or about the 21st day of August, 1916, they did knowingly and unlawfully have the possession of certain intoxicating liquors, and upon their trial the jury rendered verdicts acquitting the defendant Mundy and convicting the defendant Brown and fixed his punishment at confinement in the county jail for six months and to pay a fine of $500. From the judgment rendered on the verdict he appeals.

The evidence shows or tends to show that the defendant Brown was the owner and conducted a drug store in the city of Muskogee, known as the Indiana drug store; that on the day alleged in the information the assistant chief of police, and another police officer raided this drug store and found nine quarts of gin and two or three pints of whisky and a gallon of alcohol; that the drug store had the reputation of being a place where intoxicating liquors were kept and sold.

Various errors are assigned in the petition in error and argued in the brief as grounds for reversal of the judgment, but, after a careful examination of the record, we do not find -that they are entitled to serious consideration. It is contended that the maximum penalty of the law fixed by the verdict of the jury was the result of injurious remarks of the trial judge in the presence of some of the jurors that tried the case.

The question presented was passed upon at this term in the case of Pate v. Smith, 15 Okla. Cr. 90, 175 Pac. 122, wherein said remarks were held not to be prejudicial .and properly within the .scope of the trial court’s duty.

It is also' contended that the court erred in its rulings in admitting over the. defendant’s objection incompetent evidence as to the reputation of the drug store. Several objections to the evidence on this phase of the ease were well taken. However, there was no defense made, and .these errors would not warrant a reversal in the absence of any denial, of guilt The legitimate proof disclosed by the record is sufficient to establish the defendant’s guilt of the offense charged. It may be, however, that the maximum punishment was fixed by the jury by reason of such incompetent evidence, and-we-think that, in view of the fact that this was the defendant’s first conviction, he should be given the benefit of any possible doubt, and in furtherance of justice the judgment and sentence should be modified.

It is therefore ordered that the judgment be modified to a fine of $250 and imprisonment in the county jail for three months.

The. judgment as so modified is affirmed.


text:
    NELIUS RILEY v. STATE.
    No. A-3069.
    Opinion Filed Sept. 13, 1919.
    Rehearing Denied Jan. 12, 1920.
    (185 Pac. 829.)
    Appeal from County Court, Payne County; Freeman E. Miller Special Judge.
    Nelius Riley was convicted of wife abandonment, and sentenced to pay a fine of $100, and he appeals.
    Judgment affirmed.
    J. M. Springer, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Nelius Riley was convicted in the county court of Payne county of the offense of wife abandonment, and his punishment assessed at a fine of $100, the minimum under the law.

The defendant admitted that lie abandoned his wife on the next day after their marriage, but contended that he had good cause to do so, for the ■ reason that, after his marriage to Goldie Riley,' she admitted to-him that previous to their marriage she had had illicit sexual intercourse with another man, all of which was unknown to the defendant prior to the marriage, and that, after the said Goldie Riley had informed the defendant of her unlawful relations with another man, the defendant and the said Goldie -Riley entered into a verbal agreement tb separate, and that said separation and abandonment by the defendant of his said wife, Goldie Riley, was pursuant to said verbal agreement, and because of said unlawful sexual relations with another man prior to her marriage to this defendant.

The defendant, as a witness in his own behalf, was permitted to testify to the statements made by h,is wife to him relative to these unlawful sexual relations with another man; but the court excluded the evidence of the verbal agreement to separate, to which defendant’s counsel objected and excepted at the time, and offered to prove a verbal agreement to separate. The action of the court in excluding this evidence is alleged to be erroneous. Section 3354, Revised Laws 1910, provides as follows:

“A husband and wife cannot, by anv contract with each other, alter their legal relations, except as to property, and except that they may agree in writing to an immediate separation, and may make provision for the support of either of them and of their children during such separation.”

In view of the provisions of the foregoing statute, it is the opinion of this court that the ruling of the trial court in excluding the proffered testimony of the verbal agreement to separate was correct.

It is also contended, that the trial court erred in refusing to permit certain remarks made by the presiding judge to be incorporated into the record. The record does not show what remarks were made by the trial judge that were not taken down and put into the record. There is a statement by the court to the effect that all the remarks of the court will not be put into the record, but there is no showing that there were any remarks excluded from the record. Such a showing could have been made by affidavit, had the trial court refused to make a proper record. Section 5249, Rev. Laws 1910. Where the record does not support the assignment, there is nothing for this court to pass upon.

Error is also assigned in the giving of certain instructions, and in refusing to give others asked for by the defendant. We have carefully examined the instructions as given, and are of the opinion, considered as a whole, that they correctly and fully cover the law of the case, and are as favorable to the defendant as his testimony would warrant.

The evidence in this case clearly indicates that the defendant married Goldie Riley in order to avoid a prosecution for a felony, and with the premeditated intention and design on his part to abandon her after marriage. The facts fully warranted his conviction, and it would be a travesty on justice to reverse such a conviction, and remand the cause for a new trial, because of alleged immaterial errors, which did not result to the substantial prejudice of the defendant.

Judgment is affirmed.


text:
    JOHN PORTER v. STATE.
    No. A-3292.
    Opinion Filed Aug. 26, 1919.
    Rehearing Denied Jan. 12, 1920.
    (185 Pac. 830.)
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    John Porter was convicted of assault with intent to do bodily harm and he appeals.
    Affirmed.
    P. T. Hamilton, for plaintiff in error.

      The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, John Porter, was convicted in the district court of Jefferson county of assault with intent to do bodily harm, on an information charging that he did willfully and feloniously make an assault upon and shoot at one John Hart with a pistol with the intent then and there and thereby to kill the said John Hart. In accordance with the verdict of the jury he was sentenced to be imprisoned in the penitentiary for a period of one year. From the judgment an appeal was taken by filing in this court on March 19, 1918, a petition in error with case-made. No briefs have been filed. When the case was called for final submission, no appearance was made on behalf of the plaintiff in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal.

An examination of the record discloses that the errors assigned are without merit, and that plaintiff in error bad a fair trial, and was properly convicted. The judgment is therefore affirmed.


author: ARMSTRONG, J.

text:
    T. R. BRAUGHT v. STATE.
    No. A-3194.
    Opinion Filed April 1, 1919.
    Rehearing Denied April 30, 1919.
    (179 Pac. 769.)
    (Syllabus.)
    CONTINUANCE — Motion—Ruling—Statute. Where, in a motion for a continuance by a defendant on account of an absent wit ness, it is not averred in the affidavit upon which such motion is based that the affiant believes that the facts which it is averred that such absent witness would testify are true, or believed by affiant to be true, and it is averred in said affidavit that said absent witness is a fugitive from justice to avoid arrest under a warrant for an offense committed in the state, and no diligence is shown to secure the attendance of such absent witness at the trial, or to secure his evidence, it is not error to overrule defendant’s motion for continuance.
    PROSECUTING ATTORNEYS — De Facto Officer — County Attorney. Where a duly elected county attorney is in undisputed possession of the office, and exercising the functions properly belonging thereto under color of title, he is a de facto officer, and his official acts are binding on the public and third persons.
    NEW TRIAL — Title of Prosecuting Attorney — Objection After Conviction. After conviction a defendant cannot raise the question of title to the office of county attorney of the county attorney who signed the information and conducted the trial of the case.

      4. PROSECUTING ATTORNEYS — Assistant County Attorney — De Facto Officer. When two assistant county attorneys are appointed by a county attorney in a county legally entitled' to only one ■assistant county attorney, the one of said assistants so appointed who first qualifies and enters upon the discharge of the duties of the office is at least a de facto assistant county attorney, land his official acts as such assistant county attorney are binding upon the public and’ third persons.
    5. APPEAL AND ERROR — Waiver of Preliminary Examination— Validity of Information — Assistant County Attorney’s Title to Office. When a defendant is complained against for a felony, is arrested, appears, waives a preliminary examination, and is held to answer in the district court, and goes to trial without objection to the information in the district court, he thereby waives all right to question the validity of the information upon the ground that it was not signed by a legally qualified county attorney. ,
    6. HOMICIDE — Substantial Prejudice — Miulrder—Sufficiency of Evidence. _A most careful consideration of the entire evidence in the ease establishes that the conviction in this case is based upon sufficient legal evidence, and the defendant in his brief admits .that the weight of the evidence fully sustains the verdict of the jury, and a departure from the forms or mode of procedure prescribed by the Code of Orimlinal Procedure in respect to the pleadings in this case, if any, does not render the conviction in this case invalid, because the record in this case fails to disclose that any departure from the pleadings or procedure prescribed by the Code of Criminal Procedure of this state intervened in the trial of the case which actually prejudiced the defendant, or tended to prejudice him, in respect to his substantial rights.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

    T. R. Braught was convicted of murder, and sentenced to be electrocuted. Motion for a new trial denied, and he appeals.
    Affirmed.

      R. B. Thompson and Asp, Snyder, Owen & Lybrcmd, for plaintiff ih error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, T. R. Braught, hereinafter referred to as defendant, was by information charged with the murder of Otis Robbins, convicted, and sentenced to be put to death by electrocution. To reverse the judgment rendered, he prosecutes this appeal.

On the 13th day Of September, 1917, the defendant filed an affidavit for a continuance, which said, affidavit, omitting caption, is as follows:

“T. R. Braught, being first duly sworn, upon his oath deposes and says:
“That he is the defendant in the above-entitled cause; that he is now confined, and has been so confined, in the county jail of Creek county, Oklahoma, since about the 1st day of July, 1917, at which time he was committed by Justice of the Peace Edgerton to the county jail' without bail, on the charge of murder; it -being alleged that' he had killed one Ote Robbins at Oilton, in the county of Creek and state of Oklahoma, on or about the 1st day off July, 1917.
“Your affiant states that he cannot at this time safely proceed to the trial of said cause for the want of material evidence that he has been unable to secure, and that his inability to secure said testimony and the attendance of the witnesses hereinafter named was not occasioned by any negligence of your affiant or of your affiant’s counsel, but affiant states that at the time of the difficulty with the said Ote Robbins, the deceased, there was present an eyewitness to said difficulty, one Elzie Kessenger; that the said Elzie Kessenger, as your affiant has been informed and believes, has been absent from the state of Oklahoma ever since the setting of the docket upon which this' affiant’s case appears for trial andt a long time prior thereto, and affiant says that he has used every reasonable means, and his counsel, to learn the whereabouts of said witness, and he has this day been informed from reliable parties that the said witness is now in the city of Joplin, in the state of Missouri; that your affiant did have a subpoena issued for the said witness and placed in the hands of the sheriff of this county, which subpoena has been returned with the return of the sheriff indorsed thereon, ‘unable to find said witness in my county,’ and affiant states that if said witness, Elzie Kessenger, is present, he will testify that at the time of the difficulty, that is to say, at the time your affiant fired the shot that killed Ote Robbins, the deceased, that Ote Robbins held' in his hand a loaded revolver belonging to this affiant, and threatened to shoot your affiant, and stated this language: ‘You killed my cousin, Sam Cook; now, you son of a bitch", I am going to kill you with your own gun, and see how you like it.’
“Affiant states further that he, said witness Kessenger, will swear, if present, that he was standing beside your affiant; that the said witness was armed and that yoiur affiant was unarmed; that while the deceased, Robbins, was pointing the gun at your affiant, and making the threats above alleged, and attempting to work the safety release upon said pistol, that your affiant reached in the waistband or belt of the said witness Kessenger, and took therefrom a revolver of 45 caliber, and fired the bullet that took the life of the deceased, Ote Robbins, all of which statements the said witness Kessenger will testify to; that your affiant cannot prove these facts by any other witness; that it is competent testimony and material to the defense of your affiant in the trial of this cause.
“And your affiant most respectfully states unto the court that he believes that if he is granted a temporary continuance in this matter for at least a period of ten or twelve days he will be able to secure the attendance of said witness, and states that said witness is not dodging the service of a subpoena in this cause, but that he had been informed and believes that the sheriff of Payne county has a warrant for the said Elzie Kessenger for some offense which your affiant does not know, and he is informed and believes that the witness is seeking to avoid the service of the warrant.
“Wherefore your affiant most respectfully' prays this honorable court that he be granted a continuance, either for the term or for a period of ten or twelve days, in order that he may secure, if possible, the attendance of said witness Kessenger.
“[Signed] T. R. Braught.
“Subscribed and sworn to before me this 13th day of September, A. D. 1917.
“[Signed] Harrison Arnold,
“Court Clerk} Creek County.
“[Seal.] By Dallas W. Hall, Deputy.”

On the same day that said affidavit was filed the motion was heard, overruled, and exception saved.

The charging part of the information in this case is as follows:

“That T. R. Braught did in Greek county, Oklahoma, on or about the 1st day of July, 1917', and anterior to the presentment hereof, commit the crime of murder in the form and manner as follows, to wit:
“That said T. R. Braught, then and there being, did then and there willfully, wrongfully, and unlawfully and felon-iously, and without authority of law, and the premeditated . design of him, the said T. R. Braught to effect the death of one Otis Robbins with a revolver, which he, the said T. R. Braught, then and there held in his hand, thereby inflicting a mortal wound upon the body of the said Otis Robbins, from which the said Otis Robbins did then and there die, all of which is contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
“Earl Foster, County Attorney.
“By Ben Braden, Asst. County Attorney.”

The defendant did not demur to, or in any way attack, the information, but went to trial on a plea of not guilty.

The evidence in this case, which is harmonious, and uncontradicted, except by the evidence of the defendant, is: That between 3 and 4 o’clock a. m. on July 1, 1917, the defendant and deceased were at “The Hump,” a roadhouse situated about three and one-half miles from Oilton; that the defendant, without provocation on the part of the deceased, knocked the deceased down, and cursed and abused him in a most violent manner, and, after knocking the deceased down, brutally stamped him several times, and was 1 requested by onlookers to desist; that the deceased, who is designated by all of the witnesses as a boy, did not offer any resistance to the attacks of the defendant, but begged the defendant not to hurt him, and told the defendant that he (deceased) did not want any trouble, and that he (deceased) was his (defendant’s) friend; that the defendant, with a pistol in his hand, told the deceased that he (defendant) “had a good mind to kill you, you son of a bitch”; that thereupon the deceased told the defendant that he was not mad with him, and did not want to fight, and that he (deceased) had not done anything to defendant; that the defendant then ordered the deceased to “get up and get into the car, which was standing near, and that deceased went to the car and was shoved into the car by the defendant; that the defendant got into the car, and forced the deceased to sit in the lap' of defendant, and the car, in which the defendant, a driver, and deceased were, was • driven to a garage in Oilton, in Creek county, Okla.; that defendant got out of the car, and the deceased in his shirt sl-eeves, without anything in his hands, remained seated in the car; that the defendant, with two pistols in his hands, tried to get deceased to take one of the pistols, saying to deceased, “You son of a bitch, take' one of these guns and go to shooting ; I am going to murder youthat deceased said to de-íendant, “I don’t want any trouble with you; I am your best friend, and you don’t know it;” that defendant pitched one of the guns into a seat of the car in which deceased was sitting, saying, “I am going to murder you,” and immediately shot the deceased in his right side, and deceased fell out of the car, shortly thereafter died upon the floor of the garage, and that the deceased at the time he was shot by the defendant did not have any gun in his hands, and was not doing, ór attempting to do, anything to the defendant, but was sitting quietly in the car, resting his hands upon the steering wheel of the car, and freely bleeding from the wounds that the defendant had inflicted upon him at the roadhouse; that after defendant killed deceased defendant, armed with a pistol, lined up the witnesses to the killing, five in number, and holding his pistol upon said witnesses made each of them agree, in the event of a trial, to swear that the deceased, at the time defendant shot him, had a gun in his hand, that, if defendant had not killed deceased, deceased would have killed defendant, and after taking the names of said witnesses, whom the defendant had detained for three-quarters of an hour, defendant permitted said witnesses to go; that shortly thereafter the defendant was arrested by an officer, and upon demand surrendered to him two guns, a Smith-Wesson and a Colts, and, in response to the inquiry of the officer as to what the trouble was, replied “that he [defendant] had bumped off a son of a bitch.”

The defendant testified in his own behalf and denied every material part of the evidence given by the state’s witnesses, except that the defendant shot and killed the deceased, and testified that, just before he shot deceased, deceased had a pistol in his hand, and was trying to release the safety, which it was necessary to do, to shoot the pistol, and was trying to pull the trigger; that the gun with which he shot deceased did not belong to defendant, but to one Kessenger; ánd that just before shooting the deceased ■that he (defendant) took the gun1 from Kessenger; that he (defendant) had been informed prior to the shooting of the deceased that deceased had threatened the defendant’s life, but that he (defendant) did not know that the Otis Robbins he shot .was the one who threatened his life until about 15 minutes before he shot him.

The defendant introduced a witness who testified that, in 1916, Otis Robbins threatened the life of the defendant, and that he (witness) had communicated such threats to the defendant.

The state did not offer any evidence in rebuttal.

Very many errors are assigned in the petition in error, but only two are argued in the defendant’s brief, and, under an unbroken line of decisions of this court, the errors assigned, but not argued or referred to in defendant’s brief, are to be regarded as abandoned; but, in consideration of the fact that a human life is involved, we have carefully considered all the errors assigned and not argued in the brief, and are of the opinion that neither one of such errors not argued in defendant’s brief is of merit.

The errors argued in the brief and relied upon for a reversal of the judgment rendered are: (1) Overruling the motion for a continuance; (2) overruling the motion for a new trial. Section 5045, Revised Laws 1910, provides that a motion for a continuance on account of an absent witness can be made only upon affidavit, and sets out what the affidavit must contain, and, among other requirements, requires that it must set out what facts he believes the witness will testify to, and that he (defendant) believes such facts to be true.

A most careful reading and re-reading of the affidavit filed for a continuance in the instant-case discloses that said affidavit does not contain the necessary averment that the affiant, the defendant, believes that the facts that the absent witness, Kessenger, as averred in said affidavit, would testify to, are true, nor is there anything in said affidavit from which it can be construed that the facts which it is averred that said witness would testify to are believed by the affiant, the defendant; and this failure to comply with the requirements of said section 5045, that the defendant believed that the evidence which it is averred in the said affidavit the absent witness, Kessenger, would furnish, is true, fully sustains the trial court in- overruling the motion for a continuance; and when there is coupled with said fatal defect in said affidavit, that, as averred in said affidavit, the witness Kessenger is not within the state, and was a fugitive from justice from this state, and was seeking to avoid arrest, it certainly cannot be said that the trial court abused its discretion in overruling the motion for a continuance.

In St. Louis & S. F. R. Co. v. Cox, 26 Okla. 331, 109 Pac. 511, it is held:

“Where the continuance of the cause is sought on the ground of an absent witness, the party applying therefor must, among other things, make it clearly appear in the application therefor * * * that the facts affiant believes said witness will prove are by affiant believed to be true. Where said application fails to so state, it is not error to refuse to grant a continuance.”

In Terrapin v. Barker, 26 Okla. 93, 109 Pac. 931, it is held:

“The application must state that the applicant believes the facts to which the absent witness will testify are true.”

In Rhea v. State, 3 Okla. Cr. 230, 105 Pac. 314, it is said that section 4504, Wilson’s Rev. and Ann. Stat. Okla. 1903, which is identical with section 5045, Revised Laws 1910, “governs applications for continuance in criminal as well as in civil cases.”

Again, it is the settled law of this state that, in order to entitle one to a reversal on account of the overruling of a motion for a continuance, it must affirmatively appear that the trial court in overruling such motion abused its discretion.

In Pugh v. State, 6 Okla. Cr. 578, 127 Pac. 296, it is held:

“A motion for a continuance based on the absence of a witness who has not been served * * * and who has left the jurisdiction of the court should be overruled.”

'Certainly the contention of the defendant that the trial court erred in overruling the defendant’s motion for a continuance is without the slightest merit.

On the 14th day of September, 1917, a verdict of guilty was rendered against defendant, fixing the penalty of death by electrocution.

On September 29, 1917, defendant filed a motion for a new trial, alleging ten grounds therefor, but’ the only grounds argued or insisted upon in his brief are the eighth, ninth, and tenth grounds assigned.

The gist of the eighth ground in the motion for a new trial is that the information upon which the defendant was tried was and is null and void and of no- effect, for the reason that Earl Foster, whose name was and is signed to such information, and who is therein described as county attorney of Creek county, has never qualified to act, and is not in reality county attorney of Creek county by reason of his failure to make and execute his bond of office as required by section 1553, Revised Laws 1910, and that the said defendant was not advised and did not know of such failure of Earl Foster to qualify as county attorney until after the rendition of the verdict in this case.

The ninth ground of defendant’s motion' for a new trial is based upon the averments that the information by virtue of which the warrant of arrest was issued, and upon which the defendant was arraigned in the justice court, and the information filed in the district court, and upon which the defendant was tried, was null and void because not verified by any person whatsoever, or by any officer or purported officer whatsoever, and that to pronounce judgment and sentence upon this defendant in this case, and upon the basis of such preliminary information and such information filed in this cause, would and will de-. prive the defendant of his life and liberty without due process of law.

The tenth ground of the motion for a new trial is predicated upon the averments that the information upon which the defendant was tried is null and void and of no effect, and is insufficient in law to charge arid upon which to have tried this defendant, because that, as shown by the last federal census, the official population of Creek county was and is 26,223, and by section 1563, Revised Laws 1910, only one assistant county attorney is provided. for or can lawfully exist in Creek county; that the said information upon which defendant was tried was signed in the name of Earl Foster, county attorney, by Ben Braden, assistant county attorney; that, at the time said Braden was attempted to be appointed and qualified as assistant county attorney of Creek county, one assistant county attorney, Fred Speakman, was already appointed, qualified, and acting' as assistant county attorney of Creek county, and that said Ben Braden never was and never ■became an assistant county attorney of Creek county, and, the county attorney’s name not having been subscribed to said information by himself or by a legally appointed assistant county attorney, the court acquired no jurisdiction to try this cause, and the action of the court in attempting to pass sentence and pronounce judgment upon this defendant is void.

On the hearing of the motion for a new trial defendant offered the following evidence in support of said motion :

Guy L. Covey testified that he was and had been the county clerk of Creek county for the past three years; that as such clerk he had a record of thq approval of the bond of Earl Foster as county attorney of Creek county; that under date of January 2, 1917, the records of his office show that, “a meeting called at 10 o’clock a. m. by the board of county commissioners adjourned at 12 o’clock, and convened at 1:30; meeting called to order by Chairman Smith, and the following proceedings had: Bond of Earl Foster, county attorney, in the sum of two thousand dollars, is hereby approved;” that said bond was not approved by any one else except the county commissioners; that the bond was filed in his office prior to its approval by the county commissioners, and is on file in his office,'and there was indorsed thereon “Approved”; that he (Covey) had not approved said bond; that he was acquainted with Fred Speak-man and Ben F. Braden, the purported assistant county attorneys of 'Creek county; that he had in his office the records of the alleged and purported appointments of these gentlemen as assistant county attorneys of Creek county; that in his commissions journal appears the following: “Upon motion duly carried Fred Speakman is hereby appointed deputy county attorney at a salary of $100 a month, and Ben Braden is hereby appointed deputy county attorney at $75 per month;” that both Fred Speakman and Ben Braden filed their oath of office in his (witness’) office; that he could not say whether both of said affidavits were filed at the same time.

Earl Foster testified:

“That he was the same Earl Foster who is acting as county attorney of Creek county; that about somewhere near the 1st of July he appointed Fred Speakman as assistant county attorney; that he (Speakman) assumed the duties'of the office of assistant county attorney some time about the 15th or 16th of July, ten or fifteen days after he appointed him; that he also appointed Ben F. Braden as assistant county attorney, and that he entered upon the duties of assistant county attorney; that he is the same Ben F. Braden who signed witness’ name to the original information in this case against this defendant wherein he was charged with the crime of murder; that he (witness) did not sign the information; that his name was signed to the information by Ben F. Braden, and thereupon, at request of witness, the following statement was incorporated in the record: That Ben F. Braden and Fred Speakman were appointed, or at least attempted to be appointed, assistant county attorneys by me at the same time, and to my best knowledge were approved by the board of county commissioners at the same time; but Ben F. Braden, or Ben Braden, assumed the duties of office, and qualified and was acting as deputy county attorney for at least five or ten days before Fred Speakman came to the office or qualified.”

On direct examination Earl Foster testified that Braden reported for duty about 10 days earlier than Speak-man; that he thought that Ben began working on the 1st, or just shortly after that, it was up near the 15th before Mr. Speakman began; that it was not the understanding that Fred Speakman was the first assistant and that Ben Braden was the second; the understanding was that Ben Braden was to receive $75 per month, and that Mr. Speak-man was to receive $100 per month; that he did not know that Speakman and Braden have drawn their salaries for the same period of time. Thereupon Earl -Foster made the following statement:

“I want to make one more statement: I don’t know whether or not this is competent or not — you can object to it. The reason that Ben Braden signed the informa-tions, or the reason that I gave him for signing most of the informations, was the fact that I myself had some doubts about both men being legal deputies, and the fact that Ben was in the office first was my reason for having him sign practically all the informations, I think he signed all of them up to the time he went to war.”

R. B. Thompson testified that he was an attorney at law in the practice of law in the city of Sapulpa, “and was and am the attorney for the defendant T. B. Braught”; that he is acquainted with the handwriting of Ben F. B>raden, purported and alleged to be an assistant county attorney; and that the signature upon the original information of Earl Foster was signed in the handwriting of Ben Braden, and by Ben Braden as assistant county attorney.

Thereupon the defendant offered in evidence defendant’s Exhibit A, the same purporting to be and is the information filed in the justice court of Eli Admire against defendant T. R. Braught, and upon which information the warrant of arrest was signed by Earl Foster, county attorney, and sworn to by Earl Foster.

The trial court then said, “I would like to ask you what the record shows in the trial of this case, if at or 'before the impanelment of the jury in this case any objection was made to the information in this respect?” To this inquiry Mr. Thompson, the attorney for the defendant, replied,. “No, sir; none whatever.”

Mr. Foster then stated that the defendant waived preliminary examination.

Thereupon was introuced the transcript of the justice of the peace court of D. Edgerton, which transcript shows “that defendant appeared in person, and, reading the information, enters plea of not guilty, and waives preliminary hearing, and is bound over to the action of the district court of Creek county, Oklahoma, on charge of murder, commitment issued, bond not allowed.”

The material grounds for a new trial earnestly urged by the defendant raise the following questions:

(1) Doés the failure of the county attorney, who acted as county attorney and prosecuted this case, to have his official bond as county attorney approved by the county clerk, render the information, upon which the defendant was tried without objection by the defendant,.null and void?

(2) Does the failure to verify the information for the arrest of the defendant in this case by a proper officer render void the preliminary examination of the defendant, where the defendant appeared, and without objection to such information, waived examination?

(3) Does the evidence submitted on the hearing of the motion for a new trial show that the preliminary information filed in this case was not .verified?

(4) Does the fact that two assistant county attorneys were appointed and qualified, where only one assistant county attorney could be legally appointed, vacate the action of each of said appointees?

(5) Does the evidence heard on the motion for a new trial su'stain the contention of the defendant that Ben Braden was not an assistant county attorney of Creek county de facto ?

(6) Does the filing of a solvent bond in the form and conditioned as required-by law, in the office of the county clerk of his county, which bond is afterwards approved by the board of county commissioners, and remains on file in the office of the county clerk, having indorsed thereon “Approved,” but such approval not signed by the county clerk, constitute a sufficient compliance with section 1553, Revised Laws 1910?

(7) Can a defendant who went to trial on an information without objection, after conviction, on a motion for a new trial, successfully attack such information upon the ground that the county attorney, nor his assistant who signed and filed said information, were not legal officers?

These questions will be answered in the order stated-:

1. Whether or not Earl Foster had qualified as county attorney by filing and having approved the bond required by law to be given cannot be legally raised by the defendant on his motion for a new trial, as this question can only be legally raised by a direct attack upon Foster’s right to the office; and, if it be admitted — which we do not concede— that Earl Foster did not file and have approved his bond as county attorney, such failure would not render the information upon which the defendant was, without objection, tried, null and void.

In Ex parte Hand, 13 Okla. Cr. 614, 166 Pac. 449, it is held:

“A person in undisputed possession of the office of justice of the peace, and exercising the junctions properly belonging thereto under color of title to such office, is a de facto justice of the peace, and his official acts are binding on the public and third persons.”

In the body of the opinion it is said:

“It is unnecessary to determine in this proceeding whether or not an appointment to a vacancy in the office of justice of the peace elected in towns of less than 1,500 ■inhabitants, is to be made by the board of trustees of the town or by the board of county commissioners. G. W. Leighnor is admitted to be in undisputed possession of such office and its records, and he exercises the functions belonging to it under color of title. The state has not questioned his title to the office as a de facto justice of the peace, and his official acts were binding on the public and third persons.”

Here Earl Foster was in undisputed possession of the office of county attorney of 'Creek county, and exercising the functions belonging to the office under color of title, and the state had not questioned his title to the office, and consequently, if it be admitted that Earl Foster had not filed and had approved the bond required by section 1553, Revised Laws 1910, his act in filing the information upon which the defendant was tried was valid and binding upon the defendant.

2. The law required that the preliminary information in a crimnal case be verified, and when not verified is void ; but in the instant case the information was verified in the name of Earl Foster acting through Ben Braden, his de facto assistant. This was sufficient, and the preliminary information was not void by reason of, not being properly verified by an officer as required by law.

3. We are of the opinion that the evidence and record in this case shows that the preliminary information was properly verified.

4. Admitting that only one assistant county attorney could be legally appointed for Creek county, we are of the opinion that as to which of the two appointed as assistant county attorney is the legal one cannot be legally questioned by the defendant on a motion for a new trial, nor can it be determined by the amount of salary respectively received by them. ' Certainly Ben Braden was at least a de facto assistant, and his acts were binding upon the defendant. Ex parte Hand, supra.

5. We are of the opinion that the evidence of the defendant on his motion for a new trial does not sustain his contention that Ben F. Braden was not a de facto assistant county attorney.

.6. We are of the opinion that where a county attorney delivers a solvent bond to the county clerk in the amount and conditioned as required by law, which bond is approved by the board of county commissioners of the county, and said bond is afterwards found in the files of the county clerk having indorsed thereon “Approved” by some one connected with his office, but the name of the county, clerk is not signed to such approval, that such bond is a sufficient compliance with section 1553, Revised Laws 1910, and is a binding obligation on the part of such county attorney for the faithful performance of the duties of his office. In 29 Cyc. 1387 (IV) it is said:

“Because of their desire to uphold official bonds, courts hold that no express delivery, acceptance or approval of the bond need be proved, but that if the bond is found in the possession of the proper authorities, and the officer enters into the performance of his duties, the delivery, acceptance, or approval will be regarded as prima facie proven. Ramsey v. People, 197 Ill. 572 (64 N. E. 549, 90 Am. St. Rep. 177); Portland v. Besser, 10 Or. 242; McFarland v. Howell, 16 Tex. Civ. App. 246 (43 S. W. 315).

“Where an officer has done all that he can do to comply with the law with respect to the giving of a bond, he cannot be deprived of his rights by the unlawful acts or the willful .refusal upon the part of another officer to perform a duty imposed upon him with regard to such bond.” State v. Dahl, 65 Wis. 510, 27 N. W. 343.

7. We are of the opinion that a defendant who goes to trial upon an information without objection cannot, on a motion for a new trial, successfully attack such information as null and void upon the ground that the officers who signed and filed said information were not legal officers, for the reason that if they were de facto officers their official acts were binding upon the defendant.

Ferguson v. Lawrence, 69 Oklahoma, 157 Pac. 1038, is a direct attack upon the title to an office, and is not in point in this case.

McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260, is a prosecution for a misdemeanor, and in said case it is held:

“The conviction of a person under an information charging a misdemeanor, not signed by the person designated by law, is void for want of jurisdiction in the trial court.”

This rule does not prevail where the offense charged is a felony, and the defendant has waived a preliminary trial and -been held to answer. Besides, in the McGarrah Case the information was attacked, prior to the plea entered, by motion to quash, and the evidence in that case discloses that the attorney signing the information was not an assistant county attorney de facto, but an attorney privately employed and paid by the county attorney, who was not even present when McGarrah was tried, and in no wise adopted the action of said attorney signing the information, and therefore the case of State v. McGarrah, supra, is not in conflict with the views herein expressed.

In Sayers et al. v. State, 10 Okla. Cr. 233, 135 Pac. 1073, it is held:

1. “Where a preliminary complaint charging a felony is sworn to positively by some person, it is sufficient of itself to authorize the magistrate to issue a warrant for the arrest of the defendant, and it is sufficient to authorize the magistrate to hold a preliminary examination.”

2. “The fact that there was a preliminary examination, and a judicial determination thereon by the magistrate that a felony has been committed, and that there is probable cause to believe the defendant guilty thereof, confers jurisdiction on the district court, and authorizes the county attorney to file an information * * * charging the crime committed according to the facts in evidence on such examination.”

In the instant case there was an affidavit made charging the defendant with murder, and whether the party signing the affidavit was a county attorney or an assistant or a private person is entirely immaterial, and the defendant was arrested, appeared, waived examination, and was held to answer, and this gave the county attorney, or a de facto county attorney, authority to file the information upon which the defendant was tried, and conferred jurisdiction upon the district court of the case.

If it be considered that Braden was not a de facto assistant county attorney — which we do not hold — the county attorney appeared for the state, read the information to the jury, and conducted the entire trial of the defendant, and thereby adopted and confirmed the actions of Braden in signing the name of the county attorney to the information.

The case of Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80, cited and relied upon by the defendant, is a prosecution for a misdemeanor, and the county, under the statute! could have but one legally constituted assistant county attorney. Two assistant county attorneys were appointed, and the attorney who acted for the state in said case was appointed after the appointment of an assistant county attorney who was still acting, and it was stipulated that said attorney who represented the state in said case was illegally appointed. In the instant case the two assistant county attorneys were appointed at the same time, and Ben Braden, who acted as assistant county attorney in this case, qualified and began to discharge the duties of the office first; and we are of the opinion that Ben Braden was the constituted assistant attorney of Creek county, or at least the assistant county attorney de facto of Creek county, and legally authorized to. act in this case, and that therefore the holding in Viers v. State, supra, does not support the contention of the defendant that the information upon which the defendant was tried, by reason of being signed by Braden as assistant county attorney, was void.

It must be remembered, also, that in the Viers Case, supra, the indictment was attacked prior to the plea, and that the defendant did not go to trial without objection to the information, and after conviction raise the question of the validity of the information by a motion for a new trial.

In Ex parte Kelly, 45 Okla. 577, 146 Pac. 444, it is said:

“An information charging a person with criminal contempt can only be signed and filed by some officer expressly authorized * * * so to do.”

A criminal contempt is a misdemeanor, and hence the above stated rule does not, in our opinion, apply in felony cases; and besides, in the instant case the defendant went to trial on the information without objection, and cannot now be heard to question the validity of the information.

In Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, it is held:

“A departure from the former mode prescribed in the Code of Criminal Procedure in respect to any pleadings or proceedings or any mistake therein will not render a judgment of conviction invalid unless it has actually prejudiced the defendant, or tended to prejudice him, in respect to his substantial rights. * * *
“The Code of Criminal Procedure directs that all in-formations shall be signed by the county attorney. This is required as a guaranty of good faith and to protect a defendant against prosecution by private parties without authority of law; but where a defendant pleads to an information which is not signed by the county attorney, and without objection goes to trial thereon, he waives all right to afterwards object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by law.”

The defendant knew, or should have known, prior to pleading to the merits of the case, all of the alleged grounds upon which he in his motion bases the invalidity of the information upon which he was tried, and certainly could not legally delay his attack upon the information, take the chances of acquittal, and after his conviction legally insist that his conviction was erroneous by reason of the invalidity of the information. He cannot be thus permitted ' to take a chance of acquittal, and withhold that which will, as claimed by defendant, entitle him to a new trial.

Section 5780, Revised Laws 1910, provides that in attacking an indictment or information “that the defendant shall be conclusively presumed to know matters of record.”

The bond of the county attorney, and the appointment of Biraden as assistant county attorney, were of record, and if these records, as now insisted upon by the defendant, show that Earl Foster had not a legally appointed assistant county attorney, he should have attacked the information upon these grounds prior to pleading not guilty.

Section 6126 of the Code of Procedure Criminal (Rev. Laws 1910) of the state provides:

“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

Section 6,005 oí the Code of Criminal Procedure (Rev. Laws 1910) of this state provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure,,, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

When an error has been committed upon the trial of a case it is the duty of the court, upon the inspection of the entire record, to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.

When the evidence in a case is clear as to" the guilt of a defendant, and all the forms of the law have been complied with, and there is no reason to 'believe that upon a second trial an intelligent and honest jury can arrive at any other verdict than that of the guilt of the accused, the judgment of the lower court will not be set aside for anything less than fundamental error. John W. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Coleman v. State, 6 Okla. Cr. 253, 118 Pac. 594; R. C. Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029; Offitt v. State, 5 Okla. Cr. 49, 113 Pac. 534; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Suitor v. State, 6 Okla. Cr. 305, 118 Pac. 412; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003; and many subsequent decisions.

The evidence is clear as to the guilt of the defendant, and this is admitted in defendant’s brief, in which it is said: “It is not the purpose of the defendant to review the testimony in the case, as counsel could hardly expect to reverse the case on any question involving the weight of the testimony;” and'this evidence shows that the defendant was guilty of a most brutal, unprovoked murder, without the slighest extenuating circumstance; that, in addition, he was also guilty of attempting to suborn testimony in his behalf, and on his trial was guilty, of the most glaring and unreasonable perjury; and that he had a fair and impartial trial, and was most ably defended in this court and the court below. The very exhaustive briefs of the learned attorneys of the defendant cite many authorities of courts of other states, some of which may not be in accord with the authorities we cite or conclusious reached in this case predicated upon opinions of the courts of last resort of this state; but we are bound by the opinion of our own court, and cannot follow the opinions of the courts of other jurisdictions in conflict with settled rules long established in this jurisdiction.

We are of the opinion that the court did not err in overruling the defendant’s motion for a new trial.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

The time fixed for the execution of the sentence of death upon the defendant having expired, it is hereby ordered, adjudged, and decreed by this court that the warden of the state penitentiary at McAlester proceed to carry into execution the judgment and sentence of the district court of Creek county in accordance with the death warrant issued thereon; and Friday, the 23d day of May, 1919, is designated as the date for the execution- of said sentence.

DOYLE, P. J., and MATSON, J., concur.


author: MATSON, J;

text:
    J. E. BURNS et al. v. STATE.
    No. A-2936.
    Opinion Filed Aug. 5, 1919.
    (182 Pac. 738.)
    (Syllabus.)
    1. LEWDNESS — Living in State of Adultery — Elements of Offense ■ — “Open and Notorious Adultery.” Having occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. To constitute “open and notorious adultery,” the parties ■ must reside together publicly, in the face of society, as if the conjugal relation existed between them.

      2. SAME — Evidence—Sufficiency. Evidence examined and considered, and held insufficient to support a conviction of defendants of the crime of living together in open and notorious adultery.

      Appeal from District Court, Jefferson County; Cham Jones, Judge.

    J. E. Burns and Lula Bond were jointly tried and convicted of the crime of living in open and notorious adultery, and sentenced to pay fines of $350 and $250, respectively, and each appeals.
    Judgments reversed.

      Guy Green, 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 Jefferson county, wherein plaintiffs in error, J. E. Burns and Lula Bond, were convicted of living together in open and notorious adultery, and their punishment fixed at fines of $350 and $250, respectively. From such judgments of conviction each has appealed, and among other grounds assigned as reasons for reversal .is that the evidence wholly fails to support a conviction of living together in open and notorious adultery within the .meaning of the Oklahoma statute defining said crime and the decisions of this court construing the same.

This prosecution was founded upon an indictment returned by the grand jury of Jefferson county which charged the said defendants with living together in open and notorious adultery. The court in instructing the jury limited its consideration to the guilt of the defendants of the crime of living together in open and notorious adultery. The verdicts of the jury found each defendant guilty of the crime charged in the indictment, and upon such verdicts the court pronounced judgments of conviction against each of the defendants of the crime of living together in open and notorious adultery.

While the evidence discloses that the husband of the defendant Bond appeared before the grand jury, and that it was through and by his efforts that this indictment was returned against the parties to the crime, so that it could properly have been held that the prosecution was commenced and carried on against these parties by the husband of one of the defendants, so that a conviction of ordinary adultery as distinguished from open and notorious adultery would have been permissible under the charge and the evidence, yet, because the court did not submit that issue for the consideration of the jury, this court is limited in considering the evidence to the sufficiency of the same to support a conviction of the crime of living together in open and notorious adultery.

Before proceeding to a consideration of the evidence of the state’s witnesses upon which reliance is based to support this conviction, it is appropriate to call attention to certain definitions of the crime of “open and notorious adultery” heretofore given by this court. In Copeland v. State, 10 Okla. Cr. 1, 133 Pac. 258, it was held:

“To constitute living together in open and notorious adultery the parties must reside together publicly, in the face of society, as if the conjugal relation existed between them, and their illicit intercourse must be habitual.”

In Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, while it is held that it is not necessary that the parties claim to be husband and wife if they live together in the same house in the familiar manner of husband and wife, yet, in order to constitute the offense of living together in open and notorious adultery, it is necessary that their lewd and lascivious cohabitation and conduct be open and notorious. In the latter case a reading of the statement of facts discloses that the parties convicted lived together in the same house by themselves, and that their conduct was lewd and lascivious, and that several witnesses saw the parties in compromising positions and taking indecent liberties with the persons of each other.

In the case of Spencer v. State, 14 Okla. Cr. 178, 169 Pac. 270, L. R. A. 1918F, 592, where the evidence was held sufficient to support a conviction of living together in open and notorious adultery, the facts show that the convicted parties, although unmarried, lived together in the same house as husband and wife, and that such relationship continued for a prolonged length of time even after it became generally known in the community that the parties were not married to each other.

In the recent cas,e of Barber et al. v. State, 15 Okla. Cr. 558, 179 Pac. 790, wherein it was held that the evidence was insufficient to sustain a conviction of living together in open and notorious adultery, the facts are not dissimilar to those in this case. In that case it was also held:

“To constitute ‘living in open and notorious adultery/ under the statute, there must be something more than occasional illicit intercourse indulged in; the parties must reside together publicly in the face of society, as if conjugal relations existed between them, and their so living must become generally known in the community in which they live.”

In substance the evidence relied upon to support the conviction in this case is about as follows:

G. M. Bon'd testified in part:

“I reside at present in this county out east of Adding-ton with my son. I am a married man, and know the defendant Lula Bond., She is my wife. We were married to each other in Dallas, Tex., in May, 1893, about 23 years ago now. I have never been divorced from Lula Bond, and she and I have remained husband and wife from the date of our marriage to this time. We went to the place where Mrs. Bond lives now the second year after we came to Oklahoma, and for two years we lived over there where Mrs. Bond now lives on the Grove land; that is right on the banks of Bed Biver, and about 3% miles southeast of Terral, Jefferson county, Okla. She and I went away from Oklahoma to Baltimore, Md., and we were there when President Wilson was inaugurated, ■ and ■ then she came back home a month before Í did, and this was just a month before my litle daughter graduated in May at Dallas, Tex., which would make it about the year 1913, and four years ago next month. Wife wrote me a great many letters. In every letter I would get from her she told me not to hurry home, but to stay and have my visit out. After I came home I had a conversation with her relative to her conduct. She told me she had been in the pasture five or six'miles from home with Mr. Burns and had stayed there with him nearly all day. I then told her the character that Burns had, how he stood in regard to morality. Well, she told me she had been out riding with him, and what she said to him was in response to what I had said to her. I remonstrated with her for six months about Burns. The only reason she ever gave for riding around at night with him was that she was trying to reform him. Never did she, but one time, agree that she would quit going with him. I had to go over to Ardmore on some business, and when I came back off the trip she told me she had a dance the night before, and that Burns was there, and that the next day was Sunday, and that she and Burns had gone out to the pasture again. She and I have been separated about two years, and on that separation I gave her very near all the property I had. Burns separated from his wife a little after I separated from mine, about two years ago. I don’t know where he lived after his separation from his wife only from hearsay, but I have seen him at the house of my wife. On our separation my wife kept our home place. I supposed on seeing him there that he was in charge of the place, but her brother was living there at the same time. The first time I talked with her about associating with Burns was just after I returned home, after President Wilson’s inauguration. After I came back here she told me she had been out with B:urns. This was the first time I had ever known of her associating with him. She and I drew up our papers of separation about two years ago. I didn’t see her riding around with Bums, and have only what she told me about it. After I had remonstrated with her she wouldn’t live in the same room or occupy the same room with me, refused to sleep with me, and in fact would not have anything to do with me at all. After she and I had got to occupying separate rooms she was out several nights, repeatedly coming in at 2 or 3 o’clock, and she said she was out with her friends. One night she didn’t come in at all. I only know from hearsay where she was. She said it was none of my damn business.”

Curtis Ramsey:

“I live at Terral, Okla., and know the defendants, and have known them several years. I know where Mr. Bond’s place is and I lived there last year, and rented the place from Mrs. Bond, I mean for 1915, but I left there in the early part of the spring. Mrs. Bond lived there when I did, and so did the defendant Burns. I was renting the place. Mr. Burns was boarding with me, and Mrs. Bond boarded with me a part of the time, besides having two rooms of the house for her own use, and she did her cooking in these rooms. (Here witness shows the rooms occupied by Mrs. Bond, and by Burns on the map.) One could go from Burns’ room to Mrs. Bond’s room without going through any of the balance of the house. Mrs. Bond was boarding with me when Burns came there. Burns had bought a stalk field, and his cattle were all around the house, and he had to "move there with me to take care of the cattle. He didn’t stay there all the tima He had some cattle in another place also. After he came there she began to use the cook room and to cook for herself. Burns slept in this room adjoining my dining room. If he had been going to her room while they were boarding there with me, I would have run him off; and I never saw any improper conduct between them, or any thing out of the way, and if they lived in adultery I didn’t know it. Burns not only had the stalk field 'but had the grazing of the wheat field. The reason I left the place some one shot through the window, and my wife is of such a nervous disposition that I didn’t want to stay there any longer with bullets flying around. I believed after I left there Mrs. Bond went over to Mr. Towel’s and stayed a part of the time, and a part of the time she stayed at Mr. Musick; then after this she went away and stayed away, and I didn’t see her any more until this summer. Her brother came here and took charge of the place. I saw the outline of the fellow who shot in the window, and we measured track, and I picked up the bullet after him, and I have it yet. I am brother-in-law of the defendant Burns. While we were there I saw Burns in Mrs. Bond’s bedroom. He would walk in and speak to her, arid then walk out. I never saw them go away from the house together often; sometimes they would go away on business, would go over to the field to .see the cattle, and they went in plain, open daylight. I don’t think I ever saw them out together at night but one time. They went to Mr. Bailey’s one night, and stayed until about 10 o’clock and returned.”

I. F. Tillman:

“I live 6% miles northeast of Terral, Okla., and have known the defendant for four years. I live in about six miles of Mrs. Bond’s house. I don’t know about Burns staying around her place after she and her husband separated, but I have seen the two defendants together, sometimes two or three times a week. They would pass my house together sometimes, going east of my house. They were going down to the pasture, in some places in the pasture there were thickets, some open. I recall seeing them going down there one Saturday afternoon, but I didn’t see which way they went out. Then I recall seeing them go west just after night, after dark, traveling horseback, each riding a separate horse. Then I saw them again one night with' some other parties after dark, riding horseback. For awhile I saw them together two or three times a week. I saw them driving cows by there some. At one time they drove a bunch of cattle by, and he cut one out for me, but I believe Mrs. Bond’s daughter was with them that time. The most of the time I saw them pass they were alone, only with each other. That was two years ago last spring that I saw them driving the cattle. I have' seen them also along with others, and I have seen Mrs. Bond without Burns being along.”

Albert McKinley:

“I live at Terral, Okla., and live in town. Mrs. B.ond lives down the river. I know her, and also defendant Burns. I saw them together over in Texas at a cafe there in Nocona. They were there at supper, and it was after dark. There was a girl with them, and they were eating supper. Mrs. Bond introduced me to the young lady, and asked me +o come to see her; that she was visiting her. I have been living at Terral since 1901. Have been to Mrs. Bond’s house. This Nocona trip was the first thing I ever saw of that kind.”

J. O. Linton:

“I live in three-fourths of a mile of Mrs. Bond’s house, and there is a road that goes straight through to her place and by my house. There is a gate there, but it stands open. I remember when Mr. Bond and his wife separated, and also the time when Burns and his wife separated. Up to the time of these separations I don’t remember that I saw Burns at the Bond house, but I have seen him going and coming from the Bond place. Judge Bond seems to> have been in Washington at the time. I have seen Bums going and coming from there for a year or better before the separation of the Bonds. I don’t know who was living with Mrs. Bond at the time. Mrs. Bond had some children, and they were at home part of the time and part of the time they were in school. I have seen Burns both coming and going while they were in school and while they- were at home. I saw Judge Bond pass in a buggy going to town. Probably an hour after that Bums came along going in that direction, and then I saw him come from there, and he came on through the gate and left the road, and Burns came on and cut the horse off. This was in the springtime, and I went over there to get a mess of greens on one occasion, and I saw Burns’ horse tied there behind the orchard, and I went on and went down to Bob Eddleman’s, and after a little Burns came along. I had seen him go towards Judge Bond’s that morning. If there was any one staying there with Mrs. Bond, I don’t know it. I think he stayed there at the Bond place an hour and a half or two hours between the time I saw him and then saw him come away. On another occasion I and Wes Young, a constable, went by the Bond house one night, and he wanted to see Burns. I had seen Burns riding a grey mare that morning, and on getting over there that night in the dark Young flashed his light, and there was the mare that Burns had been riding that morning. I refused to go in the house. I told Young I wouldn’t go. It was some 8 or 9 o’clock in the night. At that time Judge Bond was either in Oklahoma City or up at one of his sons. I have seen the two defendants pass my house after night riding, and I have met them time or two after night. I have seen them ride together heaps, a right smart. But I have seen her ride with others also. I have seen Mrs. Bond riding over the farm there looking after her cattle a heap of times, and I have seen her driving cattle. I thought no more of that than I would of any other lady. Burns had a farm down the country there which was his own, and he passed my house a great deal, for the road that ran by my house led to his farm on the river; at least that was one way to go to it. I have seen him and Mrs. Bond together driving cattle and I have seen them driving with others. The horse I saw tied that night was tied in front of the house. At least it looked like his horse. That night Wes Young wanted to find out if Burns was over there. There was a light in the house when we were there, in one room. We found the horse, and I told Young I wouldn’t go in, and neither of us went in. I don’t know who was in there, nor how 'many, nor whether Burns was in there or not, nor whether Mrs. Bond was in there or not. I have noticed her riding with Burns when they were driving cattle and when they were not. Why, she has ridden with me, and I thought nothing wrong of it at the time, and as to that I never saw ■ anything wrong with her in my life. She was as nice a lady as I ever saw.”

Tom Cochran:

“I live in about seven miles of Mrs. Bond’s place and in the Fleetwood community. Before that I moved to the Fleetwood community I lived within a half or three-fourths of a mile of her. In the pasture country down there there is one rough hollow with thickets and brush, and when you get to the river country south of there there are thickets and all sorts of brush. I have known these defendants to stop at my house, and in going back to Terral to go around through the river bottom. One evening I was down there in the pasture late after a cow, and I saw two horses hitched, and one of them was Burns’ horse. I got off my horse and walked down a little slough a little piece; then I turned and walked back. I didn’t see either of the defendants, but I just saw the horses. Then I saw them get on their horses and ride off. I didn’t see the parties in the thicket. I was not close enough to see that'. The horses were tied at the edge of the thicket. I saw the defendants ride away on their horses. It was about 30 minutes from the time that I saw them ride away together, or it might not have been that long. This was some time in the summer of 1914. They both had cattle down there, and would come by my house to look after them, and would stop nearly every time they came that way. At the time I saw their horses hitched I was within 100 yards of them. I just saw the two horses standing there, and got within 100 yards of them. I have known their [Bonds’] little girl to come to the pasture with them a time or two, and one evening when they wanted to leave her pony was lame, and the little girl commenced crying and asked her mother why she wanted to go around through the bottom to get back to Terral. George Tombs was along with them that evening, and Mrs. Bond and Mr. Burns rode off ahead of them, and Tombs looked after the horse’s foot, and he and the little girl rode on behind them a half an hour, and I don’t know whether they overtook them or not. Burns and Mrs. Bond left 30 minutes ahead. Tombs worked on the pony’s foot, and I thought he was a little long about it too. I and Burns are not on good terms; The route that Mrs. Bond and Burns took to Terral made it about three miles farther to get to Terral than to go the public highway, and the little girl cried, and didn’t want to go the long way, and didn’t start for some time after they did. Their road carried them through the bottom. At the time I saw the horses hitched at the edge of the thicket I don’t know where Mr. Bond was.”

Cephus Bingham:

“I am the son of Walker Bingham, and we live in about a half a mile of Mrs. Bond. I am 14 years old, and am in the fourth grade of school. I was at Mrs. Bond’s house last year looking for a mule, it was last fall, and papa told me to go in and see if Mrs. Bond had seen the mule. I did so, and when I went in she and Mr. Burns were in there eating breakfast together, and it was about 9 o’clock. He didn’t have any shoes on, but was in his- sock feet. He came to the door when I knocked and let mé in.. She sat at the end of the table and he at the side. I was never a witness in a case before. I don’t know exactly what time it was last fall that I saw this. Don’t know what month; never tried to keep up with.the months. We got through picking cotton last year about three months before Christmas, and turned the mule out. We were wanting to break 40 acres of Mrs. Bond’s land, and I wa& hunting the mule that morning.”

P. G. Eddleman:

“Last year I lived on Mrs. Colbert’s place, about half a mile from'my house to Mrs. Bond’s, and I remember when it was announced that Mr. and Mrs. Bond had separated, and also I heard when Burns and his wife separated, but I don’t know which separation occurred first. I won’t swear that Mr. Burns ever went to Mrs. Bond’s place to live, as I didn’t stay up there myself, but I saw the two together. I know I saw them one time, just them two, and I saw them several times with other people along. They came to my house one night together; then they passed my house coming in from the south together. That road running east from my house goes as far as you want to go, and it runs through a broken land of hills and hollows. The night I saw them together it was about 9:30 o’clock, and we followed the horse tracks of the defendants next morning, and saw where they had stopped under a pecan tree during the rain, and saw where the horses were tied to a bush out to one side of the tree, and where the grass was sorter mashed down there, and they were the same tracks of the horses that we had tracked. I haven’t seen them riding together since that time. I had gone down early in the morning and saw they went down there, but didn’t go down to where they were tied until next evening when I followed the tracks down. It was about half a mile from my house to where these tracks led and about half a mile to Mrs. Bond’s, and this is the closest house to mine.”

A. A. Stevenson:

“I live a couple of miles from Mrs. Bond’s house, and know the defendants. I have seen them riding together, and on one occasion they went down the road that evening before night, and there was a man and woman stopped at the corner of my yard that night talking. One of these went north, and the other went west. The defendants had come down going east. Burns was riding a grey horse, and Mrs. Bond was riding a sorrel white-faced horse, and the man and woman that come on that night were riding these kind of horses. When I heard them talking that night, I raised the window. They were about 60 feet away, I guess, but I couldn’t understand what they were saying. I heard the man say, T guess it will be the best to separate here,’ or rather she said that. This was about 9 o’clock. The man was riding a grey horse and the woman a sorrel, but I couldn’t fully recognize the parties, though it was a moonlight night. I could see the white face of the horse the lady rode. This was in the summer over two years ago that I saw these two persons, talking. I suppose that Mr. Bond was at home then, but I hadn’t heard of him and his wife separating. I never was around them much.”

Lula Ramsey, for defendant, testified in part:

“The defendant Ellison Burns is my brother, and I know Mrs. Bond. I had rented her place where she lived, and was there September a year ago. She continued to live there, but not very long. She didn’t stay with us all the time even while she made her home there, but was away part of the time. She kept two rooms to live in herself. She boarded with us when we first went there, but afterwards she cooked in her own room. My brother, J. E. Burns, came there late in the fall to stay, and boarded with us, and kept his stock there. I remember when the Bingham boy came up there to a<sk about a mule, and at the time I and my brother were in the room, and we were eating breakfast. My husband, Curtis, was not there, that morning. My brother had some cattle there, and he stayed there a part of the time. My husband made the contract for renting the place, and we moved there in September. We had been there quite a while before Burns came there. My brother at that time was living at Terral, and we lived on the Bond place seven or eight months. Husband had rented the stalk field from Mrs. Bond. I have just one child. I would go up to Terral sometimes and stay all night with my mother. I don’t know what was occurring at home while I was gone. Mrs. Bond owned and kept cattle at that time. My brother just came there and boarded with us for a part of the time we lived there, and he paid us for his board, and we lived there seven or eight months in all.”

Hugh Barber:

‘T am 16 years old. I know Mrs. Biond and Ellison Burns and I have been about Mrs. Bond’s a good deal, and have gone with her and Mr. Burns looking after stock. Mr. Bond has asked me sometimes to go and help with the cattle, and the cattle would sometime's, be out on the prairie, and sometimes in the stalk field around home. Mrs. Bond looked after the farm and stock. I have seen her looking after her cattle, and Mr. Burns was with her. I have seen Judge Bond saddle her horse for her. They were all getting along peacefully then, and he would ask me to go and help with the stock. I don’t recollect the number of times I went. I remember when he went back East, and when she went with him. I don’t remember of her ever asking me to go with them to look after the stock, but Mr. Bond and Mr. Burns both asked me. Nor do I remember how many times I helped them with the stock after Mr. Burns moved to the Bond place. After that Burns would always ask me to go along. I and the girls, when they went, would ride along together.”

John Towel:

“Prior to two years ago I lived on Mrs. Bond’s place, and I lived there six years. They had a few cattle, mules, and hogs, and Mrs. Bond looked after them, and sometimes I did. They kept some of them on the place there, and I don’t know where they kept the others. Mr. Burns helped look after them also at Bond’s, solicitation. I recall one time when Burns helped brand the stock and dehorn the cattle. I don’t know about him helping Mrs. Bond look after the cattle, but it was my understanding that they were carried over in Burns’ pasture one time, and after that had been done I have seen Mrs. B'ond going over there to see after them, but don’t remember seeing Burns go with her. Bond did not look after the business around home a great deal. He was in office a part of the time, and ever since I have known Mrs. Bond she did most of the looking after the farm stock. Bond was county judge when I first knew their place. I left there in 1914, after living there about six years. I never saw Burns going out with her to look after the cattle, nor did I see him riding around with her.”

.Hugh Barber, recalled:

“I remember of Burns moving some stock to a stalk field down there on the Bond place, and I was around there some. I don’t remember that I ever stayed there all night, nor do I know, as a fact, that Burns stayed there all the time. I was around there quite frequently, and remember seeing Burns around there looking after his stock a few times. I don’t know when he moved them away. I have seen the two defendants riding around quite frequently, but not just together, but some of the girls would be along. I helped them carry their cattle out east there, but I don’t remember just who was along, and some of Mrs. Bond’s cattle were in the bunch, and I believe she was along herself.”

Henry Webb:

“I live at Fleetwood, and have lived there some 15 years. I have known the defendant Ellison Burns for 17 years. He helped me with the cattle and worked around with them a year ago, and after he and his wife separated he moved to my house, moved his clothing and furniture. After he moved his cattle up there he stayed either in town or at Mrs. Bond’s place, I don’t know which. I don’t remember the date when he got him a room there and stayed. I •knew that his brother-in-law, Ramsey, had moved there, and knew when he had moved his cattle there, and his cattle stayed on the Bond place all the winter I supposed, and they were moved out of the pasture in the spring. I was down to the Bond place while he was staying there. I saw him and Mrs. Bond riding tqgether a couple of years ago, but in the daytime. They came to my house at Fleetwood one time. They just stayed a few minutes. It was along in the middle of the evening. I don’t know where they went from my place, nor do I know where they had been when they came. Mrs. Bond came down there with another lady with her, and Mr. Burns to get some pasture for some cattle. They were horseback, and I am not sure but what Mrs. Bond’s daughter was along, too.”

W. H. Musick:

“I live on Mrs. Bond’s place, and have lived there since January, and live there now. I live in about a mile of her house. Curtis Ramsey and his wife were living there when I moved there. I think the defendant Burns had his cattle there in the stalk field at that time, too. Mrs. Bond was there when Ramsey moved there, and her brother cams there shortly after, and stayed there. He came there in about a week after Ramsey moved there. Mrs,. Bond stayed during that week at my house. After her brother came she stayed there a good while, and then went away, and her brother was there while she was gone. I have been acquainted with Mrs. Bond personally for about a year, and with Burns not quite so long. I don’t remember exactly when Ramsey moved to her place, but I know where her girls were when she was stopping at my house. Burns’ cattle were on the place while I was there, and stayed there until about planting time. I hacl never been to any other pasture that they took these cattle to. Burns and I are on good terms. I know nothing about the conduct of these defendants. When they would come to see me they would be there about farming. As I said, Mrs. Bond stayed at my house every night for a week, and my place is about a mile from hers. The defendants would come to my house to see about working the land and other business, and would come when I was in the field at work plowing her land and working it. They were trying to make a division of land so as to accommodate all of Mrs. Bond’s renters, and Burns was having nothing to do with it. I had bought some teams from him on a credit, and the teams were there on Mrs. Bond’s place, and I am still there. When the two defendants would come to see me together, Mrs. Bond did the talking.”

Mrs. Lula Bond:

“I live about 3% miles from Terral, where I have been living for the last 16 years. I have been engaged in the business of farming and stockraising, and I have always looked after this business during the 16 years we have lived there. I know witness Towel. He lived on our place. I used to have Mr. Hopejoy and Mr. Towel and Mr. Burns there, and we saved a good many hogs to breed, and have had to have somebody to help alter them, and I always had somebody to help me mark and brand the cattle, and to attend to them in the pasture. At first when we didn’t have so many cattle we kept them on the pasture at our home place, and after that I had to rent pasture and rented from anybody I could get one from. I used to rent from Mr. Clark down in the bottoms, and then I rented from Mr. Burns, and from Mr. Trout, and from just anybody I could. When the cattle were down on these pastures they were 3 or 4 miles away from home, and sometimes 15 or 16 miles away; and I would get anybody to help me look after them I could. I would go to see them myself, and would get anybody to go with me-that I could get. I got Mr. Burns to go with me, and I got Mr. Towel and Mr. Hópejoy, and Hugh Barber, and Earl Barber, and any of the cow hands, and I would get my girls to help me when they were at home, but they were gone to boarding school a part of the time, and when they were at home they always helped me. I have checks showing I paid Mr. Burns for' helping me among my hogs as far back as 1908. He would brand the cattle, and dehorn them, and fix the fence and make the chute and load the hógs, and ship them out. I went with him the other side of Fleetwood, for I had cattle down there. Judge Bond most always rented the pasture for me, and a good deal of time Mr. Burns would assist me. I never went to the pasture but one time with nobody along but Mr. Burns, and Judge Bond-knew- everything we did-. The first time he talked to me about it he wanted to sell and go to Oklahoma City; but after that when he didn’t get elected to office, and I was unwilling to go because I did not see how we could make a living, and then it was our trouble began. The first time he brought up Burns to me was when I got to talking about getting a divorce, and then we talked about dividing the land, and we did divide it, and agreed on the division of the land. One of us took one girl to educate and the other took the'othér,’ and the one he left with me was 14' years old at the time. There was 160 acres of land deeded to me on the division and that was -about 2 years ago. I didn’t have anybody living with me after we separated except my daughter Marie, who was then 14 or 15 years old, and a negro man and his wife, and when the girl came from school she'was taken away from me; then my brother came to live with me. Last fall I stayed in Texas a good deal, and rented my place to Ramsey, and I stayed over there with him until the weather got cold; then I came home to stay. My brother is living there yet. .1 rented him 60 acres of land and gave hipa part of. the house to live in. I had sent for him to coime froha Colorado Springs, and he got there within 5 days after Ramsey had moved away. At the time I slept up at Mrs. Mustek's. I was at home all day. There was never any improper relations between me and Mr. Burns.- After Mr. Ramsey had moved to* my place and the weather got cold, I stayed over across the river in Texas with a renter, a man and his wife with two children. I kept two rooms at Mr. Ramsey’s. Mr. Burns did not stay there until after he put his cattle in the pasture, and he was there quite often then. After my brother came there, I went away and stayed away until the 15th of January. My brother has gone now temporarily. I and Judge Bond lived down there about 16 years. I always managed everything about home, and he would do the financiering; he . is not a farmer. Mr. Burns, Judge Bond, and I were all on good terms then, and the Judge would send him out to look after the stock while he himself would go to town. I and the Judge took a trip East to see the President inaugurated, and I came back in April, and he didn’t come back until May in order to see our daughter graduate. I wrote him letters back there telling him to stay there, insisting on him staying, but I don’t know that Mr. Burns helped me during his absence, nor do I have any recollection of my husband coming to me and telling me of the neighborhood talk of me and Mr. Burns riding around together; I have no recollection of that, and if it had happened I would have remembered. He did protest about me riding around with Ellison Burns after he wanted to divide the land. After he had protested I rode around with Burns only when I had business. I got other people to help me also. If some one else could have got the work done besides Mr. Burns, or, if I could have done so, I didn’t do it. After the Judge had tepoken to me about Burns, and wanted to divide the land, he himself employed Burns to look after the stock. I don’t know that Judge Bond quit me altogether on account of Burns. It is true that we had a trial over the possession and custody. over our daughter Sweet, and we tried it before the county court; then the case was appealed to the district court. And it is true that after he had protested to me about Burns that I rented him the stalk field, but I did it at the Judge’s suggestion; after he had protested to me about riding around with Burns he told me to rent that stalk field to him. George Trout had been to see me about the field, and the Judge said he had no objection to me renting it to Burns. I don’t know that the relations between me. and Burns was the talk of the neighborhood. I rented a part of my land to his brother-in-law, and I did it so as to have somebody there with me. I thought it was in my favor to have Burns’ sister there, and his kinfolks, and I had my brother there. After Burns’ brother-in-law moved there Burns came and had a place to sleep while there, and the room he slept in goes out in the yard, and joins the little room that I reserved for myself. I was not there the time the boy came hunting the mule. I was not there when one of Burns’ friends came and brushed Burns’ coat for him, nor did I ever go to Burns when he was drunk, nor was I ever in the pasture with him when we were alone, but one time, and that was 5 or 6 years ago, or several years ago when we first rented the pasture. Witness Cochran never saw me off of my horse at any place in his life. I was not with Mr. Burns the day Edwards says he saw us. Mr. Burns had two daughters of his own, and he rode around with a good many women. I myself have been all over the country with him, at every place where I had any cattle or stock, but there was always somebody else with us. I was not with him at Nocona, Tex. I was with him in the restaurant testified about by witness McKinley. If I ever had any occasion to go across the river into Texas with Ellison Burns, I did so. - I didn’t know the county attorney nor the deputy sheriff in Montague county, and they never saw me with Ellison Burns. I didn’t know that I had been indicted in this case until my brother wrote me about it, and Mr. and Mrs. Ramsey had told me there was nothing to it. I don’t know whether I left when the grand jury were in session or not. I never was arrested. Judge Womack sent me a blank, and I sent it to my brother and got it filled out, and came here with it to the clerk. Mr. Womack was the attorney that represented me. Mr. Bond deeded me 480 acres of land and kept 540 himself. The time they say I was at Nocona, Tex., was 2 or 3 years ago, and what.I said before was that I didn’t remember the incident. After that I recalled it. I did write to Judge Bond while he was in Maryland. He had insisted on going for so long, and we could not afford for him to make the trip; we made the sacrifice for him to make the trip, and he wanted to stay one year, and he hadn’t seen his relatives for 25 years, and after he had gone there he decided he wanted to come back and see Huse graduate, and I thought it would bé better for him to stay; it had cost him so much to go, and I wrote and told him that. I wanted him to stay there and enjoy his visit and enjoy himself. George Trout came with Judge Bond to me about renting the land to Ellison Burns last fall. When Ramsey first moved to the place, I boarded with him awhile. After Burns came I had a gasoline stove and a kitchenette, and I cooked for myself, and I had so many canned things and meats that I thought I ought to eat them. BurriSj and I certainly did not live together.”

C. M. Bond, recalled, for the state;

“After wife and I had separated, and prior to the time she rented this land to Bums, I knew only what she herself told me. I never was there with George Trout. She told me about her pasture when I went out there, and said a man had offered her $100 rent for it. I asked if she was going to let Burns have it, and she said ‘No.’ After Burns’ cattle had been in there I talked to her about it again, and she said she couldn’t help it that she never got a cent for the use of that pasture from Burns, and that she had already refused $100 rent for it from Mr. Majors. After our trouble I never employed Burns to look after my interest there. I never spoke to him, and he and she both know it.”

The evidence in effect shows that the defendants were seen riding together on numerous occasions, both before and after the Bonds separated; that they made frequent visits to the stock pastures of Mrs. Bond in the daytime, sometimes by themselves and sometimes accompanied by others; that on one or two occasions they were seen riding' horseback together after night, going in the direction of Mrs. Blond’s home; that after Mrs. Bond and her husband separated, and after Mr. and Mrs. Ramsey had moved into a part of Mrs. Bond’s house, the defendant Burns also moved there and roomed and boarded with the Ramseys, while renting and using a stalk field on that place; that the rooms occupied by the two defendants, while not immediately connected by inside doors, could be entered one from the other by means of outside doors to each. There is an entire absence of evidence from any one of ever seeing these defendants in a compromising position, or of ever hearing the use of any endearing expressions by one toward the other. The evidence is also uncontradicted that while the defendants were living in the house with the Ramseys no lewd or lascivious conduct on the part of either of them was noticed by any one. Mrs. Bond specifically denies that any adulterous relation ever existed between Bums and her. There is no evidence whatever that these parties openly cohabited together as though the conjugal relation existed between them. At most, there is only a collection of circumstances (shown from which the jury could have legitimately inferred that the defendants on several occasions had clandestinely engaged in acts of sexual intercourse. Had the state relied upon a specific act of adultery, and had there been a conviction of adultery alone, and not “living in open and notorious adultery,” the conviction could have been sustained, but that is not this case.

The prosecution, from its inception to the rendition of the judgment, was for “living in open and notorious adultery.” This court is bound by the record before us, and, applying the law to the facts of this case, the conclusion is reached that the evidence wholly fails to support a conviction of “living together in open and notorious adultery” within the meaning of our statute, as construed'in the cases above cited.

For the reason that the judgments are not supported by evidence sufficient to establish the material ingredients of the crime of “living together in open and notorious adultery,” the same are reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, P. J.. and ARMSTRONG, J.,. concur.