text:
    RUBY TAYLOR v. STATE.
    No. A-3782.
    Opinion Filed June 30, 1922.
    (207 Pac. 746.)
    (Syllabus.)
    1. Continuance — Defendant’s Failure to Prepare Application Within Required Time. Whei'e the trial court granted defendant's counsel one hour’s time in which to prepare an application for a continuance, and counsel failed or refused to prepare the same within the time allowed, and offered no sufficient excuse for not complying with the court’s order, the action of the trial court in requiring the case to proceed to trial at the expiration of such time was not prejudicial to defendant’s rights in the premises.
    2. Same1 — That Defendant’s Counsel had Matter Pending in Other Court not Sufficient Excuse. The courts of the state are con. ducted at great expense to the taxpayers, and it is incumbent upon counsel to assist th'e court in expediting the business before it; the mere fact that counsel had a matter pending in another court which he deemed more important to attend to was not alone a sufficient excuse for a failure to comply with the court's order granting time to prepare an application for continuance in this case, the time allowed being amply sufficient for that purpose.
    3. Appeal and Error — Judgment on Conflicting Evidence not Reversed. Where the state’s evidence is sufficient, if believed, to sustain a conviction, the judgmtent will .not be reversed although the evidence as a whole may be- conflicting.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Euby Taylor was convicted of grand larceny, and appeals.
    Affirmed.
    Brucel & Brewer, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

On tbe 15th of October, 1919, the county attorney of Muskogee county filed in the district court of said county an information charging Euby Taylor with the larceny of $115 in money and one watch and one pair of cuff buttons of tbe value of $10 from the person of W. E. Edwards. Said crime was alleged to have been committed on the 1st day of October, 1919. Thereafter, on the 3d day of November, 1919, defendant was arraigned in open court, and entered her plea of not guilty to the charge, and the cause was set for trial for the 17th day of November, 1919.

Thereafter, on the 17th day of November, 1919, said cause was called for trial, and the state announced ready for trial, and the defendant announced not ready because of the absence of certain witnesses. Thereupon the court allowed the defendant one hour’s time in¡ which to make a showing' for a continuance on account of the absence of said witnesses, or else prepare for trial. At the conclusion of said recess the cause was again called for trial, and the state again announced ready and the defendant not ready, for the reason that defendant had not had sufficient time in which to prepare an application for continuance on account of the absence of certain witnesses. The court refused to grant the defendant further time in which to prepare an application for a continuance, impaneled a jury, and the cause proceeded to trial, resulting in a verdict of guilty and the assessment of one year’s'imprisonment in the state penitentiary against the defendant.

It is here urged that the action of the trial court in requiring the defendant to proceed to trial after the recess of one hour was prejudicially erroneous to the defendant, and should result in a reversal of this judgment.

The only excuse given by counsel for defendant for not preparing an application for continuance was that counsel had a cause pending in the superior court of that county, in which counsel were required to get another defendant into that court by 11 o’clock of that morning in order to save a forfeiture on an appearance bond, and for that reason counsel was compelled to neglect the preparation of an application for a. continuance in this case.

The granting of one hour’s time in which to prepare the application for a continuance was sufficient. The blame, if any, rests upon counsel for defendant in not preparing the application within the reasonable time allowed by the court. The courts of this state are conducted' at great expense to the taxpayers, and it is incumbent upon counsel to assist the court in expediting the business before the court, and the mere fact that counsel had a matter pending in another court which he deemed more' important to look after than the one in the instant ease was not a sufficient excuse for further delaying the trial of this cause. It cannot, therefore, be said that there was any abuse of discretion on the part of the trial judge in refusing a further recess for the purpose of enabling counsel to prepare an application for a continuance.

It is also contended that the evidence is insufficient to sustain a conviction. The evidence is conflicting, but the evidence on the part of the prosecuting witness, if believed, is amply sufficient to sustain a conviction. The record in this case tends to show that the prosecuting witness, a farmer from a neighboring county, went to Muskogee to attend the state fair, taking quite a sum of money with him for the purpose of purchasing a new set of harness, in addition to sufficient funds to pay his expenses while attending the fair; that he fell into the company of the defendant and others with her, who knew he had this money upon his person, and proceeded to steal it, after taking numerous drinks of whisky with the prosecuting witness.

The defendant had a fair and impartial (trial, and the verdict and judgment is warranted by the evidence. The alleged errors complained, of are, without merit.

The judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, 'J.

license: Public Domain

text:
    W. H. HORNADAY et al. v. STATE.
    No. A-3941.
    Opinion Filed June 30, 1922.
    (208 Pac. 228.)
    (Syllabus.)
    1. Licenses — Purposes of Blue Sky Law. The purposes of the Blue Sky Law (chapter 49, Session Laws 1919) are twofold:
    First. To prevent stockbrokers and promoters from perpetrating’ frauds and impositions on unsuspecting investors in hazardous undertakings.
    Second. To protect credulous and incompetent persons from their own inclinations to speculate in hazardous undertakings, entered into on their own account or on the advice of friends, though not brought about by interested promoters or stockbrokers.
    2. Same — That Defendant’s Counsel Had Matter Pending in Other Undeveloped Oil Lease Without Solicitation not Within Purview of Blue Sky Law. Where an individual, 'without solicitation or' influence of stock sales inducements, purchases an undivided interest in an undeveloped oil lease, with the expectation of becoming one of its promoters, the assignor of such Interest under the circumstances shown here is not within the purview and intent of the regulations and penalties of the Blue Sky Law.
    3. Constitutional Law — Reasonable Regulation Invading Individ, ual’s Rights of Contract by> State Boards. As to what constitutes reasonable regulations, invading the rights of individuals to make their own contracts, by or through boards or agents of the state under the federal Constitution, dtepends upon the facts and circumstances of each particular case — in this case • not necessary to determine.
    Appeal from District Court, Logan County; Edward D. Oldfield, Judge.
    W. H. Hornaday and others were found guilty of violating the blue sky laws, and they appeal.
    Reversed.
    C. G. Horner, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., R. E. Wood, Asst. Atty. Gen., and A. Y. Dinwiddie, Co. Atty., for the State.
   BESSEY, 'J.

Plaintiffs in error were jointly informed against and found guilty of violating tbe blue sky laws, as alleged in the information, and their punishment was assessed by the jury at a fine of $200 each. The charging part of the information is as follows:

“On and prior to the 6th day of April, A. D. 1920, the said W. H. Hornaday, John D. Richards, L. L. Billings, C. E. Wright, J. L. Patterson, and Chas. Kinkade, then and there being, did then and there willfully, unlawfully, and feloniously offer for sale and sell certain speculative securities in said county and state to one Fred J. Armstrong, the same being the securities of a purported organization known as the TriState Oil, Gas, and Mineral Association, the said W. H. Horn-aday, John D. Richards, L. L. Billings, C. E. Wright, J. L. Patterson, and Charles Kinkade then and there being the officers and directors of said purported organization, which said speculative securities so sold as aforesaid were in words, letters, and figures as follows, to wit:
“ ‘ Assignment of Oil and Gas Lease.
“ ‘Whereas, on the-day of February and March, 1920, a certain oil and gas mining lease was made and entered into between C. F. Hornback and others, lessor, and C. E. Wright and associates, lessee, covering the following described land in the county of Crawford and state of Arkansas, to wit: One thousand acres, more or less, blocked by the TriState Oil, Gas, and Mineral Association — this assignment to be returned to the Tri-State Oil, Gas, and Mineral Association in exchange for $500.00 worth of stock in said association, when completed, and when called for by the board of trustees of said association; said lease being recorded in the office of the register of deeds in and for said county in Book- at page -; and
“ ‘Whereas, the said lease and all rights thereunder or incident thereto are now owned by C. E. Wright and associates:
“ ‘Now, therefore, for and in consideration of one dollar and other good and valuable considerations, the receipt of which is hereby acknowledged, the undersigned, the present owners of the said ¡lease and all rights thereunder or incident thereto, do hereby bargain, sell, ■ transfer, assign, and convey, unto Fred J. Armstrong an undivided interest in their right, title, and interest of the original lease and present owners in and to said lease and rights thereunder in so far as it covers the above-described lands, and to his heirs, successors, and assigns.
“ ‘And for the said consideration the undersigned, for themselves and for their heirs, successors, and representatives, do covenant with the said assignee, his heirs, successors, or assigns that they are the lawful owners of the said lease and rights and interests thereunder, and of the personal property thereon or used in connection therewith, that the undersigned have good right and authority to sell and convey the same, and that said rights, interest, and. property are free and clear from all liens and incumbrances, and that all rentals and royalties due and payable thereunder have been duly paid.
“ ‘In witness whereof the undersigned owners and assignors have signed and sealed this instrument this 6th day of April, 1920.
“ ‘ [Signed] C. E. Wright.
“ ‘L. L. Billings.
“ ‘Chas. Kinkade.
“ ‘J. D. Richards.
“ ‘By C. E. Wright, Atty.’
“‘The said W. H. Hornaday, John-D. Richards, L. L. Billings, C. E. Wright, J. L. Patterson, and Charles Kinkade, while acting together as officers and directors and trustees of said association, in the promotion and sale of said speculative security as aforesaid, did on said day and date sell said speculative security as aforesaid to the said Fred J. Armstrong for the sum of $100, the same being sold on the installment plan, of which said sum the sum of $50 was then and there on the 6th day of April, 1920, paid to said defendants by the said Fred J. Armstrong, and the second installment of $25 being paid to said defendants by the said Fred J. Armstrong on the 13th day of May, 1920; that on and prior to the said 6th day of April, the said W. H. Hornaday, John D. Richards, L. L. Billings, C. E. Wright, J. L. Patterson, ■and tbe said Charles Kinkade sold said speculative securities to divers persons for divers sums of money, the names of said persons and amounts paid therefor being unknown to the county attorney, all of said sales as aforesaid being made by said defendants, W. H. Hornaday, John D. Richards, L. L. Billings, C. E. Wright, J. L. Patterson, and Charles Kinkade, without first having secured a permit from the state issues commission of the state of Oklahoma to offer for sale and sell in said county and state said speculative securities as aforesaid, as provided by chapter 49, Session Laws 1919 of the state of Oklahoma, all of which acts of said defendants being contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The statute upon which this prosecution is predicated is chapter 49, Session Laws 1919, entitled:

“An act to prevent unfairness, imposition of fraud in ■the sale or disposition of certain ‘Securities’ herein defined by requiring an inspection thereof, providing such inspection, supervision and regulation of the business of any person, association, partnership or corporation engaged or intending to engage, whether as principal, broker or agent, in the sale of any such securities in the state of Oklahoma, as may be necessary to prevent unfairness, imposition or fraud in the sale or disposition of said securities and prescribing penalties for violation thereof.”

The terms “securities” and “speculative securities” are defined as follows:

“The terms ‘securities’ as used in this act shall be taken to mean stock certificates, shares, bonds, debentures, certificates of participation, membership contracts, contracts or bonds for the sale and conveyance of land on deferred payments or installment plan, or other instrument in the nature thereof by whatsoever name known or called and including the capital stock of any and all corporations offering the same for sale.
“The term ‘speculative securities’ as used in this act shall be taken to mean, and include:
“(1) All securities to promote or induce the sale of which, profit, gain or advantage unusual in the ordinary-course of legitimate business is in any way advertised or promised; .
“(2) All securities for promoting the sale of which a commission of more than ten per cent, is offered or paid;
“ (3) All securities into the specified par value of which the element of chance or hazard of speculative profit or possible loss equal or predominate over the element of reasonable certainty, safety, and investment;
“(4) All securities the value of which materially depends on proposed or promised future promotion or development rather than on present tangible assets and conditions;
“(5) The securities of any enterprise, association, partnership or corporation which has included or proposes to include in its assets as a material part thereof, patents, formula, good will, promotion, or intangible assets.
“(6) Securities made or issued in furtherance or promotion of any enterprise or scheme for the sale of unimproved land or undeveloped land on any deferred payments or installment plan, when such lands are not situated in the state of Oklahoma and the value of such securities materially depends on the future performance of any stipulation by the promoters of such enterprise to furnish irrigation or transportation facilities, or other value-enhancing utility or improvement.”

Section 2 of the act provides that it shall be unlawful for any person, copartnership, association, or corporation, either as principal or through brokers or agents, to sell or offer for sale by means of any advertisements, circulars, or prospectus, or by any other form of public or private offering or to attempt to promote the sale of any speculative securities in this state, including the capital stock of such promoter, without the approval of the state issues commission, as further provided in the act.

The concluding paragraph of section 10, relating to securities not included within the meaning of this act, is as follows:

“The provisions of this bill shall not apply to the sale of stocks or bonds where the same are sold for cash and no commission or fee is paid, directly or indirectly, for the sale of the same and no expense for such sale is charged either to the company of issue of the purchaser of such securities.”

Section 14 provides a penalty for the violation of the provisions of this law of a fine of not less than $100 nor more than $5,000, or by confinement in the state penitentiary for not less than one or more than seven years.

Separate demurrers to the information were interposed by each of the defendants on the grounds that the facts stated did not constitute a public offense, that the information shows on its face that the court had no jurisdiction to hear and try the cause, and that the information did not substantially conform to the requirements of the chapter on criminal procedure. Each of these demurrers was overruled.

For the purpose of throwing light on the motive and intent of plaintiffs in error and the motives and understanding of the several purchasers of interests in the mining lease iset out in the information, we quote from the testimony as follows :

“Q. What is your name? A. Fred J. Armstrong. ■
“Q. How long have you lived in Guthrie? A. About 25 years.
“Q. How many of the defendants were you personally acquainted with? A. Judge Hornaday and Mr. Billings.
“Q. Did you have any transaction with either .of these defendants in what is known as the Tri-State Oil, Gas, and Mineral Association, on or about the 6th day of April, 1920? A. Yes, sir.
“Q. What was it and with whom? A. Judge Hornaday sold me an assignment for $100.
“Q. Where and when? A. Here in Guthrie at the courthouse, in the basement in Judge Hornaday’s office. At that time he was justice of the peace.”

Cross-examination :

“Q. You yourself, isn’t this correct, you desired to obtain an interest in these leases they had over there; that is correct, isn’t it? A. No, sir, not the lease, the company. My intention was to join the organization.
“Q. You read the paper you got? A. Yes, sir.
“Q. That is what the paper said, wasn’t it?
“Mr. Dinwiddie: Objected to as not the best evidence.
“The Court: Sustained. Exception allowed.
“Q. You read the paper? A. Yes, sir.
“Q. You had heard of this matter before you went to> see Col. Hornaday? A. Yes, sir.
“Q. And you had heard different parties talking about it? A. Yes, sir.
“Q. And you concluded that you desired, yourself, to go into it? A. Yes, sir.
“Q. I mean you heard other parties than Col. Horna-day and these defendants? A. Yes, sir; and I heard Col. Horn-aday talking, too.
“Q. Because of the talk you heard from different parties you went, yourself, to Judge Hornaday to see if you could acquire an interest in this proposition? A. Yes, sir.
“Q. And then you went to see Judge Hornaday to. see if you could get an interest in it? Á. Yes, sir.
“Q. You testified before in this case, did you not? A. Yes, sir.
"Q. You recall testifying, then, that you/ went to Judge Hornaday’s office and asked him if you could acquire an interest? A. I did that; yes.”

Albert Hirzel testified that in December, 1919, defendant Billings solicited him to buy an interest in this mining lease, and that he purchased an assignment similar to the one set out in the information. Another witness, H. A. MeWright, testified that he purchased an assignment of an interest in this mining lease through Billings, but had no distinct recollection of the time nor of the inducements that caused him to make the purchase.

It was agreed and stipulated by the parties that neither the defendants nor the association had secured from the state issues ‘commission a permit to sell stock or speculative securities, as defined in the hereinbefore quoted blue sky law.

The specific sale charged here was the sale made by Horn-aday to Armstrong. The testimony of other witnesses concerning other sales was doubtless, and we think properly, admitted to show that the defendants may have been in the business of selling undivided interests or assignments in the oil and gas lease mentioned in the information.

At the threshold of this investigation the question arises whether an assignment of an undivided interest in an oil and gas mining lease, ipso facto and unexplained, constituted a security or speculative security within the meaning of the act. ' ■

The purpose of this statute, as gathered from the title considered together with the context of the act, appears to be twofold: First, to prevent stockbrokers and promoters from perpetrating frauds and impositions on unsuspecting investors in hazardous undertakings; second, to protect credulous and incompetent persons from their own inclinations to speculate in hazardous enterprises, entered into on their own account or on the advice of friends, though not brought about by interested promoters or stock brokers.

The objects, then, are to prevent fraud' and unfair dealing in securities, as well as to prevent honest people, free from sinister influences, from investing in uncertain, ephemeral, “get-rich-quick” stocks and securities. In other words, it is a statute designed in part to protect credulous persons against their own inherent weakness — a weakness akin to the gambler’s hope of winning a prize. We think it is now well settled that both of these objects, within constitutional bounds, properly come within regulations prescribed by the police power of the state. Clearly the state has the right to protect its citizens against impositions and frauds. Just how far the state may go in acting as a guardian for its incompetent and improvident citizens is not so definitely established. Hall v. Geiger-Jones Co., 242 U. S. 539, 37 Sup. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643; Caldwell v. Sioux Falls Stockyards Co., 242 U. S. 559, 37 Sup. Ct. 224, 61 L. Ed. 493; Ala. & N. O. Trans. Co. v. Doyle (D. C.) 210 Fed. 173; notes and annotations Blue Sky Laws, L. R. A. 1917F, 524 et seq.

Clearly, it would be impractical, as well as unconstitutional, for the state to attempt to scrutinize and regulate all the contractual relations ' of its citizens relating to mortgages, stocks, bonds, and securities. It is beyond the power of the state by unreasonable regulations to east'an unreasonable burden upon interstate commerce or upon the freedom of individuals to make their own contracts. Just what constitutes an unreasonable interference with. the freedom of individual contracts is often hard to determine. Hall v. Geiger-Jones, supra; Caldwell v. Sioux Falls Stockyards Co., supra; notes and annotations, L. R. A. 1917F, 524 supra; annotations 15 A. L. R. 262. It is not necessary here under the averments and the proof adduced, to determine the constitutional limitations of this class of legislation.

Our Oklahoma blue sky law is similar in many of its features to the blue sky laws recently enacted in a number of other states, but in some of its provisions is essentially different. The general purpose of all such laws is to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other, ill-considered or fraudulent enterprises. Our law contains several exceptions, to the effect that the provisions of the act shall mot apply to the sale of stocks or bonds (or securities?) where the same are sold for cash and no commission or fee is paid, directly or indirectly, for the sale of the same, and no expense for such sale is charged either to the company or the purchaser of such securities.

These sales were made for cash or its equivalent, without any charge for commission or fee, bringing this transaction, as we think, within the exception just stated.

Further, this particular assignment here at issue, if it is a “security” within the meaning of the statute, was an individual purchase of an interest in an undeveloped oil property, with full knowledge on the part of both contracting parties that its ultimate value depended on future development. The record' shows that the purchaser of this interest took it with full knowledge of its character and was not induced to make the purchase by means of stock sales inducements or trade talk.

The sixth clause of section 1 of the act includes the sale of securities issued in furtherance of the promotion of any enterprise or scheme for the sale of unimproved or undeveloped land on deferred payments or the installment plan,, where sneh lands are without the state, and the value of the securities sold depends on future development. This provision, we assume, was intended to eover the sale of shares in distant orange groves, English walnut or pecan orchards, or other-co-operative land schemes and like enterprises, where subscriptions to shares are advertised and solicited. Upon authority of. the cases ■ cited there may be some doubt as to whether it is within the power of the state to so limit the rights of individuals to contract in eases where neither party had been misled, and the purchaser acts, not by reason of stock sales inducements, but on his own untrammeled volition. We do not think the act was leveled at, or intended to apply to, a transaction of the character shown by the record. If one had knowledge that a friend owned a “wild-cat” oil lease and desired to purchase an interest therein, might he-not do so without the consent of any board or agent of the-state ?

The information here shows that this was an assignment of an undivided interest in a block of oil and gas leases in Crawford county, Ark.; that this particular assignment was not made through thd solicitation of the original promoters or any of them, but that the purchaser himself sought to become a member of the organization by purchasing an interest in these leases; that there was no definite organized plan to sell stock or shares in this property, and that the purchaser, Armstrong, by this assignment himself became in effect an original promoter and part owner of these leases, such-sale, in our judgment, not coming- within the purview of the penalties provided in this act.

The judgment of the trial court is reversed.

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


author: PEE CTJEIAM.

text:
    J. J. McCARTY v. STATE.
    No. A-3773.
    Opinion Filed July 3, 1922.
    (207 Pac. 1069.)
    (Syllabus.)
    1. Trial — Discretion of Court — Permitting Witness Violating Rule of Sequestration to Testify. Whether a witness who has violated the rule of sequestration should be permitted to testify is in the discretion of the trial court..
    2. Same — Burden on Defendant to Show Abuse of Discretion in Excluding Testimony. The burden rests upon the defendant to show a manifest abuse' of discretion by the trial court in excluding the testimony of a witness who, has violated such rule.
    3. Trial — Instructions—Principle of "Reasonable Doubt” — Repetitions Unnecessary. The principle of “reasonable doubt” is so firmly intrenched in the criminal jurisprudence of this country, and so well known by jurors generally, as not to require constant repetition of th'e rule in every paragraph of the instructions, especially where the issues are not involved, and no affirmative defense is interposed.
    4. Trial — Instructions—Sufficiency as a Whole. Where the instructions as a whple fairly cover the law of the case, and are not misleading,1, although some instructions may be inartificially •drawn, the general charge will be held sufficiently comprehensive.
    5. Gaming — Evidence, Sustaining Conviction. Evidence examined, and held sufficient to sustain the conviction.
    Appeal from County Court, Grady County; Tbos. J. O’Neill, Judge.
    J. J. McCarty was convicted of gambling, and appeals.
    Affirmed.
    Holding & Herr, for plaintiff in error.
    Geo. F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PEE CTJEIAM.

By judgment rendered on the 12th day of April, 1921, defendant J. J. McCarty was, in the county court of Grady county, convicted of the offense of playing at a game of cards for money, and sentenced to pay a fine of $50 and the costs of the action. From such judgment he has appealed to this court.

Counsel contend that the trial court erred in refusing to permit one Ellis to testify as a witness in the behalf- of the defendant.

Concerning this assignment of error, the record discloses that Ellis had been subpoenaed as a witness for the! state, had been sworn as such witness, and, at the request of counsel for the defendant, all the witnesses were excluded from the courtroom during the progress of the trial. In violation of this rule the witness Ellis remained in the courtroom during the time the state’s witnesses were testifying. At the conclusion of the state’s evidence, the county attorney having failed to call the said Ellis as a witness, the defendant then offered to introduce Ellis in his behalf, and the county attorney then interposed an objection to- Ellis’ testifying on the ground that he had violated the rule by remaining in court during the time the state was- introducing evidence. The court sustained the objection of the county attorney, to which action the defendant excepted. Whether a witness who has violated the rule of sequestration should be permitted to testify is within the discretion of the trial court. Boyd v. State, 153 Ala. 41, 45 South. 591; Belk v. State, 10 Ala. App. 70, 64 South. 515; Fouse v. State, 83 Neb. 258, 119 N. W. 478; Woods v. State, 68 Tex. Cr. R. 105, 151 S. W. 296.

In the case of Kilgore v. State, 10 Okla. Cr. 446, 137 Pac. 364, this court held:

“Where the court orders witnesses to be sworn and excluded from the courtroom during the taking of testimony, ■and where the order of the court is willfully violated, it is a matter within the discretion of the court to allow or exclude the testimony of such witness.”

In tbis ease the record is silent as to whether the violation of the rnle of the court by the witness Ellis was intentional or not. The burden rests upon the defendant to show a manifest abkise of discretion by the trial court in excluding the testimony of this witness. No such showing is evident from this record.

Further, it is contended that the trial court erred in giving the following, instruction:

“To this charge the defendant pleads not guilty; the burden of proof is upon the state to show to your satisfaction, and beyond a reasonable doubt by the proof in the case, the truth of the charge as made in the information. If the state has proven to your satisfaction that this defendant was engaged in .playing a game of cards for money, as charged in the information, your verdict should be guilty. If, however, from all the evidence, and the circumstances, as shown by the proof, you believe the defendant not guilty of the crime, or have a reasonable doubt as to whether he is guilty or not, your verdict should be ‘not guilty.’ ”

It is urged that the instruction is erroneous in not requiring the state to prove the guilt of the defendant of the offense charged beyond a reasonable doubt. - True, there is one sentence .in the instruction which, if it stood alone, might be susceptible of such construction; but the instruction, considered in its entirety, is not misleading and, we believe, clearly states the law to be that the state must prove the defendant’s guilt of the crime charged beyond a reasonable doubt. In a subsequent paragraph of the instructions the court clearly stated the law to be that the defendant must be proven guilty beyond a reasonable* doubt. And the instructions, considered as a whole, are not misleading or confusing' on this question.

Tn Hawkins v. State, 16 Okla. Cr. 382, 186 Pac. 490, this court held:

“Though one instruction was somewhat confusing, when the instructions as a whole remedy such confusion it does not constitute reversible error.”

In the case of Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901, it is held:

“The principle of ‘reasonable doubt’ is so firmly intrenched in the criminal jurisprudence of this country, and so well known by jurors generally, as not to require constant repetition of the rule in every paragraph of the instructions, especially where the issues are not involved, and no affirmative defense is interposed.”

Cases from other states tó the same effect are as follows: Bowen v. State, 16 Ga. App. 179, 84 S. E. 793; Territory v. Price, 14 N. M. 262, 91 Pac. 733; State v. Ferrell, 246 Mo. 322, 152 S. W. 33; Lake v. Commonwealth, 31 Ky. Law Rep. 1232, 104 S. W. 1003. Raper v. State, 16 Ga. App. 121, 84 S. E. 560.

Furthermore, it has been repeatedly held by this court that, where the instructions as a whole fairly cover the law ■of the case, and are not misleading,, although some instructions may be inartificially drawn, the general charge will be held ■sufficiently comprehensive. We find in this charge no error ■sufficiently prejudicial to authorize a reversal of this conviction.

It is also contended that the evidence is insufficient to ■support the conviction. The undisputed evidence in the case is' that a game of studj poker was being played for money on the night of the 23d of December, 1920, in a building in the •city of Chickasha; that some of the police officers of the city •and county, at about the hour of 11 o/clock, made a raid on said place; that defendant was present at that time and place. 'The only dispute is as to whether he was engaged at playing .-at the game. The testimony of the officers is to the effect that he was sitting at the table with a lay-out of cards in front of him and 50 cents in money on top of the ace of spades directly in front of the defendant; that just before breaking into the building the; officers stood on the outside for several minutes within just a few feet of where the defendant was sitting; that just before entering they heard some one say, “By God I bet a half a dollar.” The defendant denied playing at the game, and one witness in his behalf testified that defendant had just arrived, and did not have time to get into the game. But the officers testified that they had been standing on the outside of the building for five or six minutes before they broke into it, and that during that time nobody entered the building. Evidently the jury was not willing to believe that the defendant would go to such a place at that hour of the night for the purpose of gambling and waive the privilege of engaging in this fascinating American pastime for the length of time that the officers testified they stood on the outside of the building. And, furthermore, the testimony of the state’s witnesses is amply sufficient to sustain the verdict and judgment.

For reasons stated, the judgment is affirmed.


author: PER CURIAM.

text:
    DENNY SWAN v. STATE.
    No. A-3970.
    Opinion Filed July 15, 1922.
    (207 Pac. 985.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Denny Swan was convicted of conveying intoxicating liquor, and he appeals.
    Appeal dismissed.
    Womack & Brown, for plaintiff in error.

      Georgei F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Denny Swan, was convicted on a charge, of conveying' intoxicating liquors, and, in accordance with the verdict of the jury, was sentenced to be confined in the county jail for 60 days and to pay a fine of $500. From the judgment rendered on the 28th day of February, 1921, an appeal was taken by filing in this court, on April 18, 1921, a petition in error with case-made.

The Attorney General has filed a motion to dismiss this appeal, on the ground that plaintiff in error is now and has been for a long time prior hereto a fugitive from justice, being charged with a felony. In support of the motion are filed the affidavits of the county attorney and the sheriff of Stephens county.

Upon an examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived his right to have his appeal in this ease considered and determined.

The appeal is therefore dismissed. Mandate forthwith.


text:
    DENNY SWAN v. STATE.
    No. A-4221.
    Opinion Filed July 15, 1922.
    (207 Pac. 985.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Denny Swan was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    Womack & Brown, for plaintiff in error.

      George F. Short, Atty* Gen., and ¡N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Denny Swan, was convicted on a charge that he did commit the crime of manufacturing intoxicating liquor, to wit, whisky, and, in accordance with the verdict of the jury, he was sentenced to be confined in the county, jail for 30 days and to pay a fine of $500. From the judgment rendered on the verdict an appeal was perfected by filing in this court on February 27, 1922. a petition in error with case-made.

The Attorney General has filed a motion to dismiss his appeal, on the ground that plaintiff in error is now and has been for a long time prior, hereto a fugitive from justice, being charged with a felony. In support of the motion are filed the affidavits of the county attorney and the sheriff of Stephens county.

Upon an examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived his right to have his appeal in this ease considered and determined. The appeal is therefore dismissed. Mandate forthwith.


author: DOYLE, P. J.

text:
    DENNY SWAN v. STATE.
    No. A-4220.
    Opinion Filed July 15, 1922.
    (207 Pac. 984.)
    (Syllabus.)
    Appeal and Error — Dismissal—Appellant Becoming Fugitive from Justice — Appeal by Fugitive Dismissed on Motion. Where a defendant has i been convicted and sentenced, and perfects an appeal, . this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case. And where a defendant makes Ms/escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, this court will, on proper motion, dismiss the appeal. )

      Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Denny Swan was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    Womack & Brown, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Denny Swan, was convicted in the county court of Stephens county on a charge that he did have in his possession intoxicating liquor, to wit, about 7 gallons of whisky, with the unlawful intent to barter, sell, give away, and otherwise furnish the same to other persons, and, in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for 90 days, and to pay a fine of $250. From the judgment he appealed by-filing in this' court on February 27, 1922, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal, on the ground that, since the appeal was taken, plaintiff in error has become a fugitive from justice, being' charged with a felony, to wit, forgery, and is not now, and has not for some time prior hereto, been within the jurisdiction of this court.

In support of the motion are filed the affidavits of P. D. Sullivan, county attorney, and E. H. Rhyne, sheriff of Stephens county, and J. B. McLendon, cashier of the National Bank of Duncan. These affidavits show that, on the 2d day of June, 1922, there was filed a preliminary complaint in the county Court of Stephens county, Okla., charging the said Denny Swan with the crime of forgery ini the second degree, and a warrant was by the said court-on-the said date issued for the arrest of said Denny Swan for the said offense; the said warrant has not been served; that said sheriff deposes:.

“I have made diligent effort to serve the same; I have searched for said Denny Swan personally, and had my deputies to look for him; I have wired peace officers in the cities of El Paso, Tex.¿ El Dorado, Ark., Kansas City, Mo., and Little Eock, Ark., and many other places, endeavoring to have said Denny Swan apprehended and' returned to Stephens county, and the said Denny Swan is now a fugitive from justice.” ¡ .

■ ¥e are of the opinion that the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions, that where the defendant, has been convicted and sentenced and perfects an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, this court will, on proper motion, dismiss his appeal. It follows that plaintiff in error has waived the right to have his appeal in this ease considered and determined. The appeal is therefore dismissed. Mandate forthwith.

MATSON and BESSEY, JJ., concur.


text:
    LORENZIE MORRIS v. STATE.
    No. A-4314.
    Opinion Filed Aug. 5, 1922.
    (207 Pac. 1071.)
    Appeal from County Court, Greer County; Jarrett Todd, Judge.
    Lorenzie Morris was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    Stewart & Edwards, for plaintiff in error.

      M. H. Mills,. Co. Atty., and W. B. Garrett, Asst. Co. Atty., and the Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Lorenzie Morris, was, in December, 1921, convicted in the connty court of Greer county of tbe offense of unlawfully manufacturing intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

Counsel for the state filed a motion to dismiss this appeal on the ground that plaintiff in error has become a fugitive from justice, and cannot be made to answer the judgment upon the merits of his appeal by this court. The motion was filed in this court on the 27th day of June, 1922, and no response has been made to the same.

We have carefully examined the showing made by the motion and supporting affidavits, and are of the opinion that the motion to dismiss is well-founded, and should be sustained.

The appeal is dismissed, with directions to the elerk to issue the mandate forthwith.


author: PER CTJRIAM.

text:
    JIMMIE JONES v. STATE.
    No. A-3969.
    Opinion Filed Aug. 14, 1922.
    (208 Pac. 1118.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Jimmie Jones was convicted of a violation of the prohibitory liquor law, and appeals.
    Appeal dismissed.
    H. S. Hurst, for plaintiff in error.
    The Attorney General, for the State.
   PER CTJRIAM.

This is an appeal, from the. county court of Oklahoma county, wherein, on the 20th day of December, 1920, appellant, Jimmie Jones, was convicted of maintaining a place where intoxicating liquors were bartered, sold, given away, etc., and where people congregated for the purpose of drinking the same, and punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. On the 11th day of August, 1922, counsel for plaintiff in error filed a motion to dismiss the appeal. The appeal is accordingly dismissed. Mandate forthwith.


text:
    W. T. JONES et al. v. STATE.
    No. A-4068.
    Opinion Filed Aug. 14, 1922.
    (208 Pac. 1118.)
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    W. T. Jones and W. M. Solderburg were convicted,of a violation of the prohibitory liquor law, and appeal. Appeal dismissed.
    H. S. Hurst, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

W. T. Jones and W. M. Solderburg were jointly convicted in the county court of Oklahoma county, by judgments rendered on the 9th day of May, 1921, of the crime of unlawfully transporting intoxicating liquor, and the punishment of each fixed at a fine of $100 and imprisonment in the county jail for- a period of 60 days. On the 11th day of' August, 1922, counsel for plaintiffs in error filed a motion to dismiss fhe appeal. The appeal is accordingly dismissed. Mandate forthwith.


text:
    ELI REED v. STATE.
    No. A-3839.
    Opinion Filed Aug. 19, 1922.
    (208 Pac. 227.)
    Appeal from. County Court, Okmulgee County; P. A. N, Hoodenpyl, Judge.
    Eli Reed was convicted of unlawfully transporting intoxicating liquors, and be appeals.
    Appeal dismissed.
    J. C. Evans, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for tbe State.
   PER CURIAM.

Tbis is an appeal from tbe county court of Okmulgee county, wherein tbe plaintiff in error was convicted of tbe offense of unlawfully transporting intoxicating liquors, and sentenced to pay a fine of $250 and to serve a term of 90 days’ imprisonment in tbe county jail. Tbe Attorney General has filed a motion to dismiss tbe appeal, which said motion is as follows:

“Comes now tbe Attorney General and represents and shows to tbe court that tbis is an appeal from a judgment of conviction in tbe county court. of Okmulgee county wherein plaintiff in error was found guilty of the offense of unlawfully transporting liquors, and judgment .rendered sentencing him to 90 days in the county jail, and assessing a fine of $250 which said judgment was rendered on tbe 1st day of May, 1920.
“That tbe said appeal was not perfected, and the record in said case was not filed in tbis court until August 19, 1920, which was more than 60 days after tbe date of tbe rendition of said judgment, and tbe trial court not having extended tbe time in which said appeal should be perfected, this- court is without jurisdiction to entertain said appeal, for which reason the defendant in error moves that the appeal be dismissed.
“S. P. Freeling, Attorney General.
“E. L. Fulton, Assistant .Attorney General.”

An examination of tbe record discloses that tbé motion to dismiss, tbe appeal is well taken, and for reasons stated in tbe motion tbe appeal is hereby dismissed. The following decisions of this,court are in point: Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869; Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.


author: MATSON, J.

text:
    JESS CARR v. STATE.
    No. A-3768.
    Opinion Filed Aug. 19, 1922.
    (208 Pac. 275.)
    (Syllabus.)
    1. Appeal and Error — Conviction on Conflicting Testimony. A conviction based on conflicting testimony will not be disturbed on appeal, where there is credible evidence sufficient to sustain the verdict and judgment.
    2. Evidence — Admissibility of Confessions Wheire Defendant Was in Jail 'and not Warned. The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which Would otherwise be competent.
    Appeal from District Court, Muskogee County; Chas. G. Watts, Judge.
    Jess Carr was convicted of grand larceny, and be appeals.
    Affirmed.
    Ed. K. Brook, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and E. ,L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Muskogee county wherein Jess Carr was convicted in November, 1919, of the crime of grand larceny and sentenced to serve a term of three years in the penitentiary.

Carr was jointly charged with one Butler Regan by information filed in the district court of Muskogee county on September 15, 1919, of the larceny o^a 500-foot piece of manila cable drilling rope of the value of $600, the property of the Robinson LOil Company, alleged to have occurred on. or about the' 3d day of July, 1919.

According to the state’s evidence, the Robinson Oil Company was drilling an oil well on land located ablout eight miles southwest of the city of Muskogee, in Muskogee county, and the rope alleged to have been stolen was taken - from such premises, and was being used as part of the equipment in drilling the well.

One of the defendants, Regan, was living and working on a farm not far from where this well was being drilled, and Carr was visiting with Regan. at that time, and together they stole this rope on the evening of July 2, 1919, and took it into the city of Muskogee, and there attempted to sell it to a junk dealer early in the morning of July 3d. Their actions impressed the junk dealer that something was wrong, and he called up the police, and two' policemen were detailed to go to the junkyard immediately. These policemen' found Carr in the act of trying to sell this rope to the junk dealer, and Regan was at that time on the wagon in which the rope had been hauled to the city. Carr was arrested, and immediately taken into the police station, where he .made a confession of guilt, and took the officers to the place where the rope had been stolen. .Regan was not arrested at that time, but was told to go to the police station, but instead of doing so he went back to his home in the country, where he was later arrested. Regan pleaded guilty, and appeared as a witness for the state against his codefendant Carr.

Carr denied having anything to do with the larceny of the rope, but testified that on the night of July 2d, and up until' 4 o ’clock of tbe morning of tbe 3d of July, he attended a dance at a residence about six miles northeast of the city of Muskogee. He produced a young lady and young gentleman who testified that they were present at this dance, and that Carr was there;.the young lady testifying that Carr took her to the dance. Carr admitted being with Regan on the morning of the 3d at the junkyard, and, in an effort to explain his connection with the stolen property, claimed that he had first met Regan in the city of Muskogee, and that Regan asked him to go with him- to the junkyard to help him sell the rope; that his connection with the sale of the rope was altogether a friendly act for Regan, and that he did not know that the rope had been stolen.

It is contended that the evidence is insufficient to sustain the conviction. On the contrary, the evidence on the. part of the state clearly establishes, the guilt of this defendant. The jury evidently rejected as untrue the testimony of the defendant and his witnesses to the alleged alibi. Such was the jury’s province, and it has never been the policy of this court to disturb a conviction based upon conflicting testimony where there is apparently credible evidence sufficient to sustain the verdict and judgment.

The next alleged error assigned as grounds for reversal is that the trial court permitted the witness Hughes to testify to a confession made by the defendant “without warning the said defendant that what he might say would be used against him.” The record discloses, in connection with this assignment- of error, that without objection the witness Hughes was permitted to testify to an alleged confession of guilt made by the defendant, which was a voluntary statement on defendant’s part. After this testimony had' gone to the jury the following proceedings were had:

“A:-1 talked to him at that time and later when I called for him again, when I. talked, to him the second time he made the statement. Q. Was this — was he under arrest when he was brought in your presence there? A. Yes, sir; he was.
“Q. Was this statement a voluntary statement to you? A. Absolutely it was. Q. That is all.
“By Mr. Gavin: If the court please, may I ask a question — Mr. Hughes, when this defendant was brought into your office under arrest, did he make any statement — did you make any statement to| him of the fact that any statement he might make could be used for or against him? A. In the first conversation I talked to him—
“Q. You may answer that question. A. No, sir; he wasn’t Mr. Gavin.
“By Mr. Gavin: I move the court now to strike from the record all the alleged statements that this witness made, as no alleged confession made by this defendant.
“By the Court: Overruled.
“By Mr. Gavin: We except.
“By the Court: Stand aside.”

In the case of Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, it is held:

“The fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise b'e competent.”

See, also, Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.

From the foregoing opinions it is evident that the fact that the defendant was under arrest and in jail, and was not warned that any statement made by him might be used against him, did not affect the admissibility of the confession, provided the same was otherwise competent. As no other objection is urged against the confession, and as the record clearly indicates that the confession was voluntary, we find no merit in this assignment of error.

Finding no reversible error in the record, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    Ex parte VIRGIL CLEVENGER.
    No. A-4383.
    Opinion Filed Aug. 22, 1922.
    (208 Pac. 232.)
    Virgil Clevenger was confined to jail on a charge of murder, and he brings habeas corpus to be admitted to bail.
    Writ denied, and bail refused.
    Joe M. Adams, for petitioner.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

In this proceeding Virgil Clevenger, by his attorney, filed in this court on June 23, 1922, a petition wherein it is alleged that he is unlawfully restrained of his liberty and imprisonment in the county jail of Pottawatomie county, by Grover Butler, sheriff of said county, under and by virtue of a commitment issued by a committing magistrate upon a preliminary examination, wherein petitioner was charged with the( murder of one John Dunn, and that his illegal detention consists! in this, to wit: That on the evidence introduced on the preliminary examination the proof of his guilt is not evident, nor the presumption thereof great.

A transcript of the testimony taken upon the preliminary examinations is annexed to and made a part of his petition. The defendant did not take the witness stand* in his own behalf. The settled rule of this court is that, upon an applica-tionfor Hail by writ of babeas corpus, after commitment for a capital offense, tbe burden is upon tbe petitioner to show facts sufficient to. entitle bim to bail, and if, upon a consideration of all tbe evidence introduced on tbe application for bail, the court is of tbe opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. Under this rule, unless the proof on tbe part of the prosecution tends to show that tbe crime committed only amounts to manslaughter, bail will be refused, where tbe defendant does not take tbe witness stand on tbe preliminary examination, and does not elect to testify in support of bis application for bail.

Upon a consideration of all tbe evidence presented in support of the application in this ease, we are of opinion that tbe petitioner is not entitled as a matter of right to be admitted to bail. It is therefore considered and adjudged that tbe writ be denied, and bail refused.


text:
    In re A. J. HARRIS.
    No. A-4296.
    Opinion Filed Aug. 23, 1922.
    (208 Pac. 1118.)
    A. J. Harris was committed to bail, after an examining trial before a justice of tbe peace, to answer for tbe crime of rape, and he petitions for a writ of habeas corpus to be let to bail.
    Bail allowed.
    Williams & Lewis, for petitioner.
    The¡ Attorney General, N. W. Gore, Asst. Atty. Gen., and D. C. M°Curtain, Co. Atty., for respondent.
   PER CURIAM.

The- petitioner, A. J. Harris, represents that be is restrained of his liberty and is unlawfully imprisoned in tbe county jail of Le Flore county by John Hunt, sheriff of said county. It is further alleged in substance that said sheriff holds said petitioner under a commitment isuued by P. H. G-reen, justice of the peace in and for the city of Poteau district, after an examining trial wherein petitioner was held to answer for the crime of rape. It is further averred that petitioner is not guilty of the crime of rape as charged, and that the proof of his guilt is not evident, nor the presumption great. It is further alleged that, on an application for bail before the district court of said county, bail was denied. Upon a consideration of all the evidence, we are of opinion that bail should be allowed in this case, and bail is fixed in the sum of $10,000; said bond to be conditioned as by law provided, to be approved by the court clerk of Le Flore county.


text:
    Ex parte LEE MATTOX.
    No. A-4240.
    Opinion Filed Aug. 25, 1922.
    (208 Pac. 834.)
    In the matter of the application of Lee Mattox for writ of habeas corpus to be admitted to bail.
    Writ denied, and bail refused.
    Neal & Neal and White & Reid, for petitioner.
    The Attorney General and D. C. McCurtain, Co. Atty., for respondent.
   PER CURIAM.

In this proceeding Lee Mattox by his attorneys filed in this court on March 20, 1922, a petition wherein it is averred that he is unlawfully restrained of his liberty and imprisoned in the county jail of Le Flore county, by John Hunt, sheriff of said county, under and by virtue of a commitment issued by P. H. Green, justice of the peace in and for the city of Poteau district, upon a preliminary examination wherein petitioner was charged with the murder of one V. G. Logan, and that Ms illegal detention consists in this, to wit, that under the evidence introduced on the preliminary examination, the proof of his guilt is not evident nor the presumption thereof great; that he filed an application for bail in the district court of Le Flore county; and that upon the hearing of the same bail was denied.

A transcript of the testimony taken upon the preliminary examination is annexed to and made a part of his petition.

We deem' it unnecessary to detail all the facts which the evidence tends to show. It appears that V. G. Logan, the deceased, conducted a store in the inland town of Summerfield; that the defendant, Lee Mattox, was a mail carrier from Sum-merfield to Le Flore; that the defendant’s wife was a clerk in Logan’s store; that on the morning of the tragedy the defendant and his wife went to Logan’s store, and the defendant commenced sho.oting at the deceased, who ran out the door and fell, and the defendant fired two or three more shots into the body of the deceased after he fell. Several persons rushed up to where the deceased was lying, and found that he was dead. The deceased was unarmed.

The defendant did not elect to testify as a witness upon the preliminary examination, but by stipulation of the parties after the petition was filed in this court testified as a witness in his own behalf before the committing magistrate, a transcript of which testimony has been filed herein in support of his application.

Upon a consideration of all the evidence presented in support of the application in this case, we are of opinion that petitioner is not entitled as a matter of right to be admitted to bail. It is therefore considered and adjudged that the writ be denied and bad refused.


text:
    MARK H. BEAN v. STATE.
    No. A-3978.
    Opinion Filed Aug. 25, 1922.
    (208 Pac. 834.)
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Mark H;. Bean was convicted of murder, and he appeals.
    Appeal dismissed.
    See, also, In re Bean, 17 Okla. Cr. 576, 190 Pac. 1091.
    C. L. Rider, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, Mark H. Bean, and Oscar Sherman were by information jointly charged with the crime of murder, alleged to have been committed in No-wata county on or about the 28th day of August, 1919, by shooting one Fred Avery with a pistol. Upon his separate trial jury returned a verdict finding Mark H. Bean, plaintiff in error, guilty of murder, assessing his punishment at imprisonment in the penitentiary for life. From the judgment rendered in pursuance of the verdict on the 15th day of November, 1920, an appeal was perfected by filing in this court on May 9, 1921, a petition in error with case-made.

Hi's counsel of record has filed a motion to dismiss the appeal herein on the ground that plaintiff in error has been granted executive clemency, and that he has accepted the same.

The motion to dismiss the appeal herein is sustained, and the cause remanded to the trial court.


text:
    P. R. WILLIAMS v. STATE.
    No. A-3984.
    Opinion Filed Sept. 11, 1922.
    (209 Pac. 178.)
    Appeal from (District Court, Osage County; Cbas. B. Wilson, Judge.
    P. B. Williams was convicted of embezzlement, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

P. R. Williams was convicted in the district court of Osage county of the crime of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

This appeal has been pending in this court sinee the 20th day of May, 1921, the cause having been submitted June 1, 1922, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears,, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

An examination.of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


text:
    ALTON TAYLOR v. STATE.
    No. A-3975.
    Opinion Filed Sept. 11, 1922.
    (209 Pac. 179.)
    Appeal from County Court, Stephen^'County; G. T. Burrows, Judge.
    Alton Taylor was convicted of vagrancy, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Alton Taylor was convicted in the county court of Stephens county of the crime of vagrancy, and his punishment fixed at a fine of $25.

This appeal has been pending in this court since the 29th day of April, 1921, the cause having been submitted June 1, 1922, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment. ’ ’

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


text:
    W. A. JONES v. STATE.
    No. A-3902.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1038.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.

      W. A. Jones was convicted of the crime of depositing crude oil in streams, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

W. A. Jones was convicted of the crime of depositing crude oil in streams, in the county court of Carter county, and his punishment fixed at a fine of $100.

This appeal has been pending in this court since the 29th day of December, 1920. The cause was submitted on May 30, 1922, at which time no appearance was made by any counsel representing plaintiff in error, but plaintiff in error was allowed 10 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no- counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: MATSON,. J.

text:
    MAMIE JEFFERSON v. STATE.
    No. A-3986.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1038.)
    (Syllabus.)
    1. Prostitution — Pandering — Evidence Insufficient —■ Attempt to Commit Pandering as Proper Issue.
    Evidence examined, and heldJ insuffiefent to support a conviction of pandering under the charge contained in the information. Held, further, that the trial court should have submitted the issue of the attempted ojffense.

      2. Same — Attempt to Commit Pandering as an Offense.
    The! nature of the crime of pandering is not such as to preclude the possibility of an attempt.
    Appeal from District Court, Pittsburg County; Harve L. ¡Melton, Judge.
    Mamie Jefferson was convicted of pandering, and sbe appeals.
    Reversed and remanded.
    Wallace Wilkinson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON,. J.

This is an appeal from the district court of Pittsburg county, wherein, on the 17th day of January, 1921, plaintiff in error was convicted of the crime of pandering, and sentenced to serve a term of four years’ imprisonment in the state penitentiary and to pay a fine of $300. The charging part of the information is as follows:

"That Mamie Jefferson did, in Pittsburg county and in the state of Oklahoma, on or about the 29th day of August, 1920, and anterior to the presentment hereof, then and there willfully, wrongfully, unlawfully, and feloniously, by promising to one Gladys Britton, then and there a female person under the age of 16 years, that she could make money by entering and being an inmate of a house of prostitution, to wit, the Leader rooming house at McAlester, Oklahoma, and by furnishing to áer a lunch free of charge after midnight on such date, did persuade and encourage the said Gladys Britton to become and be an inmate of said house of prostitution, contrary,” etc.

That portion of the statute defining pandering which is applicable to this prosecution reads as follows:

"Any person who * * * by promise, threats, violence, or by any device or scheme, shall cause, induce, persuade or encourage a female person to become an inmate of a' house of prostitution * * * shall be guilty of pandering, and upon conviction * * * shall be punished by imprisonment in the state penitentiary for a period of not,- less than two years nor more than twenty years, and by a fine of not less than $300 and not to exceed $1,000. ’ ’ Rev. Laws, §! 2425.

The undisputed facts in the case, material to the decision thereof, are in substance as follows: On the night of August 30, 1920, Gladys Britton and Nell Stubblefield, two girls 15 years of age and residents of the city of McAlester, OMa., went to the Leader rooming house in the city at about 11 o’clock ¡at night to! get a room- to stay all night. The rooming house was located on South Main street, up ¡a stairway, above a hardware store. These girls went up to the rooming house, but did not have enough money to1 pay for a room, and came back down and afterwards procured enough money to pay for the room, and returned, registered under fictitious names, and were shown to their room by the porter of the rooming house. The! room assigned them was next adjoining a room occupied by the plaintiff in error, with a door opening between the two rooms. Plaintiff in error was a prostitute, and the Leader rooms had the general reputation of being a house of prostitution.

While the girls were; undressing to retire, plaintiff in error knocked on the door between the two rooms, and was granted admission to the room occupied by the two girls. After she came into their room, she asked the girls if they desired to make all night dates with men, and told them they could get $10 a night to make an all night date, with a man, and that they would have to give the porter $2.50 of the money. In this connection, plaintiff in error showed the girls a roll of money, amounting to about $50, which she claimed to have made in a similar way, also some diamonds and other jewelry she was the girls were led to believe had been made by him in procuring assignations for girls with men in that house. The plaintiff in error also procured a lunch, consisting, of some sandwiches, for these girls after they had announced that they were hungry, and after staying in the room with the girls for an hour or more plaintiff in error retired to her room, and the girls retired to their bed without engaging in any act of sexual intercourse in the house, and in the early morning the girls arose, went into the room of plaintiff in error, arranged their toilet, and departed. This was the only occasion the. girls were ever in that rooming house, so far as the evidence discloses, and it is on this evidence that the conviction is based.

Among other assignments of error, it is contended that the evidence is insufficient to sustain the conviction. With this contention the court very reluctantly concurs. At most the evidence only discloses an attempt to commit the crime of pandering as defined by the statute above quoted. In the ease of Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331, in construing the pandering statute, this court said:

‘ ‘ The gist of this offense is not that a woman is in a house of prostitution, but that she has been procured or induced by some means named in the statute to enter or remain in a house of prostitution. * * * There might be a promise made to ai female, which would be so insignificant and trivial that it would 'appear upon its very face that it was not the inducement or procuring cause of her entering'or remaining in such house of prostitution, but that she in fact entered or remained in such house of prostitution of her own volition, and not by reason of such trifling and trivial promise, which the court could see at once was too insignificant to influence the conduct of any human being.”

In the instant case, the gravamen of the offense as charged in the information, and covered by that portion of the statute above set out, is that the prosecuting witness, by a promise of remuneration, was persuaded' and encouraged to become an inmate of a bouse of prostitution. US is not bere alleged that the plaintiff in error procured the prosecuting witness to enter a bouse of prostitution, or, having entered a house of prostitution, procured, persuaded, induced or encouraged the said prosecuting witness to remain therein as an inmate; hence such portions of the pandering statute are not] in issue in this case. The evidence,here discloses that the prosecuting witness, of her own volition, entered this rooming house. She had no intention of entering the same for purposes of prostitution, nor did she become an inmate thereof. True, the plaintiff in error encouraged the prosecuting witness to remain in said house (after she had entered it voluntarily) as an inmate thereof for the purpose of prostitution; but her efforts in this respect failed, because, the prosecuting witness refused to do so. We think, at most, therefore, that the evidence discloses that the plaintiff in error is guilty only of an attempt to commit the crime as charged in the information, and that the trial court should have submitted to the jury the question of the guilt of the plaintiff in error of the attempted offense, as authorized by sections 5923 and 2803, Revised Laws 1910.

That the nature of the crime of pandering1, is not such' as to preclude the possibility of an attempt, see People v. Grubb, 24 Cal. App. 604, 161 Pac. 1051. It is the opinion of the court, therefore, that the evidence is insufficient to sustain the verdict and judgment convicting plaintiff in error of the completed offense of pandering; that at most the evidence only discloses ari attempt on the part of the plaintiff in error to commit the crime; and, for the reasons) stated, the judgment is reversed, and the cause remanded to the district court of -Pittsburg county for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSET, J., eoncur.


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    LEVI RICHARDSON v. STATE.
    No. A-3962.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1052.)
    (Syllabus.)

      1. Evidence — Judicial Notice of Intoxicating Character of Beverage. The court will not take judicial notice of the intoxicating character of a beverage which is not made by any standard formula, is not generally offered for sale in this jurisdiction, and has not become so well known as to have a general reputation as to its intoxicating character.
    2. Intoxicating Liquors — When Burden on State, to Establish Intoxicating Character of Beverage. To sustain a conviction for maintaining1 a public nuisance, in that defendant kept a place whefe Choctaw beer was manufactured, the state must, if the beverage is not what ¡is generally known as one of thte/ spirituous, vinous, or malt liquors, introduce evidence either of its intoxicating effect or that it contained more than one-half of 1 per cent, of alcohol, measured by volumes.
    3. Same — Evidence Insufficient — Maintaining Liquor Nuisance. For evidence held insufficient to sustain a conviction for maintaining a public liquor nuisance see body opinion.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Levi Richardson was convicted of maintaining a liquor nuisance, and he appeals.
    Reversed.
    J. Q. A. Harrod, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Defendant was prosecuted in the county court of Oklahoma county, charged with having, on the 6th day of May, 1920, and for a long time prior thereto, kept &nd maintained a public nuisance at 220 North Laird street, Oklahoma City, Oklahomla county, Okla., where intoxicating liquors, to wit, whisky, beer, Choctaw beer, and wine were bartered, sold, and given away, and also alleging that said Choctaw beer contained more than one-half of 1 per cent, of alcohol, measured by volume, and that defendant permitted numerous and divers persons, unknown to the informant, to congregate at said place for the purpose of drinking said intoxicating liquors, contrary, etc. Upon a trial defendant was convicted, and the punishment assessed at a fine (of $50 and imprisonment in the county jail for a period of 30 days.

The prosecution is based on section 13, chapter 70, Session Laws 1910-11, declaring all places where any spirituous, vinous, fermented, or malt liquors, or imitations thereof, or any malt liquors or compounds of any kind or description, whether medicated or not, which contain as much as one-half of 1 per centum of alcohol, measured by volume, and which are capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, are manufactured, sold, bartered, given ■away, or otherwise furnished in violation of law, or where any such liquors are kept for the purpose of violating the law, or where persons congregate or resort for the purpose of drinking such liquors, to be public nuisances, and upon conviction the owner or keeper may be adjudged guilty of maintaining a public nuisance, and the punishment fixed at a fine of not less than $50 nor more than $500, and by imprisonment in the county jail not less than 30 days nor; more than 6 months.

The evidence for the state is substantially as follows:

J. T. Jerkins testified that he was a captain of police in Oklahoma City; that he went to the home of defendant, at 220 North Laird street, Oklahoma City, together with some other police officers, and found defendant! and his wife there, and found a glass pitcher about half full of Choctaw beer, and a'tub on the stove in which Choctaw beer was being made, but they found no other kind of liquor there, and did not know1 whether the Choctaw beer was intoxicating or not, did not have it analyzed, and did not know whether it contained more than one-half of 1 per cent, of alcohol. The witness also testified that he had never got anything there before, and from certain' reports coming to the police station the witness testified that the general reputation of the place as to being a place where intoxicating liquors were manufactured, sold, bartered, and given away, was bad.

Walter .Lucas, policeman, testified that on the 6th day of May, 1920, ini company with Jerkins, he went to defendant’s place; found a glass pitcher about half full of Choctaw, beer; did not know whether this Choctaw beer) was intoxicating or not; found a tub practically full of what witness believed to be Choctaw beer in the making; had no knowledge of the general reputation of the place, but went to the house in search of stolen property.

Harry Wolf, another policeman, testified practically the same as did’ the witness Lucas.

This was all the evidence introduced in behalf of the state.

Defendant, in Ms own behalf, testified that he had lived at the premises about 3 years, and had lived in Oklahoma City about 12 years; that, ,’he worked at' the Morris & Co. packing house, but at the time Ms premises were searched he was suffering from a broken leg, and was not working; that Ms wife ■had got a half gallon' of Choctaw beer and brought it home; that he never manufactured any Choctaw beer there, nor never sold or gave away any beer or wine at his place.

The foregoing is in substance all the material evidence introduced in the case. Counsel for defendant, among other assignments of error, contends that the evidence is insufficient in, law to sustain the conviction.,

There is absolutely no proof to sustain the allegations of the information that the defendant at any time ever kept and maintained a place at 220 North,' Laird street in which whisky, beer, and wine were ever kept for purposes of sale, etc., or were ever sold! on said premises, or that persons ever congregated on said premises for the purpose of drinking such liquors. The defendant was convicted of maintaining a public nuisance at said place because he had in his possession^ or at least there was found on the premises, about one-half gallon of Choctaw beer and a tub on the stove in which the police officers testified Choctaw beer was being made. There is not a line of evidence that this Choctaw beer was an intoxicating liquor, nor is there any evidence that it contained more than one-half of 1 per centum of alcohol, measured byj volume.

The Attorney General contends, however, that the court should take judicial notice that Choctaw' beer is an intoxicating liquor, and) that this, in addition to the evidence, ;that the same was being manufactured on said premises, is sufficient to sustain the conviction under the statutory provisions. Possibly the conviction could stand, and the evidence be held' sufficient if the court could take judicial notice that Choctaw beer is an intoxicating liquor, or that it contains more than one-half of 1 per centum of alcohol, measured by volume. Beverages, such as lager beer, which are made by some standard formula, and generally offered! for sale, are judicially known to be intoxicating ; but a beverage, such as Choetaw beer, not generally offered for sale in this jurisdiction, and having no fixed standard by which it is made, and having not become so well known as to have a general reputation as to its intoxicating character, cannot be judicially known to be intoxicating by the courts, and as to such a liquor the duty devolves upon the state in: each instance to either prove its intoxicating character or else that it contains more than one-half of 1 per centum of alcohol, measured by volume, and is capable of being used as a beverage. ft is' probable that Choctaw beer may come within the general definition of a malt liquor; but in the absence of evi-denee showing that it does, or that it is intoxicating^ or contains more than one-half of 1 per cent, of alcohol, measured by; volume, or that the name was used to conceal its true identity as beer or ale, it is not enough to show, merely manufacture or possession of it. It is significant that in this particular prosecution none of the officers who> testified in behalf of the state were able to swear that the Choctaw beer taken by them was intoxicating, neither did any witness testify that such liquor contained more than one-half of 1 per centum of alcohol. Whenever Choctaw beer becomes so well known as to have a reputation as to its intoxicating character, we surmise that the police officers will be among the first to be acquainted with that reputation. The previous cases appealed to this court disclose a great diversity of opinion as to the intoxicating quality of the beverage Choctaw beer. In some instances witnesses have testified that sueh1 beverage would produce intoxication; in other instances witnesses have testified with equal certainty that a liquor similarly designated would not produce intoxication. We presume this is because sueh beverage is not made by any standard formula, and has not acquired, by reason of any general sale for beverage purposes, a general reputation as to its intoxicating character. Until it does so, this court is not in position to take judicial notice that it is an intoxicating liquor.

In the absence of any proof that the Choctaw beer alleged to have been possessed by the defendant was either an intoxicating liquor, or contained more than one-half of 1 per centum of alcohol, measured by volume, and also because the state failed to prove the maintenance of a public nuisance under any of the other allegations of the information, we believe that the evidence is insufficient in law to sustain the conviction, and for that reason the judgment is reversed.


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    ELMER HOYLE v. STATE.
    No. A-3908.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1054.)
    Appeal from County Court, Johnston County; C. M. Crow-oil, Judge.
    Elmer Hoyle was convicted of selling intoxicating liquor, and he appeals.
    Appeal dismissed, and cause) remanded, with directions to enforce judgment.
    Ratliff & Ratliff, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst.] Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the defendant, Elmer Hoyle, in the county court of Johnston county on the 11th day •of September, 1920, for selling intoxicating liquor; the punishment being assessed at a fine of $100 and/ imprisonment in the county jail for a period of 30 days.

The Attorney General has filed a motion to dismiss the appeal, because the same was not filed within the time allowed by law. The judgment was rendered on the 11th day of September, 1920, and the appeal was not lodged in this court until the 10th day of January, 1921, more than 120 days after the rendition of the judgment. Section 5991, Revised1 Laws 1910, in part provides as follows:

“In misdemeanor eases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

This being an attempted appeal from a judgment rendered xn¡ a misdemeanor case, and the same not having been lodged in this court within the maximum time allowed by, the foregoing statute, where proper extension of time is made by 'the trial court or judge, this court has never acquired jurisdiction to: consider the appeal on its merits, and for that reason the motion of the Attorney General to dismiss the appeal is well taken, and must be sustained.

The appeal is accordingly dismissed, and the cause remanded to the trial court, with directions to enforce the judgment.


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    RICHARD HOSKINS v. STATE.
    No. A-3812.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1054.)
    Appeal from County Court, McClain County; George F. Johnson,, Judge.
    Richard Hoskins was convicted of unlawfully conveying intoxicating liquor, and he appeals.
    Affirmed.
    E. T. Barber, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county court of McClain county, wherein Richard Hoskins was, on the 16th day of March, 1920,, convicted of the offense of unlawfully conveying' intoxicating liquor, and sentenced to pay a fine of $250 and to serve 30 days’ imprisonment in the county jail.

The evidence on the part of the state discloses that the defendant was seen to come into the city of Purcell from1 the south in an automobile in the month of March, 1918. He was accompanied by his wife, Golden Hoskins, and after he stopped his car on one of the main streets in the city of Purcell, a search of the car was made by one of the city policemen, and three grips were discovered containing about 60 pint bottles full of whisky. Defendant and his wife were immediately arrested, .and placed in the county jail.

Defendant testified that a white man by the name of ;Sands had gone to Fort Worth, Tex., some few days before that, accompanied by the defendant, to purchase some whisky to bring back to Oklahoma City; that they brought the whisky back as far as Pauls Valley in Sands’ automobile, but had trouble with Sands’ car, and Sands asked the defendant to ,go to Oklahoma City and get defendant’s automobile, and ■come back to Pauls Valley for, the purpose of conveying the whisky from Pauls Valley to Oklahoma City in defendant’s -car. This the defendant claims to have done, and says, further, that Sands put the whisky into his car on the .publie highway between Pauls Valley and the town of Wayne; that defendant knew it was whisky; that he was with Sands when be bought it, but that the amount that Sands put in defendant’s car was not all of the whisky that Sands had purchased at Fort Worth, nor all that they had brought to the city of Pauls Valley.

There is considerable incriminating evidence against the «defendant, consisting of statements made by1- him at the time of his arrest contradictory of his testimony given upon the trial, defendant having stated at the time of his arrest that the whisky belonged to him; also there is evidence to the effect that the' defendant offered the county attorney $50 to dismiss ■the prosecution against him.

There are several assignments of error. Chiefly, it is urged that the evidence is insufficient to sustain the conviction. On the contrary, we think the defendant’s evidence ■standing alone practically amounts to a plea of guilty. The errors assigned are devoid of merit; it having been repeatedly held that, when the defendant’s own testimony shows him to be guilty, the case will not be reversed except for fundamental error.

No fundamental error appearing, the jugment is affirmed.


text:
    CHARLEY PATRICK v. STATE.
    No. A-3953.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1055.)
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Charley Patrick was convicted of forgery, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Charley Patrick was convicted of t!he crime of forgery in the superior court of Okmulgee county, and his punishment fixed at imprisonment, in the penitentiary for a term of two years.

This appeal has been pending in this court since the 24th day of March, 1921. The cause was submitted on March 16, 1922, at' which time no appearance was made by any counsel representing plaintiff in error, but he was allowed 15 days within which to file a brief herein. No brief has been filed in behalf of plaintiff in error. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


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    CONSIE JAMES v. STATE.
    No. A-3961.
    Opinion Filed Sept. 11, 1922.
    (208 Pac. 1055.)
    Appeal from District Court, Oklahoma County; Jas. I. Phelps, Judge.
    Consie James was convicted of rape in the first degree and appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Consie James was convicted in the district court of Oklahoma county .of the crime of rape in the first degree, and his punishment fixed at imprisonment ini the penitentiary for a term of 20 years.

This appeal has; been pending in this, court since the 13th day of April, 1921, the cause! having been submitted May 31, 1922, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 of this court (12 Okla. Cir. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears will affirm the judgment. ’ ’

While this appeal has evidently been abandoned, the court, for the reason that this is a conviction of a felony, with punishment fixed at 20 years’ imprisonment in the penitentiary, has taken) occasion !to examine also the transcript of the evidence, for the purpose of ascertaining if there is sufficient credible evidence in the record to sustain the verdict and judgment. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and we find the evidence sufficient to sustain the verdict and judgment.

The judgment is therefore affirmed.