text:
    J. F. LOCHE v. STATE.
    No. A-1987.
    Opinion Filed May 2, 1914.
    (140 Pac. 434.)
    1. APPEAL — Brief. When an appeal is taken from the judgment of a trial court to this court, it is the duty of counsel to brief the assignments of error relied upon for reversal.
    2. SAME — Oral Argument. All cases are assigned in this court for oral argument, and when counsel, .for any sufficient reason, are unable to file briefs, they are entitled to appear and orally argue the assignments of error relied upon.
    3. SAME — Motion to Affirm. When no appearance is made for oral argument, and no briefs are filed, a motion to affirm for failure to prosecute should be sustained, and the judgment of the trial court affirmed, in the absence of error depriving the accused of substantial rights under the law.

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    J. F. Loche was convicted of embezzlement, and appeals.
    Affirmed.

      Blanton & Andrews, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, J. F. Loche, was convicted at the September, 1912, term of the district court of Garvin county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a period of one year. The appeal was filed on the 3d day of April, 1913, and the cause duly assigned for oral argument at the March term of this court. No appearance was made for oral argument, and no briefs have been filed on behalf of plaintiff in error. We have examined the transcript for fundamental error, and fail to find that the accused was deprived of any substantial right in the trial below.

The Attorney General has interposed a motion to affirm this judgment for a failure to properly prosecute the appeal. We are of opinion that the motion should be sustained; and it is so ordered. No fundamental error appearing, the judgment of the trial court is affirmed.

Mandate ordered forthwith.

DOYLE and FURMAN, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    ELMER JOHNSON et al. v. STATE.
    No. A-1747.
    Opinion Filed May 7, 1914.
    (140 Pac. 622.)
    1. GAMING — Information—Sufficiency—Elements of Offense, (a) It is not essential to the validity of an information based on section 2498, Bev. Laws 1910, which was section 2422, Comp. Laws 1909, that it contains an allegation or averment that the person charged with conducting a gambling game did so for 'money, cheeks, or other representatives of value. The contrary doctrine announced in Proctor v. Territory, 18 Okla. 378, 92 Pac. 389, is overruled for the reasons set forth in opinion.
    (b) Any person, whether he be owner, employee, or a bystander acting as a matter of accommodation, who conducts any stick prohibited game or assists in conducting the same is subject to indictment and conviction for so doing, whether he acts, for compensation or not.
    2. SAME — -Information—ffufficiency.. (a) It is not essential to the validity of an indictment or information that it set out the capacity in which the person acted who conducted the prohibited game, nor that he received compensation for his acts. It is sufficient that the information charge that a prohibited game was conducted, which game was played at by other persons for money or other representatives of value.
    (b) For an information properly drawn under the statute, and which is proof against demurrer and objection, and which is in proper form under the statute, see opinion.
    3. SAME — Sufficiency of Evidence. Uncontradicted evidence which clearly establishes a violation of the law, and connects the accused directly with such violation, is sufficient to sustain a conviction.

      Appeal from County Court, Oklahoma County; ■ John W. Hayson, Judge.

    Elmer Johnson and John Garrett were convicted of gaming, and appeal.
    Affirmed.

      Reardon & Hereford, for plaintiffs in error.

      Smith C. Matson, Asst. Atty. Gen. (Herbert M. Peck, of counsel), for the State.
   ARMSTRONG, P. J.

The plaintiffs in error, Elmer Johnson and John Garrett, were convicted at the March, 1912, term of the county court of Oklahoma county on a charge of conducting a roulette game, and their punishment fixed at a fine of $500 and confinement in the county jail for a period of 60 days.

The information upon which the conviction is based is as follows:

“In the name and by the authority of the state of Oklahoma comes now Sam Hooker, the duly qualified and acting county attorney in and for Oklahoma county, and state of Oklahoma, and on his official oath gives the county court in and for said Oklahoma county and state of Oklahoma to know and be informed that the above-named Elmer Johnson and John Garrett did, in Oklahoma county, and in the state of Oklahoma, on the 8th day of March, in the year of A. D. 1912, commit the crime of conducting a game of roulette in manner and form as follows: For that they did then and there unlawfully and wrongfully conduct a game commonly called roulette, the same being played for money and other representatives of value, contrary to the form of the statutes in such' cases made and provided, and against the peace and dignity of the state.*’

The proof on behalf of the state conclusively establishes the fact that the plaintiffs in error conducted a gambling game, to wit, roulette, on the date alleged, at 109J4 North Broadway, in Oklahoma City, and that plaintiff in error Garrett was owner of said place. State’s witness Seward testified that he was in the place on that day; that plaintiff in error Johnson was also there, and was looking after the game; that he saw Johnson pay off the dealer and the doorkeeper, and also saw him get money from one part of the building and give it to one of the- dealers conducting a game in another part of the building.

No testimony was offered on behalf of either of the plaintiffs in error.

Counsel for the plaintiffs in error contend that the information does not state facts sufficient to constitute a public offense, for the reason that it contains no' allegation that the persons conducting the game did so for money or some other representative of value, and for the further reason that the information does not state in what capacity the persons conducting the game acted — that is, whether as owner or employee — and insist that for these reasons the court should have sustained their objection to the introduction of testimony; no demurrer 'having been interposed.

The prosecution was based on section 2422, Comp. Laws 1909, which is as follows:

“That every person who deals, plays or carries on, or opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, poker, roulette, craps, or any banking or percentage game played with dice, cards, or any device, for money, checks, credit, or any representative of value, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, and by imprisonment in the county jail for a term not less than 30 days nor more than six months.”

It will be noted that plaintiffs in error are charged by the information with conducting a game of roulette, which game was played for money, checks, etc., but does not contain an allegation that the game was conducted for money, checks, etc. Counsel contend 'that the failure upon the part of the pleader to allege and prove this latter element is fatal to the information and conviction, and cite Proctor v. Territory, 18 Okla. 378, 92 Pac. 389, as sustaining their contention; also People v. Carroll, 80 Cal. 153, 22 Pac. 129; Brown v. State, 5 Okla. Cr. 41, 113 Pac. 219.

If the doctrine in the Proctor case is to be followed, then the contention of counsel would not be without merit. Upon a thorough investigation of the authorities on which the Proctor case was apparently based, however, we are of opinion that the rule there declared is not supported by the authorities cited, and is not a sound and correct interpretation of the statute. Neither L the obiter dicta in the Brown case, supra, supported thereby.

In People v. Carroll, supra, the Supreme Court of California had under consideration the question decided by this court in Brown v. State, supra, but did not have under consideration the question decided by the Supreme Court of Oklahoma Territory in Proctor v. State, supra. The California court in the Carroll case said:

“To constitute it an offense to conduct a game, it must be 'played for money, checks, credit, or any representative of value.’ The information does not charge that the game was played for money,-but that the defendant conducted it for money. It may be that those who were engaged in the game were playing for amusement, and paid the defendant a fixed sum, in no way dependent upon the result of the game, for conducting it. This would be within the allegations of the information, but it would not be a public offense or within the statute.”

From this quotation it is clearly to be seen that the California court was not considering, and did not refer to, the question here raised. They simply held, as we held in the Brown case, supra, that the information must charge that the persons playing in the game played for money, etc. The Carroll case is sound in principle and convincing in argument. The court simply held that the information did not allege that the games were played for money, and for that reason it was defective, but made no reference to the proposition that the conductor of the game must carry on or conduct it for money.

People v. Sam Lung, 70 Cal. 515, 11 Pac. 673, also cited by the Supreme Court of Oklahoma Territory as supporting the rule in the Proctor case, does not in our judgment support it. The court there had under consideration the proposition of whether or not it was necessary for the information to charge that the person who conducted or carried on the game did so as owner or as employee, and held that it was not necessary to either allege or prove that he acted in either capacity, but clearly established the doctrine that it is sufficient to allege and prove that the person who conducted or carried on the game, without reference to ownership or employment, conducted or carried on a game which was played for money, etc. It appears to us that the territorial court confused the terms “playing” and “conducting” in announcing the doctrine in the Proctor case, supra. This court fell into the same error in the dicta in the Brown case, supra. This'being the first time our attention has been called directly to the proposition, upon a careful and thorough investigation, we feel that the doctrine in the Proctor case and the dicta in the Brown case should be specifically overruled.

The information in the case at bar is not only not subject to defeat by objection to the introduction of testimony, but is sound against attack by proper demurrer. As said by the Supreme Court of California in People v. Sam Lung, supra: “It is not necessary to state that the person accused was the employee or owner of the game; nor is proof as to that fact an essential prerequisite to conviction,” under the Penal Code.

The California court had under consideration a statute identical in principle with ours. Discussing the proposition further, the court said:

“As we understand section 330 of the Penal Code, it means that every person whatsoever who deals, plays, or carries on, or opens or causes to be opened, or who conducts, certain games therein mentioned, ‘for money, checks, credit, or any other representative of value, is punishable by fine of not less than two hundred nor more than one thousand dollars, and shall be imprisoned in the county jail until such fine and costs of prosecution are paid — such imprisonment not to exceed one year’; and that ‘every person who plays or bets at or against any of said prohibited game or games is guilty of a misdemeanor.’ That being so, it was not material that the information (which charged that the defendant ‘did willfully and unlawfully carry on and conduct a certain game of tan, then and there played for money,’ etc.) should have stated that he did so as an employee or owner of such game. The offense defined in the first clause of the section supra, is not limited to> those who, as owners or employees, conduct or carry on any .of the prohibited games for money. It embraces all persons who carry on or conduct such games, whether as owners, employees, or in any other capacity, but it does not include any one who plays or bets at or against such games; they being included in the second clause of said section. The Legislature did not intend to declare, by the first clause, that no one except the owners or employees connected with such games should be punishable thereunder. It meant to include all persons who might thereafter commit the acts there prohibited.”

The Supreme Court of Washington, in State v. Preston, 49 Wash. 298, 95 Pac. 82, construing a misdemeanor statute such as ours, quoting a portion of the statute, says:

“ ‘Each and every person who shall deal or carry on, or open or cause to be opened, or who shall conduct, either as owner, proprietor, or employee, whether for hire or not, any game of faro, monte, roulette, or any game played with cards, dice, or any other device, whether the same be played for money, checks, credit or any other representative of value, should be guilty of a misdemeanor.’ The statute not only prohibits the conducting of such a game a's proprietor, but prohibits the game by each and every person conducting the same, whether as owner or proprietor or employee, whether for hire or not, so it was not essential that an information thereunder should charge that accused conducted the game either as owner, proprietor, or employee.”

These authorities amply support the contention of the state in this case that the information upon which this conviction is based fully complies with the law. We are of opinion that it not only complies with the law, but is the proper form for all such informations. See State v. Wakeley, 43 Mont. 427, 117 Pac. 95.

For the benefit of the prosecuting attorneys and the people of the state as well, we may say that any person interested directly or indirectly in conducting a gambling game in Oklahoma, whether as owner, or whether as employee, or whether as a matter of accommodation, either for hire or without hire, is subject to indictment and conviction under the statute, supra. An information charging such offense or offenses might well be drawn in the language of the information here under consideration, and proof that such game was conducted as alleged will be sufficient to sustain a conviction.

We have not overlooked the fact that there are authorities which sustain a more strict construction, but in Oklahoma the statute law requires a liberal construction as against á strict construction, and then, too, the cases relied upon and cited by counsel for plaintiffs in error are based upon felony indictments, and not misdemeanor indictments, as a rule. All courts are more careful in extending the doctrine of liberal construction in felbny than in misdemeanor cases.

The only other assignment necessary to refer to is based on the contention that the verdict of guilty is not sustained by sufficient evidence as to the plaintiff in error Johnson. The proof on behalf of the state was uncontradicted, and established the fact that Johnson was in the place on the date alleged; that he paid off one of the dealers and a watchman; that he procured money from one portion of the room and delivered if to a dealer who was conducting a game in another portion of the room; and otherwise interested himself in the conducting of the game. He did not deny these facts, and no one in his defense denied them.

We are of opinion that in the absence of any contradiction whatever of these facts, the verdict of the jury was properly sustained by the trial court, and we cannot disturb it on appeal.

DOYLE and FURMAN, JJ., concur.


author: DOYLE, J.

text:
    JOHN KITCHENS v. STATE.
    No. A-1960.
    Opinion Filed May 7, 1914.
    (140 Pac. 619.)
    1. ADULTERY — Proof—Requisites. In a prosecution for adultery, positive evidence of the direct fact is not required. The fact of carnal intercourse may be inferred from circumstances that lead to it by fair inference as a necessary conclusion.
    2. SAME — Nature of Offense. Adultery is an offense against the state, as well as against the injured husband or wife, notwithstanding the requirement that the prosecution therefor must be commenced on the complaint of the injured spouse.
    3. WITNESSES — Competency—Husband and Wife — Adultery. While adultery is a public offense, it is also a personal offense against the husband or wife, and they become competent witnesses to prove the offense.
    4. ADULTERY — Defense—Relation of Master and Servant. In a prosecution for adultery, the relation of master and servant between the parties does not necessarily exclude the existence of the relation denounced by the statute, and the relation of servant does not necessarily exclude the woman'from becoming the defendant’s mistress or concubine.

      5. LEWDNESS — Essentials of Offense — “Living Together in Open and Notorious Adultery.” To constitute the offense of adultery, where it is alleged that the defendants were “living together in open and notorious adultery,” it is not necessary that the parties claim to he husband and wife. It is sufficient if they live together in the same house in the familiar manner of husband and wife, and that their lewd and lascivious cohabitation and conduct was open and notorious.

      Appeal from District Court, Seminole County; Tom D. McKeown, Judge.

    John Kitchens was convicted of adultery, and appeals.
    Affirmed.
    The plaintiff in error, herein referred ho as defendant, and one Mollie Mitchell were jointly informed against for the crime of adultery. The information, omitting the formal parts, was as follows:
    “That John Kitchens and Mollie Mitchell did, in Seminole count}'-, and in the state of Oklahoma, on or about the 1st day of April in the year of our Lord one thousand nine hundred and twelve, and anterior to the presentment hereof, commit the crime of adultery in the manner and form as follows, that is to say: That on the day and date above mentioned a'nd in said county and state, did unlawfully, willfully, voluntarily, and feloniously associate and cohabit together, living in open and notorious adultery, they, the said defendants, not being then and there married to each other, and him, the said John Kitchens, then and there having a living wife, and the said Mollie Mitchell having a living husband, and they, the said defendants, did unlawfully, voluntarily, and feloniously have carnal knowledge together, each of the body of the other, contrary to,” etc.
    Upon arraignment the clefendants interposed a demurrer to the information on the ground “that it did not state facts sufficient to constitute a public offense against the laws of Oklahoma.” The demurrer was overruled, whereupon defendant entered a plea of not guilty, and asked for and was granted a separate trial. His trial resulted in a verdict of guilty as charged in the information, leaving the punishment to be fixed by the. court. On the 11th day of October, 1912, motion for new trial having been duly filed, the same was overruled, and he was sentenced to be confined in the penitentiary for the term of two years. From the judgment and sentence he appeals.

      The evidence shows without contradiction that defendant was married in Seminole county, in 1900, and had lived in said county with his family until the middle of November, 1910, at which time his wife and their seven children left him, and went to live in Hughes county; that his codefendant, Mollie Mitchell, was the wife of Cal Mitchell, and the mother of three children; that she lived apart from her husband, he having the care and custody of the three children born of their marriage, and all of tender years; that defendant resided upon his farm in a house consisting of one room, a kitchen, and an attic above; that in September, 1911, defendant brought to his house his co-defendant, Mitchell, for the avowed and ostensible purpose of making her his housekeeper, and to care for his aged invalid mother, who made her home there a part of the time, but who also lived much of the time with her other married children. For several weeks, Joe Brooks, the sixteen year old brother of Mrs. Mitchell, stayed on the place, and for a short time two men who worked, picking cotton, for the defendant stayed on the place. There was evidence tending to show that while Mrs. Mitchell was staying at his place, defendant took her with him back and forth on his trips to town, and they were often seen driving together.
    E. S. King testified: That he lived a mile and a half from defendant, and saw Mollie Mitchell at defendant’s and said to him: “Mr. Kitchens, under these circumstances they will get you, won’t they?” Defendant answered: “No, they will have to prove that I had sexual intercourse with the woman before they can get me.” That he had heard other neighbors complain of the conduct of defendant and Mrs. Mitchell. That defendant brought Mrs. Mitchell to writing school one evening, and the ladies present rebuked her, and the defendant did not come any more.
    A. J. Morgan testified that he lived about 250 yards from defendant; that Mollie Mitchell stayed there about a year; defendant’s mother was not there all the time; had seen defendant and the Mitchell woman there alone at night; saw defendant at different times with his arms around her; saw her sitting in his lap; called there one evening, and saw Mrs. Mitchell with her arms over defendant’s shoulders, and he was holding her clothes up so that her person was exposed from her waist down. Heard defendant say that he had the clap; that he caught it from Mollie Mitchell; saw defendant and Mrs. Mitchell in bed together.
    Ed. Morgan testified that he lived with his father, A. J. Morgan; saw defendant at different times with his arms around Mollie Mitchell; saw him take indecent liberties with her person and hold her dress up; heard defendant say he had the clap, and that he caught it from Mollie Mitchell.
    Neely Ross testified that he worked for defendant; often saw defendant and Mrs. Mitchell sitting in each other’s lap, hugging, kissing, and playing with each other. After Mollie Mitchell had been there about two weeks heard defendant say that he had caught the clap from her.
    John Crotzer testified that he stopped over night at defendant’s house, and no one else was there except defendant and Mollie Mitchell; that they all slept in the same room; Mrs. Mitchell in one bed, and defendant and witness in another.
    The evidence further shows that defendant’s neighbors went to his.place and objected to his keeping the Mitchell woman there, and he said to them:
    "That he had been advised by lawyers that he had a right to keep a cook there, and they would have to catch him doing business with her, and would have to prove it before they could convict him, and that he had been advised that no one had a right inside the inclosure without his permission, and that he was going to shoot the first damn man he caught in there like he would a dog.”
    On behalf of defendant several witnesses testified that they were often at his home and had never noticed any improper conduct on the part of defendant and Mrs. Mitchell.
    Oscar Hull testified that he picked cotton for defendant three or four weeks in the fall of 1911, and stayed at his place; that Mrs. Mitchell did the housework; never saw anything indecent between them, and heard no vulgar talk. Defendant’s mother was there a part of the time; that the boys working for defendant went away a night or two fishing and left him and Mrs. Mitchell there alone.
    Dr. J. C. Dovell testified that he had been defendant’s physician and had treated him during the last two years for malaria and hemorrhoids; did not treat him for gonorrhea; that he had full opportunity to know whether or not defendant had such disease, and did not think that he had ever had it; that about the 1st of October, 1911, he commenced treating Mollie Mitchell for chronic gonorrhea, and treated her for several months; that she was brought to his office by defendant, and he continued to accompany her when coming for treatment while he had the case in charge; that without using preventatives and disinfecting, he did not think it would have been possible for one to have had intercourse with Mrs. Mitchell while he was treating her without catching the disease.
    Mollie Mitchell testified that she was a married woman, separated from her husband; that she had worked for defendant for more than a year as a servant, and he paid her three dollars a week for her services; that she never stayed alone with defendant. She denied all acts of immoral conduct.
    Defendant as a witness in. his own behalf testified that he had hired Mollie Mitchell to care for his mother and cook for him and his farm hands; that he had never stayed in the house overnight alone with Mollie Mitchell. He denied all acts of immoral conduct or adulterous intercourse.
    Defendant introduced testimony tending to impeach the character of certain of the state’s witnesses as to truth and veracity. On rebuttal, evidence was given as to the good character of these witnesses.

      Willmott & Dean, for plaintiff in error. ■

      Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). The .provision of the Penal Code upon which the prosecution was founded defines the crime of adultery as follows:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.” (Section 2431, Rev. Laws 1910.)

The main question to be reviewed is the sufficiency of the evidence. It is claimed that the trial court erred in denying defendant’s motion for a directed verdict of acquittal, and in overruling the motion for a new trial, on the ground that the evidence was insufficient to support the verdict; the contention being that, as the prosecution was not commenced upon the complaint of the wife of defendant, or the husband of his codefend-ant, the proof must show that the defendants were “living together in open and notorious adultery,” and that the proof only shows the relation of master and servant, and as such they might properly live together without invoking public scandal. In a prosecution for adultery, positive evidence of the direct fact is not required. To require positive evidence alone would be to give immunity to practically all offenders. Usually presumptive evidence. alone is attainable, and the fact of carnal intercourse is inferred from circumstances that lead to it by fair inference as a necessary conclusion; without this rule, no protection whatever -could be given to marital rights.

Under the provision of the Penal Code quoted, adultery is an offense against the state, as well as against the injured husband or wife, notwithstanding the requirement that the prosecution therefor must be commenced on the complaint of the injured spouse. The requirement that “prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime,” pertains to the procedure only. That such complaint has not been made may operate to withhold authority to prosecute or punish, but this does not affect the question of the actual guilt of the offending parties. The requirement is founded partly on principles of public policy which lie at the basis of civil society. If the parties injured choose to condone the wrong done, then no one else ought to be allowed to move in the mat7 ter.

While adultery is a “public offense,” it is also a personal offense against the injured husband or wife, and they become competent witnesses to prove the offense. Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949.

However, under the proviso of the section quoted, any person may make complaint when it is alleged that the defendants “are living together in open and notorious adultery,” as such adulterous cohabitation and its notoriety necessarily tends to debase and lower the standard of public morals by dishonoring the marital relation.

It appears from the record that in addition to the undisputed facts in evidence, the defendant, a married man, and his codefendant, a married woman, lived together; that there was competent evidence showing, or tending to show, the fact of illicit cohabitation, and that adulterous intercourse had habitually taken place between the parties while they were living together. If the parties for a single day lived together in open and notorious adultery, the offense was complete.

The evidence showing the existence of the relation of master and servant between the parties was properly admitted, but that relationship did not necessarily exclude the existence of the relationship denounced by the statute. Defendant was not living or abiding with his wife at the time charged, and the relation of servant did not necessarily preclude his codefendant from becoming his mistress or concubine.

The only question to be considered is whether the right to prosecute is sustained by evidence showing, or tending to show, that defendant was living with his codefendant in a state of open and notorious adultery. The courts, when called upon to determine what constitutes the state of living together within the purview of statutes defining adultery, have defined it as the state of cohabiting.

In Copeland v. State, ante, 133 Pac. 258, it is said:

“Simply having occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. The parties must reside together publicly, in the face of society as if the conjugal relation existed between them; their illicit intercourse must be habitual.”

■ We do not think it necessary that the parties should claim to be husband and wife. It is sufficient if they lived together and behaved themselves in each other’s presence in the familiar manner of husband and wife, and that their lewd and lascivious conduct was witnessed by other persons. The law seeks not alone to prevent illicit cohabitation, and to prohibit the public scandal and disgrace incident thereto, but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend.

Without extending this opinion, already too long, by an analysis of the evidence, it is sufficient to say that there was competent evidence given tending to support every material allegation of the information. The jury were of opinion that such evidence was true beyond a reasonable doubt. The instructions given by the court fully and fairly presented the law of the case.

. The judgment of the lower court is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    OTTO TRONIER v. STATE.
    No. A-2002.
    Opinion Filed May 16, 1914.
    (140 Pac. 789.)
    APPEAL — Verdict—Evidence. When the jury find a verdict of guilty,' which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside, in the absence of prejudicial error.

      Appeal from County Court, Pittsburg County; B. P. Hammond, Judge.

    Otto Tronier was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Andrews & Day, for plaintiff in error.

      Chas. West, - Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was tried and convicted in the county court of Pittsburg county, on an information which charged that Otto Tronier did on or about the 14th day of December, 1912, unlawfully have in his possession and under his control certain intoxicating liquors, to wit, gin, with the intent then and there to sell said liquor. March 20, 1913, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $50. To reverse this judgment an appeal was taken.

The only question presented arises upon the sufficiency of the evidence to sustain the verdict. The proof on the part of the prosecution was the testimony of the sheriff of Pittsburg county, who testified that on the date- alleged the defendant was conducting a place at the rear end of a butcher shop; that there was a pool table there, and a counter, and a cigar case on the counter; that he peeped through a crack in the wall, and saw the defendant behind the counter, and three or four men in front of the counter drinking whisky, which was poured out of a bottle into glasses on the counter; that he then went in and asked the defendant if he was running a saloon; that he went behind the counter and found a quart bottle partly filled with gin, and some whisky in one of the glasses. This was all the evidence in the case. There was no testimony offered on the part of the defendant.

As was said in Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301, these predisposing facts and circumstances are clearly sufficient to prove the unlawful intent. The jury had a right to take into consideration the fact that the liquor, was found practically exposed for sale in the defendant’s place of business, and this evidence is undisputed. We think the evidence presented every indication that the defendant was engaged in running a “joint.” When the jury find a verdict of guilty, which is approved by the trial court in overruling a motion for a new trial, and there is evidence in the record which sustains the verdict, it will not be set aside, in the absence of prejudicial error.

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

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    JOHN TWEEDY v. STATE.
    No. A-2001.
    Opinion Filed May 16, 1914.
    (140 Pac. 787.)
    1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. On the trial of an accused charged with the unlawful possession of intoxicating liquor with intent to sell the same, proof that such accused possessed, within the jurisdiction of the court trying the case, 60 kegs of whisky, 50 casks of beer, and 27 gallons of whisky at one time, together with the proof of the payment of the wholesale liquor dealer’s tax required by the United States government, is amply sufficient to sustain a verdict of guilty, and especially so when there is no defense offered.
    2. INDICTMENT AND INFORMATION — Variance—Name of Accused. When an information charges a crime against John Tweedy, and the proof shows that the crime was committed by J. M. Tweedy, and shows further that John Tweedy and J. M. Tweedy are one and the same person, all the safeguards of the law have been observed, and a verdict of guilty is properly returned by the jury and sustained by the trial court.

      Appeal from County Court, Pawnee County; Geo. B. Merritt, Judge.

    John Tweedy was convicted of having unlawful possession of intoxicating liquor with intent to sell the same, and appeals.
    Affirmed.

      Orton & McNeill, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, John Tweedy, was convicted at the March, 1913, term of the county court of Pawnee county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 120 days.

All the proof introduced at the trial was introduced by the state, and tended to show that on the 22d day of February, 1913, the accused signed a receipt for 50 casks of beer, weighing 12,500 pounds, 27 gallons of whisky, weighing 1,300 pounds, and 60 kegs of whisky, weighing 6,000 pounds, being a total of 19,850 pounds of intoxicating liquor. The liquor was all in one freight car, which was signed for as aforesaid on the 22d day of February, 1913, and the seal broken by the railway agent at the direction of accused. On the morning of the 23d following the car was empty. The state further showed-that the accused had paid to the United States government the special license tax required of wholesale liquor dealers, his place of business having been designated as Keystone, Okla.

Section 6, c. 70, Sess. Laws 1910-11, requires railroads to keep a record of the amount and kind of intoxicating liquors received, to whom it is shipped and by whom it is received, the date when received and when delivered. The statute further provides that the books in which this record is kept shall constitute prima facie evidence of the facts therein stated, and shall be admissible in any court of this state having jurisdiction to or in any manner clothed with power to enforce the prohibitory láws.

It appears that the shipment of whisky in this case was made to John Tweedy, and was signed for by J. M. Tweedy. The information was filed by the county attorney against John Tweedy. In the trial court John Tweedy filed a motion for continuance, and, among other things,, says :

“Comes now the defendant and moves the court to quash the information in the above-entitled cause for the reason that said information is too indefinite and uncertain in the following facts, to wit: (1) That said information does not state a place definite and certain enough to inform the said defendant to prepare for trial, as said information is indefinite and uncertain, and that it does not state where the said defendant had possession of -said whisky and beer except in Pawnee county, but as to what particular place or locality said defendant had possession of said intoxicating liquor is not stated, and for that reason is not definite and certain enough to enable said defendant to prepare for trial. * * * ”

Pie signs the motion “J. M. Tweedy,” and is identified as the person on trial. J. M. Tweedy and John Tweedy are further shown in the trial to be one and the same person. One witness who had known the accused twenty years testified that his name was John Tweedy and his initials were “J- M.” There can be no doubt that the accused, John Tweedy, and J. M. Tweedy are one and the same person. Neither is there any doubt that the accused was in possession of 60 kegs of whisky, 50 casks of beer, and 27 gallons of whisky, as charged in the information and proved at the trial, with intent to sell or dispose of same contrary to law.

There is absolutely no merit in this appeal. If one can go about this state paying a special revenue tax, as required by the United States from liquor dealers, and be in possession of one car load of liquor at one time without intending to violate the law, then the prohibitory law of the state amounts to nothing. It is asking entirely too much of a conscientious jury to demand that it return a verdict of not guilty in such cases, when there is absolutely no denial of the facts in any particular on the part of the accused, and it is requesting too.much of this court for counsel for accused to urge a reversal under such condition. When there is any reasonable construction of the proof that will permit the trial jury or court to reasonably conclude that there was no purpose or intent on the part of an accused to violate the law, zeal of counsel in urging such a conclusion is commendable, but, when the facts are such as are disclosed by this record, they are entitled to very little consideration by the juries and the courts of Oklahoma.

The maximum fine provided by law was imposed by the jury in this case. So far as we are able to discover from the record, the only criticism that the law-abiding public could in any way make of the verdict of the jury is that it did not impose the maximum jail sentence as well. The proof overwhelmingly establishes the fact that the accused was a wholesale liquor dealer. The jury did its duty in finding him guilty and fixing his punishment, and this court will likewise do its duty by affirming the judgment.

The judgment is affirmed. Mandate ordered forthwith.

DOYLE, J., concurs. FURMAN, J., absent, and not participating.


text:
    WALTER MYRICK v. STATE.
    No. A-2038.
    Opinion Filed May 18, 1914.
    (140 Pac. 788.)
    APPEAL — Failure to Prosecute Appeal — Affirmance. Where a defendant appeals froip a judgment of conviction, and no briefs are filed, or argument presented, this court will make an examination of the record projJer, and, if no prejudicial error is apparent, will affirm the judgment.

      Appeal from County Court; Choctazv County; W. T. Glenn„ Judge.

    Walter Myrick was convicted of carrying a pistol, and appeals.
    Affirmed.

      Warren & Rogers, for plaintiff in error.
   DOYLE, J.

Plaintiff in error was convicted in the county court of Choctaw county upon an information which charged a violation of section 2546 of the Penal Code. On May 2, 1913, in accordance with the verdict of the jury, he was by the court sentenced to be confined in the county jail for a'period of 60 days. To reverse the judgment, an appeal was taken.

No briefs have been filed, and, when the case was called for final submission, no appearance was made on behalf of plaintiff in error. Thereupon the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

We have examined the record proper, and have discovered no error which will warrant a reversal of the judgment. The motion to affirm the judgment is therefore sustained.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    JESSE ALBERTY v. STATE.
    No. A-1963.
    Opinion Filed May 21, 1914.
    (140 Pac. 1025.)
    1. HOMICIDE — Insanity—Question for Jury. On a trial for murder, where evidence is introduced which in any degree tends to support the defense of insanity at the time of the commission of the homicide, the issue as to whether or not the defendant was then sane or insane is a question of fact for the jury to determine under proper instructions from the court.
    2. CRIMINAL LAW- — Criminal Responsibility — Capacity to Commit Crime. Section 2094 of the Penal Code provides: “All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth: Lunatics, insane. persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing tho act charged against them they were incapable of knowing its wrongfulness.' ’
    Held, that, under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and. consequences of such act.
    3. HOMICIDE — Insanity—Burden of Proof. Section 5902 of Procedure Criminal provides: “Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. “
    Held, that where the defense sought to be established is insanity, the legal presumption of sanity must be overcome by evidence which is sufficient to raise a reasonable doubt of the defendant's sanity at the time of the commission of the homicide. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if, upon consideration of all the evidence, together with all the legal presumptions applicable to the ease, the jury have a reasonable doubt as to whether the defendant was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, lie should be acquitted.
    4. CONSTITUTIONAL LAW — Ex Post Pacto Law — -Punishment— Death Penalty — Change in Mode. Chapter 113, Laws 1913, prescribes “the-punishment of death must be inflicted by electrocution,” and substitutes the penitentiary for the county jail as the place where a judgment of death must be executed, and requires the court to appoint a day for the execution, not less than 60, nor more than 90 days from the time of the judgment. The former statute required the court to appoint a day for the execution, not less than SO, nor more than 60, days from the time of the judgment; the punishment of death to be by hanging, or by electrocution, as the trial court might order.
    Held that the changes effected by the later law relate solely to penal administration, and it was within the power of the Legislature to make them applicable to offenses committed prior to its enactment. The extension of the time within which the execution may take place after sentence is a mitigation, and not an increase, of punishment, and does not render the act ex post facto, and substituting the penitentiary for the county jail as the place where the judgment of death must be executed is not ex post facto, when applied to a person convicted of a murder committed before its enactment.
    5. JUDGMENT — Vacation—Repeal of Statute. Under the constitutional saving clause, providing that “the repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of sueh repeated statute” (article 5, see. 54; s.ection 144, Williams'), the repeal of the amendment of a statute prescribing the punishment for an offense after final judgment has been pronounced, and while an appeal therefrom is pending, does not in any respect vacate or modify such judgment, nor arrest the execution of the sentence, where the judgment is affirmed.

      Appeal from District Court, Wagoner County; R. P. de Graffenried, Judge.

    Jesse Alberty was convicted of murder, and appeals.
    Affirmed.
    Plaintiff in error, herein referred to as the defendant, was convicted in the district court of Wagoner county upon an information for murder, and was awarded the death penalty by the jury. In accordance with the verdict, on February 19, 1913, the court rendered judgment, and sentenced the defendant to be hanged. To reverse the judgment, an appeal was perfected.
    The count of the information on which the defendant was tried and convicted charges that the defendant, Jesse Alberty, did, in Wagoner county, on or about the 24th day of October, 1912, unlawfully and feloniously, and without authority of law, and while acting in a manner imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, did shoot and discharge certain leaden bullets into the body of one William Markham, from a certain loaded shotgun which the said Jesse Alberty then and there had and held in his hands, then and there and thereby inflicting upon the body of him (the said William Markham) a mortal wound, from which the said William Markham then and there did die.
    The evidence shows that the defendant was about 21 years of age, and that the deceased was about ten years of age; that on the night of the tragedy all the parties concerned attended a supper given at a schoolhouse in the neighborhood.
    Cora Markham testified: That she was in attendance at that supper with her children, Clarence, Legus, Callie, Clementine, and Willie, the deceased. That about midnight they started home, her two daughters in a buggy with her and her three sons in another buggy. When about half a mile from the schoolhouse, the defendant and John Scrimsher rode past them* on horseback, going towards the defendant’s home, which was about three miles from the schoolhouse; her home being less than a mile beyond. After passing the defendant’s house, she heard somebody say, “Whoa! whoa! hold up there, God damn you; I am going to kill every God damn one of you;” and she stopped her buggy to see who it was. That she saw the defendant with a shotgun, and he fired one shot. That she asked her sons whom did he shoot, and they said he shot Willie. That she jumped out of the buggy and ran towards the defendant, begging him not to shoot. The defendant was on a horse, and he said, “I am going to kill the damn son of bitches,” and she continued begging him not to. That her son Legus took the little boy and laid him on the ground, and the defendant said, “God damn you, I will just kill you too and be done with it,” and rode up and threw the gun down on Legus, and she begged him not to kill her children. That he wheeled away from Legus, and chased Clarence around the buggy two or three times. That he then turned to Legus and said: “Hold up, God damn you; I know what you want. You want to go to the house and get your damn gun, and if you don’t come back I will blow the top of your head off. Don’t you run; if you do, I will kill you.” And she said to him: “Jess, don’t do that; you have done enough; you go on off.” That about that time John Scrimsher walked up to him and asked him what he had done. Legus said he had shot Willie. That he was riding John Scrimsher’s horse, and John Scrim-sher said, “What did you take my horse and run off with it for?” and he got off of the horse, and Scrimsher said to him, “Jess, come and look and see what you have done,” and they went to where the little boy was lying, and when defendant looked at the little boy he said to witness, “Go and get a doctor; I will pay the doctor’s bill; I am able to pay it;” and she said to him, “Jess, you come and go with me to your house; I can’t use my phone;” and he said, “All right;” and he walked with her a quarter of a mile to his house, and she went in and phoned for a doctor, and he said to her when she was leaving, “You tell them damn son of bitches not to follow me; if they do, I will kill the first one that shows up.” That it was a moonlight night. That the shooting took place in Wagoner county, Okla.
    The testimony of Callie Markham and Clementine Markham as to the facts of the homicide was, in substance, the same as that of their mother.
    Legus Markham testified that he was eighteen years old; that before they left the schoolhouse, the defendant and witness’ brother Clarence had a scuffle, and they clinched and fell, and Pen Anderson pulled Clarence off, and he caught the defendant and Said, “You boys must stop that,” and they all shook hands. As to the circumstances of the shooting, his testimony was the same as that of his mother.

      Clarence Markham testified: That when they were all getting ready to start home the defendant walked up and hit him, and then two or three licks passed, and they clinched, and he threw the defendant. That his brother Legus walked up and pulled him off. Pen Anderson came up and said: “There was no need of that.” The defendant said, “Boys, we are all as good friends as everand witness and his brothers got into the buggy and started home, following their mother and sisters, who were in another buggy. That when Willie was shot he was sitting in Legus’ lap in the buggy. His further testimony as to the facts and circumstances of the homicide was the same as that of his mother.
    Sam Manuel testified: That he lived at the defendant’s house. That at about midnight the defendant came in and lit a lamp and handed it to John Scrimsher to hold. That he then went and got his double-barrelled shotgun and his father’s gun. He then took the loads out of his father’s gun and put the loads in his own gun. He then said, “I am ready to go home with you,” and they went out. That a little later he and Mrs. Markham came back together.
    Dr. C. R. Gordon testified that he was called to see the Markham boy about 2 o’clock in the morning, and found him in a dying condition; that his right arm was almost severed from his body, and some shots were in his right side; that he lived about an hour, and died from the effects of gunshot wounds. The state rested.
    On behalf of the defendant, Noah Alberty testified: That the defendant was his son, and had always lived with him. That he was acquainted with his disposition and habits, and had noticed his peculiar actions and conditions since early childhood. That the same condition existed now. These peculiar actions consisted in this: That he was very unruly, not all of the time, but just at times; that such condition did not come as the result of any action on the part of witness. He would get contrary, and witness could not do anything with him. He .would want to fight, or something of that kind. When he was- about fifteen he seemed to grow worse. That witness would sometimes tell him to go to work, or something of that kind, and he would want to fight witness, or be saucy to him, or something of that kind. That he was unruly about stock. That when he would drink it would make him worse. That on the day that Willie Markham was killed witness met his son in Wagoner, and he had been drinking some, but was very quiet. That he was acting kind of stubborn that night, and didn't have anything to say to anybody, and refused to talk to witness. That witness had used liquor in one form or another all his life, and “had drunk right smart prior to the birth of this boy.” That defendant’s mother had “spells” once in a while, and would get unruly, and she would want to fight. That his wife’s mother would have the same kind of “spells.” That his first wife’s sister was subject to those “spells,” and she kept getting worse until she went crazy, and prior to statehood she wa$ in an insane asylum for the colored, located at Tahlequah.
    On cross-examination, he stated that he would not say that his first wife, the defendant’s mother, was insane; and that the defendant would loaf around and drink whisky with the boys.
    Mary Alberty testified that she was the stepmother of the defendant; had been married to his father about ten years; that in those “spells,” the defendant acted like somebody that is losing his mind; that he wants to fight, and at one time he offered to fight his father.
    Pleas Alexander testified that he knew the defendant’s mother’s sister, and that she was crazy, or something was wrong with her; that he saw her three or four times when she acted as though she was crazy.
    Warren W. Phelan testified that he had taught psychology for the past ten years, and at the present time was a teacher of psychology in the State University at Norman; that he was acquainted with and knew the phases of insanity; that, of the several names applied to different forms of insanity,, mania was the most common; that dementia praecox was “manifested first from the age of ten up to 24, and the difference, that is the name given to mania, or insanity, to distinguish it for instance from paranoia, which does not come until later in life; that paranoia is more of a continuous growing condition, while dementia praecox is off and on. It has heightening periods and receding periods, and it might happen every month, or might be, say three or four months apart, or maybe longer; there is no set rule.”
    His further testimony, as shown by the transcript, is as follows :
    “Q. In the case at issue, the testimony in the case shows that this defendant has suffered since childhood with peculiar spells ranging from a week to a month, sometimes longer between these spells; that during that time he was violent, with a tendency to injure both man and beast; that during the time he was not under one of these spells, or in one of these spells, that he was quiet, manageable, and peaceable; that the mother of this boy suffered the same peculiar condition; that the grand-mqther of this boy was subject to the same conditions of the mind; that the sister of this boy’s mother is now insane, or was four or five years ago, the evidence shows. Now, under that state of facts, would it be possible for this boy to have inherited these or this condition of the mind? A. Yes; all the authorities say so. The statement given out by all the experts in the insane asylums and most all the literature of insanity makes this statement: That where there is a father and mother that were imbecile, demented, or insane, both of them, they would in all probability have insane offspring. When either father or mother alone, followed by the grandmother, and also the — in the case you have just stated the sister, that makes it even more certain that the offspring will be insane, more even than when it is just the two parents, because it follows a general scheme or theory that has been proved- by the insane asylum experts, a theory by the name of Mendelism, and that theory would say .that,- where just the father and mother were insane, their inheritance might have been very slight, coming down from a great number of generations, but, when for two generations before the offspring in question insanity has been fully demonstrated even on one side, as in the case you state, why then they say absolutely, actually, as a fact, that the offspring will always be insane or imbecile or demented.”
    Cross-examination:
    "Q. Professor, are you a member of the school of heredity or of environment in regard to insanity? A. I should say of heredity. Q. In other words, then, there are two theories with regard to insanity, one of environment, and the other of heredity ? A. There are two theories, but that of environment is pretty well exploded. Q. And the one of heredity does not always work óut? A. Those of us .who believe in the theory of heredity claim that it does. Q, I presume that on the other hand those who believe in the theory of environment claim the same thing? A. I suspect they might, but they are in the minority.”
    He further stated that he had not examined defendant, and had not put any of the ordinary tests for insanity either to the defendant, his grandmother, or his mother’s sister; that he based his answers solely on the facts stated in the hypothetical questions.
    The defendant, Jesse Alberty, took the stand as a witness in his own behalf. After stating his name, he was asked and answered but one question, as follows:
    “Q. Jesse, did you know what you were doing the night Willie Markham was shot? A. No, sir.”
    On cross-examination, he stated that:
    “The last I remembered was at the schoolhouse; I remember some few who were there; I didn’t know what I was doing; I just remember when the last ‘spell’ was; I have been that way off and on all my life; I have been in jail three months; I haven’t had any ‘spells’ since I have been in jail; I don’t remember getting the shotgun, nor going off on John Scrimsher’s horse, or going down and shooting; I don’t remember anything until the next morning; I was laying there asleep, and my mother woke me up and asked me if I knew what I had done. This was about 7 or 8 o’clock; went to. my grandmother’s and stayed there a day or two.”
    The foregoing is a substantial statement,of all the evidence introduced upon the trial.

      Joseph S. Dickey, Jr., for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). There is no dispute as to the facts and circumstances of the homicide. The theory of the defense was excusable homicide on the ground of insanity, and the sole question presented on this appeal arises upon the refusal of the court to give the following instruction:

“You are instructed that the law presumes that every person is sane, and it is not necessary for the state to introduce

evidence of sanity in the first instance. When, however, any evidence has been introduced tending to prove insanity of an accused, the burden is then upon the state to establish the fact of the accused’s sanity, the same as any other material fact to be established by the state to warrant a conviction. If the testimony introduced in this case tending to prove that the defendant was insane at the time of the alleged killing of Willie Markham raises in your mind a reasonable doubt of his sanity, at the time of the alleged crime, then your verdict should be acquittal.”

The court refused to give this instruction, and the defendant excepted. No objection was made or exception taken to the instructions given by the court.

The defendant’s counsel contends that, under the rule declared by this court in the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, the refusal of the court to give the instruction requested constitutes reversible error. We think the contention is manifestly without merit.

Section 2094 of the Penal Code (Rev. Taws 1910) provides:

“All persons are capable of committing crimes, except those belonging to the following classes: * * * Fourth: Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged 'against them they were incapable of knowing its wrongfulness.”

Under this provision the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.

In the course of the opinion in the Adair case, supra, it is said:

“It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind, or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed 'and charged, and incapable of understanding the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case.”

Section 5902, Procedure Criminal (Rev. Laws 1910), provides :

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him,, unless the proof on the part of the prosecution tends to show that' the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

In the Adair case, it is said:

“Under the statute, the rule as to the burden of proof in a homicide case, when the defense of insanity is interposed, we hold to' be this: The defendant is presumed in law to be sane and capable of knowing right from wrong as to the homicidal act, and to understand the nature and consequences of such act, and, unless the proof on the part of the prosecution is sufficient to raise a reasonable doubt of the defendant’s sanity, the burden is upon the defendant, in the first instance, to' overcome this presumption by introducing sufficient evidence to raise a reasonable doubt of his sanity when the act was committed. When he has done this, the prosecution, in order to convict, must prove the defendant’s sanity beyond a reasonable doubt; and if, on a consideration of all the evidence, the jury entertain a reasonable doubt as to the defendant’s sanity when the act was committed, he should be acquitted.”

Upon a trial for murder, the presumption of innocence has been overcome when the commission of the homicide by the defendant is proven beyond a reasonable doubt; a presumption of guilt then obtains, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Thereupon, under this section of the statute (section 5902, supra), the burden of introducing sufficient evidence to raise a reasonable doubt of his guilt is upon the defendant. When he has done this, the burden of proof is upon the state to establish the guilt of the defendant beyond a reasonable doubt. Every defendant is presumed in law to be sane and capable of knowing right from wrong, and able to choose between them. This presumption, however, upon a trial for murder, is overcome whenever evidence is adduced sufficient to raise a reasonable doubt of the defendant’s sanity at the time of the commission of the homicide. The law thereupon imposes upon the state the burden of establishing the sanity of the defendant the same as any other material fact necessary to warrant a conviction; that is, beyond a reasonable doubt.

In instruction No. 5 the court stated the defense of insanity, and quoted the language of the fourth subdivision of section 2094, supra.

Instructions Nos. 6 and 7, as given by the court, read as follows:

“VI. You are therefore instructed that, if you believe from the evidence in this case that the defendant shot and killed the deceased in manner and form as charged in the information, and you further believe that the defendant at the time of the killing was a lunatic, or an insane person, or was a person of unsound mind, or was temporarily or partially deprived of his reason, to such an extent that he was incapable of knowing the wrongfulness of his act, then it will be your duty to acquit the defendant, and you are instructed that, if you acquit the defendant on the ground of insanity, you should state that fact in your verdict.

“VII. You are further instructed in this connection that if, after a full and careful consideration of the whole case, yott entertain a reasonable doubt as to the sanity of the defendant, at the time that he fired the fatal shot, you will then give him the benefit of such doubt and return a verdict of not guilty.”

It will be observed that, as to the burden of proof,- the requested instruction is when any evidence has been introduced tending to prove insanity. In the Adair case, it was held that by the express provision of the statute (section 5902, supra), when the commission of the homicide is admitted or proven, and the defense sought to be established is the insanity of the defendant, the legal presumption of sanity must be overcome by evidence which is sufficient to raise a reasonable doubt of the defendant's sanity at the time of the killing. When that is done, the presumption of sanity ceases, and the burden of establishing the sanity of the defendant is upon the state, which is then required to prove his sanity as an element necessary to constitute the crime, and if, upon consideration of all the evidence, together with all the legal presumptions applicable to the case, the jury have a reasonable doubt as to whether the defendant, at the time of the commission of the homicide, was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing, he must be acquitted.

The defense of insanity, or at least the existence of such mental disturbance or derangement of the mind as to render the defendant irresponsible in law for the act committed, rested largely, if not entirely, upon the testimony of his father that the defendant was subject to “spells,” at which times he was very unruly, and would want to fight, and that his mother was afflicted in like manner, and that the defendant’s mother’s sister was insane at one time. It was not claimed that the defendant was subject to fits of epilepsy, or that he was a person of feeble mind. The evidence shows that the defendant was born and had lived all his life in that neighborhood; yet no testimony was introduced to show that he had ever acted irrationally.

The expert who testified did not confine his answer to the facts as stated in the hypothetical question, but stated generally “that, where there is a father and mother that were imbecile, demented, or insane, both of them, they would in all probability have insane offspring,” and,- “when for two generations before the offspring in question insanity has been fully demonstrated even on one side, the offspring will always be insane or imbecile or demented.” The proof in this case did not establish or tend to establish any such facts.

It is proper to say that, after a careful examination of all the testimony in regard to the mental condition of the defendant at the time of the homicide, it does not fairly permit any other conclusion than that the shooting was the willful, deliberate, and premeditated act of a person who- understood perfectly well the nature and consequences of his act.

The defense of irresponsibility, at best, presents a question of fact for the jury, and when they have settled that question without passion or prejudice, in accordance with the evidence, it is not the province of this court to disturb the verdict of the jury. We think that the charge to the jury was as favorable to the defense as the law permitted, and, for the reasons stated, the instruction requested was properly refused.

, We have given the case that careful consideration which its importance and its solemn consequences to the defendant demand, and we see no occasion to interfere with the execution of the judgment of death. The defendant has had a fair trial, and has been convicted upon evidence which should satisfy the fairest mind of his guilt. The judgment is therefore affirmed.

It appears from the record that after the judgment was rendered and sentence of death was pronounced the law approved March 29, 1913, regulating the infliction of the death penalty, was passed. The statutes in force when the judgment was rendered provided:

Section 5967, Rev. Laws 1910:

“When judgment of 'death is rendered, the judge must sign and deliver to the sheriff of the county, a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment, and appointing a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of the judgment.”

Section 5981, Rev. Laws 1910:

“The punishment of death must be inflicted by hanging the defendant by the neck until he is dead; or his life may, under the direction of the Governor, and at the cost of the state, be taken by electricity if the court so' orders.”

Section 5982, Rev. Laws 1910:

“A judgment of death must be executed within the walls or yards of a jail of the county in which the conviction was had, or some convenient private place in the county. If there is no such jail or prison in the county in which the conviction was had, or if it becomes unfit or unsafe for the confinement of prisoners, or is destroyed by fire or otherwise, and the jail of another county has been legally designated for the confinement of the prisoners of the county in which the conviction was had, the judgment must be executed in manner as above.”

By sections 1, 2, and 9 of chapter 113, Sess. Laws. 1913, it is provided:

“Section 1. The punishment of death must be inflicted by electrocution.

“Section 2. When judgment of death is rendered the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must.not be less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at Mc-Alester, in this state, for execution.”

“Section 9. A judgment of death must be executed within the walls of the state prison at McAlester, Oklahoma, said prison to be designated by the court by which judgment is to be rendered.”

The act of 1913 took effect June 15, 1913. It will be observed that it differs from the statute in force when the judgment and sentence of death was rendered in the following particulars : Chapter 113, Sess. Laws 1913, prescribes, “The punishment of death must be inflicted by electrocution,” and substitutes the penitentiary for the county jail as the place where a judgment of death must be executed, and requires the court to appoint a day for the execution not less than 60, nor more than 90, days from the time of the judgment. The former statute required the court to appoint a day for the execution not less than 30, nor more than 60, days from the time of the judgment; the punishment of death to be by hanging, or by electrocution, as the trial court might order.

We are of opinion that the provisions of chapter 113, Sess. Laws 1913, applied to crimes committed prior to the time said act took effect, and are not repugnant to the provision of the federal Constitution declaring that-no state shall pass an ex -post facto law. Article 1, sec. 10, Const. U. S. It did not create a new offense, nor require the infliction of a greater or more severe punishment than the law annexed to the crime when committed. The changes effected related solely to penal administration. The act changed the place and the officer for carrying out the sentence of death, and the extension of the time within which the execution may take place after sentence is a mitigation, and not an increase, of punishment. Our conclusion is based upon the holding of the Supreme Court of the United States in the case of Rooney v. North Dakota, 196 U. S. 319, 25 Sup. Ct. 264, 49 L. Ed. 494, 3 Ann. Cas. 76, wherein it was held that:

“A state statute changing the punishment for murder in the first degree by substituting close confinement in the penitentiary for not less than six nor more than nine months for confinement in the county jail for not less than three nor more than six months after judgment and before execution, and by substituting hanging within an inclosure at the penitentiary by the warden or his deputy for hanging by the sheriff within the yard of the county jail, is not ex post facto, and therefore unconstitutional, when applied to a person convicted before its enactment.”

In the course of the opinion it is said:

“The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the .county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the state, is of no particular consequence to'the criminal. On such a matter he is not entitled to be heard.”

In Henry v. State, ante, 136 Pac. 982, this court held that chapter 113, Sess. Raws 1913, was not an ex post facto law, within the inhibition of the state Constitution (section 15, Bill of Rights), when applied to a person convicted and sentenced before its enactment, where an appeal therefrom was pending at the time the act took effect.

The judgment and sentence in this case was rendered under the statute in force at the time of the homicide for which the ■defendant was convicted, and an appeal therefrom was pending when the act of 1913 took effect. It is apparent that the Legislature intended that the provisions of the act of 1913 should control in the rendition and execution of judgments of death in all cases wherein such judgments should be rendered after the act took effect, including cases where the murder had been committed prior thereto. However, no provision was made for cases pending on appeal where the judgment and sentence was death by hanging, if there should be'an affirmance of such a judgment. In such cases we think the effect of the act of 1913 after final judgment should be determined by reference to the constitutional saving clause which provides:

“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.” (Article 5, sec. 54; article 144, Williams’.)

Under this constitutional provision, the Legislature cannot intervene and vacate or modify the judgment of the courts either directly or indirectly by repeal or by amendment of a státute under which the judgment was rendered (Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575), and on principle it would be an exercise of judicial, and not of legislative, power.

“Legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the Legislature would, in effect, sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.” (Cooley, Const. Lim. [7th Ed.] 136.)

The repeal or the amendment of a statute prescribing the punishment for an offense after final judgment has been pronounced and while an appeal therefrom is pending, will neither vacate nor modify such judgment, nor arrest the execution of the sentence when there is an affirmance of the judgment and sentence. This conclusion is to some extent opposed to that reached by this court in Henry v. State, supra; but, as the ground of our decision herein was not discussed nor at all considered in that case, it cannot be regarded as a binding precedent, and since Henry’s sentence was by the chief executive commuted to life imprisonment, no right could be or was injured thereby.

As the day fixed for the execution of the judgment has passed, the cause is remanded to the trial court with directions to proceed under the provisions of Procedure Criminal (sections 5979 and 5980, Rev. Laws 1910), prescribing the procedure when a judgment of death has not been executed on the day appointed. When the defendant is brought before the court, if he should elect or request to have the judgment and sentence modified to conform to the provisions of the act of 1913, in order to avoid any possible question, the court is directed to modify said judgment in conformity to the provisions of said act. Otherwise the trial court is directed to fix another day for the execution of the judgment and sentence as set forth in the death warrant issued upon the judgment and sentence. The warden of the penitentiary is directed to deliver the defendant, Jesse Alberty, to the sheriff of Wagoner county, who is directed to safely keep the defendant in custody pending the proceedings in the trial court.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    J. H. WINEMILLER v. STATE.
    No. A-1517.
   J. H. Winemiller was conviction in tlie county court of Okmulgee county of cruelty to animals. Reversed, per curiam, March 29, 1913.


author: PER CURIAM.

text:
    BEN McLAUGHLIN v. STATE.
    No. A-1705.
    Opinion Filed July 2, 1913.
    Appeal from County Court, Johnston County; Nick Wolfe, Judge.
    Kennamer & Coaldey and Gullett & O’Bryan, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for violating the prohibitory liquor law, and appealed. The legal questions involved, in this case have already been decided adversely to the contentions of counsel for appellant. It is therefore not necessary to repeat here what has been said. The judgment of the lower court is affirmed.


text:
    H. S. MERCHANT v. STATE.
    No. A-1703.
    Opinion Filed July 2, 1913.
    Appeal from County Court, Stephens County; W. H. Admire, Judge.
    Womack & Brown and Gilbert & Bond, for appellant.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

We find no prejudicial error in the record. The evidence was conflicting, but this was a question for the jury alone to settle. The judgment of the trial court is therefore affirmed.


text:
    OTTO DISHON v. STATE.
    No. A-1733.
    Opinion Filed July 3, 1913.
    Appeal from County Court, Oaddo County; 0. Boss I-Iunie, Judge.
    Otto Dishon was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Bristow & MeFayden, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Caddo County on the 30th day of March, 1912, in which plaintiff was found guilty of the offense of having possession of intoxicating liquors with the intention of violating provisions of the prohibitory law, and his punishment assessed at confinement in the county jail for thirty days and a fine of fifty dollars. From a careful examination of the record our conclusion is the evidence is sufficient to support the verdict of the jury. And we find no error committed on the trial of the cause. The judgment of the county court is therefore affirmed.


text:
    W. H. CARLISLE v. STATE.
    No. A-1765.
    Opinion Filed July 3, 1913.
    Appeal from County Court, Texas County; W. C. Crow, Judge.
    W. H. Carlisle was convicted of a violation of the prohibitory Iqw, and appeals.
    Affirmed.
    Wallace G. Hughes, for plaintiff in -error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Texas county on the 18th day of April, 1912, in which plaintiff in error was found guilty of unlawfully selling to J. F. Frazier one pint of whisky for one dollar, and was in accordance with the verdict of the jury sentenced to be confined for thirty days in the county jail and pay a fine of seventy-five dollars. The main contention is that the evidence is insufficient to support the verdict and judgment. There is a direct conflict in the evidence on the part 'of the state and that of the defendant, but the evidence was sufficient to satisfy the jury that the statute had been violated, and, if there is sufficient evidence to sustain the verdict, it must stand, whatever the opinion of this court might be upon the same testimony, if it were its duty to pass upon the fact's. There is nothing shown by the record which easts any reflection upon the fairness or impartiality of the jury. It appearing that the defendant has had a fair and impartial trial, the judgment of the lower court is affirmed.


text:
    TOM HERNDON v. CITY OF McALESTER.
    No. A-1621.
    Opinion Filed July 3, 1913.
    Appeal from County Court, Pittsburg County; B. P. Hammond, Judge.
    Tom Herndon was convicted of a violation of Ordinance No. 440 of the city of MeAlester, and appeals.
    Affirmed.
    J. G. Harley and Jas. R. Miller, for plaintiff in error.
    T. D. Davis, City Attorney, for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the }Dolice court of the city of MeAlester on a charge of selling intoxicating liquor, in violation of Ordinance No. 440 of said city of MeAlester. Erom the judgment of conviction he appealed to the county court of Pittsburg county, where he was again convicted, and in accordance with the verdict of the jury he was, on December 1, 1911, sentenced to be confined for thirty days in the city jail, and to pay to the city of MeAles-ter a fine of fifty dollars and costs. Erom the latter judgment he prosecutes this appeal. Erom a careful examination of the record we find that the charge of the court presents the law, - and the evidence is sufficient to support the verdict. No error being apparent, the judgment of the court below is affirmed.


author: EURMAN, J.

text:
    V. B. McMILLIAN v. STATE.
    No. A-1683.
    Opinion Filed July 5, 1913.
    Appeal from County Court, Garfield County; Winfield Scott, Judge.
    Y. B. McMillan was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    O. B. I-lubbel]* for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   EURMAN, J.

Appellant was convicted for violating the prohibitory liquor law and his punishment was assessed at ninety days’ confinement in the county jail and a fine of $250. The various questions of law presented in the brief of counsel for appellant have all been repeatedly decided adversely to the contentions therein made. Under these conditions the law relieves us of the necessity of writing an elaborate opinion. If it were not for the fact that onr docket is crowded with business we would be willing to take up and discuss the various questions presented, but we have no doubt as to the guilt of this appellant and our duty to the state will not allow us to take time from other cases discussing questions which we have already decided. The judgment of the trial court is therefore in all things affirmed.

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


text:
    DAVE WEINBERGER v. STATE.
    No. A-1548.
    Opinion Filed July 12, 1913.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    Dave Weinberger was convicted of violating the prohibitory law, and appeals.
    Reversed.
    McGuire & Smith, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and Joe L. Hull, for the State.
   PER CURIAM.

The plaintiff in error, Dave Weinberger, was convicted at the September, 1911, term of the superior court of Logan county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a term of thirty days and a fine of one hundred dollars. .Upon a careful examination of the record, we find that the proof introduced is wholly insufficient to sustain the conviction. The judgment is reversed and the cause remanded with direction to the trial court to grant a new trial.


text:
    JOE HERBER v. STATE.
    No. A-1549.
    Opinion Filed July 12, 1913.
    Appeal from Superior Court, Logan Gounty; S. S. Lawrence, Judge.
    Joe Herber was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    McGuire & Smith, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. S. Estes, of counsel), for the State.
   PER CURIAM.

Plaintiff 'in error, Joe I-Ierber, was convicted under an information which charged that J. L. I-Iallock and Joe Herber did have the possession of ten quarts of whisky with the intent to sell said liquor, contrary to law. When the case was called for trial, the defendant Hallock failed to appear. The jury returned a verdict finding the defendant Herber guilty as charged and assessed his punishment at confinement for thirty days in the county jail, and to pay a fine of one hundred dollars. September 23, 1911, the judgment and sentence was entered in accordance with the verdict. From, a careful examination of the record our conclusion is that the assignments of error are not well taken. The guilt of the defendant was established beyond any reasonable doubt. The judgment of the superior court of Logan county is therefore affirmed.


text:
    HARRY DAY v. STATE.
    No. A-1674.
    Opinion Filed July 12, 1913.
    Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
    Harry Day was convicted of a violation of the prohibitory law, and appeals.
    Affimed.
    Lee P. Wilson and E. G. Wilson, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Harry Day, was convicted under an information which charged that Harry Da.y and Doc Beech did have the possession of intoxicating liquor with the intent to sell said liquor contrary to law. The record shows that only the defendant Day ap peared for trial. The jury returned a verdict finding the defendant Day guilty as charged and assessed his punishment at confinement for six months in the county jail, and that he pay a fine óf fifty dollars. On January 23, 1912, the judgment and sentence was entered in accord anee with the verdict. Upon a careful examination of the record our conclusion is that the assignments of error are not well taken. The guilt of the defendant was established beyond any reasonable doubt.. The judgment of the county court of Ofdahoma county is therefore affirmed.


text:
    F. WIETELMANN v. STATE.
    No. A-1736.
    Opinion Filed July 12, 1913.
    Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
    P. Wietelmann was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Edward A. Wagener, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted under an information wliicli charged that he did have in his possession intoxicating liquors with intent to violate the prohibitory law, and on January 29, 1912, he was sentenced to be confined in the county jail for six months and pay a fine of five hundred dollars. No briefs have been filed or oral argument made on his behalf. The Attorney General for this reason moved to affirm the judgment. The judgment of the county court of Oklahoma county herein is therefore affirmed.


text:
    W. D. WHITE v. STATE.
    No. A-1724.
    Opinion Filed July 12, 1913.
    Appeal from County Court, Oklahoma County.; John W. Ilayson, Judge.
    Pruiett, Sniggs & Wilson, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from, a conviction had in the county court of Oklahoma county, in which plaintiff in error was found guilty under an information which charged that he did have in his possession intoxicating liquors with intent to dispose of the same contrary to the provisions of the prohibitory liquor law. On the 15th day of February, 1912, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for a period of six months and to pay a fine of five hundred dollars. Error is assigned upon the action of the court in refusing to quash the information and in overruling the defendant’s objection to the introduction of any evidence upon the ground of the insufficiency of the information, and particularly, because the -same was not signed and preferred by the county attorney. The proof was the same as that in the case of McGarrah v. State, ante, decided at this term, and presents the same question. For the reasons given in the opinion in that case the judgment of the county court of Oklahoma county is reversed and the cause remanded thereto to be disposed of as required by law.


text:
    F. WIETELMANN v. STATE.
    No. A-1737.
    Opinion Filed July 12, 1913.
    Appeal from County Court, Oklahoma County; John W. Ilayson, Judge.
    • F. Wietelmann was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    Edward A. Wagener, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted under an information which charged the unlawful selling of intoxicating liquor, and on the 19th day of January, 1912, he was sentenced in accordance with the verdict of the jury to be confined for thirty days in the county jail and pay a fine of fifty dollars. No brief has been filed or oral argument made in behalf of the defendant. When the cause was called for final submission the Attorney General for this reason moved to affirm. The motion to affirm is sustained and the cause remanded with direction to enforce the judgment and sentence.


author: PER CIJRIAM.

text:
    BERT GRANT v. STATE.
    No. A-1766.
    Opinion Filed July 19, 1913.
    Appeal from County Court, Pottawatomie County; Ross P. Loekridge, Judge.
    Bert Grant was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    S. P. Preeling and I. C. Saunders, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson and E. G. Spilman, Asst. Attys. -Gen., for the State.
   PER CIJRIAM.

Plaintiff in error was convicted of unlawfully selling intoxicating liquor and on the 20th day of March, 1912, in accordance with the verdict of the jury he was sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. The record shows that upon his arraignment the court- inform,ed said defendant, of his right to be represented by counsel, and the defendant stated that he was aware of his rights in this regard; that he was able to procure counsel, but that he did not desire to be represented by counsel, that he dould and wpuld represent himself. E. A. Pierce, sheriff, testified that in making a raid in the Reeble Hotel in Shawnee he found the defendant standing behind a bar, another man was standing in front of the bar, he reached over to pick up a glass’of whisky, and witness reached over and said he would take that. Defendant knocked the glass and spilled most of its contents; that there was a quarter of a dollar lying on the bar. He also found three bottles of whisky and some other liquor in bottles. John J. Dutton, deputy sheriff, testified substantially to the same state of facts. This was all the evidence in the case. The defendant offered no evidence. After his conviction the defendant secured counsel and filed motions for new trial and in arrest of judgment, which were overruled. Where the guilt of the defendant is established by evidence which is undisputed, this court will not consider it an error which will demand a reversal of the conviction, that the information was bad for duplicity, where no objection by demurrer was made thereto. Tested by the plain and simple rules prescribed by our code of criminal procedure the information is sufficient to support the verdict and judgment. The judgment is therefore affirmed.


author: PEE CURIAM.

text:
    JOHN MOODY v. STATE.
    No. A-1632.
    Opinion Filed July 19, 1913.
    Appeal from County Court, Cherokee County; J. T. Parks, Judge.
    John Moody was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    J. I. Coursey, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CURIAM.

Plaintiff in error was convicted on an information which charged the unlawful sale of intoxicating liquors, and on the 10th day of November, 1911, in accordance with the verdict of the jury he was sentenced to be confined for thirty days in the county jail and to pay a fine of fifty dollars. Prom a careful examination of the record it is our conclusion that the assignments of error are not well taken, and the defendant has had a fair and impartial trial. The judgment of the county court of Cherokee county is therefore affirmed.


text:
    FRANK ROSS v. STATE.
    No. A-1768.
    Opinion Filed July 26, 1913.
    Appeal from County Court, Pottawatomie County; Ross P. Loekridge, Judge.
    Prank Ross was convicted of gambling, and he appeals.
    Affirmed.
    S. P. Freeling, A. M. Widdows, and I. C. Saunders, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Prank Ross, was convicted at the March, 1912, term of the county court of Pottawatomie county on a charge of conducting a gambling game commonly known as “poker,” and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 30 days. We have carefully examined the record and find no error sufficient to justify a reversal of the judgment. It is therefore affirmed.


text:
    JAKE BARNES v. STATE.
    No. A-1778.
    Opinion Filed July 26, 1913.
    Appeal from County Court, Oklahoma County; John W. I-Iayson, Judge.
    Jake Barnes was convicted of operating a roulette game, and appeals.
    Reversed.

      Kistler, McAdams & Haskell, for plaintiff in error.
    Smith 0. Matson, Asst. Atty. Gen., and Jos. L. Hull, Sp. Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Jake Barnes, was tried and convicted at the April, 1912, term of the county court of Oklahoma county on a charge of operating a roulette game, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 90 days. Among other assignments urged for reversal of this cause, counsel for the accused contend that the court erroneously permitted Boss 1ST. Lillard to amend the information after a demurrer had been sustained thereto, their contention being that under and by virtue of the laws of this state no person has the power to amend an information for a misdemeanor except the county attorney or one of his duly qualified and acting deputies. The record contains the following recital: “It is further admitted by the state that Boss Lillard amendedthe information in the above entitled cause by permission of the court, and was not at the time of the amendment of said information the duly qualified and acting assistant or deputy county attorney within and for Oklahoma county, state of Oklahoma.” Under the doctrine announced by this court in the case of McGarrah v. State, ante, decided at the present term, this cause will have to be reversed. It 'is unnecessary to consider the other assignments. The judgment of the trial court is reversed and the cause remanded with directions to the county court of Oklahoma county to permit the county attorney to file- a proper information and proceed with the trial of the cause.


author: PEB OUBIAM.

text:
    R. A. METCALF v. STATE.
    No. A-1745.
    Opinion Filed July 26, 1913.
    Appeal from County Court, Ellis County; A. L. Squire, Judge.
    B. A. Metcalf was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    J. P. McLaughlin and C. B. Leedy, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEB OUBIAM.

The plaintiff in error, B. A. Metcalf, was convicted in the county court of Ellis county at the March, 1912, term on a charge of maintaining a place wherein intoxicating liquors were illegally sold, and his punishment fixed at a fine of two hundred dollars and imprisonment in the county jail for a period of 60 days. We have carefully examined the record and are unable to say that the judgment of the trial court is wrong. It does not appear affirmatively that the plaintiff in error was denied any substantial right on the trial. ' The judgment is, therefore, affirmed.