text:
    CHARLEY EDWARDS v. STATE.
    No. A-7185.
    Opinion Filed Jan. 31, 1930.
    (288 Pac. 359.)

      W. H. Youngblood, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county on a charge of murder, and his punishment fixed at imprisonment for life in the state penitentiary at McAlester, Okla.

The defendant and Reba Thompson were jointly charged with the murder of Sherman Thompson, the husband of Reba Thompson, which murder was alleged to have been committed on or about the 10th day of December, 1927. A severance was granted, and the defendant tried and found guilty of murder. The facts in the case as developed by the evidence of the state were: That on the night of December 10, 1927, Sherman Thompson was (found dead on the premises occupied by John Etchison, who was the father of Reba Thompson. Defendant had been working for and living with John Etchison and the deceased, and his wife had been living in the Etchison home some time prior to the homicide, but about a week before the homicide had moved to themselves, and were living about four miles from the Etchison home. That Reba Thompson and defendant had had illicit sexual intercourse in Arkansas prior to the marriage of Reba to the deceased. That the family had moved from Arkansas to McIntosh county, and that the illicit relations had been renewed between the defendant and Reba Thompson. That there was a $2,000 life insurance policy on the life of deceased, and that Reba Thompson was the beneficiary, and that the defendant and Reba conspired together to kill the deceased, collect the insurance, marry, and return to live in Arkansas. That on the night of the killing the deceased and Reba came to the home of her father where the killing occurred on that night. Some time after the killing the defendant Avas arrested at Harrison, Ark., Avhere he made and signed a confession admitting that he had killed the deceased. That he and Reba carried the body some 40 or 50 steps from the house, took a shoe off of the deceased’s foot, laid the gun down near the body, and otherwise arranged the body to try to make it appear that deceased had committed suicide. When defendant was returned by the officers from Arkansas, he took them to the place of the killing, and there re-enacted the events of the killing. Photographs Avere made as the scenes were re enacted and were introduced in evidence by the state.

The defendant wrote a letter to his sister on February 3, 1928, which reads as follows:

“Will ansAver your letter received yesterday sure was glad to hear from you sis i am charged with killing sherman thompson and i am guilty and their isent anything that you all can do for me only send.me some money that is all you can do for me at present so good by and stay at home and dont worry about me. * * * ”

Defendant voluntarily told numerous persons on several occasions that he had committed the murder, but at the time of trial repudiated his written confession and the letter he had written to his sister, and claimed that the confession obtained in Arkansas was an involuntary one, and that the confession was inadmissible in evidence for that reason.

The defendant first contends that the state failed to prove the corpus delicti. The first witness called by the state was Pleas Henshaw, who testified in substance that the deceased went to Pierce with him in the afternoon; that he returned with him, borrowed an axe, took his groceries, and went home, and that that was the last time he saw him alive; that he saw his body later at the Etchison home; that he had been shot by some person; and that he was dead. Henshaw’s evidence is corroborated by several other witnesses who knew the deceased in his lifetime, who saw his body and the gunshot wound in the body, and testified that the dead person they saw at the John Etchison home was Sherman Thompson—whose life the state alleged had been taken by the defendant, in the case at bar. This evidence was sufficient to establish the corpus delicti. Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359; Hildebrandt v. State, 19 Okla. Cr. 30, 197 Pac. 852.

The defendant next contends that the confession obtained from him in the jail at Harrison, Ark., was not a voluntary confession, that it was obtained by coercion, and for that reason was inadmissible as evidence. The trial court first heard the evidence of the defendant and the state as to how the confession was obtained, and decided as a matter of law that it should go to the jury.

In Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064, 1065, in paragraph 5 of the syllabus, this court said:

“Where the competency of a confession is challenged on the ground, that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made, given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.” Tarkington v. State, 41 Okla. Cr. 423, 273 Pac. 1015.

The court having determined as a matter of law that the confession was admissible as evidence, it then permitted the defendant to offer evidence to the jury of the time, place, and manner in which the confession was obtained, and by proper instructions submitted the question whether the confession was voluntary or involuntary, to be found by the jury as a fact. The proper procedure is for the court to hear the evidence in the first instance and determine the admissibility of the confession as a matter of law; then the jury should be permitted by the court to hear the evidence in the trial of the case, and should be instructed by the court that, if they found from the evidence that the confession was a voluntary one, then they might consider it together with all the other evidence in the case in determining the guilt or innocence of the defendant. Holmes v. State, 6 Okla, Cr. 541, 119 Pac. 430, 120 Pac. 300; Smallwood v. State, 14 Okla. Cr. 125, 167 Pac. 1154; Doublehead v. State, 27 Okla, Cr. 375, 228 Pac. 170; Cooper v. State, 31 Okla. Cr. 165, 237 Pac. 865.

Prima facie any confession is admissible in evidence, and, where its admissibility is challenged by the defendant, the burden is upon him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N.S.) 849; Guthery v. State, 24 Okla. Cr. 183, 216 Pac. 948.

The court having found in the first instance that the confession was admissible as a matter of law, and having permitted the evidence concerning the making of the confession, with proper instructions, to go to the jury, the verdict of the jury is conclusive against the defendant on the issue.

In the case of Mays v. State, supra, this court said:

“In a trial for murder, held, on the evidence that whether the alleged confessions of the defendant were voluntary was for the jury. Held, further, that where the voluntary nature of the confessions was submitted to the jury under proper instructions, a. verdict against the defendant is conclusive on the issue.”

Finally, the defendant contends that the evidence is insufficient to support the verdict of the jury. The rule of this court repeatedly stated is: This court will not weigh the evidence, nor pass upon the credibility of the witnesses. In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged. Dixon v. State, 46 Okla. Cr. 25, 288 Pac. 357.

The evidence of the state established the fact that a foul murder had been committed, that the motive for the commission of this offense was the collection of the insuran.ce on the life of the deceased that the defendant might profit thereby by marrying his widow, and that the defendant was guilty of this murder beyond a reasonable doubt.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    PERCY DOUGHTY et al. v. STATE.
    No. A-7036.
    Opinion Filed Jan. 17, 1930.
    Rehearing Denied Jan. 31, 1930.
    (283 Pac. 1032.)
    Darnell & La Rue, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Alfalfa county on a charge of transporting whisky, and their punishments fixed as follows: Percy Doughty, six months in the county jail and a fine of $500. Ray Brown, three months in the county jail and a fine of $250.

Earl Gould, deputy sheriff of Alfalfa county, testified that on the 12th day of March, 1928, he saw the defendants together in a Ford coupe going north from the town of Cherokee; that he had a warrant for the arrest of defendant Doughty; that he followed the defendants, and overtook them about three miles north of town, near Riverside schoolhouse; that defendant Doughty threw a fruit jar out of the window of the car; that defendant Brown was driving the car, and Doughty was riding with him; that he saw whisky spilled on the floor of the car and on a mat in the car; that there was about a quart of whisky spilled on the floor of the car; that he arrested both defendants and took them back to Cherokee; that he then went back to the place where Doughty had thrown the jar out of the car window, and that the jar had contained whisky. Dare Goss, sheriff, corroborated the evidence of the witness Gould.

The defendants raise two questions: First, that the evidence is insufficient to support the verdict. The defendants were convicted of transporting liquor, and the evidence was sufficient to support the charge.

The defendant next contends that the evidence was inadmissible, for the reason that it was obtained by an illegal search of defendant Brown’s car. The sheriff, having a warrant for the arrest of defendant Doughty, had a right to pursue after him for the purpose of making the arrest. Inasmuch as the defendant Brown was the owner and driver of the car, and was assisting Doughty to escape, the sheriff had a right to arrest both of the defendants, and, having arrested them, he had a right to search their persons, the car, and the place where the arrest was made, and to seize any thing which it is unlawful for the defendants to have, and which may be used in evidence against them. Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150; Callahan v. State, 42 Okla. Cr. 425, 276 Pac. 494.

The defendants being legally under arrest, the officers were authorized to make the search, and the liquor seized was properly admitted in evidence. For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    FRED ROACH v. STATE.
    No. A-7025.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 1095.)

      Jess L. Ballard and Richard L. Wheatley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county on a charge of robbery with firearms, and his punishment fixed at imprisonment in the state penitentiary for a term of eighteen years.

The defendant was jointly charged with one Claud Ballard and with two unknown men, designated in the information as John Doe and Richard Roe, with the robbery of the Bluejacket State Bank, on August 19, 1927. The defendant demanded a severance which was granted, and upon a verdict of guilty he prosecutes his appeal to this court. The evidence against the defendant is altogether circumstantial.

The circumstances tending to connect the defendant with this crime are substantially as follows: On the 16th day of August, 1927, the defendant was seen in the town of Bluejacket driving a blue Dodge sedan, in which there were, at that time riding with him, Claud Ballard, and a third man, who was a stranger in Bluejacket, and who approximated the description given of the taller of the two men who robbed the bank. These three men were seen together in defendant’s automobile at a filling station directly opposite the bank, and especial attention was attracted to the third man, because he continued for five or ten minutes during the time they were stopped at the filling station to gaze intently at and into the bank and its surrounding^.

The defendant lived in the town of Commerce. The testimony is that for some time prior to this robbery there had been an old Ford touring car located at the defendant’s premises, which car bore an Indiana license tag. This car disappeared a few days before the bank robbery. The defendant owned a Dodge sedan with an Oklahoma license tag on it, which bore the number of the Dodge sedan seen in Bluejacket on August 16, 1927.

On the day the bank was robbed, the defendant was seen about four miles east of the Skeets’ place driving west in the direction of said place, and afterwards the Dodge sedan of the defendant was seen parked in front of the Skeets’ place two miles east of Bluejacket, and at about the time the robbery occurred the defendant himself was seen out of the car, looking down the road in a south direction. After robbing the bank the robbers came up this road, abandoned the Ford at the Skeets’ place, and were taken away by somebody in another kind of an automobile.

About 11 o’clock on the morning of the bank robbery the defendant was seen driving his car in an easterly direction at the town of Nareissa, several miles east of the Skeets’ place, and at that time he had some other people in the car with him. Claud Ballard, one of the codefendants, and this defendant were intimate acquaintances. Ballard lived in Bluejacket. On the day before the robbery Ballard was also seen at the Skeets’ place, and there were with him at that time two men in a dilapidated Ford touring car, and these men and Ballard were engaged in close conversation.

Defendant was arrested on August 22, 1927, at his home in Commerce which is north and east of the town of Bluejacket, and in going from Bluejacket to defendant’s home a person would travel by automobile on the road leading east from Bluejacket to Narcissa and from there northeast to the city of Miami and then to Commerce. At the time defendant was arrested Claud Ballard was also arrested at defendant’s house. At the time of the arrest the defendant’s Dodge sedan was seen in his garage at Commerce. About three or four hours afterward the officers went back to find the car, but it had disappeared, and was not seen or heard of up to the day of the trial.

When the robbers made their escape from the bank on the road where they turned south, a mile west of Bluejacket they lost one of the casings from the left rear wheel of the automobile and continued to drive the Ford on the rim of the wheel to the Skeets’ place. A dilapidated Ford car identified as the one used by the robbers was found at the Skeets’ place with the rear tire missing from the left wheel. This Ford touring car was identified as being similar to the old Ford touring car seen at defendant’s place some days prior to the robbery, and was found concealed in the weeds on the Skeets’ place shortly after the robbery.

The defendant did not take the witness stand and made no effort to explain any of these incriminating circumstances or deny his presence at any of the places where the state’s witnesses located him. Defendant’s neighbors at the town of Commerce testified that the defendant left left home in Commerce a few days before the robbery and did not return thereto until after the robbery. Defendant made no attempt to deny his absence from home or explain his presence at any of the places testified to by state’s witnesses.

The defendant undertook to establish an alibi, but called only one witness, Arthur Allen, for such purpose, who testified on direct examination that defendant’s! Dodge car on the day of the robbery was in the “Dinty Moore Auto Laundry” from 10 o’clock in the morning until about 12:30 o’clock that afternoon; that the defendant brought the car there, came back and got it, and paid $2 for having it washed. On cross-examination the witness testified that he was not positive as to the date defendant took the car there, that it might have been the day after the robbery or the day before the robbery, but that it could not have been more than one day either way. This was the only attempt made by the defendant to explain his whereabouts with his car on the day of the robbery. Since he made such an attempt to account for his whereabouts and failed and called no other witness and made no attempt to explain his whereabouts or account for his presence at the Sheets’ place at the time of the robbery, all these circumstances tend to strengthen the state’s case as to the guilt of the defendant.

Not all the facts and circumstances are set out in this statement, but all the facts and circumstances in the record taken together are sufficient to establish the fact that the defendant aided and abetted in planning this bank robbery and assisted the actual robbers in making their get-away.

The defendant first contends that the court erred in overruling his demurrer to the information. The information charges the defendant, together with other men, of robbing one Clayton Spradlin, the cashier of the Bluejacket State Bank, of $458 in money, both coin and currency. The objection urged against this information is that it is defective and insufficient in failing to charge that the money taken was lawful money of the United '•States, and, also, in failing to set out the kind of money charged to have been taken and the value of the same.

In the case of Jenkins v. State, 44 Okla. Cr. 217, 280 Pac. 477, 478, this court said, in the body of the opinion:

“The first contention is that the information is insufficient in failing to particularly describe the money taken in the robbery and in failing to allege the value of it. The information described the property taken as ‘$200 in ten and twenty dollar bills.’ This is a sufficient allegation on this point. Where an information charges that money is taken either by larceny or robbery, it is properly construed to mean money of the United States, and the court will take judicial knowledge of its value.” Section 2571, Comp. Stat. 1921; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Sims v. State, 64 Tex. Cr. R. 435, 142 S. W. 572. '

The defendant next contends that the verdict of the jury is not supported by the evidence and is wholly contrary to the evidence and contrary to law. Under this general assignment of error it is contended that the evidence, being wholly circumstantial, is not sufficient to exclude every reasonable hypothesis, except that of the guilt of the defendant. Where the evidence to prove guilt of the accused is circumstantial and the circumstances are consistent with guilt and inconsistent with any reasonable conclusion of innocence, they are sufficient. Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052; Halbert v. State, 35 Okla. Cr. 329, 250 Pac. 436.

In this case the state proved the guilt of the defendant to the satisfaction of the jury by a chain of circumstances that were entirely inconsistent with his innocence and conld not he explained on any theory, except that of guilt. The defendant’s failure to make any personal attempt to explain any of these incriminating circumstances, and the alibi he attempted to establish by another witness being such a failure, convinces the court that the defendant could not explain his whereabouts on the occasion of this robbery by any truthful witness who would swear positively that he was at any different place than at those places where the state’s witnesses placed him, and, if he was at those places for the purposes that this record discloses, the evidence was sufficient to support the verdict of the jury. Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The defendant next complains of “improper conduct and prejudicial argument on the part of the county attorney.” Counsel for the defendant objected to a statement he claimed the county attorney made in his closing argument to the jury, whereupon the following proceedings were had:

“The Court: Now, repeat your statement if you can, Mi*. Roper.
“Mr. Roper: All right. I said: ‘Counsel for the defendant in his argument brought out a comparison between the preacher and W. T. Ketchum, the under-sheriff, and this defendant. The difference is this: That W. T. Ketchum has a business or occupation in Craig county, Oklahoma. This preacher has one too. In the light of this evidence, we don’t know the occupation of this defendant.’
“Mr. Roper: Is that all right for that statement in the record?
“Mr. Ballard: You stated there that the preacher had the ‘reputation’—
“Mr. Roper: I beg your pardon; I didn’t say ‘reputation.’ The ‘occupation/ I said.
“The Court: I think it was ‘occupation.’
“Mr. Ballard: I want to save the record on that statement, your Honor, and save our exceptions.
“The Court: All right. Objection overruled.”

Counsel for defendant continued his objections whereupon the following proceedings were held:

“The Court: Is there any statement that you would like to make, Mr. County Attorney?
“Mr. Roper: The county attorney did not say anything about ‘honorable reputation’ at all.
“The Court: That is my opinion. The objection will be overruled.
“Mr. Ballard: Note an exception.
“Mr. Roper: It was an answer to a comparison made by counsel for the defense.
“The Court: I believe that the county attorney was probably within the realm of his discretion, inasmuch as a previous comparison had been made, and he was merely answering the comparison. Under those circumstances, the objection will be overruled; to which the defendant may have an exception.
“Mr. Ballard: We except.”

Where the argument of the attorney is not taken down in shorthand and embodied in the record, and where there is a dispute as to what was said or what occurred, this court is bound by the findings oí the trial court recited in the record as to what occurred. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Murrell v. State, 34 Okla. Cr. 413, 246 Pac. 644; Whitenack v. State, 46 Okla. Cr........, 285 Pac. 990.

Finally it is contended that the trial court erred in its instructions to the jury and erred in refusing to give defendant’s special and requested instructions. It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions. Smith v. State, 18 Okla. Cr. 519, 196 Pac. 734; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

Defendant requested two instructions; the first advising the jury to acquit the defendant. This instruction was properly refused, because there was evidence in the record sufficient to authorize the jury to find the defendant guilty. It was clearly the province of the jury to pass upon the Aveight of this evidence and the credibility of the Avitnesses, and it would have been an invasion of the jury’s rights in this instance for the trial court to have given an instruction to acquit the defendant in this case. The second instruction requested was on circumstantial evidence. The trial court had already, in Nos. 7 and 8, given correct instructions on circumstantial evidence. These instructions have heretofore been approved by this court as clearly stating the law. Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

It was not error, therefore, for the trial court to refuse the requested instructions of the defendant.

A careful reading of the evidence in the case convinces us that the defendant aided and assisted in the robbery of the bank as charged in the information. For the reasons stated the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    MAUDE COLEMAN v. STATE.
    No. A-7278.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 1114.)
    J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 and to serve 60 days in the county jail.

The record discloses that at the time charged, officers went with a search warrant and searched the residence of plaintiff in error and found three or four half pints of whisky and a few bottles of home-brew, which on being analyzed contained more than one-half of one per cent, of alcohol, measured by volume.

The evidence does not make out a strong case, but there is sufficient, if believed by the jury, to sustain the judgment. Under the entire record, however, we are of the opinion that justice requires the judgment be reduced to a fine of $50 and to imprisonment for 30 days in the county jail.

As modified, the case is affirmed.


text:
    C. R. BARGER v. STATE.
    No. A-7080.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 1059.)
    Clayton Carder, for plaintiff in error.
    Tlie Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county of a charge of having possession of six gallons of whisky, and his punishment fixed at a fine of $300 and costs, and confinement in the county jail for a period of 30 days.

The evidence discloses that the officers visited the home of the defendant armed with a search warrant. The defendant had a lease on a half section of land in Kiowa county, from which he produced about 150 bales of cotton a year. The officers first searched the barn of the defendant, which was situated about 200 yards from the residence. In the barn covered up with hay they found twelve one-half gallon fruit jars full of whisky. They then went to a negro shanty, which was situated on the premises about fifty yards from the barn. As they came up to this shanty, the negroes living there, not knowing they were officers, tried to sell them some home-brew. The witnesses made the negroes pour out some home-brew they had in the house, and discovered a number of bottles ■and jars in the shanty. The defendant came up about that time and asked the officers to search his house and the outbuildings surrounding his house, which they did, finding nothing.

Nowhere in the record is there any evidence connecting 'the defendant with having possession of the whisky found in the barn, nor is there any evidence that he knew the whisky was hidden in the hay. The evidence is insufficient to support the verdict of the jury.

For this reason, the case is reversed.


author: EDWARDS, P. J.

text:
    H. W. PRICE v. STATE.
    No. A-7055.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 1064.)
    Ralph Rawlings, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Murray county on a charge of abandoning his wife and minor children in destitute circumstances, and was sentenced to serve a term of one year in the state penitentiary.

The defendant was charged under the provisions of section 1856, Comp. Stat. 1921, as amended by section 2, chap. 78, of the Session Laws of 1923. The undisputed evidence discloses that on October 13, 1923, defendant left his wife in the town of .Sulphur, who at the time had four children under the age of fifteen years. He went to the northeastern part of the state and communicated with his wife-by letter or card in four or five instances. Thereafter he procured a divorce at Miami, Okla., although the wife had no notice, actual or constructive. Fifteen months after he left he married again. After leaving, he contributed nothing to their support until arrested and returned to Murray county. The record discloses a flagrant violation of the statute.

Judgment was rendered in December, 1927; the appeal was lodged in this court in June, 1928. No briefs in support have been filed. No jurisdictional nor fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    BUD BROWN v. STATE.
    No. A-7297.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 1070.)

      Howe & Douglass, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Choctaw county, of the crime of robbery, and sentenced to imprisonment in the state penitentiary for a period of twenty years. He filed his motion for new trial, which was overruled, exceptions saved, and the case is appealed to this court.

The testimony, in substance, on behalf of the state, is as follows: Pearl Campbell, the party alleged to have been robbed, at one time had lived in the town of Ft. Tow-son, and had been away from the country for about a year. A few days prior to the robbery he returned to Ft. Tow-son,' and on his return brought with him a Ford automobile. Pearl Campbell formed the acquaintance of Bud Brown, Evelyn Britton, and Buster McIntosh. Bud Brown and the complaining witness had been on a deal for the purchase of the Ford car; the deal finally being closed the evening of the alleged robbery in the post office at Ft. Towson, in the presence of Buster McIntosh and others, the defendant paying the complaining witness the sum of $35 and agreeing to pay him $15 additional in a few days. The money was paid to the complaining witness by the defendant shortly after dark. The complaining witness asked Bnd Brown about some girls. Bud replied that he did not know but one and that was his girl. The complaining witness agreed to give Bud $5 if he would make arrangements for him to have a date with his girl.

The testimony of the state further shows the defendant left the complaining witness and was gone a few minutes and returned with Evelyn Britton to where the complaining witness was, and the complaining witness and Evelyn Britton started in the direction of a spring which was some distance from where he met the girl, beyond a gin which is referred to in the evidence; that Evelyn Britton led the way and they walked slowly, consuming some ten or fifteen minutes going in the direction of the spring, where near the spring at a bridge the complaining witness was hit with some kind of a heavy instrument and knocked senseless, and his money to the amount of $37, which included the $35 Brown had paid him, taken from him.

The testimony of the complaining witness is that he did not see the party who struck him and did not remember anything until the following day. Some young men were down near the gin, which is between town and the place where the alleged robbery took place, and about the time Campbell was robbed, Evelyn Britton came by, and one of them inquired where she was going, and she replied, away from Bud Brown. Shortly thereafter Bud Brown came by near these witnesses and some one was with him whom the witnesses did not recognize. The witness Bill Wafer had a short conversation with Bud Brown, the defendant in this case, in which he asked if he had seen Evelyn, and he told him he had, and that she had gone straight up the road, and that Bud then said to the witness Bill Wafer, “Don’t say anything about it,” and walked off.

- Bill Meggs testified he was acquainted with the parties, and on the night of the robbery he was on top of the hill in the direction of Mrs. Collins’ house, between the Collins house and the spring, when the robbery occurred; that he met Pearl Campbell, the complaining witness, going in the direction of town; Campbell was bleeding and looked like he had been beat up. The testimony further tends to show that, thirty minutes to an hour after the Britton girl and Bud Brown had been seen near the spring, the defendant was seen near the drug store in Ft. Towson, and invited Bill Wafer to get in the car, after which the defendant drove to Scott’s Rooming House and back toward the gin, where they met Cotton Stanfer and the complaining witness, and took them in the back seat and drove on the highway with the complaining witness; that the defendant drove the complaining witness to the office of Dr. R. H. Faught, at Ft. Towson, and the doctor examined the complaining witness; that there were contusions on his head and he was bleeding at the right ear and through both nostrils; from the appearance of the complaining witness he had been hit with a bumpy something. The defendant called the doctor and told him he wanted him to dress the complaining witness, and asked him what the bill was, and, when told it was $2.50, the defendant paid the bill.

The testimony further shows that later in the evening the defendant and some other parties attended a dance, and that night or the next morning they left the community and were located several miles away by the officers, arrested, and returned to Ft. Towson. The defendant denies he injured the complaining witness, and makes the defense of an alibi; that is, at the time the complaining witness was injured and robbed, he was in another part of town, and could not have been where the robbery is alleged to have taken place.

The defendant in further support of his alibi called several witnesses to show that he was up town at a certain time, tending to show that he was too far away from the place the robbery is alleged to have occurred to have been at the scene of the robbery. The state showed by Bill Wafer that Evelyn Britton came by where he was, near the place where the robbery was alleged to have taken place, going toAvard town, and, when he spoke to her, she stated she was running away from Bud BroAvn; that shortly thereafter Bill Brown, accompanied by some one whom the witness did not recognize in the dark, came from the direction of where the robbery is alleged to have taken place, and asked Bill Wafer if he had seen Evelyn Britton, and witness told him he had. The witness did not identify the other person with Brown, but stated it looked like Buster McIntosh. The record in this case is voluminous, and we have set out, in substance, all the testimony Ave deem necessary to arrive at an opinion in this case.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. We will first consider the third assignment of error, which is as follows:

“That the court committed reversible error in failing to sustain the defendant’s objections to the introduction of to sustain the defendant’s objections to the introduction of tions which were overruled by the court and the defendants excepted at the time and still except. Said error being in this, to wit: that at the time the witness, Bill Meggs, had been recalled and made a witness for the defendant, Avhile on the stand testified as to where he got the AAdiisky; that he was then interrogated by the court in the presence of the jury as to where he got the Avliisky; thereafterwards the court gave the witness for the defendant the following examination in the presence of the jury and the hearing of the jury, which was prejudicial to the defendant’s statutory and constitutional rights and affected the jury in its determination of this cause:
“ ‘Testimony of witness Meggs. Recalled and made a witness for the defendant.
“ ‘By the Court:
“ ‘Q. How old are you son? A. Seventeen.
“ ‘Q. When were you seventeen? A. July 16th.
“ ‘Q. Were you seventeen when you went after this whisky? A. Yes, sir.'
“ ‘Q. You say you had some hid down there? A. No, sir, I found it down there.
“ ‘Q! Did you know it was down there? A. Yes, sir.
“ ‘Q. Do you know who hid it down there? A. No, sir.
“ ‘Q. How did you find it, where was it? A. I found it that evening.
“ ‘Q. You found it that evening? A. Yes, sir.
“ ‘Q. You just found it and’ got it? A. Yes, sir.
“ ‘Q. How much was it? A. About a quart.
“ ‘Q. Did you go down there and hunt for-it? A. Yes, sir.
“ ‘Q. Somebody had rather directed you that you would find some down there? A. No, sir.
“ ‘Q. You see anybody do something like this, hiding it? A. No, sir.
“ ‘Q. How came you to go there and find it? A. I thought it was there.
“ ‘Q. We have a reason for doing things, why did you think it was there? A. I saw it that evening.
“ ‘Q. I want to know how came you to go—
“ ‘By Mr. Douglass: If the court please, we would like for the jury to be withdrawn from this testimony. We think it is incompetent, irrelevant and immaterial.
' “ ‘By the Court: This has nothing to do' with this lawsuit. Mr. County Attorney you hold this gentleman and as soon as this case is over we will find out something.
“ ‘By Mr. Howe: We want to note our exceptions to the court’s examination of this 'witness on matters incompetent, irrelevant and immaterial, as same might prejudice the rights of this defendant.
“ ‘By the Court: Gentlemen of the jury, this court’s inquiry about this whisky does not have anything to do with this lawsuit and you must not consider it in rendering your verdict in this case. Get cases like this for a court of inquiry and let me be the court and we will find out something about it. There is no question but what they are dodging but they won’t get by with it.’
“All of the above was objected to and excepted to at the time by the defendant and the defendant still excepts.”

The only question necessary to consider in determining this appeal is the third assignment of the defendant, in which he alleges misconduct on the part of the trial court in his examination of the witness Bill Meggs, in the presence of the jury, and while the case was on trial, in directing the county attorney to hold the witness, and as soon as this case is over we will find out something. The record discloses that the witness Bill Meggs had been called as a witness for the state and had testified, and later on was called by the defendant. The testimony in this case against the defendant was circumstantial; no positive testimony being introduced on behalf of the state as to tlie assault made and robbery of the prosecuting witness. The defendant contends that, when the court’s attention was called to the fact that his examination of the witness Meggs was not proper before the jury, and the defendant asked that the jury be withdrawn, the court then said:

“Gentlemen of the jury, this has nothing to do with this laAvsuit. Mr. County Attorney, you hold this young man and as soon as this case is over we will find out something.”

And when counsel interposed an objection to the remarks of the court, the court, without even recognizing counsel for the defense, turned and addressed the jury as follows:

“Gentlemen, just remember this court’s inquiry about this Avhisky does not have anything to do with this lawsuit and you must not consider it in rendering your verdict in this case. Get cases like this for a court of inquiry and let me be that court, and Ave will find out something about it. There is no question but they are dodging but they won’t get by Avith it.”

It is the contention of the defendant that the statements of the court, in substance, told the jury that he did not believe anything the Avitness Bill Meggs Avas saying, and that his language, in substance, amounted to saying that the defendant was trying to dodge the question. An examination of the record in this case tends to show that the court Avas attempting to lead the Avitness into a confession or to get him to tell something, or to get him to admit he either had the whisky where he went to get a drink or knew Avho had it there, or, in other words, the language of the court indicated he believed the witness was falsifying.

In Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114, the court in the first paragraph of the syllabus said:

“When a conviction is had upon a record showing that the trial court in the presence of the jury orders a material witness for defendant, or the defendant, held upon a charge of perjury, alleged to have been committed in giving his testimony in the trial, such judgment will be reversed, and a new trial awarded.”

In the second paragraph of the syllabus the court said:

“It is the duty of trial courts to refrain from allowing their actions or words to indicate to the jury their opinion of the credibility of any witness who testifies in a case upon trial before them, or of the merits of any such case.”

In Young v. State, 39 Okla. Cr. 100, 263 Pac. 167, in the third paragraph of the syllabus, the court said:

“It is error for a trial court, in ruling on the admissibility of evidence, to make any statement or comment indicating his opinion as to the credibility of any witness or the weight and value of any testimony. For an erroneous statement of the trial court Avhich does not require a reversal, see opinion.”

In Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689, in the sixth paragraph of the syllabus the court said:

“Judges are as much judges for the defendant as for the state, and are supposed to sit fairly and impartially between the rights of the state, on the one hand, and the defendant, on the other. To become a partisan either for the state or defendant is to desert the high position to which the judge is elevated, and assume the role of the advocate.”

In the body of the opinion, there are set forth a number of questions that were propounded to the witness by the court in the trial of the case. Following these questions, the court says:

“By this series of questions and the answers thereto it would seem that the learned trial judge unintentionally indicated to the jury that the witness was worthy of belief, because in his conversation with him he.admonished him that the officers wanted no untruth.”

In Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927, this court, in the sixth paragraph of the syllabus, said:

“While it is the right of a trial judge to interrogate witnesses, when essential to the administration of justice, yet the practice. * * * should be discouraged, and when it appears that there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the case, which was prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.”

In Cosby v. State, 30 Okla. Cr. 294, 236 Pac. 51, this court, in the third paragraph of the syllabus, said:

“A trial judge should refrain from any act or expression indicating his opinion upon any matter of fact occurring upon the trial, or his opinion of the credibility or probity of any witness testifying in the case.”

In the body of the opinion, the court says:

“During the course of the trial, the plaintiff in error called Ed Wheeler as a witness in his behalf, who testified that one of the jugs of whisky belonged to him, whereupon the court, in the presence of the jury, ordered the sheriff to take charge of the witness and the county attorney to file a complaint against him. Defendant excepted, and the court thereupon admonished the jury not to consider anything he had said with reference to having the witness arrested. This proceeding could not have resulted otherwise than to convey to the jury the opinion that the court strongly disapproved of the conduct of the witness, and may have influenced the jury in its verdict. The jury generally regard a presiding judge whom they serve with great respect and give much weight to his opinions or views if by chance they should come to their knowledge. A judge should, therefore, be particularly circumspect in his conduct and in the proceedings before him that no intimation of * * * the credibility or character of a witness should be made in their presence. There would seem to be no need for an oi’der to arrest the witness in question in the presence of the jury, and to do so was prejudicial to the rights of plaintiff in error.”

In Klaassen v. State, 39 Okla. Cr. 402, 266 Pac. 495, in the first paragraph of the syllabus, this -court said the trial judge should refrain from any act or expression of opinion on any matter of fact occurring, or the credibility .of any witness testifying, in a case, citing Beed v. State and Cosby v. State, supra.

There seems to be no necessity for the trial court to direct the county attorney, in the presence of the jury, to hold the witness Bill Meggs. The remarks of the court clearly indicated that he believed the witness Meggs Avas committing perjury, and, Avhen he said that they are trying to dodge but Avould not get by Avith it, it left the ixxxpression on the jury that the defendant as well as the witness testifying in his behalf was trying to avoid the law. As the evidence against the defendant was circumstantial, the remarks of the court were highly prejudicial to the rights of the defendant and deprived him of that fair and impartial trial Avhich is guaranteed to him under the Constitution of the United States, this state, and its laws. The action of the court in ordering the Avitness Meggs held in custody, in the presence of the jury, may have influenced the jury in returning the verdict it returned, as the jurors generally regard the presiding judge with great respect and give much Aveight to his opinion or vieAVS, if pex*chance they should come to their knoAvledge.

For the errors herein stated, the case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    J. L. BARNHART v. STATE.
    No. A-7069.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 803.)
    Early & Choate, J. T. Michael, and W. C. Madison, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of robbery with firearms, and was sentenced to serve a term of 25 years in the state penitentiary.

The record discloses that at the time charged the Canadian County Co-operative Grocery Store at El Reno was robbed by three men and about $1,500 in money taken. One of the men entered from the front and two entered from the warehouse in the rear. These two, with pistols, held up the employees, and, after taking the money, all made their escape. One Jimmie Holmes, who had been charged as one of the participants, had pleaded guilty, and had been sentenced to a term of ten years in the penitentiary, testified for the state, in substance, that he and defendant and one Frank Lemmons were the persons who committed the robbery; that they went from Oklahoma City together in a car to El Reno; that he entered the front of the store and defendant and Lemmons went into the warehouse in the rear; that he gave a signal, and they then entered and committed the robbery; that all then left the store, and he returned to the car, and, as defendant and Lemmons did not come to the car, he returned to Oklahoma City.

The defense is alibi. Defendant testified, in substance, that he had no connection with the crime, knew nothing about it, and at the time was ten miles east of Oklahoma City. He offered other evidence tending to prove alibi, including the testimony of Frank Lemmons, also charged as a participant in the robbery. Lemmons flatly contradicted the testimony of Holmes. The state, in corroboration of the testimony of Holmes, called the employees of the store which was robbed. Some of whom positively identified defendant; others were not so positive. Defendant had a prior criminal record, and had, served one term in the state penitentiary. Holmes, who testified as an accomplice, was a drug addict.

The testimony is squarely in conflict, but its weight and the credibility of the witnesses was for the jury who by their verdict have found the issues against defendant.

The case was tried in December, 1927; the appeal was lodged in this court in June, 1928. No briefs in support have been filed. We have read the record with care, and find no jurisdictional nor fundamental error. No reason to disturb the verdict is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    LEE GRAHAM v. STATE.
    No. A-7224.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 1117.)
    Allen & Allen, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of McCurtain county of petit larceny, and his punishment fixed at a fine of $50.

The judgment was entered in September, 1928, and the appeal was lodged in this court in November, 1928. No briefs in support of the appeal have been filed. The information charges the larceny of three white oak logs. The evidence sustains the judgment. No material error is apparent.

The case is affirmed.


text:
    TOM HAMMETT v. STATE.
    No. A-7160.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 1117.)
    King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Pontotoc county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to< serve 30 days in the county jail.

Judgment was rendered' in May, 1928, and the appeal was lodged in this court in September, 1928. No briefs in support of the appeal have been filed. The evidence sustains the judgment. No material error is apparent.

The case is affirmed.


text:
    J. P. HENNESSEE v. STATE.
    No. A-6878.
    Opinion Filed Nov. 2, 1929.
    (281 Pac. 1117.)
    Lewis Hunter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Comanche county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 60 days in the county jail.

The case was tried in September, 1927, and the appeal was lodged in this court in January, 1928. No briefs in support of the appeal have been filed. An examination of the record discloses a rather weak and poorly tried case. The evidence, however, reasonably sustains the judgment and no jurisdictional or fundamental error is apparent.

The case is affirmed.


text:
    BUD LANKFORD v. STATE.
    No. A-6876.
    Opinion Filed Oct. 5, 1929.
    (281 Pac. 1117.)
    Geo. L. Zink, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $300 and to serve 60 days in the county jail.

The case was tried in September, 1927, and the appeal was lodged in this court in January, 1928. No briefs have been filed. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    NEWT LUNCEFORD v. STATE.
    No. A-7154.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 1118.)
    Champion, Champion & Fischl, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Carter county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in April, 1928, and the appeal was lodged in this court in August, 1928. No briefs in support of the appeal have been filed. The evidence reasonably sustain the judgment. No material error is made to appear.

The case is affirmed.


text:
    ED MITCHELL v. STATE.
    No. A-6868.
    Opinion Filed Oct. 10, 1929.
    (281 Pac. 1118.)
    Charles B. Duffy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of having the unlawful possession of intoxicating liquor, and ivas sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The judgment was rendered in September, 1927, and the appeal was lodged in this court in January, 1928. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    L. A. STITES v. STATE.
    No. A-6885.
    Opinion Filed Oct. 5, 1929.
    (281 Pac. 1118.)
    Lewis Hunter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Comanche county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $200 and to serve 120 days in the county jail.

No brief in support of the appeal have been filed. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


text:
    JAMES NED WILLIAMS v. STATE.
    No. A-7204.
    Opinion Piled Oct. 26, 1929.
    (281 Pac. 1118.)
    Bristow & Johnson and J. W. Osmond, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was- tried in August, 1928, and the appeal was lodged in this court in October, 1928. No briefs in support of the appeal have been filed. We have examined . the record, and find that the evidence reasonably sustains the judgment. No material error is apparent.

The case is affirmed.


text:
    S. T. BRISCOE v. STATE.
    No. A-7116.
    Opinion Filed Oct. 12, 1929.
    (281 Pac. 1115.)
    J. Garrett Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of unlawfully transporting whisky, and was sentenced to pay a fine of $100 and to be imprisoned in the county jail for a term of 60 days.

The judgment was rendered in March, 1928, and the appeal was lodged in this court in July, 1928. No briefs in support of the appeal have been filed. We have examined the record, and find that the evidence sustains the verdict and judgment. No jurisdictional nor fundamental error is made to appear.

The case is affirmed.


text:
    P. C. BUTLER v. STATE.
    No. A-6852.
    Opinion Filed Sept. 21, 1929.
    Rehearing Denied Nov. 2, 1929.
    (281 Pac. 1115.)
    David Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of driving an automobile while under the influence of in-, toxicating liquor, and was sentenced to serve a term of one year in the state penitentiary.

No briefs have been filed by plaintiff in error. An examination of the record discloses no jurisdictional nor fundamental error.

The case is affirmed.


author: PEE CUEIAM.

text:
    ROY F. CHISM v. STATE.
    No. A-6887.
    Opinion Filed Oct. 5, 1929.
    (281 Pac. 1115.)
    Wade H. Loofbourrow, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error was convicted in the county court of Harper county with selling intoxicating liquor. He pleaded guilty, and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

The appeal is by transcript. No briefs have been filed. An examination of the record discloses no reason for reversal.

The case is affirmed.


text:
    Ex parte A. B. C. DAVIS.
    No. A-6997.
    Opinion Filed Oct. 10, 1929.
    (281 Pac. 1117.)
    A. B. C. Davis, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   PEE CUEIAM.

This is an original proceeding in this court for habeas corpus, and seeks to have this court review the opinion rendered in the case of A. B. C. Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787. It presents no question which can be considered on habeas corpus.

The writ is denied.


text:
    WILLIAM DAY, Jr., et al. v. STATE.
    No. A-7170.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 1116.)

      Bristow & Johnson, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, William Day, Jr., and Carl Baker, hereinafter called defendants, were convicted in the county court of having the unlawful possession of a still, and were each sentenced to pay a fine of $500 and to serve six months in the county jail. The case was tried in August, 1928, and the appeal was lodged in this court in September, 1928. No briefs in support of the appeal have been filed.

The record discloses that at the time charged the officers with a search warrant searched the residence of Carl Baker and found a still with a considerable quantity of whisky and mash. Defendant Baker was present, assist'ing in the operation of the still. The evidence also connected defendant Day with the possession. The information charges the possession of the still, whisky, and 'mash. In the trial the allegation of the possession of the . whisky and mash was treated as surplusage, and the trial was had upon the charge of the possession of a. still. Defendant Baker sought to assume all the responsibility. There is no question of the guilt of defendants, and no miscarriage of justice. Such errors as appear do not require a reversal.

The case is affirmed.


author: PEB CUBIAM.

text:
    CAL GOWER v. STATE.
    No. A-6843.
    Opinion Filed Oct. 5, 1929.
    (281 Pac. 1116.)

      I. L. Cook and J. G. Balls, for plaintiff in error.
    Edwin Dahney, Atty. Gen., and Smith C. Matson, Ass’t. Atty. Gen., for the State.
   PEB CUBIAM.

The plaintiff in error was convicted of manslaughter in the first degree in the district court of Atoka county, and was sentenced to serve a term of four years in the state penitentiary.

The information charges Murder in the killing of one Jim Pleasant. The appeal is by transcript. The evidence is not before us. No briefs in support of the appeal have been filed. An examination discloses no material error. No reason for a reversal appears.

The case is affirmed.


text:
    ARTHUR F. BERBOHM et al. v. STATE.
    No. A-7061.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 726.)
    Paul B. Haustein, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiffs in error were convicted in the county court of Garfield county of having the unlawful possession of intoxicating liquor, and were each sentenced to pay a fine of $50 and to serve thirty days in the county jail.

The judgment was rendered on February 2, 1928, and the appeal was lodged in this court June 12, 1928, more than one hundred and twenty days after the judgment was rendered. Under the provisions of section 2808, Comp. Stat. 1921, the extreme limit within which an appeal from a conviction for a misdemeanor can be prosecuted to this court is one hundred and twenty days. Where the appeal is not filed until after the expiration of that time, this court does not acquire jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JACK WHITE v. STATE.
    No. A-7054.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 758.)

      Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Oklahoma county on a charge of having the illegal possession of intoxicating liquor, and he was sentenced to pay a fine of $150 and to be imprisoned sixty days in the county jail.

The judgment was rendered on February 6, 1928, and the appeal was lodged in this court on June 6, 1928. This was one hundred and twenty-one days after the judgment. The extreme limit in which an appeal from a misdemeanor can be filed in this court is one hundred and twenty days. Section 2808, Comp. Stat. 1921. When an attempted appeal is not filed in time, this court does not acquire jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ALTON PURDY v. STATE.
    No. A-6964.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 840.)

      Nolen & Woods and Preston S. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county on a charge of murder, and was sentenced to life imprisonment in the state penitentiary.

This is a companion case to No. A-6886, Bainum v. State, 45 Okla. Cr. 330, 282 Pac. 903, opinion filed November 23, 1929.

Defendant, with others, was charged with the murder of C. E. Ryan, a night watchman. We deem it unnecessary to make a statement of facts, as they are substantially the same as in the Bainum case, supra. Defendant was tried in September, 1927, and the appeal was lodged in this court April, 1928. An extension of time to file briefs was made, but it has long since expired, and no briefs have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support are filed, this court will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably sustains the verdict. If no such error appears, and the evidence sustains the verdict, the case will be affirmed. A careful examination of the record in this case discloses no material error; there is an abundance of evidence to support the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.