author: FURMAN, P. J.

text:
    P. L. LYONS v. STATE.
    No A-1318.
    Opinion Filed January 21, 1912.
    (120 Pac. 665.)
    1. APPEAL AND ERROR — Case-Made—Extension of Time. If for any reason, counsel for appellant are unable to obtain a ease-made within the time required by law, then they should prepare and file in this court a transcript of the record, and thereby perfect the appeal and give this court jurisdiction; and, upon a proper showing, before the time for perfecting the case-made has expired, this court has the power to grant such extension of time as may be necessary for perfecting the case-made, and a case-made so perfected will be just as valid and binding as though it had been prepared, served, certified to, and signed by the judge who tried the cause within the time fixed by his order.

      2. APPEAL AND ERROR — Procedure—Constitutional Right. While it is true that an appeal in a criminal case is a constitutional right, yet the manner of taking this appeal is subject to legislative regulation; and the rules prescribed by the Legislature for taking an appeal are jurisdictional, and must be complied with.
    3. SAME — Preparation of Case-Made. Where the time for preparing a case-made fixed by the trial court has expired, no eourt has power to extend such time.
    4. CRIMINAL LAW — Presumptions—Illegality of Conviction. Before a defendant is tried and convicted, the law presumes him to be innocent, but after he has been tried and convicted in a court of record this presumption of innocence is wiped out, and, on the contrary, the presumption is that he is guilty, and has been fairly tried and legally convicted; and the burden is on him to show that his conviction was illegal.
    5. APPEAL — Diligence of Attorneys. Attorneys must understand that it is an exceedingly serious matter to have a client convicted of an offense in Oklahoma, and before they can expect this eourt to hold a conviction illegal they must exercise due diligence in perfecting their appeals to this court; and that no case will be reversed upon the ground that a defendant has-been deprived of his right of appeal, unless the record affirmatively shows that the utmost diligence has been exercised on the part of his counsel, and that the failure to perfect his appeal does not result from fault or want of care on their part.
    6. SAME — Reversal. Attorneys should not be allowed to secure the reversal of a conviction upon any ground which they could have avoided by the exercise of reasonable diligence on their part. To permit this would be to pay more attention to the flyspeeks of the law than to the principles of the law.
    7. CRIMINAL LAW — Punishment—Purpose. Hatred and revenge enter largely, into punishment among baz-barians and savages, but among civilized people criminals are punished, first, to reform the offender; second, to set an example which will deter others-, from committing similar offenses, and thereby protect society.
    (Syllabus by the Court.)

      Appeal from Okmulgee County Court; George A. Johns, Judge-

    P. L. Lyons was convicted of violating the prohibitory law,, and appeals.
    Affirmed.

      Frank F. Lamb, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State. •
   FURMAN, P. J.

On the 24th day of April, 1911, sentence was pronounced against appellant. Repeated extensions ■ of time to prepare and serve a case-made and to perfect his. appeal to-this court were granted by the trial court. . The record was filed in this court on the 18th day of August, 1911. What purports to be the case-made is not certified to and signed by the trial judge,, as the law requires.

Counsel attempt to excuse the failure to present this case-made to the county judge for approval, upon the ground that the county judge was absent from the county, and therefore the case-made could not be presented to him for approval within the time-required by law, and assert that there was no one within the county or state with power to extend the time within which the case-made might be settled and signed. Counsel insist that upon the authority of Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976, appellant is entitled to a reversal of this judgment, upon the ground that, without fault or carelessness on the part of appellant or. his counsel, he has been deprived of the right of having the evidence in his case reviewed upon appeal. There is no analogy between Tegelér’s case and the case at bar. In Tegeler’s case, the trial judge died, after overruling a motion for a new trial, and before the case-made could have been presented to him for approval. No diligence on the part of his attorney, under these conditions, could have secured the approval of the case-made. He was deprived of the right of having the evidence reviewed upon appeal through no fault of his or his attorney, but solely by an act of God. In the case at bar, counsel for ■appellant, after filing the transcript of the record in this court in proper time, which was done, which thereby gave this court jurisdiction of the cause, should have gone further an<J applied to this court for an order extending the time which had not then expired, within-which the case-made might have been perfected. Under these conditions, upon a proper showing, this court would have had power and authority to extend the time originally granted by the trial court for settling the case-made, and the case-made when so settled would have been just as valid and binding as though this had been done within the time originally granted by the trial court. See Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753. This authority is based upon section 6077 of Snyder’s Comp. Laws of Okla. 1909, which was enacted for the purpose of just such emergencies as this, and other matters which might be omitted from a case-made or transcript of the record through inadvertence. We have been exceedingly liberal in extending time under this statute and permitting the correction of -errors, and have never refused a single such request which had the least show of'reason and justice about it. Where the time for securing a case-made or transcript of the record has expired, no ■court has the power to grant an extension of time for any purpose. In other words, no court has the power to restore to life that which is dead.

While -it is true that a defendant has a constitutional right to appeal, yet it is also true that the manner of taking this appeal is a proper subject of legislative regulation; and, where the rules prescribed by the Legislature have not been complied with this court does not acquire jurisdiction-of the appeal. The Constitution gives the right to each defendant to have compulsory process for witnesses in his behalf, and if a defendant, in proper time and manner, seeks to secure this compulsory process, and it appears that the testimony of such witnesses is material, and the court deprives a defendant of his right, a new trial will be granted; but if a defendant wTaits until his case is called for trial, and has exercised no diligence to secure process for such witnesses, he will be held to have waived this constitutional right, and it will avail him nothing on appeal. So, in matters of this kind, a defendant has the right, by perfecting his appeal to this court, by a proper showing; and before the expiration of the time for preparing his case-made, to secure from this court an order extending the time within which such case-made may be prepared. But if attorneys allow the time provided by law for perfecting a case-made to expire, without placing themselves in a position where this court can extend such time, they cannot be heard to say that their clients have been deprived of their constitutional rights through no fault or carelessness on their part. To hold otherwise would be to allow attorneys to remain idle and take advantage of matters which they could have avoided by the exercise of diligence on their part. It would be to attach more importance to the flyspecks of the law than to the principles of the law. Taw is not enacted for the purpose of protecting criminals, but its purpose is to protect the innocent. Hatred and revenge enter largely into punishment among barbarians and savages; but among civilized people punishment is only inflicted for the purpose of protecting society, and not for revenge. In other words, the law never seeks a victim, but only seeks to reform the offender and set an example which will deter others from committing similar offenses, and by both of these means it seeks to protect society.

Before a defendant is tried and convicted, the law presumes that he is innocent, but after he is tried and convicted in a court of record the presumption of innocence is wiped out, and, on the contrary, the law presumes he is guilty, and has been fairly tried and legally convicted; and the burden is upon him to exercise due .diligence to show that he has been convicted illegally. Otherwise the conviction should stand-.

Tawyers of Oklahoma must learn that, before they can expect this court to hold that a conviction is illegal, they must exercise due diligence, and present the appeals properly to this court; and no case will be reversed upon the ground that the defendant has been deprived of a right of appeal, unless it appears that the utmost diligence was exercised on the part of his counsel, and that he has been deprived of his right of appeal wholly without fault on their part. For these reasons, the case-made will be stricken from the record, and cannot be considered for any purpose whatever.

The transcript of the record fails to show' the commission of any error in the trial court. In fact, counsel for appellant in the brief filed does not contend that error was committed upon the trial of this cause, but relies solely upon the -failure to obtain a case-made. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG,' J.

license: Public Domain

text:
    ABE GREEN v. STATE.
    No. A-1238.
    Opinion Filed January 27, 1912.
    (120 Pac. 667.)
    1. APPEAL AND ERROR — Sufficiency of Evidence. A conviction, based upon the unsupported testimony of a confessed violator of the prohibitory law, who is contradicted by other competent witnesses for the accused, and successfully impeached for truthfulness, cannot be sustained.
    2. TRIAL — Rights of Accused. It is the duty of the trial courts to see that fair and impartial trials are had, and that all the rights of the accused, as well as the rights of the state, are properly preserved.
    3. APPEAL AND ERROR — Reversal. A person accused of crime is entitled to a fair and impartial trial, and, when the record discloses irregularities calculated to prejudice his substantial rights, a judgment of conviction will be reversed.
    (Syllabus by the Court.).

      Appeal from Custer County Court; J. C. McKhight, Judge.

    Abe Green was convicted of violating the prohibitory la'w. arid appeals.
    Reversed and remanded.

      Jones & Bashore, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG,' J.

Plaintiff in error was convicted at the April, 1911, term of the county court of Custer county on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The state relied solely upon the testimony of Frank Coker for conviction. This witness was flatly contradicted by the accused and one other witness. In addition, he was successfully impeached by 5 or 6 other witnesses. He admitted in his testimony that he had been in jail prior to the time that he claims to-have purchased the whisky from accused, and that he was charged with selling liquor himself; that he later entered a plea of guilty,, and served his sentence. The county attorney, in rebuttal, called a witness by the name of Wells, who testified that he had known the prosecuting witness for about 15 years; that he knew his reputation for truthfulness; and that at the present it was pretty good, but that it had not been so good while living in Clinton. The county attorney then asked the witness:

“Q. You say at the present time it is good? A.'-Yes, sir. Q. You may state what kind of a life he has led for the last two years ?”

This was objected to as incompetent, irrelevant, and immaterial. The obj ection was overruled,' and' exceptions saved.

“A. Sober most of the time at least. Q, Pías he paid his debts ? A. As far as I know, he has. Q. Has he made any profession? (Objected to. Objection was overruled, and exception taken.) A. Yes, sir; he has. Q. Has he pretended in the last year or two to lead a right kind of a life? (Objected to, and objection overruled.) A. Pie has.”

There is no theory known to the law upon which this testimony could be made competent. Convictions had on a record showing such proceeding cannot be upheld. The trial courts could accomplish a great deal more in enforcing the law and maintaining good government by observing at least fundamental rules in the trial of criminal cases. This trial appears to have been conducted with a reckless disregard for the rights the law preserves to every person accused of crime — a fair and impartial trial. Society is interested in its each and every member. When people are to be imprisoned, and their property taken as a forfeiture for a violation of penal laws, they must be tried and convicted according to law. The state does not require the liberty of a citizen, except when he has forfeited the same by his own act, and after he has been tried fairly and impartially in a court of justice.

The judgment is reversed and the cause remanded, with directions to the trial court to grant a new trial.

FURMAN, P. J., and DOYEE, J., concur.


author: ARMSTRONG, J.

text:
    W. E. ABBOTT v. CITY OF McALESTER.
    No. A-1200.
    Opinion Filed January 27, 1912.
    (120 Pac. 668.)
    1. INTOXICATING LIQUORS — Illegal Sale — United States License —Evidence—Statutes Applicable. Tbe provision - of tbe statute to tbe effect that tbe payment of tbe special tax required by tbe United States by any person within this state shall constitute prima facie evidence of an intention to violate the prohibitory law is a statutory rule of evidence, and made applicable by tbe Legislature only in eases arising under the law of which it is a part.
    2. INTOXICATING- LIQUORS — Municipal Ordinances. Cities of the first class, under their charter powers, are authorized to enact a similar provision relative to the violation of the prohibitory law arising under municipal ordinance, or the Legislature may do so. But the courts cannot, by judicial construction, extend the rule beyond the expressed intention of the Legislature.
    3. MUNICIPAL CORPORATIONS — Violation of Ordinance — Prosecution. A prosecution instituted by a city for a violation of a police regulation is strictly a proceeding between the municipality and the person accused, both in the city court and in the county court to which it may be appealed under the general provisions of the statute.
    (Syllabus by the Oourt.)

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

    W. E. Abbott was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      7. G. Harley and Jas. R. Miller, 'for plaintiff in error.

      Smith C. Matson and R. G. Spilman, Asst. Attys. Gen., for defendant in error.
   ARMSTRONG, J.

Plaintiff in error was convicted in the police court of the city of McAlester, and appealed to the county court of Pittsburg county, where he was again convicted, and from the latter judgment appeals to this court.

The only question we deem it necessary to discuss, and the only one argued at any length in the brief, is the following instruction of the trial court:

“The law provides that the payment of the special tax required of liquor dealers by the United States by any person within this state shall constitute prima facie evidence of an intention to violate the prohibition law.”

Exception was duly reserved to this instruction, and the giving of it assigned as error.

It is urged that this rule does not apply to prosecutions for violations of a municipal ordinance of a.city of the first class in the absence of an enactment by the city council following the provision of.the statute. The provision in question is as follows:

“The payment of the special tax required of liquor dealers by the United States by any person within this state, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this act.” (Section 4181, Snyder’s Statutes.)

The Legislature appears to have limited the scope of this provision to violations of the prohibitory law passed by the General Assembly of 1907-08 (Laws 1907-08, c. 69, art. 3). The general rules of evidence are applicable to prosecutions in municipal courts, and a great many of the statutory changes in the rules are likewise made applicable, depending always upon the plain intent of the lawmaking body, express or implied. The Legislature could have made the provision in question apply to this class of prosecutions, but it did not do so. It specifically limits this rule of evidence to violations of the provisions of the act of which it is a part. In order to make this provision apply to prosecutions in city courts, we would have to read into the act the words “or any Qther prohibitory statute of the state, or ordinance of any municipality.” This would be purely judicial legislation. It is within the power of the Legislature to add this to the act, but not within the legitimate powers of this court to do so. The city council of McAlester, under its charter powers, could pass an ordinance providing that the proof of payment of the special tax should be taken as prima facie evidence of intent to violate their ordinance prohibiting the sale of intoxicating liquor, or possession thereof with intent to sell, but this record discloses no such ordinance.

The issues joined in this case are strictly between the city of McAlester and the accused; the state not being a party to the prosecution. This court in Re Simmons held that cities of the first class had a right to pass an ordinance prohibiting the sale or possession of intoxicating liquors for the purpose of sale, and this in the face of the statute dealing with the same subject, on the theory that there were two separate jurisdictions. See In re Simmons, 5 Okla. Cr. 399, 115 Pac. 380.

We are of the opinion that the instruction given was not warranted by the law. We think, however, that the city could prove the payment of the special tax as a circumstance to be con7 sidered by the jury, and the court should have so instructed the jury; but no such proof would constitüte prima facie evidence of intent, and would not be sufficient in itself to sustain a conviction on a charge of unlawful possession with intent to sell, and the jury should be so informed by proper instructions, until the Legislature or city council otherwise provides.

Let the judgment be reversed and a new trial awarded.

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


author: DOYLE, J.

text:
    R. C. SWARTZ v. STATE.
    No. A-876.
    Opinion Filed January 27, 1912.
    (120 Pac. 1029.)
    1. RAPE — Harmless Error — Admission of Evidence. In a prosecution for statutory rape, an entry in a family Bible of the date of prosecutrix’s birth, made by or at the instance of her parents, is not ■ admissible in evidence where the parents as witnesses have testified from personal knowledge of the date of prosecutrix’s birth. Held, that as the record shows there is no substantial conflict in the evidence upon the age issue, the admission of such record does not constitute reversible error.
    2. APPEAL AND ERROR — Harmless Error — Presumption of Prejudice. Prejudice to a plaintiff in error is not presumed from error being made to appear, in the absence of reasonably clear indications that the plaintiff in error was thereby prejudiced upon the merits, or that it tended to his prejudice in respect to a substantial right.-

      Appeal from District Court, Kiowa County; James R. Tolbert, Judge.

    R. C. Swartz was convicted of crime, and appeals.
    Affirmed.

      Thos. W. Conner, for plaintiff in error.

      Chas. W'est,, Atty. Gen., and Smith C. Matson and B, G. Spilman, Asst. Attys. Gen., for the State. ■ [¶]
   DOYLE, J.

Tire plaintiff in error was tried and convicted oil an information filed in the district court of Kiowa county March 14, -1910, which charged that on November 1, 1909, the defendant did feloniously have sexual intercourse with one Bertha Lempke, a female child under the age of 16 years; she not being the wife of the defendant.

The said Bertha Lempke in her testimony gave a particular history of her relations with the defendant, showing that she first met him at a street carnival in ITobart, some time in July, 1909; that about three weeks thereafter she went buggy riding with him after night, and, when they were a few miles from town, he persuaded her to permit him to have sexual intercourse with her; that this was the first time with the defendant; that two other men had sexual intercourse with her before this time, and the defendant was not the father of her child; that the defendant traveled for the Western Union Hide Company, and made Hobart once or twice a month; that on these trips to Hobart he had sexual intercourse with her at least five times in Kiowa county up to November, 1909; that, although a married man with a family, he represented himself as a single man, and wrote several letters to her which were introduced in evidence and tended to show the criminal relation existing; that he visited the prosecutrix at her home several times, and went with her to shows; that she was not the wife of the defendant. It was further shown that upon the defendant’s arrest he made a voluntary statement admitting that he had had sexual intercourse with the prosecutrix, but denied the paternity of her child. On behalf of the defendant but one witness testified, and he stated that about the time in question he had a conversation with the prosecutrix, and asked her, “How old are you ?” and she said, “I will be 18 my next birthday.” The prosecutrix in rebuttal denied that she ever made this statement.

The only fact controverted upon the trial was the' age of the prosecutrix. Her mother, Mrs. Freda Lempke, testified that her daughter Bertha was born at Hillsboro, Kan., December 30, 1893, and that she was 16 December 30, 1909. She was then asked: “Q. Did you keep a record in the family Bible of the births of your children? A. Yes.” She further stated she had two children born to her in Russia before coming to this country in 1892, and Bertha was the third child born; that the record of the births of the children born in Russia were notated-on a slip of paper by the preacher of their church in Russia; that, when'Bertha was born, another preacher, Rev. Shivers, transcribed this record, together with the date of Bertha’s birth, into the family Bible; that in 1902 this Bible was worn out, and a new Bible bought, and another preacher, one Rev. Meiheart, copied the entries from the old Bible into the new Bible.

The state was then permitted,-over the objection of the defendant, to introduce in evidence and read to the jury the Bible record of the date of prosecutrix’s birth. Her father, August Le'mpke, testified substantially the same as his wife. The parents’ testimony as to the date of prosecutrix’s birth was positive and unshaken by a rigid cross-examination covering the entire family history from the time of their marriage in Russia.

The defendant’s counsel insist that it was error to admit the Bible entry in evidence. When other evidence is unavailable, the date and place of a person’s birth may be shown by hearsay evidence, or by reputation in the family, and an entry in a family Bible of the date of a person’s birth is hearsay evidence and subject to the general rule by which’ that class of evidence is governed that the fact so sought to be established cannot be otherwise shown.

In the case of Rowan v. State, 57 Tex. Cr. R. 625, 124 S. W. 668, 136 Am. St. Rep. 1005, the Court of Criminal Appeals of Texas held that:

“Where, in a prosecution for rape, prosecutrix’s mother testified as to prosecutrix’s age, evidence of a Bible entry of the date of prosecutrix’s birth made by the mother was inadmissible as secondary.”

In the case of State v. Miller, 71 Kan. 200, 80 Pac. 51, the Supreme Court of Kansas held that:

“An entry in a family record of the age of a child, made by or at the instance of her father, is not admissible in evidence, where he is alive, and is a witness in the case.”

See, also, People v. Mayne, 118 Cal. 516, 60 Pac. 654, 62 Am. St. Rep. 256. It must be conceded that under the facts in this case the Bible record was incompetent. There was no occasion to invoke the necessity principle, as the best evidence was available and had been introduced in the testimony of the prosecutrix’s parents, who testified to the age as' a matter of positive recollection and personal knowledge. While the court erred in 'permitting the Bible record to be read to the jury, nevertheless, in view of the uncontradicted facts in evidence, we do not think its admission was prejudicial to the substantial rights of the defendant. Our criminal procedure act provides that (section 6957, Snyder’s Stat.) :

“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

The mandatory language of this wise and beneficent provision precludes this court from reversing judgments of conviction for errors, defects, or irregularities deemed inconsequential in the -absence of reasonably clear indications that the plaintiff in error was prejudiced thereby, in that otherwise .the verdict might with reasonable probabilities have been different. The public policy in the administration of criminal justice, as declared by this and other similar provisions of our criminal procedure act has from its organization been fully conformed to by this court, not only as an obligation but as a pleasure as well, and the doctrine that, error being made to appear, prejudice will be presumed, has never obtained in this court. In the case of George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052, which was the first decision rendered by this court, it is said :

“Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender.”

In Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, it is said:

“It is the fixed purpose of this court to carry out the spirit of this statute, and, when a defendant has been properly charged with an offense and fairly tried and the evidence clearly establishes his guilt, this court will not reverse the conviction upon any technicality or exception which did not deprive the defendant of a substantial right.”

The public policy of our state in the administration of criminal justice, as declared in section 6957 and’section 7142, Snyder’s Stat., prescribing that no judgment of conviction shall be reversed except for error prejudicial to the defendant upon the merits, or tending to his prejudice in respe'ct to a substantial right, is not in contravention of the constitutional right to have all issues of fact determined by a jury.

There was no exception taken to the instructions given upon the trial, and no criticism is made upon them in this court.

The remaining assignments of error are as destitute of merit as the final assignment, that the verdict is not supported by the evidence.

Upon a careful examination of the whole case, we are of the opinion that the substantial rights of the defendant have not been affected by any adverse- ruling made by the court. There can be no doubt of his guilt of the crime charged, and his escape from punishment would be a miscarriage of justice.'

Finding no prejudicial error, the judgment will be affirmed.

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


text:
    BERT AUSTIN et al. v. STATE.
    No. A-512.
    Opinion Filed November 23, 1910.
    Appeal from Ottawa County Court; A. C. Wallace, Judge pro tern.
    Bert Austin and another were convicted of violating the prohibition law, and they appeal.
    Affirmed.
    Fred S. Caldwell, for the State.
   FURMAN, P. J.

No brief has been filed by counsel for appellants.

We have examined the information, and find it sufficient. The testimony of the witnesses amply sustains the verdict. The charge of the court is free from fundamental errors. The judgment of the court is in regular form. The judgment of the lower court is therefore affirmed.

DOYLE and BICHABDSON, JJ., concur.


author: PER CURIAM.

text:
    S. R. FORNEY v. CITY OF PAWHUSKA.
    No. A-505.
    Opinion Filed March 21, 1911.
    Appeal from Osage County Court; C. T. Bennett, Judge.
    Boone, Léahy & MacDonald, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
    Plaintiff in error was convicted in the county court of Osage county on a charge of violating a prohibitory ordinance of the city of Pawhuska, and appeals.
    Appeal dismissed.
   PER CURIAM.

This case was originally tried in the police court of the city of Pawhuska, and a judgment of conviction there had. Plaintiff in error appealed to the county court of Osage county, and was again convicted. On the 24th day of September, 1909, following this conviction, he was adjudged to pay a fine of one hundred dollars and be imprisoned for a period of ninety days. Upon this date the plaintiff in error was given 60 days to make and serve case-made. No time was fixed by the court extending the time within which to file the appeal, as provided by the statute. See. 6948, Comp. Laws 1909, provides that the appeal must be filed within 60 days from the date of the judgment, unless for good cause shown the court extends this time, and under this section of the statute it cannot be extended more than 60 days. The appeal in this case was filed on December 24th, 1909, thirty-one days too late. There are other defects in the record, but for this defect, which is fatal, the appeal will have to be dismissed, and it is so ordered.


author: PEE -CIJEIAM.

text:
    R. B. RICE v. STATE.
    No. A-570.
    Opinion Filed May 23, 1911.
    Appeal from District Court, Texas County; E. H. Loofbourrow, Judge.
    R. B. Rice appeals from an order of the trial court sustaining a demurrer to plea in abatement.
    Appeal dismissed.
    J. P. McLaughlin and S. S. Macyj for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PEE -CIJEIAM.

This • is an attempt by the plaintiff in error to appeal from an order of the trial court sustaining a demurrer to a plea in abatement. No final judgment was entered in the case. An appeal does not lie in this court exeept from a final judgment of a trial court of record. The question attempted to be raised here can and would properly be raised by appeal after a judgment of conviction is had.

The Attorney General has filed a motion to dismiss the appeal, as follows: '

“Comes now Charles West, Attorney General, and appearing especially and for the purposes of this motion only, moves the court to dismiss the pretended appeal herein for the following reasons: Because no final judgment has ever been rendered against this defendant from which an appeal may be taken, this being an attempted appeal by way of bill of exceptions from the order of the court sustaining a demurrer to a plea in abatement, which was an intermediate order of the trial court, and not a judgment that can be appealed from. Wherefore, the Attorney General says that this appeal should be dismissed with instructions to the trial court to proceed with the trial of this case.
“CHAS. WEST, Attorney General.
“SMITH C. MATSON, Assistant Attorney General.”

The motion is well founded and is sustained, and the appeal is hereby dismissed.


text:
    TOM BROWN v. STATE.
    No. A-571.
    Opinion Filed May 23, 1911.
    Appeal from Washington County Court; A. T. Dumenil, Judge.
    Tom Brown was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    John E. Palmer and Charles C. Julian for plaintiff in error.
    Smith C. Matson, Assistant Attorney General, for defendant in error.
   PER CURIAM.

This is an appeal attempted by case-made and transcript from a proceeding in the county court of Washington county, wherein the plaintiff in error was tried for violating the prohibitory law, and a verdict returned by a jury finding him guilty. The transcript nowhere shows that a judgment 'of the court was entered in this proceeding. The case-made was not filed with the clerk of the county court, and is not signed and settled by the trial judge. The record failing to show that a final judgment was entered in the case, no appeal will lie. If judgment had been entered, the ease-made would have to be stricken beeapse it is not certified to and authenticated by the trial judge. For the reason that the record does not disclose the final judgment the attempted appeal is dismissed.


author: PEE CUEIAM.

text:
    PAT MALONE v. STATE.
    No. A-576.
    Opinion Filed May 23, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Pat Malone was convicted of the and appeals.
    Affirmed.
    Biddison & Campbell, for plaintiff in error.
    Smith C; Matson, Asst. Atty. Gen., for defendant in error.
   PEE CUEIAM.

Plaintiff in error, Pat Malone, was eonvieted on the 23rd day of November, 1909, on a charge of unlawfully selling intoxicating liquor, fined fifty dollars and sentenced to thirty days imprisonment in the county jail. The record discloses no prejudicial error, and the judgment of the trial court is therefore affirmed, with directions to that court to enforce the judgment and sentence.


text:
    JOHN CLARY v. STATE.
    No. A-581.
    Opinion Filed May 23, 1911.
    Appeal from Seminole County Court; T. S. Cobb, Jugde.
    John Clary was convicted of selling intoxicating liquors, and appeals.
    Reversed and remanded.
    Davis & Davis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PEE CUEIAM.

The plaintiff in error was convicted in the Seminole county court at the October, 1909, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred fifty dollars and imprisonment in the county jail for a period of thirty days. The record in this ease discloses the fact that this was a very strenuous trial. The trial judge seems to have overlooked the fact that it was his duty to preside in a fair and impartial manner, and in a great many ways he was guilty of conduct prejudicial to the substantial rights of the plaintiff in error. It would be a gross miscarriage of* justice to permit a conviction to stand, had under proceedings as are disclosed by this record. The judgment of the trial court is reversed and the cause remanded for a new trial.


text:
    RALPH BROWN v. STATE.
    No. A-583.
    Opinion Filed May 23, 1911.
    Appeal from Payne County Court; P. D. Mitchell, Judge.
    Ralph Brown was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Preeman E. Miller, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted on the 2nd day of November, 1909, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of two hundred dollars and imprisonment in the county jail for a period of ninety days. We find no material error in the record. The judgment of the trial court is therefore affirmed, with directions to that court to enforce the judgment and sentence.


text:
    A. J. WALDOCK v. STATE.
    No. A-588.
    Opinion Filed May 23, 1911.
    Appeal from District Court, McCurtain County; R. McMillan, Judge.
    A J. Waldock was convicted of criminal contempt, and appeals.
    Reversed and dismissed.
    Howe & Stanley and Spaulding & Carr, for plaintiff in error.
    Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This appeal is erroneously on the docket as ' Charles Smith et al., plaintiff in error, v. State of Oklahoma, defendant in error. It should be A. J. Waldock, plaintiff in error,' v. State of Oklahoma, defendant in error. The original action in the court below was The State of Oklahoma v. Charles Smith et al., A. J. Waldock being one of the number., Waldock with sixteen others was tried in the district court of McCurtain county on the 9th day of October, 1909, on a charge of conspiring to commit criminal contempt of the district court of said county, and fined five hundred dollars and costs. All the other parties charged in the complaint were acquitted. This contempt charge grew out of an alleged violation of an order of injunction issued out of the district court of McCurtain county on application of the Choctaw Lumber Company against the Smith Lumber Company and W. H. Tucker. The judgment is wholly unsupported by competent evidence. The cause is reversed and remanded, with directions to the trial court to dismiss if sufficient testimony cannot be had upon which to base a conviction.


text:
    LOVE ALLEN v. STATE.
    No. A-595.
    Opinion Filed May 23, 1911.
    Appeal from Pontotoc County Court; Joel Terrell, Judge.
    Love Allen was convicted of violating tlie prohibitory law, and appeals.
    Affirmed.
    Stone & Maxey, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted on the- 29th day of November, 1909, in the county court of Pontotoc county on a charge of unlawfully selling intoxicating liquor, and his punishment assessed at a fine of fifty1 dollars, and confinement in the county jail for a period of thirty days. O'n the 10th day of December, thereafter, judgment was entered, and time given to perfect the appeal. Case-made and petition in error were filed in this court on the 7th day of Eebruary, 1910. No brief has been filed on behalf of the plaintiff in error. The indictment is regular and the judgment of the court appears to be in due form, and is therefore affirmed, under rule 4, for want of prosecution.


text:
    BOB MILSAP v. STATE.
    No. A-614.
    Opinion Filed May 23, 1911.
    Appeal from District Court, McClain County; El McMillan, Judge.
    Bob Milsap was convicted of larceny of domestic animals, and appeals.
    Appeal dismissed.
    Wadlington & Wadlington, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ben Pranklin, county attorney of McClain county, for defendant in error.
   PER CURIAM.

A motion to dismiss this appeal has been filed on state, on ground that the plaintiff in error is a fugitive from justice, It having been shown to the satisfaction of the court by affidavits and oral evidence produced in open court that the plaintiff in error is a fugitive from justice at this time, the motion is. sustained and the appeal dismissed.


text:
    LOWE McCOMAS v. STATE.
    No. A-630.
    Opinion Filed May 23, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Judge.
    Lowe MeComas was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Phelps & Cope, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted at the October, 1909, term of the county court of Canadian county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and costs, and imprisonment in the county jail for a period of thirty days. The Assistant Attorney General has shown the court that the plaintiff in error has been paroled by the Governor of Oklahoma, and asks that this appeal be dismissed. The record will not be.reviewed on appeal when the appellant has applied for or secured executive clemency. The appeal in this ease is hereby dismissed.


text:
    BOB BALL v. STATE.
    No. A-596.
    Opinion Filed May 23, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
   PER CURIAM.

Appellant .was convicted for a violation of the prohibitory liquor law, and his punishment assessed at a fine of $50, and a confinement of 30 days in the county jail. No appearance has been made for appellant in this court. What purports to be the ease-made, does not contain a statement of the evidence introduced in the lower court. We find no error in the information, the instructions of the court, or the judgment. The judgment of the lower court is, therefore, affirmed.


text:
    WILL CRAWFORD v. STATE.
    No. A-636.
    Opinion Filed May 23, 1911.
    Appeal from Okfuskee County Court; A. A. Hatch, Special Judge.
   PER CURIAM.

Judgment was rendered on the. 4th day of December, 1909, for a violation of the prohibitory liquor law, and his punish-men was assessed at a fine of $50, -and 30 days imprisonment in the county jail. No order was made by the court extending the time within which the appeal in this case might be perfected. The transcript of the record was not filed in this court until March 4th, 1910, which was long after the time allowed by law for perfecting his appeal had expired. This court, therefore, acquired no jurisdiction of this appeal, and the appeal is accordingly dismissed.


text:
    PETE DeMOLAN v. STATE.
    No. A-619.
    Opinion Filed May 23, 1911.
    Appeal from Hughes County Court; P. W. Gardner, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The defendant was sentenced on the 7th day of August, 1909, for a violation of the prohibitory liquor law, and his punishment was assessed at 30 days confinement in the county jail and a fine of $50, but appellant did not perfect his appeal, by filing a ease-made in this court until February 19th, 1910, which was long after the time had expired allowed by law for perfecting the appeal. This court therefore did not acquire jurisdiction of the case, and the appeal is dismissed.


text:
    LEE BANNISTER v. STATE.
    No. A-624.
    Opinion Filed May 23, 1911.
    Appeal from District Court, McClain County; E. McMillan, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 27th day of February, 1909, appellant was convicted in the district court of McClain county, of the offense of willfully and feloniously making an assault upon another with a dangerous weapon, with intent to do great bodily harm to the party assaulted, and his punishment was assessed by the jury to imprisonment in the county jail of McClain county for a period of 365 days. No appearance has been made in this court in behalf of the appellant. We find no material errors in the record, and the judgment of the lower court is therefore affirmed.


text:
    B. W. TUCKER v. STATE.
    No. A-638.
    Opinion Filed May 23, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $500, and six months imprisonment in the county jail. Judgment was rendered against appellant on the 17th day of September, 1909, but the transcript of- the record was not filed in this court until the 4th day of March, 1910, which was long after the expiration of the time allowed by law for the perfecting of the appeal. This court, therefore, 'did not acquire jurisdiction of this cause, and the appeal is dismissed.


text:
    GEO. CLASSEN v. STATE.
    No. A-631.
    Opinion Filed May 23, 1911.
    Appeal from Canadian County Court; H. L. Eogg, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for violating the prohibitory liquor law, and his punishment was assessed at a fine of $50, and 30 days confinement in the county jail. No appearance has been made in this court in behalf of appellant, and the appeal has therefore been abandoned. We find no error in the record, and the judgment of the lower court is in all things affirmed.


text:
    GEO. CLASSEN v. STATE.
    No. A-632.
    Opinion Filed May 23, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for violating the prohibitory liquor law, and his punishment was assessed at a fine of $50, and 30 days confinement in the county jail. No appearance has been made in this court in behalf of appellant and the appeal has therefore been abandoned. We find no error in the record, and the judgment of the lower court is in all things affirmed.


text:
    LEO TURNER v. STATE.
    No. A-637.
    Opinion Filed May 23, 1911.
    Appeal from Comdnehe County Court; James H. Wolverton, Judge.
    S'tevens & Myers, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 20th day of December, 1909, judgment was rendered against appellant for a violation of the prohibitory liquor law of the state of Oklahoma, and his punishment was assessed at a fine of $150, and 60 days confinement in the county jail. At the time of rendering the judgment the court .made an ordqr requiring appellant to file his case-made and transcript of the record with the Criminal Court of Appeals within 60 days from that date., .There was no, further extension of time made by the court for perfecting the appeal in this ■ease." The 60 days allowed by the court for perfecting the.appeal in this case expired on the 18th day of February, 1910, but appellant did not file his petition in error and ease-made in this court until the 4th day of March, 1910, which was fourteen» days after the time allowed for perfecting his appeal had expired. This court, therefore, .has not acquired jurisdiction of the appeal, and the appeal is, therefore, dismissed. ' '


text:
    JOE ZOLL v. STATE.
    No. A-607.
    Opinion Filed June 6, 1911.
    Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.
    F. H. McGuire, for plaintiff in error.
   PER CURIAM.

Joe Zoll, plaintiff in error, was informed against, tried and convicted of the crime of having in his possession intoxicating liquors with the intention of selling the same. The trial was had without objection before a jury composed of six men. He was found guilty and on October 30th, 1909, he was sentenced to servé a) term of sixty days in the county jail and pay a fine of two hundred dollars. In his motion for a new trial, he alleges that the court erred in submitting said cause to a jury of six persons instead .of empaneling a jury of twelve as provided by the Constitution. The question presented in this case has been passed upon in the case of William Dalton v. State, infra. For the reasons stated in the opinion in that case the judgment is reversed and the cause remanded with direction to grant a new trial.


text:
    JOHN SCHRIEBAR v. STATE.
    No. A-547.
    Opinion Filed June 6, 1911.
    Appeal from Garfield County Court, James B. Cullison, Judge.
    John Sehriebar was convicted of violating the prohibitory law, and appeals.'
    Appeal dismissed.
    A. J. Jones, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted of selling intoxicating liquor in the county court of Garfield county on the 20th day of September, 1909, and sentenced by the court to pay a fine of three hundred dollars and costs and be confined in the county jail for a period of ninety days. Petition in error and transcript were filed in this court on the 13th day of January, 1910. The Attorney General has filed a motion to' dismiss the appeal for the following reasong: "First. Because the record shows that this judgment appealed from was for a misdemeanor, and was rendered on the 8th day of October 1909, (Record pages 52 and 54) and this attempted appeal is by transcript and the same was not filed in this court with the petition in error until the 13th day of January, 1910, and more than sixty days after the rendition of the judgment in violation of sec. 6949 of Snyder’s Comp. Laws Okla. 1909. Second. Because no notices of appeal were served on the clerk of the court and the county attorney .as provided in sec. 6949, Snyder’s Comp. Laws Okla. 1909. Third. Because the record does not show that plaintiff in error ever gave an appeal bond or stayed the execution of the judgment rendered and the sentence would have been served according to the terms of the judgment before this time, and thereby renders úseles sany action by this court.’’ The second ground raised by the motion of the Attorney General to dismiss this appeal will have to be sustained. This court has held in a great many cases that failure to serve notices of appeal as provided by law is fatal, and an appeal filed in this court when no such notices are shown will be dismissed for want of jurisdiction. Appeal dismissed.


text:
    JOHN SCHRIEBAR v. STATE.
    No. A-548.
    Opinion Filed June 6, 1911.
    Appeal from Garfiield County Court; James B. Cullison, Judge.
    A. J. Jones, for plaintiff in error.
    Sriúth C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This is a companion case to No. A-547. For the reasons given in the opinion in that ease the appeal in this case is hereby dismissed.


text:
    BILL DALTON v. STATE.
    No. A-618.
    Opinion Filed June 6, 1911.
    Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.
    John A. Bemy, for plaintiff in error.
   PER CURIAM.

Bill Dalton, plaintiff in error, was informed against, tried and convicted of the crime of having unlawfully in his possession intoxicating liquors with the intention of selling the same. Trial was had before a jury composed of six men. He was found guilty and on October 30th, 1909, was sentenced to serve a term of sixty days and pay a fine of two hundred dollars. In his motion for a new trial he alleges that the court erred in submitting said cause to a jury of six persons instead of empaneling a jury of twelve as provided by the Constitution. The question presented in this case has been passed upon in the case of William Dalton v. State, infra. For the reasons given in the opinion in that ease, the judgment is reversed, and the cause remanded, with direction to grant a new trial.


text:
    WILLIAM DUVAL v. STATE.
    No. A-609.
    Opinion Filed June 6, 1911.
    Appeal from Sequoyah County Court, W. N. Littlejohn, Judge.
    William Duval was convicted of a violation of the prohibition law and appeals.
    Appeal dismissed.
    Jess W. Watts and E. E. Jackson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the county court of Sequoyah county for the offense of selling intoxicating liquor and sentenced to thirty days imprisonment in the county jail and to pay a fine of fifty dollars. The judgment and sentence was entered on October 9th, 1909. An appeal was taken by filing in this court on February 11th, 1910, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal for the reason that the case-made was not filed in the lower court as provided by sec. 6951, Snyder’s Stat. 1909. The record shows the acknowledgment of service of the notice to dismiss, and plaintiff in error has made no response to said motion. An examination of the purported case-made shows that the same was never filed with the papers in the ease in the court below. The purported case-made does not meet the requirements of sec. 6951, Snyder’s Stat. 1909. The motion to dismiss the appeal must therefore be sustained. It is therefore ordered that the purported appeal be, and the same is hereby dismissed, and the cause remanded to the county court of Sequoyah county with direction to enforce the judgment and sentence.

FUEMAN, P. J., and ABMSTBONG, J., concur.


text:
    WILLIAM HERNEMAN v. STATE.
    No. A-553.
    Opinion Filed June 6, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    William Herneman was convicted of selling intoxicating liquor, and appeals.
    Reversed and remanded.
    J. W. Johnson, for plaintiff in error.
    Chas. West, Atty. Gen., for defendant in error.
   PER CURIAM.

An information- was filed against plaintiff in error in the county court of.Oklahoma county on the 7th day of October, 1908, the same containing two counts, the first of which charges the selling of intoxicating liquor, the second, unlawful possession of such liquor with intent to sell. When the ease came on for trial on the 11th day of November, 1908, the state elected to prosecute on the first count. The plaintiff in error was convicted and sentenced to pay a fine of two hundred dollars and costs and serve one hundred days in the county jail. There is a total want of evidence in the record to sustain a conviction on this count. The cause is reversed and remanded, with directions to the county court of Oklahoma county to grant a new trial.


text:
    JOHN LEWIS v. STATE.
    Nos. A-857, A-942.
    Opinion Filed June 6, 1911.
    Appeals from Coal County Court; R. H. Wells, Judge.
    Charles T. Gibson, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convieted in the county court of Coal county in two cases for violations of the prohibition law. In each case an appeal was taken to this court. May 30, 1911, plaintiff in error by his counsel of record filed motions to dismiss said appeals. The motions to dismiss said appeals are sustained. Wherefore the appeal in each of the above entitled and numbered causes is accordingly dismissed. The clerk of this court will issue a mandate to the county court of Coal county directing said court to enforce the judgment and sentence pronounced and entered in each ease.


text:
    ANDY ANDERSON v. STATE.
    No. A-498.
    Opinion Filed June 20, 1911.
    Appeal from Jefferson County Court; G. M. Bond, Judge.
    Bridges & Vertrees and Gilbert & Bond, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant.in error.
   PER CURIAM.

This is a companion case to No. A-501, Woodie Stuart, plaintiff in error, v. State of Oklahoma, defendant in error, infra. For the reasons given in the opinion in that ease this cause is reversed and remanded for a new trial.


text:
    GUY HARPER v. STATE.
    No. A-538.
    Opinion Filed June 20, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Guy Harper was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    C. P. Chenault, Norvell & MeNary and Hepburn & Granttham, for plaintiff in error.
    Fred S. Caldwell^ for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Tulsa county on the 3rd day of December, 1909, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars, and thirty days imprisonment in the county jail. The only question raised by this record that we deem necessary to consider is the first assignment argued by counsel: that the court erred in overruling the motion to set aside the information on the ground that the same had not been signed by the county attorney. It appears that the information was in proper form; that the county attorney failed to sign the body of the information, but signed the verification of the same. Our statute requires an information in a misdemeanor ease to be both signed and verified. Sec. 6644, Snyder’s Stat. 1909, is as follows: “The county attorney shall subscribe his name to informations filed in the county or district court and endorse thereon the names of the witnesses known to him at the time of filing the same. He shall also endorse thereon the names of such other witnesses as may afterwards become known to him, at such time before the trial as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, That when an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.” There is an entire omission on the part of the county attorney to subscribe the information filed in this case. The first signature found on the sheet of paper upon which the information was drawn is that of Tom Lester, prosecuting witness, which is attached to a form of verification. The next is that of Judge Gubser who swore the witness for verification. Immediately below this is a form of verification by the county attorney.' This form of verification closes with the signature of M. A. Breekenridge, county attorney. The signature of the county attorney at the place it appears on the document does not substantially conform to the provision of the statute requiring that the information be subscribed. When the motion to set aside the information was filed the trial court should have required the county attorney to sign the same in the manner contemplated by the statute. For this error the cause is reversed and remanded with directions to the county court of Tulsa county to require the county attorney to sign the information and grant a new trial.


text:
    OLA McDANIELS AND ORVILLE McDANIELS v. STATE.
    No. A-591.
    Opinion Filed June 20, 1911.
    Appeal from Tulsa County; N. J. Gubser, Judge.
    Ola and Orville McDaniels were convicted of violating the prohibitory law, and appeal.
    Reversed and remanded.
    Davinson & Malloy, for plaintiffs in error. .
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Tulsa county on the 11th day of December, 1909, on a charge of selling intoxicating liquor, and their punishment fixed at a fine of fifty dollars each and imprisonment in the county jail for a period of thirty days. The only question raised by this record that we deem necessary to consider, is the -first assignment argued by counsel: that the court erred in overruling the motion to set aside the information on the ground that the same had not been signed by the county attorney. It appears that the information was in proper form; that the county attorney failed to sign the .body of the information, but signed the verification of the same. Our statute requires an information in a misdemeanor ease to be both signed and verified. See. 6644, Snyder’s Stat. 1909, is as follows: "The county attorney shall subscribe his name to informations filed in the county or district court and endorse thereon the names of the witnesses known to him at the time of filing the same. He shall also endorse thereon the names of such other witnesses as may afterwards become known to him, at such time before the trial as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, That when an information in any case is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.” There is an entire omission on the part of the county attorney to subscribe the information filed in this ease. The first signature found on the sheet of paper upon which the information was drawn is that of H. F. Newbloek, prosecuting witness, which is attached to a form of verification. Immediately following below this is a form of verification by the county attorney. This form of verification closes with the signature of M. A. Breekenridge, county attorney. The signature of the county attorney at the place it appears on the document does not substantially conform to the provision of the statute requiring that the information be subscribed. When the motion to set aside the information was filed the trial court should have required the county attorney to sign the same in the manner contemplated by the statute. For this error the cause is reversed and remanded with directions to the county court of Tulsa county to require the county attorney to sign the information and grant a new trial.


text:
    RALPH BARR v. STATE.
    No. A-601.
    Opinion Filed June 20, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Ralph Barr was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Davinson & Malloy and D. M. Martindale, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county

court of Tulsa county on the 8th day or December, 1909, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars, and imprisonment in the county jail for a period of thirty days. The only question raised by this record that we deem necessary to consider is the first assignment argued by counsel: that the court erred in overruling the motion to set aside the information on the ground that the same had not been signed by the county attorney. It appears that the information was in proper form; that the county attorney failed to sign the bpdy of the information, but signed the verification of the same. Our statute requires an information in a misdemeanor ease to be both signed and verified. Sec. 6644, Snyder’s Stat. 1909, is as follows: “The county attorney shall subscribe his name to informations filed in the county or district court and endorse thereon the names of the witnesses known to him at the time of filing the same. He shall also endorse thereon the names of such other witnesses as may afterwards become known to him, at such time before the trial as the court may by rule prescribe. All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person: Provided, That when an information in any cáse is verified by the county attorney, it shall be sufficient if the verification be upon information and belief.” There is an entire omission on the part of the county attorney to subscribe the information filed in this case. The first signature found on the sheet of paper upon which the information was drawn is that of Tom Lester, prosecuting witness, which is attached to a form of verification. The next is that of Judge Gubser who swore the witness for verification. Immediately below this is a form of verification by the county attorney. This form of verification closes with the signature of M. A. rBeekenridge, county attorney. The signature of the county attorney at the place it appears on the document does not substantially conform to the provision of the statute requiring that the information be subscribed. When the motion to set aside the innformation was filed, the trial court should have required the county attorney to sign the same in the manner contemplated by the statute. Eor this error the cause is reversed, and remanded with directions to the county court of Tulsa county to require the county attorney to sign the information, and grant a new trial.


text:
    ALBERT McGUIRE v. STATE.
    No. A-602.
    Opinion Filed June 20, 1911.
    Appeal from Pawnee County Court; II. T. Conley, Judge.
    Albert McGuire was , convicted in the county court of Pawnee county on a charge of violating the prohibitory law, and appeals.
    Appeal dismissed.
    E. M. Clark and Geo. E. Merritt, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This is an appeal by case-made from a judgment of the county court of Pawnee county imposing a fine of three hundred dollars and a jail sentence of three calendar months on the plaintiff in error, for having unlawful possession of intoxicating liquor for the purpose of selling the same. The case;made was never filed in the office of the cleric of the county court of Pawnee county, and the Assistant Attorney General has filed a motion to strike the ease-made and dismiss the appeal .on this ground. The motion is sustained and the appeal accordingly dismissed.


text:
    W. T. McIVER v. STATE.
    No. A-610.
    Opinion Filed June 20, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    W. T. Mclver was convicted of violation of the prohibitory law, and appeals.
    Reversed and remanded.
    H. R. Winn and Taylor, Pruitt & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen.; for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county on the 11th day of December, 1908, on a charge of unlawfully selling intoxicating liquor, and was by the court sentenced to pay a fine of one hundred dollars and costs, and be confined in the county jail for a period of forty days. After a careful review of the record in this case, we think the court committed reversible error in overruling the motion for new trial under the showing made. The judgment is reversed and the cause remanded for a new trial.


author: PEE OUEIAM.

text:
    JOHN LEWALLEN v. STATE.
    No. A-613.
    Opinion Filed June 20, 1911.
    Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.
    John Lewallen was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    A. C. Markley, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PEE OUEIAM.

Plaintiff in error was convicted in the superior court of Pittsburg county on a charge of selling intoxicating liquor, and judgment was entered against him in said court on the 16th day of December, 1909. The petition in error and ease-made were filed in this court on the 15th day of February, 1910, more than sixty days after the rendition of the judgment. No extension of the statutory period in which to perfect the appeal was asked for or granted by the trial court. The appeal not having been taken in the time allowed by law, this court has no jurisdiction to review the errors complained of, and the same is dismissed.


author: PEE CTJBIAM.

text:
    JAMES BUTLER v. STATE.
    No. A-603.
    Opinion Filed June 20, 1911.
    Appeal 'from Pawnee County Court; H. T. Conley, Judge.
    James Butler was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    E. M. Clark and Geo. E. Merritt, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and Eedmond S. Cole, Co. Atty. of Pawnee county, for defendant in error.
   PEE CTJBIAM.

This is an appeal by case-made from a judgment of the county court of Pawnee county, imposing a fine of three hundred dollars and a jail sentence of three calendar months on the plaintiff in error, for having unlawful possession of intoxicating liquor for the purpose of selling the same. The case-made was never filed in the office of the clerk of the county court of Pawnee county, and counsel for the state have filed a motion to strike the case-made, and dismiss the appeal on this ground. The motion is sustained and the appeal accordingly dismissed.


text:
    GEORGE PULLEY v. STATE.
    No. A-611.
    Opinion Filed June 20, 1911.
    Appeal from Superior Court, Muskogee County; Parrar L. McCain, Judge.
    George Pulley was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    G. W. Wheatley, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This is a companion case to case No. A-515, J. C. Collins, plaintiff in error, v. State of Oklahoma, defendant in error, 5 Okla. Cr. 254, and for the reasons given in that opinion this cause will be reversed and remanded for a new trial.


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    R. E. KEITH v. STATE.
    No. A-612.
    Opinion Filed June 20, 1911.
    Appeal from Superior Court, Muskogee County; Parrar L. McCain, Judge.
    R. E. Keith was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    G. W. Wheatley, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This is a companion case to case No. A-515, J. C. Collins, plaintiff in error, v. State of Oklahoma, defendant in error, 5 Okla. Cr. 254, and for the reasons given in that opinion this cause will be reversed and remanded for a new trial.


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    J. HARVE THOMPSON v. STATE.
    No. A-681.
    Opinion Filed June 20, 1911.
    Appeal from Coal County Court; R. II. Wells, Judge.
    J. Harve Thompson was convicted for a violation of the prohibition law, and appeals.
    Appeal dismissed.

      J. G. Ralls, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime selling intoxicating liquor and on the 21st day of January, 1910, was sentenced to be confined in the county jail for thirty days and to pay a fine of five hundred dollars and costs. Erom which judgment he appealed by filing in this court on March 28th, 1910, a petition in error with ease-made. Plaintiff in error has now filed his motion to dismiss said appeal for the reason that a parole has been granted, to be effective upon the payment of said fine and costs. The motion to dismiss said appeal is sustained and the appeal is accordingly dismissed and the cause remanded to the county court, of Coal county.


text:
    P. M. NELSON v. STATE.
    No. A-922.
    Opinion Filed August 1, 1911.
    Appeal from District Court, Rogers County; T. L. Brown, Judge.
    P. M. Nelson was convicted of selling intoxicating liquor to a minor, and appeals.
    Reversed and remanded.
    J. I. Howard, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Rogers county upon an information charging him with selling intoxicating liquor to a minor and was sentenced to imprisonment for a term of one year in the state penitentiary. The judgment was entered on June 2nd, 1910. Erom the judgment an appeal was taken by filing in this court on October 6th, 1910, a petition in error with transcript attached. The act declaring this offense a felony and fixing the punishment therefor is unconstitutional and void. The district court therefore had no jurisdiction of said cause. Nowakowski v. State, infra, 116 Pac. 351. Upon the authority of this case the judgment and conviction is reversed. The prosecution having been instituted by information and not by indictment, the cause is not transferable to the county court, but must be dismissed. Wychoff v. State, infra, 116 Pac. 355. The judgment of conviction is therefore reversed and the cause remanded with direction to dismiss the same.


text:
    JOHN A. BOURBONNAIS v. STATE.
    No. A-983.
    Opinion Filed August 1, 1911.
    Appeal from District Court, Pottawatomie County, Roy Hoffman, Judge
    . John A Bourbonnais was convicted for selling intoxicating liquor to a minor, and appeals.
    Reversed and remanded.
    G. A. Outcelt, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was indicted, tried and convicted in the district court of Pottawatomie county of the crime of selling intoxicating liquor to a minor and was sentenced to imprisonment in the penitentiary for a term of four years. Judgment and sentence was entered on June 24, 1910. Prom which judgment an appeal was taken by filing in this court on December 23rd, 1910, a petition in error with case-made attached. This appeal .challenges the constitutionality of the act (Sess. Laws 1909, p. 166) under which this prosecution was had. The identical question was passed upon by this court in the case of Nowakowski v. State, infra, 116 Pac. 351, in which it was held that the act in question declaring this offense a felony and fixing the punishment therefor is unconstitutional and void. See also Meek v. State, infra, 116 Pac. 356. The judgment of the district court of Pottawatomie county is therefore reversed and the cause remanded.


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    NEUT CADENHEAD v. STATE.
    No. A-798.
    Opinion Filed August 9, 1911.
    Appeal from District Court, Washita Coutny; James R. Tolbert, Judge.
    Neut Cadenhead was convicted of the crime of rape, and appeals.
    Appeal dismissed.
    Smith & Wagner, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was by information charged with, tried and convicted of statutory rape and was sentenced to serve a term of five years imprisonment in the state penitentiary. Judgment and sentence was pronounced and entered on December 9th, 1909. Prom this sentence he appealed by filing in this court on June 11th, 1910, a petition in error with case-made attached. Counsel for plaintiff in error has filed a motion to dismiss the appeal herein for the reason that a parole has been granted by the Governor, and that the conditions thereof were accepted and consented to by plaintiff in error. Where a parole is granted and accepted and this fact is brought to the attention of this court, pending an appeal, the appeal will be dismissed. Gilmore v. State, 3 Okla. Cr. 639, 108 Pac. 416. Therefore it is considered that said appeal be, and the same is, hereby dismissed, and the cause remanded to the district court of Washita county.


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    C. NEAL SMALLWOOD v. STATE.
    No. A-775.

    Opinion Filed September 5, 1911.
    Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.
    C. Neal Smallwood was convicted of the crime of forgery, and appeals.
    Appeal dismissed.
    Guy L. Andrews, J. G. Harley and Boss N. Lillard, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted of the ' crime of forgery and was sentenced'to serve a term of six months .imprisonment in the state penitentiary. An appeal was taken by filing in this court on May 23rd, 1910, a pétition in error with ease-made. A motion to dismiss the appeal herein for the reason that a parole has been granted and that the conditions thereof were accepted ,and consented to by plaintiff in error has been filed. When a parole is granted and accepted and this fact is brought to the attention of this court pending the appeal the appeal will be dismissed. Gilmore v. State, 3 Okla. Cr. 639, 108 Pac. 416. The motion to dismiss is sustained and said appeal is hereby dismissed and the canse remanded to the district court of Pittsburg county.


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    J. W. ARNOLD v. STATE.
    No. A-677.
    Opinion Filed September 5, 1911.
    Appeal from District Court, Creek County; T. L. Brown,. Judge.
    J. W. Arnold was convicted of the crime of assault with intent to kill, and appeals.
    Appeal dismissed.
    Thompson & Smith and E. M. Carter, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the„ State.
   PER CURIAM.

Plaintiff in error was, by information, charged with, tried, and convicted of, the crime of assault with intent to kill, and was sentenced to serve a term of three years imprisonment in the state penitentiary. Judgment and sentence was pronounced and entered on October 2, 1909. An appeal was taken by filing in this court on March 24th, 1910, a petition in error with ease-made attached. The Attorney General has filed a motion to dismiss ■ the appeal herein for the reason that a parole has been granted by the Governor, and that the conditions thereof were accepted and consented to by plaintiff in error. Where a parole is granted and accepted and this fact is brought to the attention of this court pending the appeal, the appeal will be dismissed. Gilmore v. State, 3 Okla. Cr. 639, 108 Pac. 416. The motion to disiniss is sustained and said appeal is hereby dismissed and the cause remanded to the district court of Creek county.


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    J. R. HEAD v. STATE.
    No. A-658.
    Opinion Filed September 5, 1911.
    Appeal from Garvin County Court; W. B. M. Mitchell, Judge.
    J. E. Head was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Blanton, Andrews & Osborn, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The Attorney General has filed a motion to dismiss the appeal in this case on the ground that the plaintiff in error has become a fugitive from justice. Upon the showing of the Attorney General the motion is well taken and is sustained. The appeal is therefore dismissed.


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    ANDY BRANDERSON v. STATE. J. H. McCLEARY v. STATE.
    No. A-666.
    No. A-667.
    Opinion Filed September 5, 1911.
    Appeals from Ottawa County Court; W. Y Quigley, Judge.
    O. F. Mason, for plaintiffs in error.
    Smith O. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The Attorney General has filed a motion to dismiss the appeals m these cases on the ground that no notices of appeal .were served on the clerk of the county court of Ottawa county, the court from which the judgments appealed from were rendered. The motion is sustained, and the appeals accordingly dismissed.


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    JOHN MERRITT v. STATE.
    No. A-682.
    -Opinion Filed September 5, 1911.
    Appeal from Carter County Court; I. E. Mason, Judge.
    John Merritt was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      W. H. Ussary and R. F. Turner, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The plaintiff in error was convicted of in his possession intoxicating liquors for the purpose of selling the same, contrary to law, and sentenced to pay a fine of fifty dollars and be confined in the county jail for thirty days. Judgment was rendered on the 31st day of January, 1910, at which time the court allowed forty days to prepare and serve case-made. The case-made was not served until the 15th day of March, 1910. No extension of time was granted before the expiration of forty days. The case-made was therefore not served within the time allowed by the court as provided by law, and is therefore stricken from the record upon motion of the Attorney General. There being no transcript in this record the cause is remanded to the court below with directions to enforce the judgment and sentence as entered.


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    HOWARD WILLIAMS v. STATE.
    No. A-688.
    Opinion Filed September 5, 1911.
    Appeal from Grady County Court; N. M. Williams, Judge.
    Howard Williams was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    E. Hamilton, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen.; for defendant in error.
   PER CURIAM.

The Attorney General has filed a motion to dismiss this appeal on the ground that the same was not perfected within the time allowed by law. Judgment -was entered on the 29th lay of October, 1909. The appeal was filed in this court on the 31st day of March, 1910. The motion of the Attorney General is well taken and the appeal accordingly dismissed.


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    JOE PARKS v. STATE.
    No. A-689.
    Opinion Filed September 5, 1911.
    Appeal from Harmon County Court; C. W. King, Judge.
    Joe Parks was convicted of violating the prohibitory law, and
    appeals.
    Appeal dismissed.
    Garrett & Stewart, for plaintiff in error. .
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The appellant in this case was paroled by the Governor of Oklahoma on the 30th day of January, 1910. Under the authority of Gilmore v. State, 3 Okla. Cr. 639, this appeal is hereby dismissed.


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    CHAS. KEITH v. STATE. FRANK O'TOOLE v. STATE. FRANK O'TOOLE v. STATE.
    No. A-840.
    No. A-694.
    No. A-695.
    Opinion Filed September 5, 1911.
   PER CURIAM.

The appellants in the foregoing eases were pardoned by the Governor of Oklahoma on the 10th day of November, 1910. Under the authority of Gilmore v. State, 3 Okla. Cr. 639, the appeals are dismissed.


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    J. M. McNEAL v. STATE.
    No. A-692.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Pogg, Judge.
    J. M. MeNeal was convicted of a misdemeanor, and appeals.
    Dismissed.
    James M. Prame, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Judgment and sentence was pronounced against the plaintiff in error on the 31st day of December, 1909, imposing upon him a fine of four hundred dollars and confinement in the county jail of Canadian county for thirty days, on a charge of selling intoxicating liquors. Sixty days was given the plaintiff in error to file petition in error and case-made, from the date the judgment was x>ronounced. The appeal was not filed in the office of the clerk of this court until the 31st day of March, 1910, long after the time allowed, by the statute and the order of the court had expired. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not filed within the time provided by law. The motion is sustained, and the appeal accordingly dismissed.


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    JOE BRUHWEILER AND LEON GRANDJEAN v. STATE.
    No. A-693.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Pogg, Judge.
    Joe Bruhweiler and Leon Grandjean were convicted of a misdemeanor, and appeal.
    Dismissed.

      James M. Frame, for plaintiffs in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Judgment and sentence was pronounced against the plaintiffs in error on the 31st day of December, 1909, imposing upon Joe Bruhweiler a fine of four hundred dollars and confinement in the county jail for thirty days, on a charge of selling intoxicating liquors; and imposing upon Leon Grandjean a fine of fifty dollars and confinement in the county jail for thirty days, on a charge of selling intoxicating liquors. Sixty days was given plaintiffs in error to file petition in error and ease-made, from the date the judgment was pronounced. The appeal was not filed in the office of the clerk .of this court until the 31st day of March, 1910, long after the time allowed by the statute and the order of the court had expired. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not filed within the time provided by law. The motion is sustained, and the appeal accordingly dismissed.


text:
    JOHN ORNEL v. STATE.
    No. A-714.
    Opinion Filed September 5, 1911.
    Appeal from Coal County Court; E. H. Wells, Judge.
    John Ornel was convicted of violating the prohibition law, and appeals.
    Dismissed.
    George Trice and Cutler & Melnnis, for plaintiff in error.
    ■Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The plaintiff in error was tried and convicted in the county court of Coal county, and on the TOth day of April, 1909, sentenced to pay a fine of two hundred fifty dollars and serve thirty days in the county jail of said county. The case-made with petition in error was filed on the 11th day of April, 1910. The Attorney General has filed a motion to dismiss the appeal on the ground that more than a year had elapsed before the appeal was perfected in this court. The motion is well taken and is sustained. The appeal is accordingly dismissed.


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    HOMER RHOADS v. STATE.
    No. A-867.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Pogg, Judge.
    Homer Ehoads was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    A. D. Garrish, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The appellant in this case was paroled by the Governor of Oklahoma on January 7, 1911. Under the authority of Gilmore v. State, 3 Okla. Cr. 639, this appeal is hereby dismissed.


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    BEN MITCHELL AND JOHN MOTLEY v. STATE.
    No. A-900.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
    Ben Miteliell and Jolin Motley were convicted of violating, the prohibitory law, and appeal.
    Dismissed.
    L. P. Freeling, for plaintiffs in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The appellants were convicted in the county court of Pottawatomie county on July 8, 1910, on a charge of selling intoxicating liquors. The record is most incomplete and unsatisfactory. The Attorney General has filed a motion to dismiss the appeal on the following grounds: "First. Because there is no judgment incorporated in the record from which this appeal is taken. Second. Because the case-made was never served on the county attorney and there is no transcript of the record. Third. Because the certificate of the judge to the case-made is not .attested by the clerk qf the court, nor has the case-made “ever been filed in the office of the clerk of the county court of Pottawatomie county as required by see. 6951, Comp. Laws Okla. 1909, Snyder. Fourth. Because the case-made and petition in error ’were not filed in this court within the time allowed by law.” There has been no answer filed. The allegations in the motion have not been controverted, and are supported by the record before us. The motion is well taken and is sustained. The appeal is accordingly dismissed.


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    D. H. CULLENS v. STATE.
    No. A-1132.
    Opinion Filed September 5, 1911.
    Appeal from Greer County Court; Jarret Todd, Judge.
    D. H. Cullens was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    S. B. Garrett and John Evans, Jr., for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Greer county upon a charge of selling intoxicating liquors, and upon the 1st day of March, 1911, was sentenced by the court to pay a fine of two hundred fifty dollars and serve forty days in the county jail. Upon the same date the court by order fixed the time for making and serving case-made at 30 days, but made no order extending the time within which the appeal should be perfected in this court. Upon the 22nd day of March, thereafter, an additional order was made extending the time to make and serve case-made 60 days from the date of the original judgment, but no order was made extending the time within which to perfect the appeal. On the 29th day of April, thereafter, another order was made by the court extending the time within which to make and serve case-made, but this order does not extend the time within which the appeal should be perfected in this court. Under see. 6918, Snyder’s Stat. 1909, an appeal must be perfected in this court within 60 days from the date the judgment was pronounced, but, for good cause shown, the court may extend the time for perfecting the appeal not to exceed 60 days longer, making in all 120 days.. It is just 'as essential for the court to make the order extending the time within which the appeal can be perfected, as it is for the order to be made extending the time to make and serve case-made. The statute provides 30 days for making and serving case-made when no order is made by the court.' The questions involved here are determined in the case of Stumpf v. State, infra, decided at this sitting of the court. For the reasons given in that case the appeal in this case is dismissed.


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    GENE MORRIS v. STATE.
    No. A-685.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
    Gene Morris was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    E. E. Hood and L. G. Pitman, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the state.
   PEE CUEIAM.

Plaintiff in error was convicted of a violation of the prohibition law and sentenced to serve a term of sixty days imprisonment in the county jail and pay a fine of one hundred dollars. Judgment and sentence was entered on March 30th, 1909. An appeal was taken by filing in this court on March 30th, 1910, a petition in error with case-made attached. Counsel for plaintiff in error have filed a motion to dismiss the appeál herein for the reason that a parole has been granted by the governor, and that the conditions thereof were accepted and consented to by plaintiff in error. The motion to dismiss the appeal is hereby allowed, the appeal dismissed and the'cause remanded to the county court of Pottawatomie county.


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    JOHN A. MITCHELL v. STATE.
    No. A-387.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Juflge.
    John A. Mitchell was convicted of violating the prohibitory law,
    and appeals.
    Reversed and remanded.
    Roberson & Roberson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

This is an appeal from a judgment of the county court of Canadian county pronounced on the 31st day of July, 1909, imposing a fine of one hundred dollars and costs and a jail sentence of thirty days upon the plaintiff in error for a violation of the prohibitory law. The case-made was never filed in the court below, but a transcript of the record including the instructions of the court are properly before us for review. Among other instructions complained of is the following: “You are instructed that it is a violation of the laws of the state of Oklahoma to sell any spirituous, fermented, vinous, or malt liquors, except legal sales of such liquors may be made as authorized by law by the local dispensary agents appointed by the Governor of the state. If you find from the evidence beyond, a reasonable doubt that the defendant sold liquor as charged in ,the complaint herein, you should find the defendant guilty unless you should find by a preponderance of the evidence that the selling was not unlawful because coming within the terms of a condition, proviso, or exception in .the statute, or because such selling was done under other circumstances which would relieve him of all criminal responsibility. By a preponderance of evidence is not meant the evidence of the greater number of - witnesses, but by a preponderance of evidence is meant that greater and superior weight of the evidence which satisfies your mind.” This instruction places the burden upon the defendant to establish his defense by a preponderance of the testimony. All that is necessary in any criminal case is that the testimony or lack of testimony as a whole raises a reasonable doubt in the mind of the jury as to the guilt of the person charged. In this case all that would have been necessary for the plaintiff in error to have done in order to have secured an acquittal would have been to offer sufficient proof upon the proposition involved in the instruction, supra, to raise such reasonable doubt. The error in this instruction is fundamental.. No judgment could be upheld, based on such an explanation of the law. For the error indicated this cause is reversed and remanded with directions to the court below to grant a new trial.


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    BILL WATSON v. STATE.
    No. A-655.
    Opinion Filed September 5, 1911.
    Appeal from Pontotoe County Court; Joel Terrell, Judge.
    Bill Watson was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., 'for defendant in error.
   PER CURIAM.

The record in this case has been carefully reviewed. There are no errors urged in the brief of counsel, nor apparent from the record prejudicial to the rights .of the plaintiff in error. The judgment of the trial court is affirmed.


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    MURRAY BYERS v. STATE.
    No. A-680.
    Opinion Filed September 5, 1911.
    Appeal from Greer County Court; Jarrett Todd, Judge.
   PER CURIAM.

On the 27th day of November, 1911, judgment was pronounced against appellant for violating the prohibitory liquor law, and he was sentenced to pay a fine of $50 and to be confined in the county jail for a period of 30 days. At the time of the rendition of the judgment appellant was allowed by the court 60 days time within which to perfect his appeal to this court. The case-made contains a stipulation signed on the 27th day of December, 1909, by the county attorney and counsel for appellant, in which it is stated that it contains a true and correct copy of all the records, judgments and journal entries in said ease. The ease-made was signed and certified by the county judge on the 3rd day of January, 1910, and his signature is duly attested by the clerk of said court and verified by the seal of. said court. Attached to the case-made but below the signature of the county judge is what purports to be an order extending the time within which appellant might perfect his appeal to the 27th day of March, 1910. This constitutes no part of the case-made and cannot be considered by us. See Fortner v. State, 5 Okla. Cr. 609. Appellant did not perfect his appeal until the 26th day of March, 1910. As this was after the time allowed by the trial court within which the appellant should perfect his appeal, we have no jurisdiction of the case and the appeal is therefore dismissed.


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    MILLIE CARR v. STATE.
    No. A-1048.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Eogg, Judge.
   PER CURIAM.

Appellant was convicted for a violation of the prohibitory liquor law and her punishment was assessed at a fine of $50 and 30 days imprisonment in the county jail. Since perfecting her appeal in this cause, appellant through her counsel, has filed a motion stating that she no longer desires to proseeute this appeal, and requesting that said appeal be dismissed, which motion is by the court sustained and the appeal in this case is hereby dismissed, with directions to the clerk to issue the mandate forthwith.


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    BOB WATSON v. STATE.
    No. A-674.
    Opinion Filed September 5, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
   PER CURIAM.

On the 22nd day of March, 1909, judgment was rendered against appellant in the county court of Oklahoma county, sentencing him to pay a fine of $100 and confinement in the county jail for a period of 60 days. A number of different orders were entered by the court extending the time within which the case-made might be prepared and served upon the county attorney, but the order allowing the last extension of time was not made until the time previously granted had expired. The last order was therefore void. The case-made having been served after the time which had been legally granted the defendant, for this purpose, such service was void. The case-made must therefore be stricken from the record. We find no error in the transcript of the record. The judgment of the lower court is therefore affirmed.


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    DUPREE BOLTON v. STATE.
    No. A-660.
    Opinion Filed September 5, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Judge.
   PER CURIAM.

On the 8th day of January, 1910, judgment was rendered against' appellant in the county court of Canadian county and he was sentenced to pay a fine of $200 and to confinement in the county jail for a period of 30 days for a violation of the prohibitory liquor laws of the state. The record fails to show that notice of appeal was ever served on the clerk of said court as required by law. This court therefore has not acquired jurisdiction of this cause and the appeal must be dismissed.


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      G. W. NELSON v. STATE.
    No. A-672.
    Opinion Filed September 5, 1911.
    Appeal from Okmulgee County Court; J. L. Newhouse, Judge.
   PER CURIAM.

On the 27th day of March, 1909, judgment was rendered against appellant, sentencing him to pay a fine of $50 and to serve'a term of 30 days in the county jail for a violation of the prohibitory liquor law. Appellant was given by .the court 60, days within which to .prepare, serve and file a case-made. What purports to be the ease-made is not signed and certified to by the judge who presided at the trial of this ease. Neither is it properly certified to as a transcript of the record. The motion of the Attorney General to dismiss the appeal must therefore be sustained.


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    G. H. MOORE v. STATE.
    No. A-673.
    Opinion Filed September 5, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
   PER CURIAM.

Appellant was eonvieted for a violation of the prohibitory liquor law. The record in this ease is in the same condition as that of Bob Watson v. State, decided at this term. We find no error in the record. The judgment of the lower court' is therefore affirmed.


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    JOHN SIMMONS v. STATE.
    No. A-696.
    Opinion Filed September 5, 1911.
    Appeal from Okfuskee County Court; T.- T. Doyle, Judge.
   PER CURIAM.

What purports to be the case-made in this ease was never filed in the county court of Okfuskee county .as the statute directs, and the certificate of the judge to the case-made is not attested by the clerk of said court. The appeal must therefore be dismissed.


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    J. R. HARRIS v. STATE.
    No. A-700.
    Opinion Filed September 5, 1911.
    Appeal from District Court, Murray County; Robinson McMillan, Judge.
   PER CURIAM.

On the 17th day of September, 1910, judgment was rendered against appellant in the district, court of Murray county and he was sentenced to imprisonment in the penitentiary at McAlester for the period of two and one-half years for the offense of knowingly having-received stolen property. Under the law in force at the time of this conviction, the appellant was given six months within which to perfect his appeal. See Snyder’s Comp. Laws Okla. 1909, sec. 6948. The appellant did not, however, perfect his appeal until the 6th day of April, 1910. As the time for' perfecting the appeal in this case had expired, this court has never acquired jurisdiction of this casé" and the appeal is therefore dismissed. •. ''


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    LEWIS HOLMES v. STATE.
    No. A-705.
    Opinion Filed September 5, 1911.
    Appeal from Coal County Court; R. H. Wells, Judge.
   PER CURIAM.

On the 4th day of February, 1910, judgment was pronounced against appellant in the county court of Coal county for a violation of the prohibitory liquor law and his punishment was assessed at a fine of $150 and 60 days confinement in the county jail. An order of the trial court required that appellant should perfect his appeal within 60 days from date of the judgment. There was no extension of time within which this appeal should be perfected. Appellant did not, however, file his appeal in this case until the 6th day of April, 1910, which was after the extension of time within which the court required the appeal to be perfected. This court therefore did not acquire jurisdiction of this case and the appeal is dismissed.