text:
    SILAS MEIGS v. STATE.
    No. A-2935.
    Opinion Filed May 18, 1918.
    (172 Pac. 974.)
    1. APPEAL AND ERROR — Briefs—Affirmance. Where a defendant appeals from a judgment of cimviction in a felony case, and no briefs are filed, nor oral argument made, this court will examine the information, the instructions of the court, and the judgment; if no fundamental error is apparent, and the evidence is sufficient to support the verdict, the judgment will be affirmed.
    2. ROBBERY — Sufficiency of Evidence. In a prosecution for conjoint robbery, the evidence examined, and held to sustain the verdict and judgment of conviction, and that no material error was committed on the trial.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Silas Meigs was convicted of robbery, and he appeals.
    Affirmed.

      George M. Hughes, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Cherokee county, rendered on the 22d day of December, 1916, in pursuance of a verdict convicting Silas Meigs of conjoint robbery, and assessing his punishment at imprisonment in the penitentiary for a term of 14 years.

It appears from the record that the plaintiff in error, Silas Meigs, and George Nave were jointly charged with robbing one C. Ross Williams of some $90, conjointly committed. When the case was called for trial a severance was demanded and granted. The state elected to try Silas Meigs. The evidence shows that on the evening of the day alleged in the information, about 9 o’clock, C. Ross Williams and four or five others were sitting around a lantern on the grounds of the old Seminary at Park Hill, and several were playing cards, when the defendants appeared with masks on their faces. Nave held a Winchester on the party; Meigs held a pistol, and said, “Sit still, boys!” and Nave said, “Hold up your hands!” Meigs then searched each of those present, and. took what money and valuables they had, taking from C. Ross Williams .the money alleged in the information.

Three or four of those present testified that they recognized the defendant Meigs by his voice and by his clothes, and that they spoke to him, calling him by his name. C. Ross Williams testified that he was a druggist at Park Hill, and had known Silas, or, as he is commonly called, “Tut,” Meigs for several years; that the party were all sitting around a lantern playing cards when the defendants appeared masked and with guns in their hands. He spoke to Meigs and said, “Come on up, ‘Tut,’ and sit down, and be peaceable”; and Meigs stepped up and punched him in the back with his pistol, and took his pocketbook from him, and then searched and robbed the other boys.

For the defense Boone Meigs testified that he lived with his father about a mile and a quarter from the old Seminary, and the evening of the robbery, when he went to bed, about 8 o’clock, his brother Silas was sitting on the porch; that he did not know when Silas went to bed,, but the next morning about 2 o’clock the sheriff appeared and woke him up, and Silas was in the bed on the porch with him. Submit" Wicket testified that Silas Meigs was her half-brother; that she was at her father’s place on the night of the robbery, and heard Silas go to bed about two hours after her brother Boone had gone to bed. The defendant did not testify.

The errors assigned are that the verdi'ct and judgment were contrary to both the law and the evidence of the case; that the court erred in denying defendant’s motion to withdraw his plea of not guilty, and to file in lieu thereof a demurrer to the information; that the court erred in denying the defendant’s motion for a new trial.

No briefs have been filed and no appearance made for oral, argument. The case was submitted on the record, under the rule applicable in felony convictions that where no briefs are filed nor oral argument made the- court will examine the information, the instructions given, the judgment and sentence, and if no fundamental error is apparent, will affirm the judgment.

We have carefully examined the record and find the information sufficient, and the charge of the court, to which no specific or general objection was made or exception taken, was full and adequate to the proper instruction of the jury upon the law of the case. The evidence of the defendant’s guilt is conclusive. „Upon a review of the entire record, we are unable to find any serious or substantial error. The judgment of the lower court is there-' fore affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    CHARLES H. HOLDEN v. STATE.
    No. A-3266.
    Opinion Filed May 18, 1918.
    (172 Pac. 977.)
    APPEAL AND ERROR — Supersedeas Bond — Breach—Dismissal of Appeal. When a person who has been convicted of a crime appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the 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 cause, or dismiss the appeal.

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

    Charles H. Holden was convicted of a violation of the prohibitory law, and he appeals.
    Appeal dismissed.

      Pruiett, Sniggs & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Charles H. Holden, and Bert Shadrick were jointly charged, tried, and convicted under an information charging that they unlawfully transported 60 half pints of whisky, and their punishment assessed at a fine of $250, and three months in the county jail. From the judgment rendered in accordance with the verdict, an appeal was perfected by filing in this court on February 26, 1918, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal of plaintiff in error, Holden, on the ground that since the appeal was taken the said Holden at various times left Oklahoma without leave of court, and went to Texas for the purpose of violating the prohibition law of both states. In reply to the motion to dismiss his counsel filed affidavit of Charles H. Holden, which, omitting merely formal parts, is as follows:

“Plaintiff in error admits that since the making of appeal bond in this cause he has been out of the State of Oklahoma and sojourned in the State of Texas on business trips of a few hours’ duration, but that at no time has he removed from the State of Oklahoma and violated the prohibition laws of the State of Texas. * * * Plaintiff in error says that he is now confined in the county jail at Mangum, Okla., upon order of the district judge of Jackson county, Okla., wherein he is charged with murder, and that he is also being held in jail because of failure to give an appeal' bond, wherein he was sentenced at Norman, Okla., to four years’ imprisonment in the state penitentiary. Plaintiff in error says that he has at no time been a fugitive from justice, and has at no' time withdrawn himself from the jurisdiction of this court in order to defeat the enforcement of any judgment which might be rendered against him; that he is now within the jurisdiction of this court, and is willing to abide by the terms of his bond given in this cause; that J. M. Edwards and J. D. Key are witnesses for the state, wherein the plaintiff in error is charged with murder in Jackson .county,' Okla., and that said parties who made the affidavits are prejudiced against him, and have made said affidavits in order that if plaintiff in error is granted bond upon said charge of murder, he would not be liberated from custody because of having to serve the original sentence imposed in this case if the appeal is dismissed, and thereby keep plaintiff in error in custody, and prevent him as far as possible from preparing his case for trial upon the charge of murder.”

Under the Constitution and the Code of Criminal Procedure of our state, an appeal may be taken to this court by any person convicted of a crime to have the judgment reversed as a matter of right, and under the Constitution the Legislature may prescribe the mode in which the right may be exercised. Our Code provides that if the crime of which the defendant is convicted be a bailable one, the defendant may give bail, and the bond shall stay execution of the sentence during the pendency of the appeal. One' of the conditions of the bond as prescribed by the statute is:

“That the defendant will appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of court.” (Section 5995, Rev. Laws 1910.)

The proof on the part of the state in support of the •motion to dismiss shows that plaintiff in error had violated the conditions of his bond by making frequent trips to Texas for the purpose of transporting intoxicating liquors from Texas back to this state. ' The plaintiff in error’s affidavit also shows he had violated the conditions of his bond. And see Holden v. State, post, p. 691, 172 Pac. 978, and Bryce v. Smith, ante, p. 456, 172 Pac. 976.

While there is no express provision of the .statute authorizing the dismissal of an 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 léft 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 his bond with impunity, and where it is conclusively shown, as in this case, that the plaintiff in error has been persistent in violating the conditions of his bond, his appeal should be dismissed. The appeal herein of Charles B. Holden is therefore dismissed.

ARMSTRONG and MATSON, JJ., concur.


text:
    KIRK MORGAN v. STATE.
    No. A-3278.
    Opinion Filed May 18, 1918.
    (172 Pac. 974.)
    APPEAL AND ERROR — Defendant’s Absence from State — Dismissal. Where a defendant has been convicted and appeals from the judgment and sentence, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and, where he leaves the state and is convicted of crime in another state pending the determination of his appeal, this court will on proper motion dismiss the appeal.

      Appeal from District Court, Carter County; W. F. Freeman, Judge.

    Kirk Morgan was convicted of burglary, and he appeals.
    Appeal dismissed.

      J. B. Champion and Brown & Williams, for plaintiff.' in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and A. J. Hardy, Go. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, Kirk Morgan, was eonvicted in the district court of Carter county on an information charging that on or about the 8th day of May, 1916, he committed the crime of burglary by unlawfully, feloniously, and burglariously breaking and entering a building at number 23 North Washington street, city of Ardmore. His punishment was fixed at imprisonment in the penitentiary, for the term of two years. From the judgment rendered on the verdict an appeal was perfected by filing in this court on March 4, 1918, a petition in error with case-made. On May 7, 1918, counsel for the state filed a motion to dismiss his appeal in part as follows.

“As ground for said dismissal, the Attorney General says that pending said appeal the said Kirk Morgan has left the jurisdiction of the courts of Oklahoma; that he was on the 26th of February, 1918, confined in the county jail at Los Angeles, Cal., for the theft of automobiles; this charge is made in pursuance of the affidavit of S. H. Harris,' who saw him and talked to him while in said California jail, which affidavit and the affidavit of A. J. Hardy, the county attorney of Carter county, Okla., are hereto attached and made a part of this motion. Also a copy of the judgment showing that said Kirk Morgan was sentenced to serve a term of from one to ten years in San Quentin Prison, in the superior court of Los Angeles, for the theft of an automobile.”

In the response filed the material averments of the motion are not denied.

We are of the opinion that the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions that this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case. It follows that plaintiff, in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed. Mandate forthwith.

■ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    J. A. THOMAS v. STATE.
    No. A-2908.
    Opinion Filed May 18, 1918.
    (171 Pac. 747.)
    1. APPEAL AND ERROR — Assignments of Error — Variance. An assignment of error in that there was a fatal variance between the allegations of information and proof not urged in the court below, and not a ground for a reversal presented in the petition in . error, need not be considered.
    2. SAME. An assignment that there was á fatal variance between the allegations of the information and the proof is not a matter that goes to the court’s jurisdiction.

      Appeal from County Court, Latimer County; C. R. Hunt, Judge.

    J. A. Thomas was convicted of selling intoxicating liquors, and sentenced to pay a fine of $50 and to serve-a term of thirty days’ imprisonment in the county jail, and he appeals.
    Judgment affirmed.

      Jones & Lester, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and- R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Only two alleged errors are urged in this court for a reversal of this judgment: (1) That the verdict and judgment are contrary to the evidence; (2) that there is a fatal variance between the allegations of the information and the proof.

The second assignment of error was not urged in the court below, and is not one of the grounds for reversal presented in the petition in error. It is unnecessary, therefore, to consider same, except to say that it is not a matter that goes to the jurisdiction of the court, nor do we think same of such merit as to require a reversal of this judgment if it had been properly presented.

The evidence is conflicting. This court is not authorized to substitute its judgment on a question of fact for that of the jury. Suffice it to say that there is evidence in the record which, if believed by the jury, is amply sufficient to authorize a conviction of the crime charged.

For the reasons stated, the judgment is affirmed.


author: MATSON, J.

text:
    STATE v. ROBERT LEE PAYNE.
    No. A-2380.
    Opinion Filed May 25, 1918.
    (172 Pac. 1096.)
    OBSCENITY — Statutes—Information. • Under section 2403, Rev. Laws 1910, making it a misdemeanor to “utter or speak any. obscene * * ■* or lascivious language or word in any public place, or in tbe presence of females, or in the presence of children under ten years of age,” the language used need not necessarily consist of words obscene or lascivious per se, but where the information sets out the language, although it may be composed of words which are not in themselves either obscene dr lascivious, yet if the sense and meaning of the words employed is either obscene or lascivious, the information is sufficient to state the offense, where all other allegations necessary to complete said offense are contained therein.

      Appeal from County Court, Kingfisher County; R. F. Shutter, Judge.

    Robert Lee Payne was informed against for the use - of obscene or lascivious language. Demurrer to information sustained, and the State brings error.
    Reversed and remanded, with instructions.

      Chas.- West, Atty. Gen., C. J. Davenport, Asst. Atty. Gen., and W. R. Blair, Co. Atty., for the State.
   MATSON, J.

This is a case in which the county attorney of Kingfisher county filed an information against the defendant in error and defendant below, Robert Lee Payne, charging the said defendant with the use of certain obscene and lascivious language. A warrant was issued on the information and defendant brought into' court. The defendant demurred to the information, and the demurrer was by the court sustained, The court also made an order quashing the information, discharging the defendant and discharging the sureties on his appearance bond. The information filed in said cause was as follows:

“In the County Court Within and For Kingfisher County, State of Oklahoma.
“State of Oklahoma, Plaintiff, v. Robert Lee Payne, Defendant. Information.
“Comes now W. B. Blair, county attorney within and for Kingfisher county, and in the name and by the authority of the State of Oklahoma, makes information that the said defendant, Robert Lee Payne, in the county of Kingfisher and State of Oklahoma, on or about the 13th day of September, 1914, did then and there willfully and unlawfully utter and speak certain obscene and lascivious language, to wit, ‘Will Jim Murphy make an affidavit that he didn’t go out and catch a sexual disease and give it to his wife,’ in a public place, to wit, at the open air meeting ground of the Baptist Church in the town of Hennessey, Kingfisher county, State of Oklahoma, and in the presence of a number of women, among whom being one Flora Cul-lum, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State. W. B. Blair, County Attorney.
“County of Kingfisher, State of Oklahoma — ss.:
“Comes now R. Reynolds, who upon oath deposes and says that he has read the above and foregoing information and knows the contents thereof and that the matters and things therein contained are true.
“R. Reynolds.
“Subscribed and sworn to before me this 18th day of September, 1914.
“[Seal] W. R. Blackburn, Notary Public.
“My commission expires Sept. 29, 1914.”

The demurrer filed by the defendant below (omitting the caption) was as follows:

“Comes now the above-named defendant by his attorneys, P. S. Nagle and Lee M. Gray, and demurs to the information filed herein and assigns the following as grounds of demurrer, to wit: (1) That the allegations contained in the information do hot charge a public offense under the laws of the State of Oklahoma.
“P. S. Nagle,
“Lee M. Gray,
“Attorneys for Defendant.”

The journal entry showing the judgment of the court on the hearing of the demurrer is as follows:

“In the County Court Within and For Kingfisher County, State of Oklahoma.
“The State of Oklahoma, Plaintiff, v. Robert Lee Payne, Defendant.
“And now on this 16th day of November, A. D. 1914, the same being one of the regular judicial days of a regular term of this court, the above matter came regularly on for hearing in open court, the plaintiff, the State of Oklahoma, appearing by the county attorney, W. B. Blair, and the defendant, Robert Lee .Payne, appearing in his own proper person and by his attorneys, Lee M. Gray and P. S. Nagle. Thereupon the defendant, Robert Lee Payne, asked and was granted leave to withdraw his plea of not guilty and file a demurrer to the information on file herein. Thereupon the said defendant, Robert Lee Payne, files a demurrer to the information on file herein. Thereupon argument is'had on the said demurrer'by the defendant, Robert Lee Payne, and on behalf of the State of Oklahoma, and thereafter, the court being fully advised in the premises sustains the said demurrer and quashes and sets aside the information on file herein, and it is so ordered, to which ruling and order of the court the plaintiff, the State of Oklahoma, duly excepted at the time and exception allowed. Thereupon the said plaintiff, the State of Oklahoma, elects to stand on the information on file. Thereupon the court discharges the defendant and releases his bondsmen, to all of which the State of Oklahoma objects and excepts and the exception allowed. Thereupon the State of Oklahoma asks and for good cause shown is •granted twenty days within which to make and serve a case-made herein; the defendant, Robert Lee Payne, is given five days thereafter within which to suggest amendments thereto and said case-made to be settled, certified, and signed upon five days notice by either party. R. F. Shutler, Judge of the County Court within and for Kingfisher County, State of Oklahoma.”

There are but two assignments of error relied upon by plaintiff in error, namely:

“First. That the trial court erred in sustaining the demurrer of the defendant below to the information of the state.
“Second. That the trial court erred in quashing the information of the state and discharging the defendant and in releasing his bondsmen on his appearance bond.”

This prosecution is carried on under section 2403, Rev. Laws 1910, which is as follows:

“If any person shall utter or speak any obscene, profane or lascivious language or word in any public place, or in the presence of females, or in the presence of children under ten years of age, he shall be liable to a fine of not more than one hundred dollars, or imprisonment for not more than thirty days, or both.”

Section 5746, Rev. Laws, provides:

“The Indictment or information is sufficient if it can be understood therefrom: * * *
“Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“Seventh. That the act or omission charged as the offense is. stated with such a degree of certainty as. to enable the court to pronounce judgment upon a conviction according to the right of .the case.”

And section 5747:

“No indictment or information is' insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

From the two sections of our statutes above set forth it will be seen that the Legislature intended a liberal construction should be placed upon indictments and informa-tions. That the county courts, concurrent with justices of the peace, have original jurisdiction in this class of misdemeanors is decided by this court in Ex parte McClure, 6 Okla. Cr. 244, 245, 118 Pac. 591.

No brief has been filed in behalf of the defendant in error, and the court is not advised as to the reasons urged in the trial court why the demurrer to the information should have been sustained. From the brief filed on behalf of the state, we presume that the lower court sustained the demurrer for the reason that the language and words used are not obscene or lascivious per se, as the question presented by the state’s brief is whether or not, under the foregoing statute, the test is whether the sense of the language used is obscene or lascivibus, or whether in order to constitute the crime the language or words must of themselves be obscene or lascivious.

The trend of modern authority is to the effect that it is not necessary, in order to render the matter obscene or lascivious, that words or expressions which are in themselves obscene or lascivious should be employed, but it is sufficient if the idea conveyed be obscene or lascivious. This is the rule laid down in American and English Encyclopedia of Law (2d Ed.) vol. 21, p. 761. It is sustained by a long list of authorities both from the courts of the United States and of several states construing similar statutes, among which are the following: United States v. Hanover (C. C.) 17 Fed. 444; United States v. Smith (D. C.) 45 Fed. 477; United States v. Martin (D. C.) 50 Fed. 918; United States v. Males (D. C.) 51 Fed. 41; United States v. Moore (D. C.) 129 Fed. 159; Morris v. State, 6 Ga. App. 395, 65 S. E. 58; United States v. Davidson (D. C.) 244 Fed. 523, 531, 532.

Clearly the idea conveyed by the language, “Will Jim Murphy make an affidavit that he didn’t go out and catch a sexual disease and give it to his wife?” is obscene and lascivious; and under the rule laid down by the above cited authorities, which we think is correct and should be followed in this státe in order to obtain the object for which such statute was enacted, the court erred in sustaining the demurrer to the information. The information appears to be sufficient in other respects to charge a completed crime under section 2403, supra.

The cause, therefore, is reversed and remanded to the county court of Kingfisher county, with instructions to set aside the order sustaining the demurrer to the information, and to overrule same, and to set aside the order discharging defendant; and it is also directed that an alias warrant be issued for the arrest of the defendant, and the cause be further proceeded with in accordance with law.

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


text:
    J. H. VAUGHAN v. STATE.
    No. 2941.
    Opinion Filed May 25, 1918.
    (172 Pac. 975.)
    1. INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evi- , dence. In a prosecution for an unlawful sale of intoxicating liquor, evidence held sufficient to sustain a conviction.
    2. APPEAL AND ERROR — Conviction — Sufficiency of Evidence. Evidence will not be held to be insufficient to support a judgment of conviction, where there is any reliable evidence on which jury might have reasonably concluded that defendant was guilty, as the court may not substitute its judgment on questions of fact for that of the jury.

      Appeal from County Court, Atoka County; W. M. Rainey, Judge.

      J. H. Vaughan was convicted of the offense of selling intoxicating liquor, and sentenced to pay a fine of $50 and to serve 30 days in jail, and appeals.
    Judgment affirmed.

      Jones & McCasland, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

But one question is presented by counsel for plaintiff in error as a reason for the reversal of this judgment, to wit, that the evidence is insufficient to sustain the same. The entire evidence is from witnesses who were produced by the state. The defendant did not testify, nor did he offer any witnesses in his behalf.

In substance, the state’s witnesses testified that in the month of February, 1916, they had collected at the residence of Robert Weathers, the son-in-law of plaintiff in error, Vaughan, in Atoka county, Okla.; that Weathers was in possession of a barrel of Choctaw beer, which was intoxicating, and that several parties drank three or four gallons of this beer on that occasion. All of the parties testified that Vaughan was given a sum of money, either $1 or $2, for the amount of beer drunk on that occasion, and that Weathers drew the same from the keg. The parties testified that they did not know who owned the beer; that nobody claimed it; but the evidence showed that both Weathers and Vaughan, who were jointly charged with making the sale, were jn active control of this beer, and together were peddling same. There is no disputing the fact that there-was a sale of intoxicating liquor, called Choctaw beer, on that occasion, and that the defendant, Vaughan, was. actively participating in such sale together with his son-in-law, Weathers. This evidence stands undisputed and undenied, and is amply sufficient to sustain this verdict and judgment of conviction.

Under' the repeated holdings of this court, the evidence will not be held to be insufficient to support a judgment of conviction, where there is any reliable evidence from which the jury might have reasonably concluded that the defendant was guilty. The court is not at liberty to substitute its judgment on questions of fact for that of juries in this state.

The judgment is affirmed..


text:
    ROY BROWN v. STATE.
    No. A-2928.
    Opinion Filed May 29, 1918.
    (172 Pac. 1098.)
    INTOXICATING LIQUORS — Unlawful Possession with Intent to Sell —Sufficiency of Evidence. Evidence held insufficient to sustain a conviction for the unlawful possession of intoxicating liquors with intent to sell them.

      Appeal from. County Court, Tulsa County; H. L. Standeven; Judge.

    Roy Brown .was convicted of the crime of unlawful possession of intoxicating liquor, with intent to sell it, and he appeals.
    Judgment reversed. ■

      Brown & Shackleford, for plaintiff in error.

      S. P. Freeling, Atty. Gen., ■ and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court- of Tulsa county of the unlawful possession of intoxicating liquors, with intent to sell same, and his punishment was fixed at confinement in the county jail for a period of 90 days and a fine of |150.

After a careful consideration of ,the record in this case, the court has reached the conclusion that the judgment should be reversed. There is evidence in the record that the defendant had in his possession a half pint of whisky, but there is an entire lack of evidence to establish on his part any intent to sell same. The defendant took the witness stand in his own behalf, and testified that this was the first time that he had ever been arrested or tried for violation of the prohibitory laws of this state. There was no material conflict between the evidence of the state and that of the defendant, except that the evidence on the part of the defendant explained the possession of the whisky, and the explanation made by the defendant and the owner of the building in which his place of business was located was not contradicted.

Considering the evidence as a whole, while same might tend strongly to establish a suspicion that the defendant was guilty, we are clearly convinced that the proof in this case on the question of intent is wholly lacking, and that it would be a miscarriage of justice to permit the conviction to stand.

For this reason the judgment of conviction is reversed.


author: ARMSTRONG, J.

text:
    PETE BRANDLEY v. STATE.
    No. A-2683.
    Opinion Filed June 29, 1918.
    (173 Pac. 661.)
    1. HOMICIDE — Instructions—Applicability. When a person is tried upon a charge of murder, he ife entitled to have all of the law applicable to his defense clearly stated to the jury in the charge of the court.

      2. SAME — Provocation of Difficulty. When the law of ‘seeking” or “provoking” the difficulty is invoked in the trial of a homicide 'case,, it is the duty of the court to give the law applicable to the facts developed. In many instances the abstract statement of the doctrine is sufficient. In others the peculiar facts developed render it essential that the doctrine be amplified, so that the jurv may determine without being misled the rights of the accused as well as those of the deceased under the particular circumstances they are’ called upon to consider. The facts in the case under consideration are reviewed, and held to bring it within the rule of law laid down in Tumbuil v. State, 8 Okla. Or. 459, 128 Pac. 743, and Swan v. State, 13 Okla. Or. 546, 165 Pae. 627.

      Appeal from District Court, Caddo County; Will Linn, Judge.

    Pete Brandley was convicted of manslaughter in the first degree; and he appeals.
    Reversed.

      C. H. Carswell, for plaintiff in error.

      S. P. Freeling, Atty. 'Gen.,, and R. McMillan, Asst. Atty. Gen., for the State-.
   ARMSTRONG, J.

The plaintiff in error, Pete Brand-ley, was tried at the September, 1915, term of the district court of Caddo county on a charge of murder, and convicted of manslaughter in the first degree. "The punishment was fixed at 14 years in the state penitentiary.

The information charged Pete Brandley and Kate Brandley, husband and wife, with the murder of John Gray on the 3d day of August, 1914.

John Gray was at the time of the homicide a tenant on a farm owned' by Pete Brandley. Brandley had reserved the right to use wood from the timber growing on the premises rented to Gray. The lease under which Gray occupied the premises was for the year 1914. In June Brandley went on to the premises for the purpose of securing a load of wood. An argument ensued, and Gray ordered him to leave. He refused to go, and Gray went to his house a short distance away and. procured a gun. Upon seeing Gray returning with the gun, Brandley ran away, and as he ran Gray shot at him, several bullets taking effect. Gray was arrested and charged with shooting Brandley with intent to kill and released on bond. Some time in July Gray went to the grain fields with a threshing outfit. Brandley apparently heard that he was away, and went back to the farm to procure wood. His wife went with him. Gray had returned home on the previous night, and as the Brandleys drove into the place to procure the wood Gray came up. It appears that he had been on the farm occupied by Brandleys a short time before, and that Mrs. Brandley had ordered him to get-off the premises and stay off. When he came up he began an argument with Mrs. Brandley about ordering him off of their premises and used abusive language, ordering the Brandleys to immediately leave the farm occupied by him. In the heat of the argument Brandley agreed that he would leave the place by going, through a nearby gate. Gray, using vile language, said, “You will have to go out the way you came in,” and got off of his horse, and, according to the Brandleys, began shooting at them with a pistol. Brand-ley picked up a shotgun which was lying in the wagon loaded with bird shot and -fired at Gray, who was standing on the opposite side of his horse from where Brandley stood in the wagon. A number of the shots struck the horse and the body of Gray. After this shot was fired, according to Brandley, Gray ran to a nearby tree and shot at them again. Brandley fired another’ shot with the shotgun, and Gray fell near the tree and died before assistance reached him. Relatives and friends of Gray testified that he was unarmed at the time of the shooting; that the pistol' which the Brandieys claimed he did the shooting with was at the house and was at no time used by the deceased in the affray. These witnesses, all of whom were very hostile to the defendant, also testified that only two shots were fired; that they were close enough to hear the reports of the guns, and only heard two reports. One relative of Gray said there were three shots fired. The sheriff and deputy sheriff of the county went to the place shortly after the homicide and found a revolver answering the description of the one the Brandleys claimed Gray used.' They each testified that it was loaded with two or three fresh cartridges; that the remaining cartridges appeared to have been in the pistol for quite a long time, and that there was sand on the pistol, and that the ground where Gray was killed was sandy soil. These officers also testified that the pistol showed indications of having been recently fired.

The defendants contended that at the time of the homicide they were on their own farm and had a right to be there; that their presence was not for any unlawful purpose, but, on the contrary, they went there to get wood, having reserved the right to do so under their contract with the deceased.. They contended that the deceased had threatened repeatedly to kill the- plaintiff in error, Pete Brandley, and that he had shot at him on a former occasion, that he had bought cartridges and made statements in the presence of witnesses to the effect that he expected to kill Brandley if he ever came on the place again, and that many of these threats had been communicated to Brandley. They contended that they thought Gray was away from home at the time they started there to get the wood. There is testimony also given by some relatives of Gray that Mrs. Brandley directed her husband to shoot Gray at the time he was killed. The jury acquitted her, however, and this cause is reviewed on appeal only as to Pete Brandley.

Under this state of facts the court, over the objections and exceptions of plaintiff in error, gave the following instruction:

“You are hereby instructed, gentlemen of the jury, that while the law permits a person to defend against real or apparent danger, such right is defensive, and not offensive, and therefore you are instructed that a person under the law cannot arm himself and invite or provoke a difficulty and thereupon assault and slay his adversary and invoke the right of self-defense. And you are instructed, gentlemen of the jury, if you beli'eve from.the evidence in this case beyond a reasonable doubt that this defendant armed himself with a gun and sought the deceased for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of such design invited and provoked a difficulty with the deceased, and thereupon shot and killed the deceased, then the defendant cannot invoke the right of self-defense.”

No other instruction was given upon this phase of the case or involving'the law of seeking or provoking a difficulty. The right of the accused to enter the premises, which belonged to him, for the lawful purpose of procuring wood, and to arm himself for the purpose of defending against any unlawful assault which might be made upon his person, such assaults having been theretofore made, were not taken into consideration in this instruction, nor any other instruction submitted. The court simply states the law in the abstract covering the doctrine of seeking and provoking a difficulty.

The accused should have had his rights covered by the proper instructions of the court, so that the jury in considering the facts could have weighed and determined the issues under the law applicable to the particular facts developed. There can be no doubt but that this accused had the right to .enter the premises to get the wood, nor is there any doubt under the law that he had a right to go upon the premises upon lawful and peaceable missions armed if he desired. The land belonged to him, and so long as his purpose was lawful and no overt act was committed by him which had for its purpose the provoking of a difficulty to give him an excuse for taking the life of his assailant he was within his legal rights. The facts do not indicate that he sought the deceased for the purpose of bringing on the fatal difficulty or for any other purpose, but that he was attending to his own business, molesting no one, accosting no one, engaging in an argument with no one, when the deceased approached him and began an argument and discussion which resulted in the homicide.

In Turnbull v. State, 8 Okla. Cr. 459, 128 Pac. 743, the principle involved is discussed and the right of accused set forth. In Swan v. State, 13 Okla. Cr. 546, 165 Pac. 627, a lengthy discussion of the principle involved is indulged in and the authorities reviewed fully. The facts in the case under consideration bring the assignment clearly within the doctrine laid down in the Turnbull Case, supra, and followed and elaborated upon in the Swan Case. It is not necessary to discuss this proposition further.

Other assignments relied upon involve no new principle of law. It is therefore unnecessary to consider them.

For the error discussed, the judgment is reversed.

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


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    JIM SIMPSON v. STATE.
    No. A-2879.
    Opinion Filed June 29, 1918.
    (173 Pac. 529.)
    INTOXICATING LIQUORS — Act of Employee — Scope of Employment-Conviction of Employer. Where the attempt is made to convict a person and to hold him .criminally responsible for the acts of his employee, it must be clearly shown that such act was reasonably within the scope of the agent’s employment, or was an act done within the course of the principal’s business. One employed to do the ordinary work in and around a feed and wagon yard is not ordinarily employed, nor is it within the scope of the employer’s business, to sell whisky in such yard, and the employer of such person would not be criminally responsible for the acts of such employee in selling whisky in said yard, unless he was then engaged in such unlawful business at that place, or had hired such employee to sell whisky in addition to his general duties as helper in the feed and wagon, yard.

      'Appeal from County Court, Ellis County; S. A, Miller, Judge.

    Jim Simpson was convicted of selling intoxicating liquor, and assessed a fine of $50 and 80 days in prison, and he appeals.
    Reversed.

      C. B. Leedy, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

Jim Simpson was convicted in the county court of Ellis county for selling a quart of diluted alcohol to one James Bedey, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The conviction was based largely on the testimony of Albert Rich, who swore that he was an employee of Simpson’s in his feed and wagon yard in the town of Arnett; that he was 18 years old, and was employed just as a helper around the feed yard. His testimony was to the effect that on the 14th day of December, 1916, Jim Bedey came over there and wanted to buy some whisky, and Simpson told hitn that he had a little alcohol, and Bedey said he would like to have a drink, and then Simpson told Rich to go and get some, and Rich hunted up the alcohol out in a camp house and mixed up a quart and brought it in to where Simpson, and Bedey were, and that Bedey gave Simpson a $5 bill and Simpson returned $3 in change, charging $2 for the alcohol. Rich was corroborated by his brother-in-law, S. J. Unziger.

Bedey testified that he got a quart of alcohol there on that occasion, but that .he bought it from Rich, and, while Simpson was present in the office at the time, he was drunk, and did not say anything to Rich about getting alcohol; that Rich got the alcohol and delivered it to Bedey, and was paid for it without any express direction from Simpson so to do.

There was evidence to show that Simpson and some other parties had received a shipment consisting of one gallon of whisky and two gallons of alcohol at the town of Gage in that county a day or two before this alleged sale, but the witnesses testified that the part of this shipment that belonged to Simpson was one gallon of whisky, and that a gallon of alcohol belonged, respectively, to C. G. Cooley and one -Mercer, and that each of them took his part to his home.

According to the testimony of the state’s witnesses, the defendant, Simpson, would be guilty on the ground that he owned the alcohol that was sold by Rich, and had ordered and directed' Rich to get it and make the sale, all of which was done in Simpson’s presence and with his knowledge and consent. On the other hand, it is the contention of the defendant that if any sale of alcohol was made by Rich, it was' at a time when defendant was drunk, and did not know about it; that it was without his knowledge or consent, and that he at no time had any interest in any alcohol, if any such liquor was concealed about his premises; that if Rich made such a sale, he did it entirely upon his own responsibility.

In instructing the jury on the question of Simpson’s responsibility for RichV acts, the court gave the following instruction:

“You are further instructed that if you believe from the evidence beyond a reasonable doubt in this case that in makmg the sale of the said liquor, if any sale was made, that the witness Rich was in the employ of the defendant, or was acting in the capacity of a servant or employee, of the said Simpson, and that the liquor was the sole property of the defendant, Simpson, and that the witness, Rich, acting in. such capacity, sold the liquor charged in the information, with full knowledge and consent of the defendant, Simpson, then, and in that event, the defendant would be guilty of a sale of intoxicating liquor, and it will be your duty to convict him and assess his punishment as set out in paragraph No. 2.”

It appears that after the instructions were given, the jury retired to consider their verdict, and were unable to reach a conclusion without additional instruction. We quote from the record the following recital:

, “That thereupon the cause was argued by both attorneys for the state and for the defendant, and the jury retired to their jury room in charge of a sworn bailiff to consider the case, and before arriving at a verdict returned into court for additional instructions, and the following additional instructions were by the court given.”

Thereafter, the following proceedings were had, and the court gave the following instructions:

“By the Court: Is it agreeable with counsel that I orally instruct the jury on that point?
“By Mr. Leedy: It is with us, subject to our exceptions.
“The court will instruct you further that if this man, Rich, was working for the defendant, that whether he employed him or-not, or whether he paid hita or not, if he accepted his services and acted as his agent there around the feed yard, that he was bound by his acts, and if he sold any liquor there, while he was working there for Simpson, no matter whether he was getting any consideration for his working or not, he was his agent, and the defendant was bound by his acts.”

Upon oral argument it was earnestly contended by counsel for plaintiff in error that the additional instruction given was seriously prejudicial. With this contention we are inclined to agree. Instruction No. 7 was perhaps permissible under the evidence in the case, although, not supported by the evidence introduced by the state, but the additional instruction given after the jury had retired and failed to reach a verdict was certainly prejudicial, and does not properly state the law under any circumstances. The testimony shows that Rich was only employed as a ■ helper about the feed and wagon yard. The ordinary duties of a helper in a feed and wagon yard are well known to the public generally. It certainly cannot be contended that Rich was employed by Simpson to sell liquor under such an employment. The sale of liquor is not one of the ordinary duties devolving upon a helper in a feed yard — no more so than would the currying and feeding of horses be the ordinary duties of a barkeeper. Where it is attempted to convict a principal and bind him criminally for the acts of his agent, this court has heretofore established the rule in Stack et al. v. State, 4 Okla. Cr. 1, 109 Pac. 126. In that case Stack was convicted, and the conviction was sustained where the sale was made by Stermer, but the conviction was sustained because Stack was running a place for the sale of liquor and had employed Stermer in that kind of business, and it was there held that Stack was responsible for Stermer’s act, and that Stermer was Stack’s agent in the sale of intoxicating liquor because the sale there made was made in the course of Stack’s business. The facts in the Stack Case are easily distinguishable from those in the instant case.

Where the attempt is made to convict a person and to hold him criminally responsible for the acts of his agent, it must be clearly shown that the act of the agent was reasonably within the scope of the agent’s employment, or was an act done within the course of the principal’s business. The additional instruction given nowhere limits the jury to a consideration of such facts, but says that the defendaht would be responsible for his agent’s acts if he sold any liquor, although not employed for that purpose, nor getting any consideration for it whatever, although he was only acting as his agent in and around the feed yard. This permitted the jury to convict the defendant for Rich’s act just because Rich was working for him in the business of conducting a feed yard, and it is plain that the jury refused to convict defendant before this instruction was given, although the court already had given instruction No. 7, which is heretofore set out, and which required the jury to limit Simpson’s responsibility for the sale made by Rich when they found beyond a reasonable doubt that the liquor sold by Rich was the sole property of Simpson, and the sale was made with the full knowledge and consent of Simpson. It would be a miscarriage of justice to permit-this conviction to stand when it clearly appears that the additional instruction given was the moving cause therefor.

The judgment of convibtion is reversed, and the cause remanded to the county court of Ellis county for further proceedings in accordance herewith.

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


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    ARONCE HARRIS v. STATE.
    No. A-2958.
    Opinion Filed June 29, 1918.
    (173 Pac. 958.)
    1. ' APPEAL AND ERROR — Reversible Error. It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his .substantial rights by the commission of error.
    2. SAME. Where plaintiff in error was informed against for murder and convicted only of manslaughter, and under his own testimony he is at least guilty of the degree of crime of which he was convicted, this court will not reverse such judgment unless, after an examination of the entire record, it appears that the plaintiff in error was deprived of some constitutional or statutory right to his prejudice during the progress of the trial.

      Appeal from District Court, Tulsa County; George C. Crump, Assigned Judge.

    Aronce Harris was- convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      R. P. Elliott, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

In view of the disposition the court makes of this case, if is necessary that a full understanding be had of the evidence upon which this conviction is based. The defendant was informed against for murder, and convicted of 'manslaughter in tbe first degree, and sentenced to serve a term in the penitentiary for a period of 25 years.

The defendant was a negro, and had been a resident of Tulsa, Okla., for about seven years at the time of the killing. He was a native of Louisiana, and had worked during most of the time he had been in Tulsa as a porter in the Diamond Drug Store, the place where this killing took place, thé Baltimore Drug Store, and other similar institutions in that city, which were in reality booze joints conducted under the guise of the drug business.

The deceased, Joe Johnson, was a bootlegger. This is admitted by the state. He was a white man, and apparently had the reputation of being a scrapper, although not a man of large stature. He and the defendant were apparently well known to each other, and a short time before this killing the deceased hired defendant for the sum of $2 to help him haul eight kegs of whisky from a place out on the M., K. & T. Ry., where same had been dumped off the train, to some place in the city for the purpose of concealment. It was over this transaction that this killing took place, about 8:30 at night, on the evening before the general election in November, 1914.

The theory of the state is that the defendant shot deceased because he refused to pay him the $2 that he had promised to pay for helping to haul the whisky. The defendant says that, after he had hauled the whisky for the deceased, the $2 was paid to him by Mr. Miles, proprietor of the Diamond Drug Store, for the deceased; but after the whisky had been concealed the deceased claimed that the defendant had stolen part of it, and kept threatening to kill him, on various occasions when they would meet, up until the night of the killing itself. The defendant testified that the deceased had punched a pistol into his stomach and told him if he did not produce the whisky he would kill him. These occurrences related by the defendant happened on the public thoroughfares of the city of Tulsa, for the most part, after dark had fallen. No witnesses were produced to any of these transactions except the defendant himself. He claims that on the evening of the killing in the Diamond Drug Store the deceased renewed his hostile demonstrations toward defendant, threatening to kill him; that the defendant knew there was a loaded shotgun behind the showcase on the northwest side of the storeroom, and that he believed the deceased would get that gun and shoot him; that he was afraid of the deceased, and shot him to prevent him from getting the gun and killing him (defendant). According to the witnesses for the state, this killing is a cold-blooded murder, and at the trial every eyewitness who was produced and who was in the drug store at the time of the killing testified for the state. There was no apparent conflict in the testimony of any of these witnesses except in the testimony given by the defendant, and, in order that a clearer understanding may be had of the state’s theory, a synopsis of the testimony of two of the state’s witnesses is incorporated herein, as follows:

“Allen Freeman says: I live in Tulsa, and lived there November 2, 1914. I knew Joe Johnson, now deceased, and also knew the defendant, Aronce Harris, at that time. On that night I was in the Diamond Drug Store when the defendant shot Johnson. It occurred between 8 and 9 o’clock at night'. Just before, when I walked into the drug store, Joe Johnson was standing by the show case. There were in there several others, including Bill Grant, Frank Mitchell, Willie Wells, Ned Weaver, a boy by the name of Cole, and two girls sitting at one of the ice cream tables whom I didn’t know. I had worked in that store about a year myself. The soda fountain was on the west side and the cigar case was on the east side of the storeroom, and each of these cases are 12 feet long. You enter the drug store from the south side, and as you go towards the prescription case the cigar case is on the right side, the soda fountain is on the left side, and it is about 30 or 40 feet from the entrance back to the prescription case. When I first went in there, the defendant was in there also, standing at the cigar counter and watching some boys shake dice for the cigars. I walked on back to the toilet room myself. The defendant had worked there as a porter and at the time I was working there as a clerk. At the time of the killing I was working at the Belmont Drug Store. As just mentioned, after about five minutes I returned from the toilet, came on back into the drug store, and Joe Johnson was standing there where the boys were shaking their dice about midway of the counter, and th* defendant was standing there talking to Johnson. Johnson said as he walked away, like he was going to sit down on one of the stools, ‘You know I can’t pay you; I haven’t got the money.’ I, myself, had turned to go where the boys were shaking dice about that time, and I heard some one say, ‘You’re not going to pay me, are you?! and out with a gun and went to shooting. I don’t know whether Joe sat down or not. This defendant is sometimes called Gerónimo, and I heard him say at that particular time, ‘You’re not going to pay me, are you?’ Then he went to shooting so fast I couldn’t tell how he was holding his gun, and I guess- that Joe Johnson wás trying to get away at that time; he ■ staggered along down the showcase to the end of it, and fell against the prescription case. There were six shots fired. I walked right along behind defendant as he was firing them. Joe kept dragging himseif along down the showcase, with blood running out of his mouth and his head hanging down, just hunting along the side of the case like. By the time he had fallen the boys run in and picked him up. I am not positive about the exact date of this, only I know it was the night before election. I afterwards saw Johnson’s body at the undertaker’s. I had seen this defendant on the morning before the killing about 9 o’clock at the Baltimore Drug Store, and he was trying to borrow a gun from me, and I asked him what he was going to do with it, and he said Joe Johnson was jobbing him around. I asked him what was the matter, with Joe, and he said, ‘I’m going to make the damn son of. a bitch pay me.’ Then I told him he’d better let hiin alone, añd he turned around and walked away. There was nobody present at the time of this conversation, and it - was there at the Baltimore Drug Store. And after Johnson had said this he sat down just as Gerónimo came out with the gun and commenced shooting. The first shot was fired, then a short delay, and the other shots followed in quicker succession than was the first and second. The pistol was not an automatic, as I thought it was, but a double action 32. I saw it here at the trial, but didn’t have it in my hands. At the time of this killing I was working at the Baltimore Drug Store, as before stated, in the front part of the drug store. I have known Joe Johnson three or four years — just as one of the boys. I have no feelings whatever against this defendant. Johnson at the time I saw him was about the second stool of the soda fountain bar, and Johnson was either sitting down or started to sit down when the shooting commenced. I hadn’t begun to look at him until I saw Gerónimo start towards him. I do not know about there being a shotgun behind the showcase.”
“W. B. Grant says: They call me Willie Grant, and I lived in Tulsa, 1914, and know the defendant, Aronce Harris, and knew Joe Johnson, a white man, while he lived. I remember when the killing occurred, and it occurred about 9 o’clock in the evening where I was at work at the Diamond Drug Store. Joe Johnson had come to the drug store some two hours before on that evening; he was around there a great deal. I think probably he was there at 7 o’clock that evening. I also think he was there two hours before the shooting. I also saw defend-» ant, Harris, there that evening, and both of them had been there pretty much all that evening. Harris was not working at the store at that time, but was in there that afternoon. Just before the shooting I and the defendant had been talking together; in fact, we had talked a long time together that evening, and in different parts of the store, and in front of the prescription case, and defendant and deceased talked to each other for a good while. I never heard what it was about. It was quiet talk, and I didn’t know anything that, was said. Neither of them seemed excited, and the defendant didn’t appear to be drinking at all; Johnson was sober, too, I am sure. Just before the shooting I was waiting on people, and didn’t notice anything unusual between them at all. At the time the shooting commenced I was sitting back at the soda table and about 20 feet from the defendant and deceased. I heard the shooting, and Johnson at the time was sitting next to the last stool at the soda fountain — movable stools with wire legs. He was at the next to the last one towards the north. There were two or three shots fired while he was yet on the stool, and then he raised up, staggered, and he might have touched the showcase, and the blood was gushing out of his mouth, and he staggered on to the back of the store, turned west, went a few feet, and fell dead about the center of the store. I think there were two or three shots fired before he ever got off the stool. I was facing him and saw the blood gush out of his mouth. I saw the defendant also. During the shooting defendant advanced on Johnson some four or five steps, firing rapidly. There was five or six shots fired in all. After the shooting was over defendant trotted right out the front door and I didn’t see him any more. Willie Wells and myself went back to Johnson, raised him up, and saw that he was dead. He had no pistol or any sort of arms on him, but we didn’t go through his pockets. The next man who got to him was a doctor, although there were two or three people in there at the time. The door was closed, and there was a big crowd when that two or three come in there. I don’t know who they were. Possibly some of them were policemen who got there right away, and then the ambulance came at once, and then the store was locked when the ambulance went away, and remained locked the balance of that day. At the time of the shooting I was sitting back at one of these tables talking to two ladies. I had been there perhaps' ten minutes talking to them, and the first thing that attracted my attention was the shot. I was facing in that direction all the time, was tending to business, was working at the place. Just prior to the shooting Johnson was sitting at the soda fountain; before that he and Gerónimo had a long conversation but I didn’t know what it was about. I don’t know whether Johnson was armed or not. He was on the west side of the building when shot, and in four or five feet of the counter. In that building there is a runway or space between the two showcases, which are eight feet long each. The showcase is eight feet long, and he was sitting near the corner of the showcase on a stool, and in four or five .feet of the showcase, and was sitting down. I didn’t see him move prior to the first shot. I had worked at the Diamond Drug Store possibly two years or three. It seems to me the defendant had worked at the drug store about a year — he was porter. I myself was prescription clerk.”

Dave Collins, one of the principal witnesses on behalf of the defendant, testified in part as follows:

“Q. How far was Johnson from that shotgun when he got shot? A. Well, it was about twenty feet. Q. Was it as far as from here to that gate? A. No, sir. Q. Half as far? A. There were two showcases. From the distance between the two showcases, about ten feet long. Q. How long would it have taken Johnson to leave the stool or the place where he was sitting and go back and get that shotgun and come back with it? A. Depend on how fast he was going. Q. If he go quick as he could? A. Wouldn’t have taken long, Q. About how long? A. Not long. Q. Well, would it take an hour? A. No, sir. Q. Well, then, about how long? A. I can’t say; maybe in a minute or less than than that.”

The defendant in his own behalf testified as follows:

“Q. What is your name? A. Aronce Harris. Q. Where were you raised? A. In Louisiana. Q. How long have you been in this country? A. About seven years. Q. Who have you been working for? A. Been working off and on for Mr. Miles. Q. What did you do for Mr. Miles? A. Porter. Q. Porter. At what place? A. Different places; Diamond Drug Store. Q. Did you ever do any work for Mr. Miles any other place? A: Worked out here in the country. Q. Has he got a place up there? A. Yes, sir. Q. How long were you there? A. Quite a while; two or three months at a time. Q. Did you know Mr. Joe Johnson? A. Yes, sir. Q. Will you state in your own way to the jury about the trouble you had with Mr. Johnson. Commence at the end and detail the whole story? A. On the 23d of October on Friday night— By the Court: Mr. Ellibtt, you had better ask questions. The court will rule thát you will have to ask questions. By Mr. Elliott: You require me to ask questions? By the Court: Yes, sir. By Mr. Elliott: Q. State if you ever had any trouble with Mr. Johnson? A. I had trouble with him on the 23d. I had no trouble with him on the 23 d. That was the night he hired me to go out and help haul whisky. Q. Did he employ you to help haul whisky? A. Yies, sir. Q. When was that? A. The 23d of October, Friday night. Q. The 23d of October, Friday night? A. Yes, sir; the 23d of October, Friday night. Q. Did you go with him? A. Yes, sir. Q. What were you doing? A. I was standing in the store writing a letter, and he asked me did I want to make two dollars. I told him yes. I asked what doing, and he said he wanted me to help him haul whisky; and I asked what about if the law caught me and I got in jail, and he said if I got in jail I wouldn’t have to lay there longer than night, he would get bond and get me out. Q. You went with him, did you? A. I told him I would go. Q. And .you did go? A. Yes, sir. Q. Where did you go ? A. Went northwest to the Katy— north a mile and a half, and got eight kegs of whisky that had been thrown off of the train. Q. What did you do with it? A. Put four kegs in each buggy. By the Court: Q. Got it and carried it off, di'd you? A. Yes, sir; goes down and brought it in, and hides seven there and brought one back — one keg back and sold it to the boys. Q. What did you do? A.. There were some white boys at the buggy, and we had done emptied it all but one keg, and he sold it. He told me to take the buggy back, to the barn and come by tomorrow and he would pay me. I told him got to go to work tomorrow, and he said come by and he would pay me. I says all right, I would. So I drives to the barn and leaves him out there. So I goes on back and goes to bed. The next morning I goes, to work. That night I go into the store. Mr. Grant standing there by the cigar case, and I asked him if Mr. Miles had been in there, had he seen him; and he said, ‘No, he would be down in a few minutes.’ Q. Where did you next see Johnson? A. I went on to the post office — no more time to wait — and come back to the store- and asked if Mr. Miles had been in there. He said, ‘No/ so I would not wait for Mr. Miles,- and Mr. Johnson walked over to me and hit his hand on my back. He said, ‘Geróni-mo, I ain’t got the money to pay you;’ but says Mr. Miles, ‘You see hita and he will pay you.’ I says — I told him all right. I waited until 9 o’clock, and Mr. Miles didn’t come, and I asked Mr. Grant could he pay me. So he told me didn’t know whether he had money enough in the register or not to pay me, but he would see ábout it. Q. What did you and Mr. Johnson do? A. He did not do anything then. Mr. Grant paid me. Q. For hauling-this whisky? A. No, sir. Q. On another matter? A. Yes, sir. Q. Then where did you go? A. I went on back to the barber shop on Boston. Q. Well, when was the next time you saw Mr. Johnson? A.- Well, that following Monday: Q. When was that; what day of the week was that? A. On the 26th, I thifok. Q. You know the day of the week — Friday, Saturday, or Sunday? A. On Monday. Q. When was it that you saw Mr. Johnson at the drug store? A. I did not see him before the 2d of November; that was that night the time of the killing. I did not see him at the store before I saw him on the-26th of October. Q. Well, what occurred then? A. He come up to the store. Q. What store? A. The Diamond Drug Store. Q. What did you do up there? A. I got balance of my money from Mr. ■ Miles. He- and another gentleman sitting at the desk talking. Q. Who? A. Mr. Miles and another gentleman, so I asked for my money and he got up to pay me. He says wait, he said he wanted to see me, and I told him all right. So I waited a few minutes and these other men come in there. Q. Well, where did you next see Mr. Johnson? A. When I left the store that evening. Q. Where did you see him? A. Out on Green Wood, at Spives’s .pool hall. Q. Where did you see him out there? A. At Spives’s pool hall. Q. At Spives’s pool hall? A.. Yes, sir. Q. Monday evening, you say? A. Yes, sir. Q. Then what occurred? A. I was standing looking at the boys play pool, and he come to me and called me out to one corner of the building and asked me what I did with the whisky I stole, and I told him I didn’t steal any. He says, ‘You are a damn liar, you did.’ I says, T did not.’ He says, ‘Who did you tell where this whisky was.’ I says, T never said anything to nobody about the whisky.’ He said, ‘Did you see Miles?’ I says, ‘Yes.’ He says, ‘What did you say to him?’ and he says, ‘By God, that whisky was stolen, and nobody has stolen it but you,’ and I told him I never; and he says, ‘By God, I am going to find out who stole that whisky, and if you stole it I am going to kill you,’ and I walked on out. I-stands in there a few minutes, and I got scared and went on to my room. Q. Where did you see him next? A. The next time, coming around Green Wood, next in the center of the street, and he asked had I dug up that whisky yet; and I told him, ‘No, sir; I did not have anthing to do with the whisky.’ He says, ‘Not any one knowed anything about it but you; you helped haul it out there;’ and he says, ‘If you don’t go dig up, I am going to kill you.’ I told him time and again I did not know anything about the whisky, and T ain’t told nobody anything about the whisky.’ So he quits me then, and he was on one side of the street and I goes onto the other side of the street. I was afraid to meet him then. I keeps out of his way until that Sunday. I had been up to my room pretty much all day. Q. What did you stay in your room for? A. I was afraid to come out; afraid I would — might meet him and he would kill me like he said he would. Q. Then what occurred? A. I come on to supper, and after I eats supper I walks up to where the corner turns, and advances back toward Green Wood, and walks up to Second street, and goes on Second street to Archard, and meets Mr. Johnson with both hands in his pockets; and he says, ‘Hello, Gerónimo!’ and I says, ‘How do you do!’ Two ladies passed us, and he says, ‘Come here, I want to talk to you.’ I walked up on the walkway and he. walks up. So when I gets up there he pokes his hand in his pocket this way. He says, T want to get you to help me move some whisky — take off a load.’ He said, T have been up here to get somebody to help me move it, but can’t get any one who I can trust.’ I told him I did not want anything more to do with helping haul whisky;' I helped him once, and he accused me of stealing it. He says, T know you didn’t steal “that whisky; I have found out who stole that, and I made that all right.’ So I still stood there. I did not say anything more to him. He says, ‘Are you going to help me?’ I says, ‘No.’ So he out with a gun and jobbed me in the side ¿nd cussed me, and says, ‘Give me my money and you can have the whisky you stole.’ I says, T ain’t got no whisky.’ He says, ‘You are a damn liar, you have;’ and says, ‘Raise your hand.’ So I had my foot up. So I did not have my hand up. I was afraid to move. So he goes through my pockets and searches and this watch pocket had twenty cents. He goes through my coat pocket, and goes through my other pockets, and puts his gun back in his pocket, and took my hat and searched it, and didn’t find anything, and he takes his gun out of his pocket and still holds his gun on me. He walks around to me and says, ‘Gerónimo, you son of a bitch, if you don’t go get that whisky I am goihg to kill you.’ I says, ‘Mr. Johnson I ain’t got no whisky.’ Q. Then what did he say? A. He says, ‘You are a damn liar; if you don’t go get it, I am going to kill you.’ Q. Then what was done? A. I turns on off from him and turns back Green Wood. So he held his gun pointed on me a distance of half block from me. Then, he started to walking behind me. Q. Then what was said? A. I got up to the corner and he was still behind me. I walked on in a rush to Grant Freeman’s and Grant Freeman was standing about middle of the place, standing this way, and he says, ‘Hello, Gerónimo, you seem to have — ’ Q. Now what did Johnson do; let’s get back to Johnson? A. He still followed me on up there, and I goes back there to the back end, plum back to the back end, and was a paper back there, and I picked it up like I was reading and I was in there about three minutes, and in comes Mr. Johnson where Grant Freeman was standing there; then three ladies come in at the front door, and Grant Freeman walked away from Mr. Johnson to wait on the girls. Q. What did Mr. Johnson say? A. He comes back to me and says, ‘You son of a bitch, haven’t you dug up that money? If you don’t want to get killed you had better dig it up.’ I says, T told you the best I knew how I didn’t have it; what more do you want?’ He says, ‘If you don’t get the money I damn sure am going to get you.’ And I walked out. He stayed in there, and walked on up to the front and got a cigar. Q. Then where did you see Mr. Johnson any more? A. I did not see him until the next night. Q. Where did you see him then? A. At the Diamond Drug Store. Q. How long had you been there before Mr. Johnson come in there? A. He was in there, I saw him after I got in there. I goes in and he and two men were leaning <5n the showcase. Q. What was Mr. Johnson doing, you say? A. I did not see him when I got in there, and when I saw him he was looking at me and I got scaréd right then. He told me he wanted to see me. He walks around and gets up here to me and I says, ‘Mr. Joe, Mr. Miles in there?’ He told me he was gone to the Metropolitan, to call him up see if could get him. So I walked two steps from him to the phone by the wall, and just picked up the phone, and he asked me, ‘Did you bring the money with you?’ And I told him, ‘No.’ He says, ‘In hell I would be,’ and turned his head this way where the two ladies were sitting there. He turned back to me and told me to go ahead and call Mr. Miles up, and some party answered the phone, and I asked if Mr. Miles was there. Q. Then what did Mr. Johnson say, if anything? A. I called up Miles and seen he was not there, and he told me— Q. You told Mr. Johnson that? A. I told Mr. Johnson he was not there; I was going to call up the house, may be at home, and he says he didn’t give a damn — go call him up. I called the house, and some one answered the phone and told me that he was not there. He told me not to go to work and help nobody else haul any whisky and as soon as my back turned go steal it. I held the phone and- didn’t say anything back to him. So no one didn’t answer and I had central to ring again. So no one didn’t answer, and then I hung the receiver and set the phone up on the shelf. I told Mr. Joe no one answered the phone, and he says come on back here, Miles had paid my money, and I walked on back to where another showcase was. Q. Did you and he stop in .front of the soda fountain? A. No, sir. Q. Where did you stop? A. Next to the showcase on the east side. The cigar case on.the side out a foot or a foot and a half, and I was sitting next to the showcase with my back turned toward the front and he was standing in front of me. He says to me, ‘Didn’t I tell you last'night if you didn’t have the money the next time I saw you that I was going to kill you?’ He says, ‘Have you got it?’ And he says, ‘Well, if you don’t hand up the money I am going to take a shotgun and shoot you in two with two loads of buck-shots.’ I says, ‘Mr. Johnson, I ain’t got no money and • you want to kill me for it.’ He says, ‘Damn your soul and spirit, I am going to kill you just the same.’ He says, ‘By God, if you don’t lay up the money, I am going to shoot you in two with buckshots;’ and I told Mr. Johnson if I knowed he was going to do it — (interrupted). By the Court: Q. Where was this conversation? A. In the Diamond Drug Store. Q. Who was in there? A. Nobody but Mr. Grant Freeman and two ladies and two men that walked up just as the first balls fired. Q. Then what did he do and say? A. He said, Tf you don’t lay up that money, I am going to shoot you in two with two loads of buckshot.’ Q. Well, did he do anything? A. Well, he still stood there talking to me, and I said, ‘Mr. Johnson, if I had known you were determined to kill me, I would have stopped that last night and had you arrested.’ Then he made a run there by me, and I run, and run into the showcase and it knocked me back. I got scared, and was running out of there, and grabbed my gun and commenced shooting. Q. Where was he at the time the shooting commenced? A. He was getting into the showcase; just partly against it. Q. How far was he from you? A. About five feet. Q. How far was he from that shotgun? A. About fifteen feet — fifteen feet. Q. And the, shooting then commenced? A. Yes, sir. Q. After the shooting was over, what did you do? A. I was running out at the back door. Q. Did you run or walk? A. I run, peoples. Q. And you were arrested? A. Yes, sir. Q. And you have been under arrest ever since? A. Yes, sir. Q. Well, what■ condition of mind were you in? What effect did these threats Mr. Johnson had made have on your mind? A. Had me scared. By Mr. Evers. We object. By the Court: I believe he may answer. The jury will be the judge of the fact as to what effect it had upon the defendant’s mind. He may state, if he wants to, what effect it had on his mind. By Mr. Elliott: Q. State to the jury whether or not you were scared? A. All the time from the time he' took hold of me and said I stole his whisky and he was going to kill me if I didn’t get it up. Q. What was the condition of your mind at the time of the shooting? A. I was scared of him. Next time he met me up there and told me if I did not pack in the whisky he was going to kill me. Next time he met me he put his gun in my belly and told me if I didn’t get it he was going to kill me. Q. What effect did that have on your mind? A. And he told me the next time he seen me if I didn’t have this money he was going to kill me.”

It will be seen from the foregoing statement and synopsis of the evidence that the witnesses for the state establish the guilt of this defendant of the crime of murder. It is the opinion of the court that the testimony of the defendant does not make out a case of self-defense. From his own viewpoint there is no testimony that establishes any intention on the part of the deceased to kill the defendant or to inflict upon him any serious bodily harm at the time of the shooting. There is no showing of imminent danger to the defendant. The defendant’s testimony only makes out a surmise that the deceased intended to get the shotgun and shoot him, although the evidence is clear that, at the time defendant fired the first shot into the body of the deceased, he was at least 15 or 20 feet from where the shotgun was located. It is also clear that the defendant could have retired and avoided the conflict (if the deceased had any intention of making a future assault upon defendant) with safety to himself. There is no dispute about the fact that six shots were fired .by the defendant, and that all of the six took effect in the body of the deceased, one in his right side, and five in his back, and the physical facts in this case corroborate the statements of the state’s witnesses to the effect that the deceased was staggering away from the defendant when he was shot from three to five times in the back, and at no time was making any effort to in any way inflict any injury upon the defendant. It is very evident that the jury considered that the killing of a bootlegger could amount to nothing more than manslaughter, however diabolical.

Numerous errors are assigned. Mostly certain matters which occurred during the trial of the case itself are presented as grounds for reversal. The alleged errors are technical, but this court is frank to admit that certain things occurred during the trial of this case which should not have occurred; but the doctrine has been thoroughly established that where evidence on the part of the state makes out a case of cold-blooded murder, and under defendant’s own testimony he is at least guilty of manslaughter in the first degree, and the conviction ' is only for manslaughter in the first degree, the judgment of conviction under such circumstances will not be set aside, although certain technical errors occurred during the trial, the defendant being deprived of no constitutional or statutory right. Fitzsimmons v. State, ante, p. 80, 166 Pac. 453, wherein it is said:

“It is a sufficient answer to the contentions made to say that we think, after a careful survey of the facts in evidence, that the testimony was susceptible of only two conclusions; that, taking the case as made by the state, it was a deliberate, cold-blooded, fiendish murder; and, taking the testimony of the defendant, he is, we think, guilty of manslaughter in the first degree upon his own statement. To hold that the testimony of the defendant and his witnesses established the defense of justifiable homicide would be to upset all well-settled rules and statutes, which point out the duty of one engaged in a quarrel, and the necessity of • his avoiding the attack, if in his power, and, at most, to use only such force as was necessary to prevent injury to himself.”

The Legislature of this state, by the enactment of section 6005, Rev. Laws 1910, has .made it clear that the appellate courts of this state are not at liberty to set aside a judgment unless, “after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of constitutional or statutory right.” If there is any miscarriage of justice in this case, it was because the jury should have returned a verdict of guilty of murder instead of manslaughter.

It was not intended that the appellate courts should hunt through the numerous volumes of law books in the State Law Library to find technical reasons for reversing a conviction or to excuse the rulings and conduct of the trial judge in instances of this kind. The necessity of that has been done away with by the foregoing enactment of the Legislature, and it is the solemn intention of this court to respect that enactment. The trend of modern thought is to the effect that where the guilt of those charged with crime is established beyond the peradventure of a doubt, such as in this case, the criminal shall not escape his just punishment just because certain matters occurred and rulings werermade by the trial judge during the progress of the trial that have heretofore been held to be technically erroneous.

It is not error alone that reverses judgments ‘of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error; and how may it be said that this defendant was prejudiced by anything that occurred during the progress of the trial when, under his own testimony, he was at least guilty of the crime of which he was convicted? Under such circumstances, is it the duty of this court, although technical errors were committed, to remand the case for another trial, to subject the tax-paying public to the burden of again convicting this man, although, given the benefit of all reasonable doubt, he is guilty under his own statement of that crime of which he was convicted? We do not so construe our statutory provisions. That was not the purpose of the Legislature, and it may as well be said at this time that where the evidence shows that the defendant killed the deceased, an unarmed man, by shooting him six times, once in the side and five times in the back, merely because he was afraid of him and apprehended that he might get a shotgun and shoot him, it-will be useless for him to appeal and ask a reversal of a manslaughter conviction upon technical grounds. This court. has not the time nor the disposition, nor do we believe it is its duty under the law, to reverse such a judgment unless fundamental error has occurred.

The judgment of conviction in this case is therefore affirmed.

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


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    JOHN SMITH v. STATE.
    No. A-2985.
    Opinion Filed June 29, 1918.
    (173 Pac. 532.)
    HOMICIDE — Assault With Intent to Kill — Self-Defense—Burden of Proof — Instruction. In a trial for assault with intent to kill, where the issue was justification in self-defense, the court instructed the jury, in part, as follows: “If you find beyond a reasonable doubt, from the testimony admitted for your consideration, that at the time the defendant shot at the prosecuting witness Beasley the said Beasley was attempting to draw a gun in an assault upon the defendant, and in such way and manner as to endanger the life of the defendant, or to do him great bodily harm. * * * and under these circumstances the defendant shot at the prosecuting witness, then you are instructed that he did so in his own self-defense. You are further instructed .that should you find beyond a reasonable doubt that the prosecuting witness was attempting to make an assault upon the defendant herein at the time of the shooting, and was in the act of drawing his gun for the purpose of executing the assault upon the said defendant, and the defendant in the exercise of his right of self-defense shot at the said Beasley, and was justifiable in the firing of the first shot under his right of self-defense, and should you find from the testimony that the prosecuting witness Beasley, after the firing of the first shot on the part of the defendant herein ceased his attack, if any, upon the defendant herein, and began his retreat, then the right of self-defense pleaded by the defendant herein immediately ceased.” Held, prejudicial error, as placing the burden of proof upon the defendant and requiring the jury, before finding for acquittal, to believe from the evidence beyond a reasonable doubt that the defendant was innocent.

      Appeal from District Court, Love County; W. R. Freeman, Judge.

    John Smith was convicted of assault with intent to kill, and he appeals.
    Reversed, and a new trial ordered.

      J. C. Graham, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had upon an information charging that John Smith did in Love county, on or about the 14th day of June, 1916, commit the crime of assault with intent to kill by making an assault upon one Edgar Beasley, by shooting at him with a pistol 'with the felonious intent to kill him. In pursuance of the verdict of the jury, the court sentenced the defendant to imprisonment for the term of two and one-half years in the penitentiary. To reverse the judgment an appeal was perfected by filing in this court on April 21, 1917, a petition in error with case-made.

The evidence for the state shows that on the date alleged the defendant, John Smith, a deputy sheriff, with John Scott, a constable, entered the store of McLaughlin Bros., in the town of Thackerville, and the defendant fired three shots with a pistol at Edgar • Beasley; that Beasley was unarmed.

It appears from the testimony of John Scott and the defendant, John Smith, that they went to the store of McLaughlin Bros, for the purpose of serving a warrant upon the prosecuting witness, Edgar Beasley; that the defendant said to Beasley, “Mr. Beasley, do you expect to kill old men and beat them up all your life and get by with it?” That Beasley remarked that he always had, and started as if to draw a gun from his hip pocket, and the shooting commenced, and that the defendant acted in his own necessary self-defense.

It was shown on the cross-examination of Beasley that on the day before the shooting occurred he had a difficulty with E. M. Smith, the father of this defendant, in which he knocked the defendant’s father down, and that he had been convicted in Cook county, Tex., in a homicide case.

The principal question in this case is whether the jury were properly instructed by the court on the law of self-defense. Over the defendant’s objections and exceptions, the court gave the following instructions:

“IX. If you find beyond a reasonable doubt, from the testimony admitted for your consideration, that, at the time the defendant shot at the prosecuting witness Beasley, the said Beasley was attempting to draw his gun in an assault upon the defendant, and in such way and manner as to endanger the life of the defendant, or to do him great bodily harm-, or if from all the facts and circumstances you find that it was reasonably apparent to the defendant at the time of the shooting that he was about to be assaulted by the said Beasley in such way and manner as that his life was in danger, or that great bodily harm was about to be done him the defendant, by the said Beasley, and under these circumstances the defendant shot at the prosecuting witness Beasley, then you are instructed that he did so in his own self-defense, and in the defense of his person he had a right to shoot or to use such force as was reasonably apparent to him so long as the prosecuting witness continued his assault upon him.
“Excepted to by the defendant and exception allowed.
“W. F. Freeman, Judge.”
“X. You are further instructed that should you find, beyond a reasonable doubt, the prosecuting witness Beasley was attempting to make an assault upon the defendant herein at the time of the shooting, and was in the act of drawing his gun for the purpose of executing the assault upon the said defendant, and the defendant in the exercise of his right of self-defense shot at the said Beasley, and was justifiable in the firing of the first shot under his right of self-defense, and should you find from the testimony that the prosecuting witness Beasley, after the firing of the first shot on the part of the defendant herein, ceased his attack, if any, upon the defendant herein, and begun his retreat, then the right of self-defense pleaded by the defendant herein immediately ceased, and if you find from the evidence, beyond a reasonable doubt, that he shot at the witness Beasley after he (Beasley) had ceased his assault upon the defendant, if any, and begun his retreat, and that the defendant continued to shoot at the said Beasley, you should find him guilty as charged.
“Excepted to by the defendant and exception allowed..
“W. F. Freeman, Judge”

The Attorney General has filed a confession of error-in part as follows:

“In his instructions to the jury the court below told the jury, in section 9 of his regular charge, that if they-believed beyond a reasonable doubt that Beasley was attempting to draw his gun to assault defendant, and under those circumstances the defendant shot Beasley, then the defendant would be entitled to his plea of self-defense; thus placing the burden on the defendant to prove his defense beyond a reasonable doubt.
“In section 10 of the charge the court again puts the burden of proof upon the defendant to make out his defense beyond a reasonable doubt.
“This court has time and again held that no burden of this character should be nut upon a defendant. Findley v. State, 13 (Okla. Cr.) 131 (162 Pac. 680) ; Havill v. State, 11 (Okla. Cr.) 484 (148 Pac. 683) ; Nichols v. State, 10 (Okla. Cr.) 250 (135 Pac. 1071) ; McGill v. State, 8 (Okla. Cr.) 500 (129 Pac. 75) ; Cowherd v. State, 7 (Okla. Cr.) 2 (120 Pac. 1021) ; Mitchell v. State, 6 (Okla. Cr.) 622 (117 Pac. 1132) ; Davis v. State, 4 (Okla. Cr.) 572 (113 Pac. 220) ; Culpepper v. State, 4 (Okla. Cr.) 111 [111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668]; Rhea v. State, 3 (Okla. Cr.) 272 (105 Pac. 381), etc.
“We can . recall of no burden that is placed upon the defendant in a criminal case that forces him to prove any defense beyond a reasonable doubt; we therefore confess error herein. Respectfully submitted.”

Upon a careful consideration of the record, we are of the opinion that the confession of error is well founded and should be sustained. It follows that the conviction and judgment should be reversed, and a new trial ordered.

ARMSTRONG and MATSON, JJ., concur.


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    FRITZ ESPIG v. STATE.
    No. A-2929.
    Opinion Filed July 3, 1918.
    (173 Pac. 529.)
    INTOXICATING LIQORS — Possession With Intent to Unlawfully Sell —Suffie;efiey of Evidence. In a prosecution for having possession of beer with the unlawful intent to sell it, held that the Attorney General’s confession of error on the ground that the evidence was insufficient to sustain the conviction would be sustained, and the judgment reversed.

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

    Fritz. Espig. was convicted of having possession of beer with unlawful intent to sell, and he appeals.
    Reversed.

      Redmond S. Cole, for plaintiff in error.

      S. P. Freeling, A tty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Espig, was convicted, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and to pay a fine of $100 upon an information charging that he did have possession of certain intoxicating liquors, to wit, beer, with the unlawful intent to sell the same. It appears from the record that 15 or 16 witnesses for the state testified that they went from Pawnee to Tulsa on the date alleged on the “Booster train,” which train stopped at Keystone for lunch. About half of these witnesses testified that while the train was there they went to the Keystone hotel and had lunch and drank something that tasted like beer. Some of the witnesses say that it tasted like Bevo, but none of the witnesses positively state that the bottles which they bought contained beer. When the state closed, the defendant moved the court to advise the jury to return a verdict of not guilty, which motion was overruled.

The pr.oof on the part of the defense tended to show that the defendant was not at that time the proprietor of the hotel where the witnesses testify that they bought their lunch and drinks.

The Attorney General has filed a confession of error, which, after reviewing the evidence in the case, concludes as follows:

“We dislike to fly into the face of an intelligent court and jury, but, after reading this case and studying it most carefully, we say that this defendant below is not sufficiently connected with this offense to be found and pronounced guilty. We ask an investigation of the record, and regret to have'to make this confession, but we cannot do otherwise.”

Upon a careful examination of the record we are of ^ the opinion that the evidence in the case is entirely insufficient to sustain the conviction, and for this reason the confession of error should be sustained. The judgment is therefore reversed.


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    D. N. HATFIELD v. STATE.
    No. A-2930.
    Opinion Filed July 3, 1918.
    (173 Pac. 531.)
    INTOXICATING LIQUORS — Transportation—Sufficiency of Indictment —Place. An indictment for unlawfully transporting intoxicating liquor, failing to state any place from which it was taken, and merely stating that it was carried to H. street without alleging where such street was, whether in Pawnee or some other town, was too indefinite to sustain a conviction, and on the Attorney General’s confession of error it would be reversed.

      Appeal from County Court, Pmonee County; Geo. E. Merritt, Judge.

    D. N. Hatfield was convicted of a violation of the prohibitory law, and he appeals.
    Reversed, with directions.

      Redmond S. Cole, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Hatfield, was convicted on a charge that he did unlawfully transport and convey intoxicating liquor, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of 30 days and to pay a fine of $50. To reverse the judgment he appeals. The Attorney General has filed a confession of error in part as follows :

“That said information fails to state any place from which the liquor was taken, but in stating the place to which the liquor was carried they say it was carried to H. street, but fail to tell where said street is, whether in Pawnee or some other town. We are not in favor of technical pleading or technical rules in its construction; but informations should be written sufficiently plain and clear to enable a person of common understanding to know what is intended. Rev. Laws 1910, 5746. There might have been an H. street in any town, city, or village in Oklahoma. The description of the places in this information is too sparse and indefinite. See De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538; Griffin v. State, 6 Okla. Cr. 684, 118 Pac. 1107; Porter v. State, 4 Okla. Cr. 655, 111 Pac. 1023; Simpson v. State, 4 Okla. Cr. 376, 111 Pac. 947; Sturgis v. State, 2 Okla. Cr. 368, 102 Pac. 57, etc. We regret to make this confession, but it is better to let one guilty man escape than to violate a fundamental principle of pleading in a criminal case. Most respectfully submitted.”

Upon a careful examination of the record, we are of the opinion that the confession of error is well taken, and should be sustained.

For the reasons therein stated, the judgment is reversed, with direction to the lower court to sustain the demurrer to the information.


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    BILLY POLSON v. STATE.
    No. A-2260.
    Opinion Filed July 3, 1918.
    (173 Pac. 531.)
    ABATEMENT OF PROSECUTION — Death Pending Appeal. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.

      Appeal from District Court, Pottawatomie County; Chas. B.- Wilson, Jr., Judge.

      Billy Poison was convicted of keeping and maintaining a place with intention of selling intoxicating liquor. He appealed, and died pending the appeal.
    Motion to abate proceeding granted.

      Mark Goode, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Billy Poison, was convicted in the district court of Pottawatomie county on a charge that he did keep and maintain a place with the unlawful, willful, and felonious purpose and intention of selling intoxicating liquors, and in accordance with the verdict of the jury he was sentenced to serve a term of 15 months’ imprisonment in the state penitentiary. To reverse the judgment an appeal was perfected. While his appeal was pending and awaiting decision before this court he departed this life. His counsel of record has filed a motion to abate the proceeding.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceeding in the above-entitled cause, and especially under the judgment therein rendered, has abated, and that the district court of Pottawatomie county enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.