author: MATSON, J.

text:
      Ex parte CLAUDE RAY.
    No. A-3873
    Opinion Filed Nov. 27, 1920.
    (193 Pac. 635.)
    1. PRISONS — Computing Good Time and Work Time — Prisoner Serving Separate Sentences. Where a convicted person is committed to the state penitentiary under four separate sentences, providing that the term of imprisonment of the second or subsequent conviction should begin at the termination of the term of imprisonment of the next preceding conviction, it is the duty of the warden in computing the good time and work time to be allowed such prisoner to compute and allow the same under each separate term as it is served, and the prisoner is not entitled to an allowance for good time and work time upon the theory that he has been' sentenced to serve only a single term of imprisonment equal to the aggregate number of years of the four sentences. .
    2. SAME. Allowing good time and work time as above indicated, where a prisoner has fully served a sentence and has begun to serve a second or other subsequent sentence, the warden of the penitentiary is without power to go behind the sentence the .prisoner is then serving and deprive the prisoner of good time or. work time allowed when serving the previous sentence for aiiy infraction of the prison rules occurring subsequent co the completion of the previous term.
    3. PARDON — Expiration Pardon Granted Upon Mistake of Facts —“Delivery”—Revocation. By mistake of the warden of the state penitentiary, the Governor was notified that the term of . imprisonment of petitioner would expire on and with the 25th day of November, 1920. Acting upon such misinformation, and pursuant to the custom of the Governor upon recommendation of the warden,'the Governor,'on the 24th day of September, 1920, forwarded to such warden what purported to be a full and free pardon to petitioner, restoring unto the said petitioner all the rights of citizenship, with provision in the face of said purported pardon that it was to take effect on ffhe 25th day of October, 1920. It is clear from the recitals contained in said purported pardon that the same was forwarded to the warden under the following mistaken impressions of fact: (1) That the prisoner had been committed to serve only one term of six years 1 for one embezzlement Committed by him; (2) that such term would expire on and with the 25th day - of November, 1920. Also it is clear from the face of the purported pardon that if was the intention of the Governor only to grant petitioner a pardon to take effect a certain number of days, (to wit, 30) prior to the expiration of his term, as an additional reward for good conduct and days worked. Prior to the daté such purported pardon took effect, and after its having been forwarded to and received by the warden of the penitentiary, the Governor recalled the same, took it into his possession, where the same has remained ever since the 21st day of October, 1920. Held, that a .pardon is, in effect, a private deed of the executive, to the validity of which delivery is essential. Held, further, that where a full, free, and unconditional pardon 'immed- . iately operative if granted)'for an offense, and delivered to the warden of the penitentiary, in which the prisoner is confined, its receipt by such warden is in legal effect a delivery to the prisoner himself. Held, further, that an unconditional pardon immediately- operative, once delivered -an'cl accepted, cannot thereafter be revoked except for fraud in ..its procurement. Held, further, that there has been no delivery of the purported pardon relied upon in this proceeding to petitioner or t.o apy one for his benefit, since the date on which the same was to become a valid and operative act-, and that the parties stand in the same relative-position as if the Governor had indited, and had attested, a full and free pardon to a prisoner to take effect immediately but had never delivered the same. Held, furthejf, that, under such circumstances, the petitioner cannot claim that any benefits have accrued to him by reason of the forwarding of such purported pardon to the warden of the penitentiary before the date on which the same was to become effective.
    Original application by Claude Ray for writ' of habeas corpus.

    Writ denied.
    Statement of Facts.
    This is an original application in this court for a writ of habeas corpus, in which the petitioner, Claude Ray, alleges that he is.unlawfully imprisoned and restrained of his liberty by Fred\C. Switzer, warden of the Oklahoma state penitentiary, at McAlester, Okla., and that the cause of this restraint is as follows:
    On the 1st day of September, 1917, your petitioner entered a plea of guilty on a charge of embezzlement.. in Oklahoma county in the district court at Oklahoma City, Okla., and that at said time it was mutually, agreed by and between your petitioner and the county attorney and Attorney General of the state of Oklahoma that he, the petitioner herein, should receive a sentence of six years.-; and your petitioner shows that he was sentenced in four oases, one case of two years, one case of two years, one ease of one year, andone ease of one year, making a total of six years, and in each ease the sentence was to begin at the termination of the other case, respectively, until all sentences were served; petitioner further says that he was immediately transferred to the Oklahoma, state, penitentiary at McAlester, Okla., and is now confined .in said prison, .and has been confined in said prison since said date.

      “Your petitioner further says that under the laws of the state of Oklahoma and under the customs of the prison authorities of the Oklahoma state penitentiary, he is allowed, for good behavior, certain'good time’ and in addition thereto certain ‘work time’; that he has worked ever since he has been confined in said prison and that under the law and under the rules of said prison he has been allowed said ‘good time’ and said ‘work time” by said warden, and that his time would expire bn the 25th day of November, 1920. Your petitioner further shows that it has been the custom of the Governor of the state of Oklahoma to pardon prisoners in the recommendation of the warden of said prison 30 days prior to the expiration of their terms as a reward of good conduct and days worked; your petitioner shows that his record was clear and that he committed no infraction against the regulations of said prison and that he worked constantly while confined in said prison and that the warden of said prison sent a certificate to the Governor of the state of Oklahoma recommending said prisoner for pardon under said customs and the Governor issued a pardon to this petitioner, said pardon to take effect on the 25th day of October, 1920.
    “Petitioner further shows that said pardon was duly executed by the Governor of the state of Oklahoma and “was duly attested by the Secretary of State and the Great Seal of the state of Oklahoma placed thereon; that said pardon was placed in the United States mail and in due course transmitted to said Fred C. Switzer, warden of said prison; that same came into possession of said warden on the 25th day of September, 1920; that said petitioner worked in the record office of the state prison and that said pardon was delivered to him in said office by W. G. Duncan, the officer of said prison in charge of record office of said prison, and same rwas accepted by him; your petitioner further states that on the 20th day of October, 1920, Hon. W. A. Collier, pardon and parole attorney, wrote to said warden, asking him to return said pardon to. him at Oklahoma City,; and in compliance with said order, said warden did.return said pardon to said pardon attorney; petitioner further shows that said warden has refused and still refuses to discharge this prisoner from said prison; that under the laws of the state of Oklahoma he is entitled to release from said prison on account of said pardon; petitioner further shows that he is informed and believes and therefore avers, that said warden now intends to and will unless so ordered by this court, hold this prisoner until the 21st day of April, 1921, holding that the said prisoner is entitled only to good time and work time as follows:
    “Good time and work time for two years’ sentence; good time and work time for another two years’ sentence; good time and work time for one year sentence; and good time and work time for another one-year sentence; that good time and work time for the short sentences does not give said prisoner as much time as he would be entitled to under a straight six-year sentence; a copy of said pardon is hereto attached, marked exhibit ‘A’, and made a part hereof.
    “Your petitioner further shows that on the 28th day of October, 1920, he filed a petition for a writ of habeas corpus with Judge R. L. Milton, district judge at McAles-ter, Okla., and the same was by him denied.
    “Therefore, your petitioner prays that he be discharged under said. pardon, and if the court is of the opinion that he is not entitled to discharge on account of said pardon, that the court make an order discharging said prisoner on the 25th day of November, 1920, in accordance with his rights under the law for good time and work time under a six year sentence.”
    The above petition is verified by the' oath of petitioner, and the purported pardon relied upon is as follows:
    “Pardon
    “State of Oklahoma, Executive Department.

      “To all to Whom These Presents Shall Come, Greeting:
    “Whereas, on, the 25th day of November, 1920, the term of Claude R'ay, convicted in the district court of Oklahoma county, state of Oklahoma, of the crime of embezzlement,, and sentenced to serve a term of six years, expires; and,
    “Whereas, it has been the custom of the 'Governor of Oklahoma to pardon penitentiary prisoners on the recommendation of the warden, a certain number of days prior to the expiration of their term, as ¿ reward for good conduct and days worked; and,
    “Whereas, it is recommended by; Warden Hon. Fred C. Switzer that a pardon be granted the said Claude Ray to take effect upon the day mentioned belofw;
    “Now, therefore, I, J. B. A. Robertson, Governor of the state of Oklahoma, by virtue of’ the authority vested in me by law, do hereby grant to said Claude Ray a full and free pardon of the said offense, to take effect on the 25th day of October, 1920, said pardon to restore unto the' said Claude Ray all of the rights of citizenship.
    “In witness whereof, I have hereunto set my hand and caused to be affixed the great Seal of the state of Oklahoma at Oklahoma City, this the 24th day of September, 1920.
    “(Signed) J. B. A. Robertson,
    “(Seal) Governor of the State of Oklahoma.

    “Attest: (Signed)' - - J. Morris,

      “Secretary of State”

    The application was heard before the court on the' 29th day of October, 1920, on a rule to show cause why petitioner should not be released, issued to the warden of the state penitentiary, and Returnable on said date, at. which time the Attorney General, and other counsel representing respondent, filed a response to said petition, in (words and figures as follows:
    “Comes now Fred C. Switzer, warden of the Oklahoma state penitentiary, at McAlester, OMa., by his attorneys, the Attorney General, S. P. Freeling, and Judge W. A. Collier, and in response to the writ of habeas corpus issued therein by this honorable court hereby presents the body of the said Claude Ray in said court.
    “Your respondent, further answering said writ, hereby respectfully states to the court that he has custody of the person of the said 'Claude Ray as warden of said penitentiary, under and by virtue of four separate commitments issued out of the district court of Oklahoma county,, as more fully set forth in the agreed statement of facts-filed herein, and which is -hereby specifically referred to and made a part of this response, the same as if fully set. out.
    “That under and by virtue of said commitments, the; said petitioner is in the lawful custody of the said warden, for the reason that the periods of' time in said commitments have not yet fully expired.
    “Your respondent further answering said petition for a writ of habeas corpus hereby specifically denies that the-county attorney of Oklahoma county, and the Attorney-General of the state of Oklahoma entered into any agreement, or could lawfully enter into any agreement with the; petitioner herein, to the effect that the said petitioner should receive a sentence of six years as alleged in his petition.
    “Your respondent further answering, respectfully alleges that the pardon in case- No. 8341, issued by the Hon. J. B. A. Robertson, Governor of the state of Oklahoma, was never delivered to the petitioner herein, but should' this honorable court, in view of the .stipulation filed herein, hold that 'said pardon was either actually or constructively delivered to the petitioner herein, then it is urged hy the respondent that said pardon is absolutely null and void1 and of no effect, for the reason that said pardon purports to pardon the said Claude Ray, petitioner /herein, of a crime of embezzlement, upon which it purported he was sentenced to serve a term of six years, when in truth and in fact the said petitioner at no time was sentenced to serve a term of six years in the penitentiary of the state of Oklahoma, but was sentenced to serve four consecutive sentences as stipulated by the petitioner and '.the Attorney General herein.
    “Your respondent, save and except as herein plead, denies generally and specifically all of the allegations and averments of the petitioner.”
    Thereafter, an .agreed statement of facts was filed, and the cause was submitted on the petition, response and agreed statement of facts, which is as follows:
    “It is hereby stipulated and agreed by and between {Wallace Wilkinson, attorney for the petitioner, and S, P. Freeling, Attorney General, and W. A. Collier, for the state:
    “That the facts in the above entitled cause are as hereinafter set out.
    I.
    “That on the 1st day of September, 1917, the petitioner, Claude Ray stood charged in the district court of Oklahoma county on four informations with the crime of embezzlement, and that on said date the -said Claude Ray ..entered a plea of guilty ip each case. Said .cases being {numbers 4074, 4075, 4076, and 4077, and that at said time the district judge sentenced said defendant to serve a term of two years in the Oklahoma state penitentiary in case No. 4074, and to serve a term of two years in No. 4075, in said prison, from the date of the expiration of sentence in case No. 4074, and to serve a term of one year in No. 4076, in said prison, said sentence to begin from the date of expiration of sentence in case No. 4075. And sentenced said petitioner in case No. 4077, to serve a term of one year in said prison, said sentence to begin at the expiration of sentence in case No. 4076, and in pursuance to said judgments and sentences, said petitioner was immediately conveyed to the Oklahoma state penitentiary at McAlester, and has since said time been confined in said prison. That when said prisoner was entered in said prison, he was entered in same on the prison records of said prison, and his time calculated as if he was to serve a straight six years’ sentence; that on the margin of the record of said prison, it is shown as follows: ‘Case No. 4074, 2 years; No. 4075, 2 years; No. 4076, 1 year; No. 4077, 1 year.’
    • 1 — 1
    “It is further stipulated and agreed that under the daws of the state of Oklahoma and the custom and usage at the prison, that a prisoner incarcerated in the prison is entitled to certain good time for good behavior, and certain extra time for work performed for the state; that the said Claude Ray made a clean record in said prison, and committed! no infraction against the prison rules, and was allowed by the warden all of his good time as provided by the statute; that in addition thereto, the said Claude Ray performed labor for the state while in said prison, and! was allowed by the warden his labor time, as provided by law; that the said warden figured the good time and the: work time allowed by him in said institution as if said sentence was a straight six-year sentence; that under said computation. together with the allowance made by the warden),, the time of said Claude Ray Iwould have expired on the 25th day of November, 1920, but if the computation had been made as is provided by law on each sentence separately, his time would expire on the 21st day of April, 1921; that acting upon the theory that his sentence should run and his time should be computed as, a regular six-year sentence, and upon the custom of the 'Governor to grant a pardon of 30 days before the expiration, the warden served up to the pardon and parole attorney the record of the ,said Claude Ray with the recommendation that his citizenship be restored; that acting upon said recommendation ¡and the usages and customs heretofore existing, the Governor of the state of Oklahoma issued a pardon on the 24th day of September, 1920, to take effect on the 25th day of October, 1920. Said pardon was duly attested by the Secretary of State, and sealed with the Great Seal of the state of Oklahoma; that the same in due course was mailed to the warden of the Oklahoma state penitentiary, and received by him on or about the 25th of September, 1920, and remained in the hands of the warden until October 21, 1920.. That on October 20, 1920, the pardon and parole attorney, by the direction of the Governor, wrote to the warden to return said pardon, and same was on the 21st day of October, 1920, returned to the pardon and parole attorney by the warden, where the same has remained ever since said date.
    III.
    “It is- further stipulated and agreed that the petitioner herein was employed in a clerical capacity in the record clerk’s office at the penitentiary, and that the pardon heretofore referred to, together with numerous other pardons for persons incarcerated in said prison, were, by error of the mail clerk, delivered to the office of the record clerk of said penitentiary; that said record clerk in examining said pardons observed that there was included therewith a certain pardon for Claude Ray, the petitioner herein, and made the statement to said Ray, ‘Here is your pardon’; that the said Ray requested to see said pardon, and that the record clerk, in pursuance to said request, handed Claude Ray the pardon, and the said Ray, after reading the same, handed it back to the record clerk; that the-said record clerk took the said pardon, together with other pardons referred-to, and delivered, them to the warden of the penitentiary, who was the proper custodian thereof. And in this connection it is stipulated that at the time the record clerk exhibited the said pardon to the said Ray, as herein stated, that said transaction-occurred some weeks prior to the 25th day of October, 1920, the same being the date the pardon, as shown by the original hereto attached, became effective.
    IV.
    “It is further stipulated and agreed that the said Ray now, and has at all times been ready to accept and to re* ceive the benefits of the said pardon.
    V.
    “It is further stipulated and agreed that the writ of habeas corpus was sued out before the district judge on, to wit, the 28th day of October, 1920, and relief was denied by said judge.”

      Wilkinson & Scott, for petitioner.

      S. P. FreeUng, Atty. Gen., Wm. H. Zwick, Asst. Atty. Gen., and W. A. Collier, Pardon and Parole Atty., for respondent.
   MATSON, J.

(after stating case as above). On the submission of this cause, counsel representing' petitioner waived the ground that petitioner was entitled to be discharged because he had served his sentence, irrespective of any pardon granted to him by the Governor of this state, and relied exclusively on the right to be discharged because of the benefits accruing to him by reason of a pardon granted to him by the Governor, above set forth.

. In view of the fact, however, that many other convicted persons are confined in the state penitentiary under similar separate commitments for different offenses, the court was asked to establish in this case a proper rule for the guidance of the warden of the state penitentiary in the allowance of good time and work time to such of those prisoners committed under separate judgments of conviction for more than one offense under the same conditions as in this.' . .

Section 2809, Rev. Laws 1910, provides:

“When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

Section 5957, idem, also provides:

“If the defendant have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

It appears conclusively from the provisions of the foregoing statutes that it was the duty of the trial judge, in pronouncing sentence for the separate embezzlements for which petitioner had been convicted in the district court of Oklahoma county, to make the imprisonment in the second conviction commence at the termination of the first term of imprisonment, and to make the term of imprisonment in the third conviction to begin at the termination of the term in the second, and to make the term of imprisonment in the fourth conviction to begin at the termination of the term in the third; so that it is clear that (where a convicted person is committed under four separate commitments providing, as each did in these cases, that the term of the second or subsequent conviction should begin at the termination of the term of imprisonment of the next preceding conviction, that it is the duty of the warden of the penitentiary, in computing the good time and work time to be allowed to the prisoner, to compute and allow the same under each separate term as it is served, and the prisoner is not entitled to an allowance for good time and work time upon the theory that he has been sentenced to serve only a single term of imprisonment equal to the aggregate number of years of imprisonment under the four sentences and commitments.

So that in this case, under the agreed statement of facts, the prisoner had fully served the first three terms of imprisonment for which he was sentenced, and the warden of the penitentiary would be powerless to go back and deprive the prisoner of good time and work time under any of such sentences; but the prisoner had not completed serving the fourth term of imprisonment, and under the agreed statement' of facts, computing the time as the court holds it should be computed, the prisoner would not fully serve and satisfy such term of imprisonment until the 21st day of April, 1921, at which time, if his record is clear of any infraction of the prison rules during the last term, and he is entitled to full credit for good time and work time on the fourth term of imprisonment, he should be discharged.

By mistake of the warden of the state penitentiary in computing the good time and work time allowed to a prisoner committed under four separate judgments of conviction with terms of imprisonment to begin as provided in these sentences, the Governor was notified by such warden that the term of imprisonment of petitioner would expire on and with the 25th day of November, 1920. Acting upon such misinformation, and pursuant to, the custom of the Governor upon recommendation of the warden, the Governor forwarded to such warden on the 24th day of September,. 1920, what purports to be a full and free pardon to the petitioner, restoring unto said petitioner all the rights of citizenship, with the provision on the face of said purported pardon that it was to take effect on the 25th day of October, 1920.

It is clear from the face of this purported pardon upon which petitioner relies for his release, that it was issued by the Governor on the 24th day of September, 1920, under the following mistaken impressions of fact: (1) That the prisoner had been committed to serve only one term of six years for one embezzlement committed by him; (2) that such term would expire on and with the 25th day of November, 1920, when, in truth and in fact, petitioner had been committed to serve four separate terms of imprisonment for four separate crimes of embezzlement commited ; by him, and, further, with good time and work time prop,-'erly computed and allowed, the term of imprisonment of petitioner under such commitments would not expire until the 21st day of April, 1921.

' Further, it is apparent from the face of this purported pardon and from the agreed statement of facts upon which this cause was submitted, that it was the intention of the Governor only to grant petitioner a pardon to take effect a certain number of days prior to the expiration of his term (to wit, 30 days) as an additional reward for good conduct and days worked.

A pardon is, in effect, a private deed of the executive, ‘to the validity of which delivery is essential. Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036; United States v. Wilson, 7 Peters, 150; Burdick v. United States, 236 U. S. 79, 59 Law Ed. 476; Ex parte Powell, 73 Ala. 517, 49 Am. Rep. 71; Ex parte Reno, 66 Mo. 266, 27 Am. Rep. 337, 20 R. C. L. 548.

Also, it may be stated that where a full, free and un« .conditional pardon, immediately operative, is granted for the offense and delivered to the warden of the penitentiary in which the beneficiary is confined, its receipt iby such warden is in legal effect a delivery to the prisoner himself. Ex parte Powell, supra.

Also, it is well established that an unconditional pardon immmediately operative, once delivered and accepted cannot thereafter be revoked except for fraud in its procurement. Re Biegle, 7 Ohio N. P. 561; Rosson v. State, 23 Tex. App. 287, 4 S. W. 897; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Ex parte Rice (Tex. Cr.) 162 S. W. 891.

If the purported pardon here relied upon became effective upon delivery, there would be no question but that petitioner is entitled to be discharged thereunder, because-the same was mailed to the warden of the penitentiary 'in which petitioner was confined and received by him on or about the 25th day of September, 1920. But it is clear .from the terms of the purported pardon itself that it was the intention of the Governor that the same should not take-effect until the 25th day of October, 1920. It cannot be ¡successfully contended by petitioner, therefor, that any rights or benefits accrued to him under this instrument, until the 25th day of October, 1920.

~It appears from the agreed statement of facts that. ' prior to the 25th day of October, 1920, the Governor recalled this purported pardon, took it into his possession, and that it has remained with him ever since the 21st of' -October, 1920. Apparently there has been no delivery of' -this purported pardon to petitioner or to- any one for his benefit, since the date pn which the same -was to become-a valid and operative ..act. The parties stand, therefore,. in the same relative position as if the Governor had in-' dated a full and free pardon to a prisoner to take effect immediately but had never delivered the same.

Before the prisoner can claim any benefits under a pardon, he must establish its delivery. The petitioner 'having failed to establish that the purported pardon upon which he relies for release in this case has ever been delivered to him, or anyone for him, since the date designated therein that it should become operative, and the agreed statement of facts showing in effect that there has been no such delivery on, or since that date, the conclusion is reached by this court that petitioner cannot claim that any benefits have accrued to him by reason of the forwarding of this purported pardon to the warden before the same became effective.

This cause, while orally argued by counsel for petitioner and respondent, has not been briefed by either side. The question of the validity of this purported pardon 'and of the benefits accruing to petitioner thereunder are "matters of first impression in this court. Counsel for neither side have cited a case directly in point, and diligent research has failed to disclose an opinion of any other appellate court decisive of the same question. The court is not unmindful of the general rule governing the construction of pardons, that wherever the question is doubtful the grant must be interpreted most beneficially for the citizen or subject and most strongly against the state. However, in this, case there seems to be no doubt that this instrument was directed under a mistaken state of facts, that before it became effective, or that dominion was lost over same, it was recalled by the Governor, and that there has never been any delivery of the same in the sense that it can be held that the instrument passed beyond the control of the 'Governor and became a valid and operative act on his part, to the benefits of which petitioner was and is noiw entitled. For reasons stated, the writ is denied.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    W. M. WEBSTER v. STATE.
    No. A-3806
    Opinion Filed Nov. 22, 1920.
    (193 Pac. 431.)
    (Syllabus.)
    1 APPEAL AND ERROR — Supersedeas Bond — Breach. Wher*. a defendant has been convicted and sentenced and perfects an appeal, he is not entitled to give supersedeas bond, and leave-the state without leave of court permitting him to do so.
    2, SAME — Leaving State — Disposition of Cause. Where defendant' has been convicted and sentenced and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates a condition of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the case, or dismiss the appeal..

      Appeal from, District Court, Kiowa County; Frank Mathews, Assigned Judge.

    W. M. Webster, convicted of open and notorious adultery, appeals.
    Appeal dismissed.

      Thos. W. Conner, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty.. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, W. M. Webster, was convicted of open and notorious adultery, and his punishment assessed at imprisonment in the penitentiary for a term of two years and 'three months and a fine of $200. From the judgment rendered in accordance with the verdict on the 10th .day of January, 1920, an appeal was taken by filing in this court on June 21, 1920, a petition in error with case-made.

A motion to dismiss the appeal has been filed by the Attorney General, for the reason that: “Plaintiff in error is without the jurisdiction of the court, in that he is now in the state of Texas.” Attached to said motion is the affidavit of the county attorney of Kiowa county, which, omitting formal parts, is as follows:

“The affiant, John T. Hayes, says that he is county attorney of Kiowa county in the state of Oklahoma, and prosecuted the said plaintiff in error in the district court of Kiowa county, Okla,; that the said plaintiff in error gave bond and prosecuted the above appeal to this court; the affiant is informed and believes the information to be true that the said W. M. Webster is now absent from the state of Oklahoma and now in the state of Texas, and that the said affiant is informed and believes the information to be true, that the said plaintiff in error, W. M. Webster, has been out of the state of Oklahoma on different times and occasions since prosecuting said appeal and that he has sojourned in California and other states. This affidavit is made in support of motion to dismiss said appeal.”

The uniform holding of this court is that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal unless the defendant is where he can be made .to respond to any judgment or order it may render and enter in the case. Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515; Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548; Gorrell v. State, 10 Okla. Cr. 697, 143 Pac. 341; Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453; Myers v. State, 13 Okla. Cr. 255, 163 Pac. 958; Smith v. State, 13 Okla. Cr. 698, 167 Pac. 234; Morgan v. State, 14 Okla. Cr. 466, 172 Pac. 974.

Where the plaintiff in error gives bond to stay the execution of the sentence during the pendency of the appeal, and violates a condition of his bond by leaving the jurisdiction without leave of the court, it is within the discretion of the court whether it will proceed to a. decision of the cause or dismiss the appeal. Bryce v. State, 14 Okla. Cr. 456, 172 Pac. 976.

In the case of Holden v. State, 14 Okla. Cr. 463, 172 Pac. 977, it is said:

“While there is no express provision of the statute authorizing .the dismissal of the appeal on the grounds stated, yet, in the absence of a statute to the contrary, we think it is a matter within the discretion of the court whether, under the facts and circumstances admitted, we will consider and determine the appeal. 'The plaintiff in error each time he left the. state was in the attitude of a fugitive from justice, and thereby waived the right to have his conviction reviewed. We do not think it would subserve the ends of justice to permit a person convicted of crime enlarged on bond pending the determination of his appeal, to violate the conditions of bis bond with impunity, and where it is conclusively shown, a& in this case, that the plaintiff in error has -been persistent in violating the conditions of his bond, his appeal should be dismissed.”

Upon the proof supporting the motion to dismiss we are of opinion that plaintiff in error has waived the right to have his appeal in this case considered and' determined. The appeal herein is therefore dismissed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    CHARLES WHEELER v. STATE.
    No. A-3591
    Opinion Filed Jan. 7, 1921.
    (194 Pac. 455.)
    (Syllabus.)
    HOMICIDE) — Case Followed. The syllabus in tbis case is tbe same as in the case of Hilarlo Valdez, alias John Lee, and Peter Crus, 18 Okla. Cr. 204, 194 Pac. 451, No. A-3590, decided at tbe present sitting of the court.
    Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

    Charles Wheeler was convicted of murder, and he appeals.
    Affirmed.

      Sewell & Eylar, for plaintiff in error.
   ARMSTRONG, J.

The plaintiff in error, Charles Wheeler, hereinafter called defendant, was jointly informed against together with Hilario Valdez and Peter Crus for the murder of Crecencio Salinaz, and upon the said defendants being arraigned, the said defendant, Charles Wheeler, asked for and was granted a severance, tried separately, and convicted, and sentenced, to the penitentiary for life. To reverse the judgment rendered he prosecutes this appeal.

This is a branch of the case of Hilario Valdez, alias John Lee, and Peter Crus v. State, No. A—3590, 18 Okla. Cr. 204, 194 Pac. 451, affirmed by this court, and is submitted upon.the record and no briefs filed. The evidence is very voluminous, and the witnesses and the evidence of the state are identical in each ease, and hence we deem it unnecessary to repeat said evidence, and refer to opinion in said case No. A—3590, Hilario Valdez, alias John Lee, and Peter Crus v. State, for said evidence.

At the conclusion of the evidence for the state, the defendants demurred thereto, in effect a request for an instructed verdict. The court overruled said demurrer, and defendant excepted. IT'he only witness; introduced in the trial of the case by defendant, other than the defendant himself, was J. A. Johnson, who testified as follows: That the state’s witness, Mary Ingolg, testified before the coroner’s jury, that she did not remember whether or not the negro’s name was mentioned by any of the witnesses; that possibly the negro’s name was mentioned and possibly not; that she did not know, but at that time, there was a negro in the jail at Hartshorn, and it possibly could have been that a negro’s name was mentioned; that-she would not be sure about it; that ft omul o Savalla testified at said inquest, but th^t she did not know whether he said anything about the negro or not; that she did not remember.

Charles Wheeler, the defendant, testified in his own behalf: That he was raised in Virginia; had been in this country .about 18 years; that he had been around Dow and Hartshorn about 14 years; that he had not been there since, except thie night they ejaimed the trouble was; that he was at Hartshorn that night, and it was the first time he had been back to this part of the country for 14 years, during which time he had been in Arkansas,.' working as a coal miner; was at Huntington and different places, around Midland and Calhoun, Okla., that, at the time this Mexican "was killed, defendant’s home was' in Huntington, Ark.; that work shut down where he was working, and he came to Hartshome on the blind, and he had a few dollars, $4 or $4.50 or $5, and that when he got to Hartshorn he got off on the blind side, the side opposite the depot, trying to dodge the law, for he did not pay his way; that when he got off he tried to find a girl around there named Rachael, and inquired around; that she had a mother-in-law who lived in Huntington; that “she was a little child, 5 or 6 years old, I guess”; that he promised her mother-in-law that he would try to find her and see how she was getting along, but that he did not find her; that when he got off the train he intended to go to Dow; that it looked like the road, and everything was turned around, and he got “plumb lost”; that he had on quite a few clothes, and that he walked until he did not know where he was; that he did not know where the officers arrested him; that he could not go there; that he did not see any Mexicans at Hartshorn that night; that he did not go to the depot, and that when the officers arrested him he had, besides these shoes and a knife, a carbide lamp in his pocket, and a niece of sandpaper; that he bought the shoes-from a fellow; that he could not tell anything about who he was, and that after the man passed he whistled and turned around, heard some talk, but did not see but one man, who came up and told him he had some shoes he wanted to sell; that this; was about an hour before he was arrested; that( he gave $2.50 for the shoes; that the fellow asked him if he wanted to buy the shoes, ¡saying he was broke and wanted a feed; that he spoke some kind of a broken language, did not know whether he was a Mexican or not; it was dark and he could not see good; that he was. too bright for an ordinary negro, brighter than he was; that he got the knife from him also; that- when he was arrested he told the officer he had gotten the shoes and knife since he had been in Hartshorn, and that he bought them from a fellow in- Hartshorn; that he did not know where he had -been walking, but he had been walking mighty near all night; that the officers took him, and put him in the holdover, and kept him all night; that it was about 3:80 when they took him up; that when the officers took him up they asked him if he had been somewhere that night with two Mexicans, where a man had been killed, and he told them, “No; he didn’t know anything at all about it;” that' the first time he knew a man had been killed was when told by the officers; that they turned him out about 3 in the evening of the next day; that when he was let out of jail he went to Dow, and from there to Pocahontas and other places, but he did not know anything at all about their being after him; that after his first arrest he was down about a month at Wilburton at work, and left there, and went to Arkansas; that he had a lady friend he left there very sick; that he'.', was last arrested at Huntington, Ark.; that he could not wear the shoes he bought; that he had a stepson about 14 years old, and that he bought them,, thinking to help him; that he knew the two Mexican boys they have charged with the killing, but he did not know them before he was arrested and put in jail with them; never kept company with Mexicans; could not 'speak their language; that he did not know which one of the officers told him that a man had been killed; that there were four or five of them together, talking to him; that he did not go to the cement plant with these Mexicans, or anybody else, and try to rob the house; that he did not know anything about it at all.

On cross-examination he testified that he did not see anybody he kne'w on the night he was first arrested; that it must have been 11 or 12 o’clock when he got to Hart-shorn; that he did not know exactly what time it was; that he spent the time after his arrival wandering about the town of Hartshorn until his arrest, just tramping around; that when he got off the train he was wearing’ a cap; did not have a hat with him; that he did not know what the size of the shoes were when he .bought them; that he could see enough to know they were worth $2.50; that he would not swear positively that he had never seen Peter Crus; that he may have seen him in Arkansas, but did not pay any attention to Mexicans; that he went back to Huntington about a month after his arrest. He denied telling Masters and Ledbetter that he bought the shoes of a man over towards Arkansas, and also denied telling the officers that he bought the shoes from a man over near the town of Hartshorn; that he never told anyone he would take them to the (place he bought the shoes; that he.had about $2 when arrested; that he spent it; that he did not tell the officers he was broke; that the officer put his hand in his pocket and got what change he had; that he told the officers that he rode the “blind” ; that he did not know how near the town of Hartshorn he was; that he was as innocent of the charge against him as one of the jurors over there; that he was a coal miner.

In response to a question by one of the jurors he testified that he was never at the house where this woman lived that he wanted to see; that he knew her mother-in-law; that she had a little child down there, and that he promised them he would go and see the girl, and tell! lier how they were getting along; that when he bought the shoes he did not know the man he bought them of; that he was lost. On the coming in' of the verdict, defendant moved for a new trial, which motion was overruled and exceptions saved.

There is in effect but one alleged error in this case: "That the evidence is insufficient to support the verdict. 'The defendant being a joint defendant in the case of Hilario Valdez, alias John Lee, and Peter Crus v. State (No. A—3590), 18 Okla. Cr. 204, 194 Pac. 451, but who upon a severance was separately, tried, and the witness for the state and the evidence in each of said cases being .identical, we are of the opinion that the evidence in this case for the state, as set out herein and supplemented by the state’s evidence in the opinion in the case of Valdez, alias Lee, and Crus v. State (No. A—3590) decided at this sitting of the court, is sufficient to support the verdict in this case, and upon the reasoning and authorities cited in the opinion in the latter case this case is affirmed.

DOYLE, P. J., and MATSON, J„ concur.


text:
    SAMMY SAMPSON v. STATE.
    No. A-3328
    Opinion Filed Jan. 8, 1921.
    (194 Pac. 279.)
    (Syllabus.)
    1. PRIZE FIGHTING — “Bing or Prize Fight.” The term “ring or prize fight,” as used in section 2567, Revised Laws 1910, means an exhibition contest of pugilists for a stake or reward; and the facts that the reward was to be equally divided between the combatants, and that they used gffiyes, would not legalize the transaction. .
    2. SAME — Sufficiency of Evidence. For evidence held sufficient to sustain a conviction of promoting a! ring or prize fight, and reasons therefore, see statement of facts and body of opinion.

      Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.

    Sammy Sampson was convicted of the offense of promoting a ring or prize fight, his punishment assessed, at a fine of $100, and he appeals.
    Affirmed.
    Plaintiff in error (hereafter designated defendant) was tried in the county court of Oklahoma county on the 28th of January, 1918, for an alleged violation of the statute of this state prohibiting the instigation, encourág-ing, or promotion.of any ring or prize fight. A verdict of guilty resulted, and defendant’s' punishment was fixed at a fine of $100, and judgment was rendered im conformity with the verdict, from which judgment defendant has appealed to this court.
    The material evidence is in substance as follows: That defendant was the promoter and matchmaker of an alleged athletic club, which carried on and gave certain exhibitions or fistic encounters between two principals in an ordinary ring or squared circle, about 16, by 24 feet in dimension, in a building known as the India Temple Building, located at Broadway and' Second streets, in Oklahoma City, Okla.
    That on or about the 15th of May, 1917, this club, known as the Business Men’s Athletic Association and Business Club, staged a series or card of fistic contests, among which were encounters between two individuals, one by the name of Tom Story and another designated as “Young Fitzsimmons’’, and another between Nate Jackson and Earl Puryear. The exhibitions given on this particular occasion were attended by over 300 spectators, who paid admissions ranging from the price of 50 cents each to $1 each; that there were seats provided in tiers, one above the other, surrounding the roped arena, from which seats the spectators viewed the contests.
    That the principals Story and Young Fitzsimmons were paid a sum of $15 each for participating in their contest, and the principals Jackson and Puryear were paid a sum of $100 each for participating in their contest. That defendant advertised these contests in the newspapers published in Oklahoma City. That the contest between Story and Young Fitzsimmons was what was known as a “preliminary,” and the contest between Jackson and Puryear was what was known as the “main bout.” ' ...
    That these contests were conducted under rules pro.~ viding for certain length rounds and intermissions between each; that there was a referee and seconds and assistants for each principal, and an official timekeeper, and that the participants used gloves of six or eight ounces in weight; that the contests usually ..lasted from 6 to 10 rounds each. -i
    That ,in the contest between “Young Fitzsimmons” and Story, Story was hit by Fitzsimmons, and fell against the ropes, arid the referee caught Story around the shoulders and arms, and picked him up and declared the bout at an end.

      That under the rules, neither participant was counted out. That Young Fitzsimmons was known as a boxer, and traveled from place to place as such. That the principals trained for the bouts most of the time. That there was no display of intentional brutality between the principals. That there was no chance for a participant to be hurt with an eight ounce glove if he was reasonably matched against his opponent. That he could be knocked down, but not hurt.

      C. D. .Bennet, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and. W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). This is an appeal from the county court of Oklahoma county, wherein defendant was convicted of the offense of instigating and promoting a ring or prize fight, and his punishment assessed at a fine of $100.

The prosecution is based upon section 2567, Revised Laws 1910, which provides:

“Any person who engages in, instigates, encourages , or promotes any ring or prize fight or any other premeditated fight or contention, whether as principal, aid, second, umpire, surgeon or otherwise, although no death or personal injury ensues, is guilty of a misdemeanor.”

The charging part of the information is as follows:

“That on the 15th day of May, 1917, in Oklahoma county, state of Oklahoma, Sammy Sampson, whose more full and correct name is to your informant unknown, then and there being, did, then and there willfully and unlawfully instigate and promote a ring fight in those premises described as the old India Temple Building, at the corner of North Broadway and Second streets, in Oklahoma City, which ring fight aforesaid was engaged in 'by and between Nate Jackson and Earl Puryear and Young Fitzsimmons and Tom Story; éach with- the other, toy forcibly and violently beating, striking, and fighting each other, upon and in a ring therein located and provided, said ring fight being so had and held .in the presence of a large number of spectators and in the presence of the said defendant, ¡Sammy Sampson, the said defendant so‘instigating, encouraging, and promoting said ring and prize fight by then and there providing the place wherein the same was held, the ring and platform whereon the same was had, and by advertising and giving publicity to the same, and by inviting numerous and divers persons thereto, and by- furnishing seating accommodations thereat therefor, and by receiving and collecting fees fo.r admission from those in attendance thereon, and by contracting with the said Nat Jackson and Earl Puryear ¿and Young Fitzsimmons and Tom ¡Story, as the participants therein, to engage in said ring, and offering to and agreeing to pay to said Nate Jackson and Earl Puryear and Young Fitzsimmons and Tom ¡Story, the participants in said ring fight, certain sums of money, prizes, and rewards, the amount and . kind thereof being to your informant unknown. * * *”

It is first contended that the evidence is wholly insufficient to sustain the conviction, and that the trial court erred in refusing to direct the jury to return a verdict of not guilty.

In this connection, counsel for defendant urge that the evidence in this case does not tend to establish, that defendant committed the crime of instigating and promoting a “ring or prize Tight,” but that, if it tends to establish anything, it shows merely that defendant instigated and promoted, between the alleged principals, merely boxing contests, which were not prohibited by the foregoing statute.

During the progress of the trial, certain witnesses who attended the particular exhibitions were permitted to express opinions that such exhibitions were not prize fights in the technical sense, for the reason that the same were fought with heavily padded gloves, were not fought to a finish, and there was no evident intention on the part of either of the principals to inflict serious injury upon the other.

In determining the question of the sufficiency of this evidence, the court is called upon necessarily to determine the nature of the contests intended to be prohibited by the lawmakers under the designation “ring or prize fights, or any other premeditated fight or contention.”

In our opinion, a “ring or prize fight” had a well-defined meaning at the time of the adoption of the statute, and that it was the intention of the lawmakers to prohibit the instigation and promotion of such contests as they were generally understood by the public at large, and not in the technical sense contended for by counsel for appellant.

Webster defines a prize fight to mean, “an exhibition contest of pugilists for a stake or reward;” and the Century Dictionary defines the same term, as, “a pugilistic encounter or a boxing match for a prize or wager.” See Sevill v. State, 49 Ohio St. 117, 30 N. E. 621, 15 L. R. A. 516; People v. Taylor, 96 Mich. 576, 56 N. W. 21, 21 L. R. A. 287; Com. v. Barrett, 108 Mass. 302; State v. Patten, 159 Ind. 248, 64 N. E. 650.

In Commonwealth v. McGovern, 116 Ky. 212, 75 S. W. 261, 66 L. R. A. 280, it is held:

“The fact that the reward is to be equally divided ibetween the combatants in a prize fight does not legalize the transaction.”

Also:

“The use of gloves by combatants in a prize fight will not make the contest any less a violation of the statute.”

Under the evidence in this case, these contests were for a reward or prize; they were fought in an ordinary inclosed ring; they were widely advertised and promoted for moneymaking purposes. In addition to these elements, there was other evidence also suificient, in our opinion, to authorize the court to submit the question to the jury of whether or not the participants were fighting within the meaning of $iat word as commonly understood. The trial court instructed the jury, at the request of defendant, that it was not against the law “for any person to engage in a boxing exhibition, or to engage in or encourage a scientific boxing contest.” The .jury found against the defendant on the issue thus presented.

We do not think it the province of this court in this case to engage, in a lengthy theoretical discussion of the question of when a boxing contest ends and a prize fight begins. All prize fights are necessarily boxing contests. Clearly under this evidence defendant was engaged in promoting an unlawful enterprise under all the rules and indicia of ring or prize fights and it is exclusively- within the lawmaking power, if it sees fit, to authorize scientific public boxing exhibitions under proper rules and regulations; but the papular demand for such exhibitions should be expressed in regulatory laws therefor, and defendant should not assume to supply such a demand upon his own initiative, and not at all unless the lawmaking power specifically authorizes it.

It is also contended that the trial court erred in refusing to give requested instruction No. 2, which is as follows:

“And in this case, the only, allegation being that defendant instigated a prize fight or ring fight, you are instructed that if the state has not shown that a fight was had, your verdict shall be for defendant.”

The instruction requested did not in any way attempt to define the term “fight”, and was no more enlightening on this subject, than the instruction given, which required the state to prove all the material allegations of the offense of prize fighting beyond a reasonable doubt before the defendant should be convicted. However, the evidence of the defendant himself, under the view taken by the court of the law of this case, is not sufficient to exonerate him of guilt of the offense. Under defendant’s own testimony, he was guilty of the offense charged.

¡Section 6005, Revised Laws 1910, provides, among other things, that this court shall not reverse' a judgment of conviction because of the misdirection of the jury, unless after an examination of the entire record it is apparent that the trial resulted in a miscarriage of justice, or that defendant was deprived of. some constitutional or statutory right.

Discovering no prejudicial error in the record, the judgment is affirmed. '

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


author: PER CURIAM.

text:
    LEE MATHIS v. STATE.
    No. A-3471
    Opinion Filed Jan. 8, 1921.
    (194 Pac. 278.)
    (Syllabus.)
    1. APPEAL AND ERROR — Time for Appeal. In felony cases, the appeal must be taken within six months after the judgment was rendered.
    2. SAME — Modes of Appeal — Defective Record. Two methods of taking an appeal are provided for: (1) By filing a petition in error with certified ease-made attached thereto; (2) by filing petition in error with duly certified transcript of the record, attached thereto. If the first method is pursued, and for any reason the case-made is fatally defective, the appeal will be considered upon the transcript, provided it is properly certified by the clerk; but where there is no properly certified transcript of the record attached to the petition in error, and the case made is fatally defective, the appeal will be dismissed.

      Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.

    Lee Mathis was convicted of receiving stolen property, and appeals.
    Dismissed.

      George W. Martin and Thomas W. Conner, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the district court of Kiowa county, on the 18th day of April, 1918; against defendant for the crime of receiving stolen property; defendant being sentenced to serve a term of 18 months’ imprisonment in the state reformatory at Granite.

The Attorney General, on the 3d day of December, 1919, filed a motion to dismiss the appeal herein the first and second grounds of such motion being as follows:

“(1) A judgment of conviction was rendered in the above-entitled cause in the lower court on the 13th day of April, 1918, and iby such judgment the plaintiff in error was sentenced to a term of 18 months in the state reformatory at Granite, Okla. That the appeal was not filed in this court until the 19th day of October, 1918, which was moré than 6 months after rendition of said judgment.

“(2) That the said plaintiff in error by the order of said court was on the 13th day of April, 1918, given and allowed 90 days from that date in which to make and serve case-made on appeal. Said case-made was not served upon the county attorney of Kiowa county until the 21st day of September, 1918, which was more than 90 days after the rendition of said judgment, and it does not appear in the record that any extension of time for making and serving case-inade was allowed.”

Relative to the first ground of the motion we find that judgment was rendered on the 13th day of April, 1918, as set out in the motion to dismiss, and that petition in error with case-made attached was not filed in this court, according to the records in the office of the clerk, until the 19th day of October, 1918, more than isix months after the rendition of said judgment. This being a conviction for a felony, defendant had six months after the rendition of the judgment within which to perfect the appeal. Section 5991, Revised Laws 1910. The attempted appeal not having been lodged in this court within six months after the rendition of the judgment, this -court never acquired jurisdiction of the appeal. Bethel v. State, 7 Okla. Cr. 36, 121 Pac. 792; Musick v. State, 5 Okla. Cr. 608, 115 Pac. 377, Self v. State, 8 Okla. Cr. 70, 126 Pac. 582; Sarten v. State, 18 Okla. Cr.__, 193 Pac. 743.

Relative to the second ground of the motion to dismiss, it has 'been held that there are two methods of taking an appeal to this court: (1) By filing herein a petition in error with a certified case-made attached thereto; (2) by filing a petition in error with a duly certified transcript of the record attached thereto. Section 5997, Revsed Laws 1910; Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370; Rasberry v. State, 4 Okla. Cr. 614, 103 Pac. 865.

Also, if the first method above mentioned is pursued, and for any reason the case-made is fatally defective, the appeal will be considered as & transcript, provided it is properly certified by the clerk; but, if not properly certified as a transcript, the appeal will be dismissed. Dobbs v. State, supra.

In this case, there was no attempt made to appeal by duly certified transcript of the record. The case-made, not having been served within the time allowed by the trial judge, must be stricken from the files'. Hawkins v. State, 5 Okla. Cr. 276, 114 Pac. 356; Talley v. State, 5 Okla. Cr. 528, 115 Pac. 603; Cohn v. State, 4 Okla. Cr. 492, 113 Pac. 219; Billus v. State, 7 Okla. Cr. 37, 121 Pac. 790.

For the reason, therefore, that the appeal was not lodged in this court within six months after the rendition of the judgment, and for the further reason that the case-made was not served upon the county attorney within the time allowed by the trial court, there being no certified transcript of the record attached to the petition in error, this appeal must be dismissed.

Appeal ordered dismissed.


text:
    OTHA TAYLOR v. STATE.
    No. A-3466
    Opinion Filed Jan. 8, 1921.
    (194 Pac. 263.)
    (Syllabus.)
    APPEAL AND ERROR — Notice of Appeal or Summons in Error. Within the time allowed for taking the appeal, notices of appeal must be served upon the clerk of the trial court and the county attorney (as provided in section 5992, Revised Laws 1910), or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer (as provided in section 5997, Revised Laws 1910), before this court can acquire jurisdiction of an appeal in a criminal cause.

      Appeal from District Court, Le Flore County; W. H. Brown, Judge.

    Otha Taylor was convicted of larceny of live stock, and he appeals.
    Dismissed.

      Neal & Neal and J. E. Fleming, for plaintiff in error.

      S. P. Freeling,. Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from the district court of Le Flore county, from a judgment rendered in said court on the 5th day of April, 1918, against defendant, Otha Taylor, on a verdict finding defendant guilty of larceny of live stock; the punishment assessed being imprisonment in the state penitentiary at McAlester, Okla., for a term of two years.

Petition in error with case-made attached was filed in this court on the 2d day of October, 1918, and within the time allowed by laiw for taking an appeal in felony cases.

On the 10th day of December, 1920, the Attorney 'General filed a motion to dismiss this appeal for the reason that the proper preliminary steps were never taken to perfect the same. No response has been made to this motion.

The record filed in this court fails to disclose that plaintiff in error, within the time allowed for taking the appeal, served any notices of appeal either upon the clerk of the trial court or the county attorney of Le Flore county, as provided in section 5992, Revised Laws 1910; nor does it appear from the records of this court that any summons in error was ever issued in behalf of plaintiff in error and served upon the Attorney General, or that there was any waiver of the issuance and service of a summons in error by such officer, as provided in section 5997, Revised Laws 1910.

Either the method provided in section 5992, supra, must be followed, or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer, as provided in section 5997, supra, before this court can acquire jurisdiction of an. appeal in a criminal cause. Mann v. State, 17 Okla. Cr. 703, 186 Pac. 1098; Robinson v. State, 17 Okla. Cr. 717, 189 Pac. 763; Sarten v. State, ante, p. __, 193 Pac. 743.

The plaintiff in error, as shown by the records of this court, having failed to perfect this appeal in either of the above methods, this court is without jurisdiction except to dismiss the same.

For reasons stated, the appeal is dismissed and the cause remanded to the trial court, with directions to enforce the judgment.


text:
    HILARIO VALDEZ et al. v. STATE.
    No. A-3590
    Opinion Filed Jan. 10, 1921.
    (194 Pac. 451.)
    (Syllabus.)
    1. APPEAL AND ERROR — Verdict on Conflicting Evidence. Tbe jury is tbe exclusive judge of tbe evidence, and, where there is evidence reasonably sustaining tbe verdict, this court will not disturb such verdict, notwithstanding the evidence is in conflict.

      2. HOMICIDE — Murder—Liability of Co-conspirators. Where two or more persons combine' together for the purpose of accomplishing some unlawful act, and in the commission of such act murder is perpetrated, each of the parties to such conspiracy is guilty, regardless of whether he participated in the actual killing, or not.
    ,3. SAME — Conviction—Sufficiency of Evidence. The evidence in this ease carefully examined and considered, and found sufficient to support the verdict.

      Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

    Hilario Valdez, alias John Lee, and Peter Crus were convicted of murder, and they appeal.
    Affirmed.

      Sewell & Eylar, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for 'the State.
   ARMSTRONG, J.

The plaintiffs in error, Hilario Valdez, alias John Lee, and Peter Crus, hereinafter called defendants, were jointly informed against with Charles Wheeler for the murder of Crecencio Salinez. Upon being arraigned the defendant Charles Wheeler asked for and was granted a severance, and the said defendants Hilario Valdez and Peter Crus were tried jointly, each convicted, and sentenced to the penitentiary at Mc-Alester for life. To reverse the judgment rendered they prosecute this joint appeal. This appeal is submitted for decision upon the record; no briefs having been filed.

The undisputed material evidence is that there was a cement plant about IV2 miles from Hartshorn, Okla., having a row of houses in close proximity, in which the employes of the plant lived, and in one of which housed resided a Mexican, one Romulo Savalla, who' was known to act as .banker for some of his .countrymen; that at the time of the homicide he had, as such, banker, in his keeping about $930, which was on the night of the horni-' cide here charged kept in a locked box in a room iii which was a trunk and in which trunk the money had been previously kept. On the night of the homicide and previous to the attempted robbery there was in the trunk, among other things, a pair of tan buttoned shoes and a knife. Between 12 and 1 o’clock on the night of the homicide Savalla and his wife, sleeping in the same room, Were awakened by a noise, and shortly thereafter two persons came into the room, one of them, a negro, having in his hands a stick with which he struck the wife, and the other, a Mexican, having a handkerchief over the lower part of his face, and just outside of the house was another person. iSavalla and his wife ran from the house, calling for help, and in response to their call several of their countrymen living in adjacent houses, including Crecencio Salinez, came. Savalla fled toward the plant for a short distance, and returned and engaged in an encounter with one of the persons who had been in the house. Shortly after the call for help was made shots were heard near the house of Savalla, and the body of Crecencio Salinez was found. Investigation disclosed the fact he had come to his death from gunshot and knife wounds. Near the body was found a hat that was identified at the trial as belonging, to Peter Crus. When Savalla returned to his house he found that the trunk had been r fled and its contents scattered over the floor and on the bed. It was afterwards discovered that the tan buttoned shoes and the knife that had been in the trunk were missing. Shortly after the homicide was committed -officers were called from Hartshorn and came on foot to the scene of the homicide, arriving there about 2 a. m., and after making an examination and viewing the body of deceased, returned to Hartshorn. About an hour later they met a negro, who afterwards proved to be Charles vVheeler, who was detained and searched and found with a ipair of tan buttoned shoes, one in each of his hip pockets and a knife and a piece of sandpaper, which sandpaper, was wrapped in a piece of paper bearing the label of “Mitchell Bros. Huntington, Ark.” The shoes and knife were taken from him. The negro was taken to the city jail, and the following evening released. At the time of the arrest and search of said negro it was not known to the officers that the shoes and knife found in his (possession had been kept in the Savalla trunk. The negro when questioned by the officers, said he was from Huntington, Ark., and had arrived at Hartshorn that night, traveling on “the blind baggage,”' and stated that he bought the shoes about an hour before his arrest from a fellow that he did not know, and had paid $2.50 for them,. The shoes did not fit him, and he said that he had bought them to help his stepson who lived in Arkansas. The shoes and knife were introduced in evidence and positively identified as the shoes and knife that were in the iSavalla trunk which was rifled the night of the homicide.

A short time previous to the homicide Hilario Valdez had come to the Savalla house soliciting contributions for the burial of a Mexican child who had died from influenza. Savalla and his wife were at home and contributed, the wife going to the trunk in an adjoining room, in which room she was visible to Valdez, and from the trunk procured a $20 bill. Peter Crus, one of the defendants, was known as “Shorty.” About the time of the commission of the homicide one of the robbers, was heard to say, “Come on, Shorty.” Some one who knew Peter Crus, commonly called “Shorty,” recognized his (Crus’) voice when he replied, “Do you want to die?” The two defendants now in' court were shown to be about the size, build, and general appearance of the two alleged robbers.

The mother-in-law of Savalla was sleeping in the same room with Savalla and his wife when the two robbers came, and testified that one of them went to her bedside and asked where the money was, and she told him that she knew nothing about the money, and he asked her where she had the money; that when the two men came into the room one of them had a stick with which he struck Mrs. ¡Savalla on the arm before the latter ran from the house; that one of the said men was a negro and the other a Mexican.

Hilario Diaz, brother of Mrs. Savalla, lived in the house adjoining that of h’is sister, and was awakened by his sister’s call for help, and started in the direction, and saw two men, one of whom had a knife and one of whom had a pistol, and he heard the short fellow say, “Do you want to die?” That the short fellow was the one who had the knife and cut him wijth it; that at the time he had something over his face from the nose down; and that his 'brother-in-law, .Savalla, came to his assistance and hit his assailant with a piece of iron pipe.

It appears that Felix Flowers had been working at the cement plant and lived in one of the houses near by; he knew Hilario Valdez, sometimes called John Lee; that he had known him for more than a year; that he had known Peter Crus for a year or more, and both of them had worked at the cement plant and while working there they had boarded together; that he had heard Peter Crus talk at the plant; that Peter and Hilario ran a train together; that Hilario Valdez told him (FiWwers) about two weeks after he took up the collection that he thought there was some money in Savalla’s house; that he thought he saw some when he took up the -collection. Soon aftertvards Crus left the camp, but came back there and was hanging around over Sunday and for two or three days before the killing. These two or three days he was with Hilario- Diaz. This witness also testified that he recognized Crus and identified him fully as being one -of the robbers and murderers.

At the time of the robbery and murder J. M. Ledbet-ter was night policeman at Hartshorn. He testified that he met the westbound passenger train from Arkansas that ’ night; that it was part of his duty to meet this train and that nobody got off the train that night; that two men got on; that he noticed the -blind baggage; that he got a call from the cement plant between 1 and 1:30 o’clock and went down there with other officers and found a dead man there; that the body was lying not far from the little p-orch of the house where the robbery had taken place, and that he and the other officers returned, and when they arrived in Hartshorn they met a negro who was perspiring freely; that they took from him the tan buttoned shoes which were exhibited and by other witnesses shown to belong to iSavalla and to have been in the trunk on the night of the robbery and murder; that when he went to the cement plant he found a hat near the dead man; and that the hat exhibited is the same hat; the negro said that he had been lost and wandering around the country; that he and other officers did not say anything about the knife, but took it away from the negro, because it was a bad-looking knife; that the negro at the time of his arrest had on blue overalls, a coat, and tan shoes, and that the cement plant was about a mile and a half from Hartshorn, and required about 45 minutes to walk it; that the next night after the homicide he went to Wilburton and got Peter Crus; that Peter Crus had his arm bound up.

Other witnesses testified that the robber answering to the description of Crus had been wounded in the arm during the fight and robbery. Mary Ingold testified that she lived with her father two miles south of Hartshorn; that her home is about a half mile from the cement plant; she knew Hilario Valdez, alias John Lee, before the day of the homicide; that she did not know Peter Crus until the day of the homicide; that when at the cement plant she saw him pass one of the houses; that she was planning to marry, got her suit case from home, and walked to Hartshorn with Sacramento and a stranger who talked the Mexican language, went to the post office, and there saw the defendants, who asked her to go with them, and she and defendants went to the Rock Island , depot at about 6:15, and that in going to the depot John Lee took hold of her arm, and when he did so she felt a gun on his hip and asked him what he was carrying the gun for, and he said, “to play with; that it was a 38 Colt’s, and that he might have to use it;” that she left her suit case at the depot, and she and defendants went to Haileyville, ate supper, and went back to Hart-shorn and stayed two or three hours at an Italian’s named Joe, and returned to the depot accompanied ¡by the defendants, found the suit case gone and a negro in the depot, and John Lee asked him about her suit case, and he said he left a white man there when he went to get some coal, and when he returned the white man and the suit case were gone; that Peter Crus spoke to the negro as if he knew him, asking him where he had been, and he said to - Huntington, and that he had been up here a few days, and that he was not doing anything and was going back to Huntington; that the negro was about 5 feet 10 inches and tolerably heavy, weighed about 150 to 180 pounds, had on blue overalls and tan laced shoes, had a short mustache and was about 35 or 40 years of age; that she left the depot about 10 minutes to 12; that Peter Crus walked over as far as the city hall, when she left him and went through Hartshorn to Haileyville; that she left John Lee and the negro at the depot; that she was at the preliminary in this, case, and saw Peter Crus there having on the same green hat that he had-on at the depot the night the deceased was killed; that she had known John Lee about a year and three months; that she knew Peter Crus by sight when he worked at the cement plant, but did not know his name; that she was arrested on account of said homicide, confined in jail 5 days,, and discharged.

J. T. Crenshaw testified that defendants were arrested at his hotel the next day after the killing; they came in the morning of the 12th, at 4 o’clock and went to bed; that when he came in there was just a light burning on the porch, and' that the entrance he came in was dark; that he asked who it was, and he said, “Pete;” that he got his breakfast the next morning, and did not see him later until the afternoon of the arrest; that the eastbound Rock Island train came in at 3:25; that it was after that train had passed that he came to his hotel, just a few minutes to 4 when he came; that he saw John Lee during the day; that he met some train and met a woman who came in on the east-bound Rock Island; that it must have been on Tuesday prior to Wednesday the 11th of December that Peter Crus went away; that Peter Crus introduced him to the other defendant as his brother.

W. B. Stubbs, an officer, testified for the defendants that he had known the two defendants since they were in jail'; saw them the day after they were brought to the jail; that Peter Crus did not have any wound on his forehead or face when he saw him; that he was injured in the jail, and a doctor was, called to dress the wound a day or so after he, was in the jail.

Peter Crus testified that he was ibom in Mexico:; been in this country about 8 years; that during the time he had been in several places, Texas, New Mexico, Oklahoma, and Kansas, and that he does every kind of work and works in the mines; that he last worked in the mine at Wilburton; worked there about 4% years; that he was boarding at the Crenshaw Hotel; that he got hurt the same day he was arrested; that he came out of the mines about 12 o’clock, came to the hotel, went to a drug store and put on some plaster; he said he never told Mr.- Crenshaw at the time that he got hurt in the mine; that he was hurt in the left hand; that he was hit by something in the mines., he could not tell what they call it; it was the 11th day of December; that on the 11th day of December he had been working in the mines, and the day before was in McAlester; that he was at Hartshorn on the 9th; that he went down to tell Hilario “if you want to work in the mines”; that he saw Hilario at his house at the cement plant, went to Hartshorn, returned, and lay dotwn in Hilario’s house,; that he did not see Mary Cluibb at Hartshorn that night; that he saw her on the day of the 10th when the came back from Wilburton; that he went back to Wilburton the day of the 10th on train 41 about 2 o’clock in the morning; that a bunk in the jail fell on him and hit his head; that before he was hit by the bunk he did not have any fresh sores on his head; that the night he went. to Wilburton he saw Mary Ingold; that he had seen her in the post office, and this fellow Valdez talked to him because he wanted to talk to Mary Ingold; that he went to the depot the last time when he came back from Hailey-ville with Mary Ingold; that he did not go out to the cement plant or up to those houses where the Mexicans lived that night and commit a robbery or kill a man or have anything to do with it; that he stayed at the depot and went to sleep in the depot; that he bought the green hat he was wearing at Huntington; that when he was arrested he had on a white hat, but the green hat is the one he had on at the preliminary at Hartshorn; that the night Valdez and Mary went to the depot he had on a white hat; that the negro at the depot did not have on a brown hat, but a cap; here was exhibited to witness the brown hat that was in evidence and he was directed to put it on, but he refused, saying “it did not belong to him and he did not want to wear it”; that he refused the second time to try the hat on before the jury; that the hat bad on the band “Myers Store, Huntington, Ark.”; that he got hurt in the mine while he was shoveling coal, “and one thing and another when he shoveled coal and coal came loose and hit him”; that" when he went to the hotel in Wilburton at 4 o’clock he went to bed, and got up at 5:30; that he understands “some words in English, but some not”; that he never spoke to Mary in English, because he could not speak good; that he did not talk to Bill Masters in English; that he had never seen the brown hat offered in evidence before and did not know to whom, it belonged; that the brown hat was not the hat he wore in the mines at Wilburton; it was a white hat; that he had two hats; that he used the white hat when he was working; that the night at Hartshorn he had on a green hat; that when he got down to the mine he left his white hat in the washroom and put on a cap; that Mr. Crenshaw had seen the white hat many times.

Hilario Valdez testified that he was a Mexican, born in Mexico; been in this country about 25 years; on the 10th day of December he and Peter Crus about 4 o’clock went to Hartshorn, and there saw a girl named Mary .Ingold, talked with her, and went with her to the depot; that on the way to the depot he did not take Mary In-gold by the arm any time; that he did not have a gun; that he went to the depot and Mary left her suit case and ¡promised to come to Wilburton; that while they were at the depot Peter Crus came, and he and Mary and Pete went to Haileyville together and returned with her to Hartshorn, and when they came back to the depot it was about 12 o’clock or a little after; that they saw a negro there; that he was a little tall man, and had a coat and he thinks blue overalls; that he had seen Charles Wheeler, his codefendant, at the jail; that he did not think he was the negro he s,aw at the depot that night; that he never talked to him; that he never asked about the girl’s grip; she asked him herself; the .negro never stayed more than five minutes; he left after Mary Ingold left; that she left the depot first, and Peter went off with her, and was gone about 20 minutes and came back, and when he came back the negro was gone and he and Peter stayed around the depot' until the train came; lay down there and waited for the train to Wilburton; that the train came through about 2:30, and they went to Wilburton on it, stayed at the-depot, and then went to the Crenshaw Hotel and went to bed; that Pete got up the next morning and he stayed in bed; that he 'got up about 7 o’clock and met Pete-on the street close to the post office about 3 o’clock; that Pete did not have his hand wrapped up; that he had never seen the negro at the depot at any time before-that night; that he did not know him; never went off with him -anywhere that night; that he did not go to-the cement plant with anybody or rob that house or have anything to do with the killing of the dead man over there; that he did not know who killed him; that the first he knew about it was when he got arrested;, that Pete had on a green hat; that he had had a black hat, the same he has now, and had that hat on the night of the homicide;- that he did not know Charley Wheeler-before he was brought to jail; that he worked at Hart-shorn, and when there he and Pete boarded together and ran a tramjway, and Pete was his “buddy”; that he worked in the mines in Mexico digging -coal and did every kind of work; that Pete told him he had a job-for him digging coal for the company, but does not remember that he said anything about having a job pumping; that he knoiws how to run a pump; that he-, had run a pu-mp; that a woman came in on the train to Wilburton about 10 o’clock; Pete was not there with him; that he and Pete and the woman -did not go back, to the hotel together; that he went to the hotel with, the woman, but Pete was not with him; that he was not very restless walking all around the next morning; that he did not meet the west-bound train to Hartshorn the night before, and did not leave Mary and Pete at the depot to go and meet his wife; that he and the woman walked around and went to the company store; that Pete was there with him in the hotel when he was arrested.’

J. T. Crenshaw, in rebuttal, testified that Peter Crus began boarding with him in August and continued until he was arrested; that the brown hat offered in evidence was similar to the one worn by Peter Crus when he went to work; that he had never seen him with a white Stetson hat, and had never seen the brown hat after his return from Hartshorn; that it was his recollection that when Hilario Valdez and the woman came to the hotel the day after the homicide Peter Crus came with them; that when he went off other than to work that he generally wore a green hat.

J. H. Smith, prison. physician, testified that he was called td the jail to dress the head of a Mexican, which was a fresh injury; that he found only one wound; that he believed it was bleeding when he was called; that some statement was made that a bunk had fallen, but he did not know of his own knowledge that one of the bunks had fallen.

Upon the coming in of the verdict the defendant and each of them moved for a new trial, which motion was overruled, and defendants and each of them excepted.

The errors assigned in the petition in error are in effect one “that the verdict of the jury is not sufficiently supported by legal evidence.”

We have most carefully read not only the voluminous evidence in this case, but also the extended evidence-in the case of Charles Wheeler, who was jointly informed against with -the defendants; for the murder of Crecencio Salinez, but tried separately and convicted, and find that the witnesses and the evidence on the part of the state in each of said cases are practically the same and have given all the facts described our careful consideration.

The evidence is positive as to the corpus delicti, the-murder charged, ¡but to a large extent circumstantial in connecting the defendants with the commission of the-crime, but the “strands” of such circumstantial evidence-are so -connected, interwoven, and complete that they form a “cable” so strong that it cannot be broken by an inference of innocence of either of the defendants, but, on-the contrary, directly points to their guilt beyond a reasonable doubt.

“In cases depending upon circumstantial evidence,, where the circumstances proven are not only consistent-with the guilt of the defendant, 'but also inconsistent with his innocence, such evidence in weight and prolb-ative force may surpass direct evidence upon its effect upon the court and jury.” Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749.

While the evidence leaves in doubt whether one or both of the defendants actually fired the shot or inflicted the knife wound that caused the death of the deceased, yet, the evidence showing beyond a reasonable doubt that a conspiracy existed between the defendants to commit the robbery, and that the homicide was incidental to the robbery, it is entirely immaterial whether one or both of them did the actual killing. Both are equally guilty.

“Where parties voluntarily act together in the com-mission of an act which may result in death to another, and such death ensue® therefrom, all such parties so acting together are as guilty of the murder as if they had .intended the death of such party.”

“The responsibility of eoconspirators is not confined to the accomplishment of the common purpose for which the conspiracy was entered into, but extends to and includes all collateral acts incident to and growing out of the common design.” Holmes v. State, 6 Okla. Cr. 542, 119 Pac. 430.

“The least degree of concert of action or collusion makes the act of one conspirator the act of all.” Ex parte Hayes, 6 Okla. Cr. 321, 118 Pac. 609.

There being evidence that the defendants, acting conjointly, committed the offense charged as an incident -of the attempted robbery, the court did not err in refusing to advise an acquittal for the defendants.

The judgment of the trial court is affirmed.

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


author: PEE. CURIAM.

text:
    JOHN L. MILLER v. STATE.
    No. A-3263
    Opinion Filed Aug. 21, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 249.)
    (Syllabus.)
    ¡¡STATUTES — Validity—Separable Provisions — Wife Abandonment. The provisions of section 1, chapter 149, Session Laws 1915, defining the offense of abandonment of wife and children, and authorizing the punishment of fine, or imprisonment, or both, are complete and perfect provisions of law, separable from the other provisions of the act, authorizing the court, in its discretion, to pass an additional order, subject to change from time-to time, directing the defendant to pay a certain sum weekly for one year to the wife, guardian, or custodian of the minor child or children, and to enter into a recognizance for his personal appearance whenever ordered to do so within a year, and further to comply with said order, and the provisions relative to fine and imprisonment are enforceable, independent of the provisions relative to: the additional order, are perfect in, themselves, and are constitutional :\nd valid, and may be sustained, even if it bo conceded that'the other portions of the-act are invalid.

      Appeal from County Court, Noble County; A. Dtiff Tillery, Judge.

    John L. Miller was convicted of wife abandonment,, and appeals.
    Affirmed.

      Cress & St. Clair, for plaintiff in error.
    The Attorney General, for the 'State.
   PEE. CURIAM.

This is an appeal from tlfe county court of Noble county, wherein the defendant, John L. Miller, was convicted of the offense of abandoning without good cause his wife and minor children under 12 years, of age, and after trial by jury, and verdict of guilty fixing the punishment at a fine of $500, the trial court in' rendering judgment ordered that the fine when paid be-turned to Mrs. Farrie Miller, wife of defendant, for the use and benefit of her and her children under 12 years of age, and the court, after conviction, made a further-order that the defendant pay the sum of $12.50 weekly for the period of one year from the date of the judgment for the support of his -wife and children, and required defendant to enter into a recognizance, with two or more sureties, conditioned that he make his personal appearance in court whenever ordered to do so within one year and further to comply with said order.

The defendant took an appeal from said judgment rendered against him, and such appeal was lodged in this court on the 22d day of February, 1918. A motion to abate the action and dismiss the cause with prejudice was overruled March 15, 1920. See 17 Okla. Cr. 284, 187 Pac. 1098.

Counsel for defendant contend that there is error in the proceedings in the trial court in several particulars, and also claim that the provisions of the statute (section 1, chapter 149, Laws 1915) permitting the trial, court to make an additional order for the support of the wife and children for the period of one year after the date of the judgment is unconstitutional and void, in that it “deprives the defendant of property without due process of law.” No argument or authority is cited by counsel for appelant in support of this assignment. It is merely asserted that such provision clearly contravenes the Constitution.

The court is of the opinion, however, that, whatever may be said relative to the provisions of the act in question concerning the power of the court to make this additional order, the other provisions of the act are complete within themselves, are clearly enforceable, and are not unconsitutional. Even if it be conceded that part -of this act is invalid, if the valid provisions are separable and perfect in themselves, the act may (be sustained and the invalid portions fail. Ex parte Anderson, 33 Okla. 216, 124 Pac. 980.

Furthermore, we are of the opinion that the question of the validity of the additional order for the support and maintenance of the wife and children is not involved in this appeal. Such order is subject to change from time to time by the trial court, is not final, and is not subject to review in this proceeding. If the defendant desired to test the validity of such order, proper action should have been taken in the trial court to that effect, independent of an appeal from the judgment convicting him of the offense of abandonment and imposing a fine of $500 as punishment therefor.

The conclusion is reached that the provisions of the statute defining the offense of abandonment of wife and children, and authorizing the punishment of fine, or imprisonment, or both, contained in section 1, chapter 149, Session Laws 1915, are complete and perfect provisions of law separable from the other provisions of the act, and enforceable independent of such provisions, and that the same are constitutional and valid.

Careful consideration has been given to each of the other errors assigned, and we are of the opinion that such alleged errors are either without merit or are such as resulted in no prejudice to the substantial rights of the defendant.

For reasons stated, the judgment of the county court of Noble county, imposing a fine of $500 against the defendant in accordance with the verdict of the jury, is affirmed. The question of the validity of the supplemental order, not being involved, is not passed upon.


author: PER CURIAM,

text:
    MOODY LOVE v. STATE.
    No. A-3194
    Opinion Filed Jan. 15, 1921.
    (194 Pac. 450.)
    (Syllabus.)
    Conviction for Murder Sustained. In a prosecution for murder, the record and the evidence examined, and found sufficient to sustain the conviction, and that no reversible error was committed on the trial.

      Appeal from District Court, McClain County; F. B. Swank', Judge.

    Moody Love was convicted of murder, and he appeals.
    Affirmed.

      Glaseo & Glaseo, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the .State.
   PER CURIAM,

This is an appeal from the district court of McClain county, Okla., wherein plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of murdering one Jennie Lewis in said county, and sentenced to serve a term of imprisonment for life in the state penitentiary.

The appeal was lodged in this court the 24th day of December, 1918, and the cause was submitted for decision on the 8th day of November, 1920.

No brief has been filed in behalf of defendant, nor was any appearance made to orally argue the cause on the day the same was submitted.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

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

The court has carefully examined the pleadings, the instructions, and the judgment and sentence, and finds that the information sufficiently charges the crime of murder, that the instructions fairly cover the law of the case, and that the judgment conforms to the verdict.

In view of the fact that this is. >a conviction for murder, with life imprisonment assessed, the court has, in addition to examining the pleadings, instructions, judgment, and sentence, read the evidence to ascertain if the judgment is supported by sufficient evidence.

The evidence is conflicting, the defendant claiming that the killing was accidental. There were several witnesses introduced by the state, however, who testified to facts which established the defendant guilty of the commission of a willful and deliberate murder. There is ample evidence, therefore, in the record to support the conviction.

Judgment affirmed.