text:
    C. J. FESSLER v. STATE
    No. A-2343.
    Opinion Filed November 25, 1916.
    (160 Pac. 1129.)
    1. ' POWER OF LEGISLATURE. The Legislature in creating an ofíense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce a certain defined or described result.
    2. LEWDNESS — Criminal Prosecution — Information. An information, based on section 2793, Rev. Laws, which provides that any person who wilfully and wrongfully commits any act which grossly disturbs the public peace, or which openly outrages public decency and is injurious to public morals is guilty of a misdemeanor, and which charges that the defendant, a married man, and well known to1 the general public as being a married man, did lasciviously associate in public and private with an unmarried female, about eighteen years of age, and did openly and publicly go with and accompany the said female on and about the streets and other public places in such a manner and under such conditions as to be injurious to public decency and public morals, and that he did then and there openly and publicly go with and accompany said • female to certain rooms and did lock himself in said rooms with the said female for the purpose of committing lascivious, lewd, immoral and indeeent acts, all of said open, public and notorious conduct and acts of the said defendant with and toward the said female did then and there grossly disturb the public peace, openly outrage public decency and injure public morals, is sufficient to charge an offense under the statute.

      Appeal from the Couty Court of Clister County J. C. McKnight, Judge.

    C. J. Fessler, convicted of a misdemeanor, and appeals.
    Affirmed.

      A. J. Welch, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted of a violation of Sec. 2793 Rev. Laws, which is as follows:

“Any person who wilfully and. wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor.”

The jury failed to fix the punishment, he was adjudged to pay a fine of one hundred dollars, and he appeals.

The information after alleging time and venue charged that he: '

—“openly, wilfully, wrongfully and unlawfully committed acts, in the presence of and among divers and sundry persons in said county and state, which did then and there grossly disturb the public peace, openly outraged public decency and injure public morals in the manner and form as follows, to-wit: The said C. J. Fessler, being a married man residing with his family in said county and state, and well known to the general public as being a married man and¡ a man with a family, did then and there meet and lasciviously associate, in public and private, with one Floy Atkins, an unmarried female about eighteen years of age and not the wife of the said C. J. Fessler; and did then and there openly and publicly go with and accompany the said Floy Atkins on and about the streets of the City of Clinton, Oklahoma,' and other public places, in such a manner-.and under such conditions, aforesaid, as to be injurious to public peace, public decency and public morals; and did then and there openly and publicly go with and accompany the said Floy Atkins to certain rooms in the First State Bank Building and in the Thurmond Building, both in the said City of Clinton, and did then and there openly and publicly, in the presence and hearing of divers and sundry persons, lock himself in said rooms together with the said Floy Atkins for the purposes of committing lascivious, lewd, immoral and indecent acts and prostitution; all of said open, public and notorious acts and conduct of the said C. J. Fessler, with and toward the said Floy Atkins did then and there grossly disturb the public peace, openly outrage public decency and injure public morals, as aforesaid, contrary to” etc.

A demurrer was interposed to this information on the ground that the facts stated do' not constitute a public offense.

The first assignment of error is based on the action of the court in overruling said demurrer.

Obviously the information is subject to criticism' for re-dundance and unnecessary repetition, but the facts stated are clearly sufficient to charge a violation of the provision of the penal code above quoted.

Our code of criminal procedure provides that no information is insufficient by reason of a! defect or imperfection in matter or form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (Sec. 5747 Rev. Laws.)

The only other contention that we deem worthy of notice is that the evidence is insufficient to sustain the verdict.

The facts, which the testimony of numerous witnesses tended to show, were that the defendant, a married man, living with his family, consisting of his wife and one child in the town of Clinton, and Floy Adkins, a girl seventeen years old who lived with her parents in the town of Clinton, were often together, automobile riding in and around the town of Clinton; that the father of the girl while looking for her found her riding with the defendant in his automobile about ten o’clock at night.

Miss Floy Adkins testified that she went riding with the defendant in his “auto”; that the defendant made her a present of a bracelet some two weeks before his arrest, which had her name “Floy” engraved on it; that she was in the defendant’s room with him when the deputy sheriff and others attempted to enter the room; that she did no know that the door was locked; that she went there to look at some pictures and to tell him that her father did not want her to go with him; that the defendant never made love to her and that his conduct toward her was not improper.

Tom Polk testified that he had a room rented in both buildings and that the defendant occupied these rooms with him; and paid half the rent; that witness used the rooms to sleep in; that he saw the defendant with Floy Adkins in their room in the Thurman Building; that he had seen the defendant and this girl out together at other places in both town and country, yet he never saw anything improper in theii; conduct.

The defendant as a witness on his own behalf testified that he is a real estate agent in the town of Clinton; that he occupied a room in the State Bank Building and' previously to that a room in the Thurman Building; that he and Tom Polk occupied the •same rooms and divided the rents between them; that he was at each of these rooms when they were visited by Miss Floy Adkins; that she telephoned to him in the Thurman Building that she wanted to see him about some pictures, and another time she telephoned to him that she had something to tell him,'and he told her to go to his office and he would come; that the office was used by Tom Polk as a sleeping room, but the furniture belongs to him and he pays .half of the rent; that this girl was in the room with him when the deputy sheriff and others demanded that he open the door. He admitted that he had often taken Miss Adkins riding in his automobile and that he bought her the bracelet and had it engraved and this after he had learned of her father’s objections to his conduct with her. He denied that there was anything improper in their relations.

Thus it appeai-s that this is a case in which the essential and controllings facts are without dispute..

In the case of Stewart v. State, 4th Okla. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, this court having under consideration the question of the validity of this provision of the penal code, held that the legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce a certain defined or described result, and that this statute is not void for uncertainty as to what acts the legislature thereby intended to penalize.

We think the common sense of the community as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it. That the conduct of which the defendant stands charged and convicted is rendered criminal by this' statute is so indubitably indicated by both common sense and common morality as to make any argument in support of such conclusion wholly superfluous.

Having carefully examined the record in this case and finding no material error the conviction and judgment is affirmed.

ARMSTRONG AND BRETT, J. J., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    E. W. SHANNON V. STATE OF OKLAHOMA.
    No. A-2114.
    Opinion Filed November 28, 1916.
    (160 Pac. 1131.)
    1. EMBEZZLEMENT — Trial — Direction of Verdict — Sufficiency of Evidence. When the evidence introduced upon the trial of a person indicted or informed against for crime, fails to disclose the commission of a public offense, the court should advise the jury to return a verdict of not guilty, for the reason that a verdict of guilty-would be contrary to both the law and the-evidence.
    2. EMBEZZLEMENT — Elements of Offense — Fraudulent Conversion. A fraudulent conversion is an essential element of the crime of embezzlement.

      Appeal from the District Court of Grady County Hon. Frank M. Bailey, Judge.

    E. W. Shannon was convicted of embezzlement and appeals.
    Reversed.

      F. E. Riddle and C. F. Dyer, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for defendant in error.
   ARMSTRONG, J.

The plaintiff in error, E. W. Shannon, was convicted at the January, 1913, term of the district court of Grady County, on a charge of embezzlement, and his punishment fixed by judgment of the court at imprisonment in the state penitentiary for one year and one day. From the judgment of conviction in the trial court, the plaintiff in error prosecutes this appeal, and the principal ground upon which he relies for a reversal is that the verdict of the jury is contrary to law and to the evidence.

It appears that a corporation known as the Southwestern Wholesale Grocery Company, was organized at Chickasha, in 1908; that the plaintiff in error invested $5,000.00 in the capital stock; Henry Oberstein $5,000.00; H. B. Spencer $2,000.00; R. L. Richards $1,000.00; C. M. Hollingsworth $2,000.00 and J. B. Harper $5,000.00. Harper was elected president and had charge of the management of the business. Plaintiff in error, Shannon, was elected secretary and treasurer and was also one of the active officers of the corporation.

At the beginning of business in October, 1908, certain of the officers and directors opened accounts between themselves and the corporation, among them the plaintiff in error. All of the merchandise and money drawn from the corporation by the plaintiff in error was charged to his account at the time the same was drawn. The salaries were credited to the respective accounts of those drawing them from time to time as the same became due.

It appears that the plaintiff in error drew the checks for the payment of all bills and accounts. The account between the corporation and the plaintiff in error was carried from the day the business was opened until it was closed, a period of three or four years. There is no irregularity in the account and no contention, so far as we can discern from the evidence, that any sum of money or any merchandise was ever taken from the corporation by the plaintiff in error, except such items as were charged to his account at the time taken.

When the business was finally dissolved, J. B. -Harper was appointed trustee to wind up its affairs. At the rime of the appointment of the trustee, the plaintiff in error was indebted to the corporation in a sum amounting to about $1,200.00. Harper, as trustee, took the note of the plaintiff in error in settlement of his account. The trustee was appointed the latter part of 1910 or the first part of 1911. In December, 1911, the trustee, Harper, died, and H. B. Spencer was appointed to succeed him. Spencer and Shannon were unfriendly. It appears that Shannon had participated in a meeting of the Board of Directors that ousted Spencer from the directorate.

During the year 1912, Spencer, Hollingsworth, and Richards, all of whom were original stockholders in the corporation, appeared before the grand jury and sought to have the plaintiff in error indicted, but the grand jury refused to indict him. About the same time, the county attorney of Grady County was consulted by these witnesses with the view of prosecuting the plaintiff in error. The county attorney refused to prosecute the plaintiff in error at the public expense. Later, however, the prosecution was instituted:

A short time prior to the dissolution of the business, the plaintiff in error, who had been connected with the same since it started, was ousted as manager and treasurer, and C. M. Hollings-worth, one of the prosecuting witnesses, was substituted in his stead. The plaintiff in error was continued as bookkeeper.

A review of the record impels one to the conclusion that this prosecution was resorted to solely for the -reason that the plaintiff in error failed to pay the $1,200.00 note due the corporation. At all times the books of the corporation showed the status of its affairs. The directors at all times knew, or should have known — it was their duty to know — the existence of its relationship between its customers and itself. The testimony given by the prosecuting witnesses indicates clearly that there was no effort on the part of the plaintiff in error at any time to mislead the Board of Directors or any officer or stockholder as to the facts, and neither of the prosecuting witnesses' pointed out a single transaction in his testimony which indicated that plaintiff in error, Shannon, was endeavoring to fraudulently appropriate the assets of the company to his own use and benefit. In fact, there is a total absence of the fraudulent intent required under the law to constitute the crime of embezzlement. The relation was clearly that of debtor and creditor. Extracts from, the testimony of the prosecuting witnesses clearly indicate that fact to our minds.

Witness Spencer, among other things, testified as follows:

“Q. What position have you held with the corporation yourself? A. Director. Q. What is your official position at this time ? A. I was appointed trustee to wind up the business, after Mr. Harper’s death. Q. What position do you hold at this time? A. Trustee, appointed by the court. Q. What was Mr. Hollings-worth’s position with that corporation when he went in? A. We put him in there as manager and to oversee it. Q. Was this defendant employed there at that time? A. Yes, sir, he was. Q. At the time Mr. Hollingsworth went in as manager of the concern, from then on what was this defendant’s position there ? A. Bookkeeper. Q. At the time Mr. Hollingsworth went in there as manager were you a stockholder and director of that corporation? A. Yes, sir. Q. At that time, I will ask you-if this defendant, Er W. Shannon, as secretary and treasurer of that corporation, made a financial statement of that corporation to the Board of Directors ?. A. He did. Q. In which it showed the liabilities and the assets of the corporation? A. He did. Q. Mr. Spencer, have you any other record that shows a statement about that time to that corporation? A. I have a note in my possession given to J. B. Harper for $1,200.00. I don’t know what it was given for. Q. Where did you get that note? A. I found it in the papers I got from Mr. Harper. Q. Have you ever presented that note for payment? A. Yes, sir, I went to Oklahoma City to see Mr. Shannon about it and he said he could not pay anything on it. Q. At that time state whether or not he admitted or denied the execution of that note? A. He did not deny it, he just said he could not pay it. Q. How many times have you seen him on those occassions? A. I went there on but one occassion, may be twice. Q. Have you any other record which shows his standing with that corporation? A. There is a trial balance there he got off. Q. Who made it out? A. Mr. Shannon did, I suppose. He is the only one who had charge of the books. Q. Where did you get it? A. In the papers I got from Mr. Harper after his death. Q. Does that statement show- any indebtedness of this defendant, E. W. Shannon, to the Southwestern Wholesale Grocery Company? A. Yes, sir, an indebtedness of $1,200.00. Q. And Mr. Shannon got that up? A. Yes, sir, and there is a line drawn through it and says ‘note’. G. And when did you get it? A. After I was appointed trustee. Q. Mr. Spencer, have you any other statement here which shows his standing with that corporation about that time? A. At different times down to that date I have. Q. State to the court and jury whether or not the one you have identified here as being his standing with the corporation was the last statement he ever rendered the corporation. A. Yes, sir. Q. Whose handwriting was that kept in? A. In Mr. Shannon’s handwriting. Q. Has that amount of $1,200.00 as shown by that note and as shown by the books here ever been paid to the company by this defendant? A. No, sir, it has not. Q. It is outstanding? A. Yes, sir. Q. Who composed the board of directors at that time? A. Mr. Shannon, Mr. Ober-stein, Mr. Harper, Mr. Richards, Mr. Smith and myself. Q. What kind of an official position did Mr. Harper have with that corporation? A. President. Q. What were his duties. A. To kinder oversee things and take charge of it? Q. And to run the business? A. Yes, sir, it would have been his duty if he had attended to it. Q. He is dead now? A. Yes, sir. Q. You did not tell him when he was alive that he did' not attend to it? A. No, sir, he was a good old man. Q. And this note was given for this account? A. I suppose so. Q. You testified before the Justice of the Peace that it was?- A. I suppose so, and Mr. Shannon did not deny it. -Q. The record shows it was closed by a note? A. Yes, sir. Q. It is payable one year after date, with interest at eight per cent? A. Yes, sir. Q. Did you go to see Mr. Shannon before this note was due? A. I asked him about it several times before he left town, and I went to Oklahoma City to see him. Q. You did present it to him when it was due? A. Yes, sir, after it was due. Q. And he said he was not able to pay it? A. Yes, sir. Q. When was Mr. Shannon employed down there? A. At the beginning of business in 1908. Q. The books show that he opened up an account there with himself? A. I don’t know. Q. You say you are trustee and have not examined that account? A. I examined the last part of it. Q. You have not looked over the account? A. Yes, sir. Q. When did it begin? A. I can look at the book and see; I have looked at the tail end of the account. Q. Did Mr. Harper owe the company? A. He did, and he paid it. Q. And the board of directors knew that? A. Not until all this came up; we knew it all at the same time. Q. You' and the'board of directors had considerable trouble at one time? A. A little. Q. Didn’t Mr. Shannon and Mr. Harper and Mr. Oberstein put you off the board of directors at one time? A. Yes, sir, and turned and elected me back. Q. Who was at the meeting’ when they voted you off? A. All of the directors, I think. Q. Who? A. Mr. Shannon, Mr. Oberstein, Mr. Harper, Mr. Smith and Mr. Holl-ingsworth. ***** if Mr. Shannon had paid that note you would not have had him arrested, would you? A. So far as I am concerned, I don t suppose I would have had anything to do with it, so far as I am concerned. Q. You would not have tried to have him arrested ? A. I would not have sworn out the complaint against him unless I had to. Q. Isn’t it a fact that what actuated you to swear out this complaint was that he did not pay the note ? A. If he had paid the note when it was due, I would not have sworn out a warrant for him. Q. The fact that he did not pay it was the matter that actuated you in swearing out the complaint? A. Yes. Q. I will ask you if since this case has been set for trial this term of court, if you have not made efforts to have this mater settled through Ed Johns? A. No, sir, Mr. Johns took that up himself; I told Mr. Johns I thought it could be settled. Q. Didn’t you ask him last Saturday? A. I called him up and asked what Mr. Shannon had done. Q. Assuming that Mr. Shannon’s account started when this business started, it was a regular and continuous account until the business closed. A. I think so. Q. All the money drawn was charged to his open account, regularly, so far as you know? A. Yes, sir, so far as I know. Q. You don’t know of a dollar that he took that he did not charge to his account. A. His books are all I have to go by. Q. The books do not show any? A. No, sir. Q. And he is credited on that account with all the salary due him? A. Yes, sir. Q. And that account run for a period of something like two and one-half or three years? A. Yes, sir, about three years. Q. And at the end of that account he owed the corporation $1,200.00? A. Yes, sir. Q. And it was settled by this note; that is correct, is it? A. I suppose so. Q. And you have not found anything irregular in this account, or any one else, have you? A. No, sir. Q. I will ask you if Hr. Harper, as chief executive officer of the corporation, he had the general management of the corporation? A. Yes, sir. Q. Do you know anything about what authority he gave any of the officers con-ntcted with the corporation? A. No, sir, I do not.”

Witness Hollingsworth, among other things, testified as follows :

“Q. What position did you occupy? A. Stockholder. Q. Any other position? A. Director. Q. When were you elected director? A. At the first meeting after the charter. Q. When was that? A. In August, 1908. Q. How long did you continue to be a stockholder of that corporation? A. As long as it existed. Q. During the life of that corporation, from the time that it was organized up to just before it was dissolved, what connection did the defendant here, E. W. Shannon, have' with that corporation? A. Director and secretary and treasurer' from the beginning up to January or February, 1911, and after that time he was just the bookkeeper there. Q. Who was manager from then on? A. I had charge of the business from February the first until tire business was closed up. Q. When did you take charge of the corporation? A. February 1st or 2nd,1911. O. Was there a meeting of the stockholders or directors just prior to that time? A. Yes, sir, directors and stockholders too-. Q. State if at this meeting this defendant, E. W. Shannon, rendered a financial, statement of the condition of the corporation to that meeting? A. Yes, sir, to the stockholders. Q. Did he render any statement which showed the personal liability of persons to the corporation? A. At that meeting, I think the statement rendered to the stockholders’ meeting was .the bulk and not an itemized statement of.each one’s account; but just after that I got a statement from him, he gave me a statement and itemized list of .parties who owed the corporation. Q. Do you know where that statement is now? A. No, sir. Q. Have you ever delivered that statement to any one else? A. I delivered the statement to Mr. Westheimer, and we went over it. Q. Did you get it back in your possession? A. Yes, sir, I think I did; I may not have. Q. Do you remember what' that statement showed, if it did show the financial condition of Mr. Shannon, with the corporation at this and state what it is? A. Itemized statement of accounts at the close of the business when Mr. Harper was made trustee. Q. Were you at that time connected with that business? A. Yes, sir. Q. As manager? A. Yes, sir. Q. Do you now who prepared that? -A. Mr. Shannon prepared this. ^Q. What was he that time? A. Yes, sir, it showed Mr. Shannon owed something doing at that time?. A. Bookkeeper. Q. Examine; this page of the record and see if it shows the condition of E'. W. Shannon’s account relative to the Southwestern Wholesale Grocery Company at the time that statement was made? A. Yes, sir. Q. What does it show it to be? A. $1,200.00.”

Witness Richards, among other things, testified:

“Q. How much stock did Mr. Shannon have? A. $5,000.00, I think. Q. Paid that much in cash? A. I think so. Q. Mr. Shannon lost all his $5,000.00? A. I think so.”
The plaintiff in error, among other things, testified: over $1,200.00; funds taken out by Mr. Shannon. Q. Examine
“Q. Was Mr. Spencer put off the Board of Directors? A. Yes, sir, he was put off at the meeting in January and stayed off until sometime in February, when they appointed the new directors. Q. Under whom did you act? A. I acted as manager under the President; the manager was appointed by the officers of the company. Q. Did you at any meeting' of the Board of Directors ever try to conceal anything from anyone relative to your account? A. No, sir. Q Was there ever a dollar not charged up against you on your account? A. Just as they occur each day. Q. Tell the jury if you gave yourself credit there for one cent you were not entitled to? A. No, sir. Q. Did you try to charge up to yourself one cent you did not believe you were entitled to ? A. No, sir. Q. Was anything drawn from the company that is not charged on that account? A. No, sir. Q. Tell the jury if Mr. Harper knew the condition of your account during the time the business was running? A. Yes, sir, every month the sale ledger and personal ledger was gone over, taken off and handed to the credit department each month, that was Mr. Ober-stein and Mr. Harper, every month. Q. Did that include your account? A. Yes, sir. Q. And they were open to the Board of Directors at all times? A. Yes, sir. , Q. This is your signature, to State’s Exhibit ‘3’? A. Yes, sir, I signed that note. Q. At whose request did you give that note? A. At the request of Mr. Harper. Q. Did Mr. Spencer come to Oklahoma City to see you about that note? A.Yes, sir. Q. Could you have paid him at that time? A. No, sir. Q. What did you tell him? A. I told him I was not in a position to pay it. Q. What became of your $5,000.00 and the $500.00 dividend you put into the business? (Objected to and sustained.) Q. Did you, in drawing your salary, draw it at the end of the month ? A. Just as I needed it. Q. Just as it is charged on your account? A. Yes, sir. Q. You say there was a credit of $500.00 on your account at the beginning? A. No. sir, that is an error; it was a charge against my account, but that was later paid and on the 30thf of October, 1908, my account was balanced. Q. The account discloses every dollar that you ever drew from the company? A. Yes, sir.”

The foregoing is a substantial statement of the evidence and it appears therefrom that there is no material dispute as to the main facts.

The conclusion which we have reached, that the relation between the Southwestern Wholesale Grocery Company and the plaintiff in error was that of debtor and creditor, is not based upon the fact that the plaintiff in error failed to deny the debt or that he admitted owing it and executed the note in payment of same. This conclusion is based upon the facts and circumstances surrounding the entire transaction from the organization of the corporation until it was closed. The fact that all the transactions were within the knowledge of the officers and directors of the corporation and that the account was run and kept in the regular course of business just as any other account, without any fact or circumstance from which the least inference of' criminal intent could be deducted indicates clearly that no criminal conversion occurred.

A fraudulent conversion is an essential element of the crime of embezzlement. See Blake v. State, 12 Okla. Crim.-, 160 Pac. 30, and authorities therein cited and quoted.

The proof having failed to disclose'the commission of a public offense, from any reasonable view thereof, it follows that the court should have sustained the motion on the part of the plaintiff in error to advise the jury to return a verdict of not guilty. In our opinion the verdict is both contrary to the law and the evidence.

The judgment is therefore reversed and the cause remanded with directions to dismiss.

Mandate ordered forthwith.

DOYLE, P. J. and BRETT, J., concur.


author: DOYLE, P. J.

text:
    E. R. UPTON v. STATE.
    No. A-2647.
    Opinion Filed November 25, 1916.
    (160 Pac. 1134.)
    1. EVIDENCE — Character of Defendant. Thel state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character.
    2. WITNESSES — Impeachment—Admissibility of Evidence — Character of Witness. Where the purpose of testimony is to impeach a witness for want of truth and veracity, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose.

      Appeal from the County Court of Garvin County; W. R. Wallace, Judge.

    E. R. Upton, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      Henry M. Carr, for Plaintiff in Error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had in the county court of Garvin county, in which plaintiff in error was found guilty of selling whisky to one W. D. Digby, and his punishment assessed at thirty days’ confinement in the county jail and a fine of fifty dollars.

The errors assigned are that the court erred in permitting the state to introduce testimony to impeach the credibility of the defendant as a witness by permitting witnesses for the state to testify that the general reputation of the defendant was that of a bootlegger, and in giving the following instruction:

“Gentlemen of the Jury, the State in this cause has introduced testimony as to the general reputation of the defendant being a bootlegger. Such testimony, you are instructed, is admissible not for the purpose of proving him guilty of the specific offense charged in this case by the information, but for the sole purpose of affecting his credibility as a witness. Excepted to by defendant; exceptions allowed. W. R~. Wallace, County Judge.”

When the case was called for final submission the attorney general filed the following confession of error:

“E. R. Upton, plaintiff in error here and defendant below was informed against for selling whisky in the county court of Garvin county. He was tried and convicted. During the trial the state offered evidence as to his reputation in the community in which he lived as a bootlegger by two witnesses. One of the' witnesses, indicated but never directly made an answer. The other said that his reputation in that line was bad. There were but two other witnesses in the case and their testimony went to the facts; and one of these witnesses was defendant and the. other was the deputy sheriff who had informed against him.

The court in his charge instructed the jury on the question of going into the reputation of a bootlegger, and under the facts in the case we think it was very material, and was or might have been the cause of the defendant’s conviction.

This court has recently said in Kirk v. State, 11 Okla. Cr. 203, 145 Pac. 307, that you cannot go into a man’s character or reputation as a bootlegger; it also says the same thing in Proctor v. State, 8th. Okla. Cr. 537, 129 Pac. 77. But it laid down the doctrine in Wilkinson v. State, 9th Okla. Cr. 622, 132 Pac, 1120, which is as follows:

‘Where the court says — the reason and philosophy of the law underlying the principle stated in the above cases, is that the character of the house is an element of the offense committed, for it is the advertisement of the owner, and assists him in committing the offense and is a source of revenue to him and the offense is continuous. But where a person is charged with an offense which is based upon one specific transaction, the question of character does not become an element of the offense, and therefore the general reputation of the defendant in such case is not admissible. This is the line of demarkation in which reputa- • tion is admissible and is not admissible.’

It is likely that the able judge who gave this instruction and permitted this testimony had in his mind the following cases:

Hendrix v. State, 4th Okla. Cr. 611, 113 Pac. 244;

Anderson v. State, 7th Okla. Cr. 493, 124 Pac. 86;

Crawford v. Ferguson, 5th Okla. Cr. 378, 115 Pac. 278, 45 L. R. A. (N. S.), 519.

These cases say that you may inquire of a man if he is not a bootlegger, and there’ they stop; they do not go into it, his general reputation on the subject.

To do this in-the language of Bishop (New Crim. Pro. 2-1112):

‘Bad character is never admissible in evidence against a defendant as ground for presuming guilt. This doctrine is absolute; thus, the evidence of stealing a horse cannot be reinforced by showing that the defendant is an associate of horse thieves.'

• In the instant case the father and son were informed against for selling the same bottle of whisky. The son owned up and was fined, we presume; at least he plead guilty, and the defendant in the instant case is the father. We state this as one of the facts of the case and believe that the old man is technically guilty, but under the holdings of this court as cited above, we think there was error committed at the tria1 Most respectfully submitted.’"’

Upon a careful review of the record it is the opinion of the court that the confession of error is well taken and should be sustained. The judgment appealed from is therefore reversed..


text:
    Ex Parte WILLS.
    No. A-1835.
    Opinion Filed June 5, 1915.
    (148 Pac. 1069.)
    1. HABEAS CORPUS — Petition—Denial of Writ. Where the facts stated in the petition for a writ of habeas corpus, if established, will not warrant the discharge of the petitioner, the writ will be denied.
    2. SAME — Jurisdiction—Included Offense — Instruction. The offense set forth in the information is the one which fixes the jurisdiction of the court, and the court has jurisdiction over any included offense. It is the court’s duty to submit an included offense, when any phase of the testimony warrants, and especially so upon request of counsel.
    Application of George Wills for writ of habeas corpus.
    Writ denied.

      H. A. Johnson, of Perry, for petitioner.

      The Attorney General, opposed.
   ARMSTRONG, J.

This was an application to this court for a writ of habeas corpus, which, omittjng title and verification, is as follows:

“Your petitioner, George Wills, states to the honorable court and represents that he is restrained of his liberty and is unlawfully imprisoned at Perry, Noble county, State of Oklahoma, by one John R. McGehee. The cause of said restraint is that your petitioner was tried in the district court of Noble county, State of Oklahoma, for a felony on an information, a true copy of which is attached hereto and made a part hereof and marked 'Exhibit A,’ and the jury before whom said cause was tried returned their verdict of guilty of an assault, a true copy of said verdict is attached hereto and made a part hereof and marked ‘Exhibit B/ and that on the_day of September the district court rendered its judgment upon said verdict sentencing your petitioner to serve 30 days in the county jail of Noble county, State of Oklahoma, and to pay a fine of $50.00, a copy of which is hereto attached, marked ‘Exhibit C.’ But your petitioner alleges that said restraint is illegal and unauthorized, because said court has no jurisdiction to try misdemeanor cases, and that the act under which your petitioner was convicted has been repealed by implication by the Constitution of the State of Oklahoma, Art. ?, Section 12, wherein exclusive jurisdiction, in misdemeanor cases, is conferred upon county courts, and the section of the statute under which your petitioner was charged and found guilty provides for the trial and punishment of misdemeanors as well as felonies, and the same is therefore repugnant tO' the said Constitution and is void; said section being section 233? of Snyder’s statute. Wherefore, your petitioner prays your honorable court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment.”

Alleging time and venue, the information charges:

“Did then and there knowingly, willfully, uhlawfully, and feloniously, with the felonious intent to him (the said George Wills) to then and there do bodily harm, and without justifiable or excusable cause, commit an assault upon the person of another, to-wit, T. W. Phillips, by the aid and means of a dangerous weapon, to-wit, a piece of wood, commonly known as a pitchfork handle, by then and there beating and striking him (the said T. W. Phillips) over the left arm and on the head of him (the said T. W. Phillips), making the left arm black and blue, and inflicting a dangerous wound on the head of him (the said T. W. Phillips), with the felonious intent of him (the said George Walls) to injure him (the said T. W. Phillips), contrary to,” etc.

In the case of Moody & Cowan v. State, 11 Okla. Cr_, 148 Pac. 1055, a strictly analogous question was considered. Ia the opinion it was said:

“The doctrine that an assault with intent to kill or intent to do bodily harm, etc., includes every other offense down to simple assault, is as old as our institutions. It is also a rule of equal age that the offense set forth in the indictment or information is the one that gives jurisdiction to the court; and, when this jurisdiction is once acquired, it is acquired for all purposes. An indictment charging murder may result in a conviction for simple assault and the imposition of a $10.00 fine. The jurisdiction of the court is fixed by the allegations in the indictment, and the fact that a jury may convict an accused of an included offense, which is a misdemeanor, does not oust the court of jurisdiction.”

When there is jurisdiction of the party and of the offense of which he was tried, the decision of all other questions arising in the case is but an exercise of that jurisdiction, and the jurisdiction of the district court oyer a felonious assault is not defeated because the information charging the offense may be duplicitous, nor on the theory that county courts under Const. Art. 7, Sec. 12, have exclusive jurisdiction of an offense the commission of which is necessarily included in that charged in the information. Odom v. State, 8 Okla. Cr. 540, 129 Pac. 445.

Our Criminal Procedure provides:

“The jury may find the defendant guilty of any offense, the commission'of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” Section 5923, Revised Laws.

We are of the opinion that the facts alleged in the information are sufficient to charge the crime of assault with a dangerous weapon with intent to do> bodily harm. It follows that the district court had jurisdiction to try the informaion, and that petitioner is held by the process of a court of competent jurisdiction.

For the reasons stated, the writ will be discharged, and the petitioner remanded to the custody of the sheriff of Noble county.

DOYLE, P. J., and FURMAN, J., concur.


author: PER CURIAM:

text:
    J. R. WHITWORTH AND EARNEST BENEFIEL v. STATE.
    Nos. A-2007, A-2077 Consolidated.
    Opinion Filed October 23, 1915.
    (152 Pac. 1199.)
    Appeal from Woodward County Court, Clyde H. Wyand, Judge.
    J. R. Whiteworth and Earnest Benefiel, convicted of criminal conspiracy, appeal.
    Appeal dismissed.
    Hoover-Cowgill & Swindall, and W. A. Briggs, for plaintiffs in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiffs in error were jointly charged, tried and convicted of criminal conspiracy as defined by Subdivision Four of See. 2232, Revised Laws, and in accordance with the verdict of the jury, Whiteworth was sentenced to be confined in the county jail for thirty days and to pay a fine of Four Hundred Dollars, and Benefiel was sentenced to be confined in the county jail for thirty days and pay a fine óf Two Hundred Dollars. From the judgments rendered an appeal was perfected.

Plaintiffs in error have by their counsel of record filed a motion to dismiss their appeal. The motion will be sustained and it is ordered that the appeal herein be dismissed and the cause remanded to the county court of Woodward county.


author: PER CURIAM.

text:
    BONEY SHOEMAKE v. STATE.
    No. A-2360.
    Opinion Filed October 30, 1915.
    Appeal from the Superior Court of Muskogee County; H. C. Thurman, Judge.
    Affirmed.
    S. M. Rutherford, for plaintiff in error.
    Charles West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on an information charging the unlawful conveyance of twenty-four quarts of whisky from a point unknown in Muskogee county to a point about thirty feet northeast of the Midland Valley depot in the town of Porum. Septebmer 23, 1914, the court rendered judgment and sentenced him to be confined in the county jail for thirty days and to pay a fine of fifty dollars and the costs. The evidence for the state tends to show that plaintiff in error left a train arriving at Porum from Ft. Smith with two grips,, containing whisky, and when arrested said, “He had gotten the liquor for sick folks.” As a witness in his own behalf the defendant testified! that when he got off the train he did not ha.ve any grips; that after walking eight or ten steps Deputy Sheriff McClelland “hollered” at him and said, “I will take those grips and you, too, to Muskogee,” and witness answered, “what grips.” That he looked and saw two grips on the ground eight or ten steps from him.

Upon &. careful examination of the record in this ease we are satisfied that none of the alleged errors are well taken. It was for the jury to determine to what extent they would give credit to the defendant’s testimony.

Finding no error prejudicial to the defendant, the judgment will be affirmed.


text:
    ED ALEXANDER v. CITY OF KINGFISHER.
    No. 1861.
    Opinion Filed October 4, 1915.
    (151 Pac. 1197.)
    Appeal from the County Court of Kingfisher County, Jno. M. Graham, Judge.
    Ed Alexander was convicted of violating a eity ordinance of the city of Kingfisher, and appeals.
    Upon rehearing reversed .
    Bradley & Bradley, for plaintiff in error.
    Jno. T. Bradley, Jr., City Attorney, for defendant in error.
   PER CURIAM.

Ed Alexander was convieted in the county court of Kingfisher eoonty, upon an appeal from the city court of the eity of Kingfisher .upon a charge of violating the prohibitory law, and his punishment fixed at thirty days in jail and $50.00 fine. Among many assignments of error brought in this case is one based upon the following instruction of the court:

“A doubt to acquit a defendant must be a reasonable doubt — not a mere speculation or possibility. The city is not required to prove defendant’s guilt beyond all doubt, but only beyond a reasonable doubt. The doubt which the juror is allowed to retain on his'mind on which he should frame a verdict of not guilty must always be a reasonable one. A doubt produced by undue sensibilities in view of the consequences of the verdict is not a reasonable doubt, and the juror is not allowed to create sources of material for doubt by resorting to fanciful suppositions or conjectures as to a possible state of facts differing from those established by the evidence.
You are not at liberty to disbelieve as jurors, if from the evidence, you believe as men. Your oath imposes upon you no obligation to doubt where no doubt would exist if no oath has been administered. If, after a careful and impartial consideration of all the evidence in the ease, you can say you feel an abiding conviction of the guilt of the defendant, and are fully satisfied with the truth of the charge, made against him, then you are satisfied beyoqd a reasonable doubt.”

This instruction* was given at the request of the City Attorney, over the objection of counsel for plaintiff in error. Instructions identical in principle have been too often condemned by this court to require discussion here. The error is aggravated when it is clearly apparent that the court did not give the same inadvertently, but did so at the instance and request of the prosecuting officer. Instructions much less objectionable have been condemned by the Supreme Court of Oklahoma Territory, the Supreme Court of the State of Oklahoma, and by this court. See Patzwald v. United States, 7 Okla., 232; 54 Pac. 458; Abbott v. Terr., 1 Okla. Cr., 1, 94 Pac., 179, 16 L. R. A. (N. S.) 260; Price v. State, 1 Okla. Cr., 358; 98 Pac. 447; Nelson v. State, 5 Okla. Cr., 368; 114 Pac., 1125; Gray v. State, 4 Okla. Cr., 292; 111 Pac., 825, 32 L. R. A. (N. S.) 142; Graff v. State, 3 Okla. Cr., 409, 106 Pac., 350.

There was no justification for the court’s giving this instruction under the foregoing authorities, and less justification for counsel insisting that it should be given. If this court is to ignore the uniform line of’ decisions announced by it, and other decisions from other states followed by it, then there would be little use of precedent. The record in this-ease does not indicate that there was any special effort to accord the accused a fair and impartial trial according to law. The judgment is reversed and the cause remanded, with direction to grant a new trial.


text:
    ED CHAMBLISS v. STATE.
    No. A-2370.
    Opinion Filed September 25, 1917.)
    (151 Pac. 1197.)
    Appeal from the Superior Court of Muskogee County; H. C. Thurman, Judge.
    Ed Chambliss, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Crump & Crump, for plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information charging that he did unlawfully have possession of one quart of whiskey and ten gallons of alcohol, with the intention of selling the same. On the 23rd day of September, 1914, judgment was rendered, and in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for a period of sixty days, and to pay a fine of $100.00. Prom the judgment he appealed by filing in' this court on November^ 21, 1914, a petition in error with ease-made.

The proof on the part of the state, showing possession of the intoxicating liquors as charged, was uncontroverted. No brief has been filed, and when the ease was called for final submission, no appearance was made on behalf of the plaintiff in error. Thereupon, the Attorney General moved the court to affirm the judgment. The judgment herein is therefore affirmed. Mandate forthwith.


text:
    JOE CONWAY v. STATE.
    No. A-2383.
    Opinion Filed September 25, 1917.
    (151 Pac. 1197.)
    Appeal from County Court of Pawnee County; Geo. E. Merritt, Judge.
    Joe Conway, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    McNeill & McNeill, for plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was- convicted on an information charging that he did have the unlawful possession of intoxicating liquors, with the unlawful intent to violate the prohibitory laws of the state, and was sentenced to be confined in the county jail for thirty days and to pay a fine of $50.00. Prom the judgment, an appeal was taken by filing in this court on December 30, 1914, a -petition in error with case-made.

No briefs have been filed, and no appearance made on behalf of the plaintiff in error when the ease was called for final submission. The motion of the Attorney General to affirm the judgment for failure to prosecute the appeal is therefore affirmed.


text:
    L. T. CRAFT v. STATE.
    No. A-2488.
    Opinion Filed October 16, 1915.
    (151 Pac. 1198.)
    Appeal from County Court of Beckham County; E. G. McCommas, Trial Judge.
    L. T. Craft, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.
    J. A. Minton, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, L. T. Craft, was convicted on a charge that he did have unlawfully in his possession certain intoxicating liquors with the unlawful intent to sell the same, and was sentenced to be confined for thirty days in the county jail and tó pay a fine of fifty dollars.

From the judgment entered March 13, 1915, he appealed by filing in this court on June 19th, a ease-made. On October 2nd, plaintiff in error filed in this court a motion to dismiss his appeal. The appeal is therefore dismissed and the cause remanded to the trial court. Mandate forthwith.


text:
    EX PARTE: FRANK CRINER.
    No. A-2391.
    Opinion Filed August 2, 1915.
    (151 Pac. 1198.)
    Original application for the writ of habeas corpus.
    Denied.
    James H. Mathers, for the petitioner.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Frank Criner, filed his petition in this court on the 6th day of February, 1915, seeking the writ of habeas corpus for the purpose of being admitted to bail, being held in the county jail of Carter county on a charge of murder.

Upon consideration of the proof and arguments on each side, the court is of opinion that the petitioner is not entitled to bail. An oral order to this effect has already been announced. Bail is denied.


text:
    JOHN EDMONDSON v. STATE.
    No. A-2359.
    Opinion Filed Setpember 25, 1915.
    (151 Pac. 1198.)
    Appeal from County Court of Custer County; J. C. McKnight, Judge.
    John Edmondson, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      •P. S. Hillman, for plaintiff! in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge of unlawfully selling one quart of whiskey to one,- Joe Sturgis, and on the 27th day of August, 1914, he was sentenced to pay a fine of $50.00, and be confined in the county jail for a period of thirty days. He-appealed from the judgment by filing in this court on November 4, 1914, a petition in error, with case-made. No brief has been filed, and when the case was called for final submission, no appearance was made on behalf of the plaintiff in error. Por this reason, the Attorney General moved to affirm the judgment. A cursory examination of the record indicates there is no merit whatever in the various errors assigned. The judgment of the trial court is affirmed. Mandate forthwith.


text:
    EUGENE KILE v. STATE.
    No. A-2364.
    Opinion Filed September 11, 1915.
    (151 Pac. 1198.)
    Eugene Kile, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.
    McNeill & McNeill, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Eugene Kile, was convicted in the district court of Payne county upon a charge of keeping a place with the intention of and for the purpose of selling, bartering, and otherwise furnishing- spirituous, vinous, fermented and malt liquors, and his punishment fixed at a fine of four hundred dollars and imprisonment in the county jail for thirty days. To reverse the judgment rendered' in accordance with the verdict, on the 16th day of May, 1914, an appeal was perfected. The pl^ntiff in error, by his attorneys of record, has filed a motion to dismiss his appeal. The appeal herein is therefore dismissed and the cause remanded to the’lower court.


text:
    ED LEE v. STATE.
    No. A-2373.
    Opinion Filed October 2, 1915.
    (151 Pac. 1198.)
    Appeal from County Court of Hughes County; J. Ross Bailey, Judge.
    Ed Lee was convicted of a violation of the prohobitory law and appeals.
    Affirmed.
    Crump, Skinner & Crump, for plaintiff in error.
    R. McMillan,- Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information- which charged that he did unlawfully sell one quart of whiskey to one M. L. Conner. Judgment was rendered on the 9th day of October, 1914, and he was sentenced to pay a fine of fifty dollars and to be confined in the county jail for thirty days. He appealed from the judgment by filing in this court on November 23, 1914, a petition in error with case-made.

The only question necessary to be considered is the sufficienee of the evidence to sustain the conviction. The state ealled one witness, M. L. Conner, who testified that he was a farmer, had lived about a mile and a half south of Dustin for five years, that during that time he had known the defendant, and about the 31st day of January, 1913, he bought a quart of whiskey from him at his home in the town, of Dustin, paying therefor two dollars. he was

As a witness in his own behalf the defendant testified that he was the city marshal'of the town of Dustin at the time and denied that he ever sold any whiskey to the defendant.

In our opinion the evidence was sufficient to sustain the verdict. It was for the jury to determine which witness was worthy of belief. There is nothing in the record to indicate that the defendant did not have a fair trial. Finding no error in the record, the judgment appealed from is affirmed.


text:
    J. E. SMITH v. STATE.
    No. A-2365.
    Opinion Filed September 18, 1915.)
    (151 Pac. 1198.)
    Appeal from Superior Court of Muskogee County, H. C. Thurman, Judge.
    J. E. Smith, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.
    M. G. Bailey, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, J. E. Smith, was convicted in the superior court of Muskogee county on a charge of unlawfully conveying intoxicating liquors from one place in said county to another place therein, and on the 23rd day of September, 1914, he was sentenced to be confined in the county jail for a period of sixty days and to pay a fine of one hundred dollars, Fi'om the judgment he appealed by filing in this court on November 20, 1914, a petition *in error, with case-made. Plaintiff in error has now filed a motion dismissing the appeal. The appeal herein is therefore dismissed, and the cause remanded to the lower court. Mandate forthwith.


text:
    J. R. WOOD AND GIDLOW WOOD v. STATE.
    No. A-2363.
    Opinion Filed October 2, 1915.
    .(151 Pac. 1198.)
    Appeal from District Court of Bryan County; Jesse M. Hatchett, Judgand
    J. R. Wood and Gidlow Wood were each convicted of assault and battery and they appeal.
    Appeals dismissed.
    McPherren & Cochran, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

J. R. Wood and Gidlow Wood were by information filed in the district court of Bryan county jointly charged with the crime of assault with intent to kill. A severance was granted, and each upon his separate trial was found guilty of assault and battery as included in the charge contained in the information. The punishment in each ease was fixed by tlie jury at a fine of fifty dollars. From the judgments entered on the verdicts they appealed by filing in this court on November 14, 1914, a duly certified transcript of the record in each ease. No briefs were filed, and when the ease was called for final submission, no appearance was made on behalf of the plaintiffs in error. Whereupon the Attorney General moved that the appeals from the judgments' rendered therein be dismissed. It appearing that the appeals herein have been abandoned the motion to dismiss the same is sustained and the cause remanded to the lower court with direction to enforce the judgments therein.


text:
    AARON BESHIRS, JR. v. STATE.
    No. A-2548.
    Opinion Filed November 10, 1915.
    Petition of Aaron Beshirs Jr., for writ of Habeas Corpus, to be let to bail.
    Bail allowed.
    McPherren & Cochran, for petitioner.
   PER CURIAM.

This is a petition for write of Habeas Corpus, by Aaron Beshirs, Jr., to be let to bail. Petitioner avers that he is unlawfully imprisoned and restrained of his liberty by John Phillips, sheriff of Bryan county; that the cause of such restraint is that on a preliminary examination he was held to answer to the district court of Bryan county on a charge of murder. Attached to the petition is a copy of the evidence taken upon the preliminary examination, which shows that the petitioner is a boy eighteen years of age; that on or about the 15th day of September, 1915, the petitioner while in an intoxicated condition struck the deceased with an empty bottle once upon the head; from the effect of which blow the deceased died the following day. That shortly before the blow was inflicted, the petitioner and the deceased were friendly. That nothing was said or occurred between them except that the petitioner'as he rode along behind Walter Smith, the deceased, said in substance that the brother of the deceased had tried to whip petitioner but could not do so, and that petitioner could whip them both.

In petitioner's affidavit he states, “That at the time it is claimed that he struck the said Walter Smith with a bottle, affiant had no intention of inflicting any injury of any kind on him, and at no time had any intention of killing the said Walter Smith, or causing him any bodily injury."

The question to be determined in this case is whether under the evidence introduced upon the preliminary examination the proof is evident or the presumption great, that a capital offense has been committed by the petitioner as to preclude him from being released on bail. The weapon used in the killing was not a deadly one, and where the weapon so used in killing a person is not one likely to kill, the killing is manslaughter, unless there was an actual intent and premeditated design to effect death.

On the undisputed facts in this case we are of the opinion that the petitioner is entitled to bail. It is therefore ordered by the court that petitioner be admitted to bail in the sum of Fifteen Thousand Dollars, bond to be conditioned as by law required. Said bond to be approved by the clerk of the district court of Bryan county.


text:
    CHARLES S. MEGGINSON v. J. ROSS BAILEY
    No. A-2628.
    Opinion Filed January 15, 1916.
    (153 Pac. 1165.)
    Mandamus by Ciarles S. Megginson against J. Boss Bailey, comity judge ol Hughes county, Oklahoma.
    Writ denied.
    J. L. Skinner and W. L Langston, for petitioner.
    J. Boss Bailey, in his own proper person, for respondent.
   PER CURIAM.

The petitioner being' prosecuted in the county court of Hughes county in three separate eases on informations charging violations of the prohibitory law, filed application in said county, court for a change of judge, alleging in substance that respondent, J. Boss Bailey was so biased and prejudiced against petitioner that petitioner could not have a fair and impartial trial before said judge. Which application was supported by certain affidavits, and said respondent was requested to certify to such disqualification and refused.

Notice was duty given that an application would be made to this court for a writ of Mandamus to require said respondent to disqualify and grant a change of judge in said eases. The parties appeared and respondent filed a demurrer to the petition. Upon the consideration of the record, it is adjudged that the demurrer be sustained and the writ denied.


text:
    G. W. BRANT v. STATE
    No. A-2418.
    Opinion Filed January 5, 1916.
    (153 Pac. 1164.)
    Appeal from the county court of Ellis county, A. L. Squire, Judge.
    G. W. Brant, eonvieted of petit lareeny, appeals.
    Reversed.
    Frank B. Grant, for plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, G. W. Brant, was convicted in the county court of Ellis county, on an information wherein he was charged with the larceny of hog wire fence of the value of Nineteen Dollars and Seventy-five Cents, the property of Ober McFarland, and was sentenced to pay a fine of Ten Dollars and the costs.

From the judgment he appealed by filing in this court March 13, 1915, a petition in error with case-made.

The Attorney General has filed a confession of error for the reason that the evidence wholly fails to show the felonious taking of the property in question.

After a careful examination of the record we are satisfied that the evidence wholly fails to show the commission of the offense charged.

The facts briefly stated are that the defendant and the complaining witness homesteaded claims in the same neighborhood, and about four years prior to the commencement of the prosecution the complaining witness removed to the state of Illinois, and his placé was practically abandoned. He did not testify on the trial.

The defendant as a witness in his own behalf testified that he had the owner’s permission to take and use the property, and that he took the hog wire in question and placed it on another division fence where some hogs were breaking through into an adjoining corn field.

All the witnesses admitted that the defendant openly stated that he was going to take and use, the wire fence temporarily for that purpose, and it is undisputed that he returned the wire fence.

It is our opinion that the verdict is contrary to the law and the evidence. The judgment is' reversed and the cause remanded with direction to dismiss.


text:
    M. E. KELLER v. STATE
    No. A-2472 and A-2473.
    Opinion Filed March 11, 1916.
    (154 Pac. 275.)
    Appeals from the County Court of Coal County; P. E. Wilhelm, Judge.
    M. E. Keller was convicted of violations of the prohibition law in two eases and appeals.
    Appeals dismissed.
    Trice & Moore, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

M. E. Keller, plaintiff in error, was tried and convicted in the county court of Coal county on two separate informa-tions each charging the unlawful sale of intoxicating liquor.

In ease No. A-2472 he was sentenced to be confined in the county jail for 30 days and to pay fine of $50.

In ease No. A-2473 he was sentenced to be confined in the county jail for thirty days and to pay a fine of one hundred dollars.

Prom the judgments appeals were taken. No brief had been filed in either ease and no appearance made on behalf of the plaintiff in error when the cases were called for final submission. The attorney general has filed motions to dismiss the appeals on the ground that, the same have been abandoned.

The motions to dismiss the appeals are apparently well taken. The appeals herein are therefore dismissed and the causes remanded to the county court of Coal county with directions to cause its judgments therein to be carried into execution. Mandates forthwith.


text:
    HARVE BOLEN v. STATE
    No. A-2475.
    Opinion Filed: March 11, 1916.
    (154 Pac. 276.)
    Appeal from the County Court of Nowata County; P. A. Calvert, Judge.
    Harve Bolen, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    H. O. Bland, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the -State.
   PER CURIAM.

On information filed in the county court of Nowata county, charging that in said county on the 11th day of November, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to-wit, one half pint of whisky and six one-half pintis of alcohol with the intent to sell the same, he was tried, convicted and sentenced to be confined in the county jail for sixty days and to pay a fine of one hundred dollars.

Prom the judgment he appeals. No brief has been filed and the case was submitted on the merits.

3?rom a careful examination of this case, both as to■ the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain. The judgment is therefore affirmed. Mandate forthwith.


text:
    HARVE BOLEN v. STATE
    No. A-2476.
    Opinion Filed March 11, 1916.
    (154 Pac. 276.)
    Appeal from the County Court of Nowata County; ~F. A. Calbert, ' Judge.
    Harve Bolen, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    H. O. Bland, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed i'n the county court of Nowata county, charging that in said county on the 7th day of December, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to-wit, one-half pint of whisky and six one-half to sell the same, he was tried, convicted and sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars.

From the judgment he appeals. No brief has been filed and the was submitted on the merits. From a careful examination of this ease, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain. The judgment is therefore affirmed.


text:
    STATE OF OKLAHOMA v. J. F. MALLIN
    No. A-2498.
    Opinion Filed April 19, 1916.
    (155 Pac. 308.)
    In error from the County Court of’ Craig County; E. M. Probaseo, Judge.
    Appeal dismissed.
    E. McMillan, Asst. Atty. Gen. and Willard H. Voyles, County Atty., for plaintiff in error.
   PER CURIAM.

In this case the state has attempted to appeal from a final order made in the proceedings had before the judge of the county court in Craig county upon an information charging that J. F. Mallín, the defendant in error did unlawfully convey and transport intoxicating liquor. No petition in error has been attached to the case-made and the same does not contain a copy of the final judgment, if any was ever rendered in the ease. The attorney general eoneeeds that the purported appeal does not present any question for the determination of this court. The purported appeal is therefore dismissed.


text:
    HARRY BOLEN v. STATE
    No. A-2480.
    Opinion Filed March 27, 1916.
    (156 Pac. 1198.)
    Appeal from the County Court of Nowata County; F. A. Calbert, Judge. Judge.
    Harry Bolen, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    W. B. Clark, B. C. Wieek, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Harry Bolen, was convicted in the county court of Kay county on a charge of unlawfully selling intoxicating liquors to one Louis Duroy, and in accordance with the verdict of the jury he was sentenced to pay a fine of one hundred and fifty dollars and to be confined in the county jail for the period of thirty days, and in default of the payment of the fine and costs, that he be further confined in the county jail until said fine and costs are satisfied as by the statute provided.

From the judgment he appealed by filing in this court on June 11, 1915, a petition in error with ease-made.

No brief has been filed and when the ease was called for final submission no appearance was made in behalf of the plaintiff in error. Thereupon the case was submitted on the merits.

The evidence for the state shows that the complaining witness Louis Duroy purchased from the defendant five bottles of beer for $2.50; that he was stopped by Hugh Johnson, sheriff of Kay county, at which time he was carrying five bottles of Blue Bibbon Beer. The sheriff then searched the defendant’s place and found there forty dr fifty bottles of Blue Bibbon Beer. The information is sufficient. The instructions of the court were not excepted to. After an examination of the record our conclusion is that the appeal in this case is wholly destitute of merit. The judgment appealed from is therefore affirmed. Mandate forthwith.


text:
    In re JOHN DAVIS
    No. A-2562.
    Opinion Filed March 28, 1916.
    (156 Pac. 1199.)
    Application of John Davis for reduction of bail.
    Woodson E. Norvell and T. L. Brown, attorneys for petitioner.
    B. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, John Davis, is confined in the county jail of Bogers county, on a charge of murder.

Bail has heretofore been fixed by the court at seven thousand five hundred ($7,500.00) dollars. The ease has been tried twice since. Both trials resulted in the failure of the jury to reach a verdict. It is made to appear that in one of the trials the jury failed to agree as to the guilt of the accused, that is, as to whether he was guilty of murder or manslaughter, and that in the other the jury failed to agree as to the guilt of the accused of any crime. It further appears that the petitioner is in poor health, and has been eonfied in jail a long time, and that he can give bail in the sum of five thousand ($5,000.00) dollars, but that he is tmable to give bail in the sum1 of seven thousand five hundred, ($7,500.00) dollars. The attorney general recommends that the bail be fixed at five thousand ($5,000.00) dollars,

The court is of opinion after hearing the argument of counsel, and giving due consideration to the facts .presented, and the recommendation of the attorney general, that the ball should be reduced from the sum of seven thousand five hundred (7,500.00) dollars to five thousand'. ($5,000.00) dollars, conditioned as by law provided, to be approved by the court clerk of Rogers county, Oklahoma, and when this bail is so given and approved, the petitioner shall be released from custody by the sheriff of Rogers county.

It is so ordered.


text:
    In re S. Q. MILLER, F. H. EVERTS and J. H. BONNER.
    No. A-2712.
    Opinion Filed April 26, 1916
    (156 Pac. 1199.)
    Application of S. Q. Miller, P. H. Everts and J. H. Bonner for Writ of Mandamus against J. C. Norman, Judge of the County Court of Cotton County.
    Writ denied.
    W. C. Henderson and McElhoes, Perris and Rhinefort, for petitioners.
    R. McMillan, Asst. Atty. Gen., Lon Morris, County Attorney, for Respondent.
   PER CURIAM.

On the 19th day of April, 1916, there was filed in this court a petition for change of judge in a ease pending in the county court of Cotton county wherein the petitioners S. Q. Miller, P. II. Everts and J. H. Bonner,were by information charged with the unlawful conveyance of intoxicating liquor from the Burkburnett Bridge across Red River to a point about one mile north of said bri¿ge. Attached tp said petition was an affidavit for change of judge as filed in said county court alleging bias and prejudice against J. C. Norman, judge of the county court of said county and asking for a change of judge therein. By agreement of the parties the ease was submitted on a demurrer to the petition for change of judge.

It is the opinion of this court that the demurrer interposed to the petition is well taken. The demurrer is therefore sustained and the writ denied.


text:
    JOHN NOBLE NAVE v. STATE
    No. A-2586.
    Opinion Filed April 1, 1916.
    (156 Pac. 1199.)
    Appeal from the County Court of Nowata County; F.- A. Calvert, Judge.-
    John Noble Nave, convicted of violating the prohibitory law, appeals.
    Appeal dismissed.
    C. W. MeVickers and Glass & Weaver, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen. and C. W. Mason, County Attorney, for the State.
   PER CURIAM:

The plaintiff in error was tried and convicted on an information charging the unlawful possession of intoxicating liquors and on the 25th day of September, 1915, judgment was rendered and he was sentenced, to be confined in the eounty jail for ninety days and to pay a fine of one hundred dollars. From the judgment be appealed by filing in this court on November 24, 1915, a petition in error with ease-made.

The record shows that pending said appeal he was released upon bond. Counsel for the state have filed a motion to dismiss said appeal, which motion sets forth that the grand jury in and for Nowata county-returned seven indictments against the plaintiff in error between the first and fourth day of March, 1915. That bench warrants were duly issued on said indictments and that the sheriff of Nowata county and his deputies have made diligent search for the said John Noble Nave, and have been unable to find or learn his whereabouts. In support of the motion to dismiss is attached the affidavits of James Mayes, sheriff of Nowata county, and William Clay, deputy sheriff of said county.

On the facts as averred in the motion- and in the affidavits supporting the same, we are of the opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The motion to dismiss the appeal is therefore dismissed. Mandate forthwith.


text:
    In re CHAS. THOMAS PERRY
    No. A.2328.
    Opinion Filed April 29, 1916.
    (156 Pac. 1199.)
    Application of Chas. Thomas Perry, for Writ of Habeas Corpus.
    Vaught & Ready, for petitioner.
   PER CURIAM.

On behalf of Chas. Thomas Perry, a duly verified petition for writ of habeas corpus was filed in this court, representing that the petitioner was illegally restrained of his liberty and unlawfully imprisoned in the eounty jail of Oklahoma county by the sheriff of Oklahoma eounty. Whereupon the writ issued. Uppn the return, day the petitioner appearing by his counsel asks that the write be discharged The writ is therefore discharged and the petitioner remanded to the custody of the respondent, and the case dismissed.


text:
    CHARLES TRIONE v. STATE
    No. A-2504.
    Opinion Filed May 22, 1916.
    (156 Pac. 1152.)
    Appeal from the County Court of Pittsburg County; S. F. Brown, Judge.
    Charles Trione, convicted of violating the prohibitory law and appeals.
    Appeal dismissed.
    Harris & Lackey, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles Trione, was convicted in the eounty court of Pittsburg county upon a charge that he did have possession of intoxicating liquor, to-wit., Ten gallons of Choctaw Beer with the intent to sell the same contrary to law and his punishment fixed at sixty days confinement in the county jail and that he pay a fine of one hundred dollars. From the judgment rendered upon the verdict he appealed by filing in this court July 10, 1915, petition in error with ease-made. No brief has been filed. When the case was called for final submission, no appearance was made in behalf of the plaintiff in error. Whereupon, the attorney general moved that the judgment be affirmed or the appeal dismissed for failure to prosecute the appeal.

It appearing that the appeal in this case has been abandoned, the motion to dismiss the appeal is hereby sustained and the cause remanded to the trial court with direction to cause its judgment therein to be carried into execution.


text:
    STATE v. JOHN McBRINE
    No. A-2614.
    Opinion Filed July 8, 1916.
    (157 Pac. 1028.)
    Appeal from the County Court of Coal County; P. E. Wilhelm, Judge.
    Appeal dismissed.
    R. C. McMillan, Asst. Atty. Gen., and G. T. Balls, County Attorney of Coal County, for the State.
   PER CURIAM.

The state appeals in this ease from a judgment of the county court of Coal county, sustaining a demurrer to an information purporting to charge one John MeBrine with the offense of imputing a want of chastity to a certain female. The state now moves to dismiss the. appeal on the ground that the demurrer was properly sustained. It is therefore ordered that said appeal be dismissed.


text:
    JOHN ED PORTER v. STATE
    No. A-2691 and No. A-2692.
    Opinion Filed July 8, 1916.
    (157 Pac. 1028.)
    Appeals for the County Court of Garvin County; W. H. Wallace, Judge.
    John Ed Porter, was convicted of violating the prohibitory law in two cases and appeals.
    Appeals dismissed.
    H. W. Carr, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garvin county on two indicements in each of which he is charged with the unalwful sale of intoxicating liquor to one John Lee.

In case No. A-2691, the jury assessed his punishment at confinement in the county jail for ninety days and a fine of two hundred and fifty dollars.

.In case No. A-2692, the jury assessed his punishment at confinement in the county jail for eighty-five days and a fine of two hundred and forty-one dollars.

From the judgments rendered on said verdicts appeals were perfected by filing in this court on March 27, 1916 petitions in error with case-mades.

Plaintiff: in error by his attorney of record has filed motions to dismiss his appeals. The motions to dismiss are granted, and sai,d appeals are ordered dismissed with directions to the trial court to cause its judgments therein to be carried into execution as by law provided. Mandate forthwith.


text:
    CLARENCE SQUIRES v. STATE
    No. A-2574.
    Opinion Piled July 11, 1916.
    (157 Pac. 1028.)
    Appeal from the County'Court of Pottawatomie County; Hal Johnson, Judge.
    Clarence Squires, was convicted of violating' the prohibitory law, and appeals.
    Affirmed.
    W. P. Durham, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Clarence Squires, was convicted on a charge fd unlawfully conveying eight quarts of whisky and was sentenced to be confined for a period of sixty days in the county jail and to pay a fine of one hundred and fifty dollars and costs. Prom the judgment entered, an appeal was taken by filing in this court on November 10, 1915, a petition in error with case-made.

The evidence for the state shows that the defendant carried a sack containing eight quarts of whisky from a negro dance hall in the south part of the city of Shawnee to a point on the street as alleged in the information.

The sufficiency of the evidence to sustain the verdict is the only question presented.

Upon a careful examination of the evidence we are not convinced that it is insufficient to sustain the verdict. The judgment appealed from is therefore affirmed. Mandate forthwith.


text:
    ANSON v. STATE
    No. A-1920.
    Opinion Filed October 3, 1914.
    (152 Pac. 1197.)
    Appeal from County Court, Custer County; J. C. McKnight, Judge.
    I. Y. Anson was convicted of violating the medical practices act, and appeals.
    Affirmed.
    Carlisle & Edwards, of Oklahoma City, for plaintiff in error.
    W. C. Reeves, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, I. Y. Anson, was convicted at the January, 1913, term of the county court of Custer county on a charge of violating the medical practices act, and his punishment fixed at a fine of $50 and costs. Upon motion of counsel for plaintiff in error this cause was consolidated with ease No. A-1770, Ex parte Ambler, 148 Pae. 1061. The opinion in the Ambler Case was handed down at the present, term of court. For the reasons given in that opinion, the judgment of the trial court in tlte ease at bar is affirmed. Mandate ordered forthwith.


text:
    Ex parte BATES, et al
    No. A-1563.
    Opinion Filed May 26, 1915.
    (152 Pac. 1198.)
    Tom. W. Neal and R. P. White, both of Poteau,- for petitioner.
   PER CURIAM.

Habeas corpus application to be let to bail by W. L. Bates, Will Stiles and Millard Vaught. Bail allowed and fixed at $12,000 for Vaught, and $8,000 each for Bates and Stiles, to be approved by the clerk.pf the district court of Be Flore county.


text:
    Ex parte CARTER
    No. A-1812.
    (152 Pac. 1198.)
   PER CURIAM.

Petition of W. C. Carter for writ of habeas corpus. Leave granted to withdraw petition.


text:
    Ex parte CHEADLE
    No. A-1725.
    Opinion Filed May 27, 1915.
    (152 Pac. 1198.)
    Application of Tom Cheadle for writ of habeas corpus. Cornelius Hardy of Tishomingo, for petitioner.
   PER CURIAM.

Proceedings dismissed.


text:
    Ex parte CHILDS
    No. A-2290.
    Opinion Filed June 9, 1915.
    (152 Pac. 1198.)
    Petition of A. C. Childs for writ of habeas corpus.
    Cause dismissed.
    C. E. Corbett, T. S. Cobb, and C. Guy Cutlip, all of Wewoka, for petitioner.
   PER CURIAM.

Petition withdrawn, and cause dismissed.


text:
    Ex parte COLBY, et al
    No. A-1490.
    May 28, 1915.
    (152 Pac. 1198.)
    Dorset Carter, of Oklahoma City, for petitioners.
   PER CURIAM.

Application of J. H. Colby and Wade Stovall for writ of habeas corpus, for .the purpose of being admitted to bail. Writ issued and returnable before Hon. Stilwell H.. Russell, district judge, at Ardmore. On the hearing so had petitioners admitted to bail.


text:
    Ex parte FENSTERMACHER
    No. A-2227.
    Opinion Filed June 9, 1915.
    (152 Pac. 1198.)
    Petition of Earnest Eenstermaclier for writ" of habeas corpus.
    Writ denied.
   PER CURIAM.

The petition filed on behalf of Earnest Fenster-macher alleges in substance that he is illegally restrained of his liberty, and unlawfully imprisoned in the county jail of Caddo county, by A. J. Blankenship, sheriff of said county, by virtue of a warrant issued by the Governor of Oklahoma, based upon a requisition from the Governor of South Dakota; that the requisition aforesaid charges petitioner, with having broken his parole in the state of South Dakota; that said petitioner was, as he was held ,to believe by the authorities of South Dakota, paroled without conditions; that at the time of the issuance of said extradition warrant the parole aforesaid had never been revoked. On filing of the petition the writ issued. The respondent answered as commanded by the writ. Upon the hearing had, the writ was discharged, and the petitioner remanded to the custody of the sheriff of Caddo county, to be delivered to the extradition agent of South Dakota.


text:
    Ex parte FOSTER
    No. A-1719.
    Opinion Filed May 27, 1915.
    (152 Pac. 1198.)
    Application of Geo. Poster for writ of habeas corpus.
    Writ denied.
    J. B. Dudley and B. P. Wolf, both of Norman, for petitioner.
   PER CURIAM.

Application by habeas corpus for the purpose of letting petitioner to bail. Application denied.


text:
    Ex parte FREMONT, et al
    No. A-2135.
    Opinion Filed June 9, 1915.
    (152 Pac. 1198.)
    Petition of John Fremont for writ of habeas corpus, to be admitted to bail.
    Bail allowed.
    P. E. Riddle, of Chiekasha, for petitioner.
   PER CURIAM.

Application for bail allowed and fixed at $5,000, to be approved by the clerk of the district court of Comanche county.


text:
    Ex parte HORN
    No. A-2312.
    (152 Pac. 1198.)
    Petition of Lafayette R. Horn for writ of habeas corpus.
    Cause dismissed.
    E. M. Prye, of Sallisaw, for petitioner.
   PER CURIAM.

Petition withdrawn. Cause dismissed.


author: PE RCURIAM.

text:
    Ex parte LOOPER
    No. A-1534.
    Opinion Filed May 26, 1915.
    (152 Pac. 1198.)
    W. T. Banks, of Hugo, for petitioner.
   PE RCURIAM.

Application of William Looper for a writ of 'habeas corpus to release his wife, Annie Looper, from the custody of the superintendent of the State Insane Asylum at Norman. The respondent consenting, Annie Looper is discharged.


text:
    In re McLEOD
    No. A-1905.
    Opinion Filed June 9, 1915.
    (152 Pac. 1198.)
    PER CURIAM. Application of William Looper for a writ of habeas
    W. L. Coffey, of Kingfisher, for petitioner.
   PER CURIAM.

Application withdrawn. Cause dismissed. Application for want of mandamus. Cause dismissed.


text:
    Ex parte MIDDLETON
    No. A-2212.
    Opinion Filed June 9, 1915.
    (152 Pac. 1198.)
    Petition of D. H. Middleton for writ of habeas corpus.
    Cause dismissed.
    N. W. Noffsinger, for petitioner.
   PER CURIAM.

Application withdrawn by leave of court, and cause dismissed.


text:
    Ex parte MONTOUR
    No. A-1923.
    Opinion Filed June 8, 1915.
    (152 Pac. 1198.)
    Application of Arthur - Montour for writ of habeas corpus, to be admitted to bail.
    Writ denied.
    Shackelford & Norfleet and Giddings and Giddings, of Oklahoma City, for petitioner.
    Chas. West, Átty. Gen., for the State.
   PER CURIAM.

Writ denied.


text:
    PAULL v. STATE
    No. A-2392.
    Opinion Filed November 27, 1915.
    (152 Pac. 1198.)
    Appeal from County Court, Cleveland County; P. B. Swank, Judge. O. E. Pauli was convicted of trespassing and he appeals.
    Affirmed.

      Ben P. Williams and Thos. W. Mayfield, both of Norman, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. E. Pauli, was convicted at the October, 1914, term of the county court of Cleveland county on a charge of trespassing, and his punishment fixed at a fine of $10. A careful examination of the record discloses no merit in this appeal, and the judgment of the trial court is affirmed.


text:
    Ex parte ROGERS
    No. A-1953.
    (152 Pac. 1198.)
    Petition of Jim Rogers for writ of habeas corpus, to be admitted to bail.
    Dismissed.
   PER CURIAM.

Petition withdrawn, and the cause dismissed.


text:
    Ex parte SANDERS
    No. A-1694.
    Opinion Filed May 26, 1915.
    (152 Pac. 1199.)
    Kyle & McCombs, of Sallisaw, for petitioner.
   PER CURIAM.

Habeas corpus petition" to let to bail Ulys Sanders. Bail allowed and fixed at $1,000, to be approved by the clerk of the district court of Sequoyah county.


text:
    Ex parte SMITH et al
    No. A-1976.
    Opinion Filed June 9, 1915.
    (152 Pac. 1199.)
    Application of W. C. Smith and Wylie Norman for writ of habeas corpus, to be admitted to bail.
    Bail allowed.
    Watts & Molony, of Wagoner, and McAdams & Haskell, of Oklahoma City, for petitioners.
   PER CURIAM.

Order that petitioners be admitted to bail in the sum of $1,000 each, to be approved by. the clerk of the district court of Wagoner county.


text:
    Ex parte STANDIFER
    No. A-1272.
    Opinion Filed May 28, 1915.
    (152 Pac. 1199.)
    W. I. Cruce, of Ardmore, and Newman & Lawrence, of Tishomingo, for petitioner.
   PER CURIAM.

Application of Bob Standifer for writ of habeqs corpus, for the purpose of being admitted to bail. Application denied.


text:
    STATE v. CHAPPELL
    No. A-1754.
    Opinion Filed November 20, 1915.
    (152 Pac. 1199.)
    Appeal from District Court, Logan County; A. H. Huston, Judge.
    A demurrer to an indictment against Will H. Chappell, for burglary with intent to mutilate election certificates, was sustained, and the State attempts to appeal.
    Attemped appeal dismissed.
    Chas. West, Atty. Gen., and John Adams, County Attorney, of Guthrie, for the State.
    John Devereux and John Emby, both of Oklahoma City, and James Hepburn, of Guthrie, for defendant in error.
   PER CURIAM.

In this ease the state attempted to appeal from the judgment of the district court of .Logan county sustaining a demurrer to an indictment for burglary with intent to mutilate election certificates. The defendant in error has filed a motion to dismiss said appeal, "because the certified transcript attached to the petition in error does not show that the notice of appeal required by law was served upon the defendant in error, or upon the clerk, of the district court, as provided by law.’7 The motion to dismiss we find is well taken. The attempted appeal herein by the State is therefore dismissed.


author: PEE CUEIAM.

text:
    STATE ex rel. HARMON, County Attorney, v. SCOTT, County Judge.
    No. A-1843.
    Opinion Filed May 28, 1915.
    (152 Pac. 1199.)
    Petition by the State, on the relation of C. N. Harmon, County Attorney of Garfield County, against Winfield Scott, County Judge of Garfield County, for a writ of mandamus.
    C. N. Harmon and A. J. Jones, both of Enid, for petitioner.
   PEE CUEIAM.

Writ allowed.


text:
    WHITWORTH et al. v. STATE
    Nos. A-2007, A-2077.
    Opinion Filed October 23, 1915.
    (152 Pac. 1199.)
    Appeal from County Court, Woodward County; Clyde H. Wyand, Judge.
    J. E. Whiteworth and another were convicted of criminal conspiracy, and appeal.
    Appeal dismissed, and cause remanded.
    Hoover, Cowgill & Swindall and W. A. Briggs, all of Oklahoma City, for plaintiffs in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were jointly charged, tried and convicted of criminal conspiracy as defined by subdivision 4 of section 2232, Eev. Laws, and in accordance with the verdict of the jury Whitworth was sentenced to be confined in the county jail for 30 days and to pay a fine of $400, and Benefiel was. sentenced to be confined in the county jail for 30 days and pay a fine of $200. Prom the judgments rendered an appeal was perfected. Plaintiffs in error have by their counsel of record filed a motion to dismiss their appeal. The motion -will be sustained, and it is ordered that the appeal herein be dismissed, and the cause remanded to the county court of Woodward county.


text:
    Ex parte WILLIAMS
    No. A-2119.
    Opinion Filed November 21, 1914.
    (152 Pac. 1199.)
    Petition of Walter Williams for writ of habeas corpus.
    Cause dismissed.
    Hepburn & Chappell, of Guthrie, for petitioner.
   PEE CUEIAM.

Cause dismissed, on motion of petitioner.


text:
    Ex parte YOUNG
    No. A-2337.
    Opinion Filed June 10, 1915.
    Petition of Bob Young for writ of habeas corpus.
    Writ granted.
   PER CURIAM.

The petition filed on behalf of said Bob Young alleges in substance that he is unlawfully imprisoned in the county jail of Ottawa county by the sheriff of said county on a misdemeanor. On the filing of the petition, the writ issued and was made returnable before the county court of Ottawa county.


text:
    In re RICHARD I. JACKSON
    Opinion Filed July 11, 1916.
    (157 Pac. 1028.)
    Application of Richard I. Jackson for Writ of Habeas Corpus.
    Cause Dismissed.
    Pruiett, Sniggs, and Tripp, for petitioner.
   PER CURIAM.

On behalf of Richard I. Jackson, a duly verified petition for writ of Habeas Corpus was filed in this court on November 17, 1915, alleging that petitioner was illegally restrained of his liberty and unlawfully imprisoned in the county jail of Oklahoma county, by the sheriff of said county. A demurrer was interposed and thereupon the cause was dismissed on the motion of counsel for petitioner.


text:
    JOHN COKER v. STATE
    No. A-2482.
    Opinion Filed July 11, 1916.
    (157 Pac. 1199.)
    Appeal from the County Court of Nowata County; Hon. P. A. Calvert, Judge.
    John Coker was convicted of violating the prohibitory law and appeals.
    Affirmed.

      H. O. Bland, for the plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the defendant in error.
   PER CURIAM.

The plaintiff in error, John Coker, was convicted in the county court of Nowata county at the January, 1915, term on 'a charge of having the unlawful possession of intoxicating liquors with the intention of selling the same and his punishment fixed at a fine of $250.00, and ninety days imprisonment in the county jail. The judgment appears to have been rendered in the trial court on the 2nd day of February, 1915. The appeal was filed in this court on the 7th day of June, 1915. No brief has been filed on behalf of plaintiff in error, and no appearance made for oral argument. On the date the cause was set for oral argument in this court, the attorney general moved in open court that the judgment be affirmed on the ground that the appeal has been abandoned, and that the record is not entitled to consideration under the law and the rules of this court. The motion is sustained and the judgment of the trial court is affirmed. Mandate forthwith.


text:
    BUSTER HOLLAND v. STATE
    No. A-2546.
    Opinion Filed June 10, 1916.
    (157 Pac. 1199.)
    Appeal from the County Court of Nowata County; E. A. Calvert, Judge.
    Buster Holland, convicted of violating the prohibitory law, appeals.
    Affirmed.
    Tillotson & Elliott, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State:
   PER CURIAM.

Plaintiff in error, Buster Holland, was convicted in the county court of Nowata county upon information charging that in said county on the 30th day of July, 1914, he did sell one quart of whisky to one J. T. Brown, and he was sentenced to pay a fine of fifty dollars' and to be confined in the county jail for thirty days.

Prom the judgment hé appealed by filing in this court on September 27, 1915, a petition in error with case-made. The errors assigned are based upon the instructions given by the court. No authorities are cited in support of said assignments, and we find they are without merit. No material error appearing in the record the judgment is affirmed. Mandate forthwith.


text:
    Ex parte RALPH ARNOLD
    No. A-2786.
    Opinion Filed August 24, 1916.
    (158 Pac. 303.)
    Application of Ralph Arnold for Writ of Habeas Corpus to be let to bail.
    Bail allowed.
    Ben F. Williams, Jr., and Franklin & Mauldin, for petitioner.
    R. McMillan, Asst. Atty. Gen., and J. R. Crowder, County Attorney, for respondent.
   PER CURIAM.

Petitioner, Ralph Arnold, being in custody undqr an order of commitment made by James F. Keeshen, a Justice of the Peace entered upon a preliminary examination had and held on the 1st day of June, 1916, at Purcell, filed in this court a verified petition for writ of habeas corpus, praying that he he allowed hail.

Attached to said petition is a copy of the information charging said petitioner with having shot and killed one Buck Trout on the 28th day of May, 1916, in McClain county. Also a transcript of the testimony taken upon the preliminary examination.

We have examined the record, and without entering into a discussion of the facts, we are of opinion that the application should he allowed.

It is therefore considered, ordered and adjudged that petitioner be admitted to hail and the same is fixed at tha sum of ten thousand dollars, conditioned as by law required, bond to be approved by the court clerk of McClain county. Upon the giving and approval of the same, the petitioner to he released from custody.


text:
    Ex parte HERBERT IRBY
    No. A-2821.
    Opinion Filed August 22, 1916.
    (158 Pac. 304.)
    Application of Herbert Irby for Writ of Habeas Corpus to be let to hail.
    Bail denied.
    Mounts & Davis, attorneys for petitioner.
    R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

In this proceeding petitioner, Herbert Irby, by his attorneys has presented to this court a verified petition wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Tilman county, by B. B. Eoff, sheriff of said county; that he has been committed to said jail by D. H. Taylor, justice of the peace, upon a preliminary examination held by him at Grandfield on the 10th day of July, 1916, upon an information charging petitioner with the murder of his wife, Ruby Irby, by shooting her with a pistol.

Petitioner avers that he is not guilty of the crime of murder as charged; that the proof of his guilt of the charge of murder is not evident nor the presumption thereof great. It is also shown that the judge of the district court of Tilman county is absent from the state.

Attached to said petition is a transcript of the testimony taken upon the preliminary examination.

We have examined the record, without entering into a discussion of the facts we deem it sufficient to say that upon a careful consideration of all the evidence presented in support of the application, we are of opinion that the petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied and bail refused.


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    In re JIM SMITH
    No. A-2813.
    Opinion Filed August 7, 1916.
    (158 Pac. 304.)
    Application of Jim Smith for release upon bail by Writ of Habeas Corpus.
    Bail allowed.

      James H. Mathews, for petitioner.
    R. McMillan, Asst. Atty. Gen., A. J. Hardy, County Attorney, and H. H. Brown, of counsel, for the State.
   PER CURIAM.

This is an application by Jim Smith for a writ of habeas corpus by which he seeks to be let to bail pending the final hearing and determination of a 'charge of murder filed against him. in Carter county, wherein upon his preliminary examination he was held to answer for the murder of one Bob Neighbors, by shooting him with a pistol on the 25th day of July, 1916. Attached to said petition and made a part thereof is a duly certified transcript of the testimony taken upon the preliminary examination; also the affidavit of petitioner alleging that the shooting was accidental. i

A stipulation has been filed wherein counsel for the state consent that the petitioner should be admitted to bail, and wherein it is shown that at the time of his preliminary examination and since that time the judge of the district court of Carter county has been absent from the state on his vacation.

In consideration of said stipulation it is ordered that said petitioner, Jim Smith, be admitted to bail upon the charge of murder now pending against him, and that his bail be and the .same is hereby fixed in the sum of fifteen thousand dollars; bond to be conditioned as required by law, and upon giving bond in this sum the same to be approved by the court clerk of said county, the petitioner to be released from custody.


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    BILL KINDMAN v. STATE
    No. A-2644.
    Opinion Filed September 23, 1916.
    (157 Pac. 944.)
    Appeal from the County Court of Kiowa County; J. S. Carpenter, Judge.
    Bill Kindman, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.
    Smith, Jones & Smith, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging that he did permit gambling in a certain house in the town of Mountain View in Kiowa county, the plaintiff in 'error, Bill Kindman was convicted and by the judgment of the court he was sentenced to be confined in the county jail for a period of thirty days. Prom the judgment he appeals.

No brief has been filed and when the case was called for final submission no appearance was made on behalf of plaintiff in error, whereupon the attorney general moved that the appeal be dismissed as having been abandoned. It appears that the appeal in this case has been abandoned, and for this reason the motion to dismiss is sustained, the appeal herein dismissed and the cause remanded to t'he trial court. Mandate forthwith.