author: FURMAN, P. J.

text:
    W. C. BYARS v. STATE.
    No. A-800.
    Opinion Filed August 21, 1912.
    (126 Pac. 252.)
    1. APPEAL — Review—Questions of Pact — Sufficiency of Evidence. i (a) The jury are the exclusive' judges of the credibility of the witnesses; and where there is nothing in the record to indicate that they were influenced by improper motives in arriving at their verdict, and where the testimony is such as to reasonably support the verdict, a conviction will not be set aside on the ground that the jury rejected the evidence for the appellant.
    (b) For testimony offered by appellant which, in the opinion of the court, is unreasonable and incredible, see statement of the testimony.
    2. HOMICIDE — Indictment and Information — Review — Harmless Error — Conviction of Offense Included in Charge, (a) Where the appellant is charged with and tried for murder, and is convicted of manslaughter, objections urged to instructions given upon the .question of murder will not be considered upon appeal, in the absence of a showing that the appellant was injured thereby.
    (b) Where instructions upon the subject of manslaughter are more favorable to appellant than the law requires, objections to such instructions will not be considered upon appeal.
    (c) A verdict of manslaughter may be rendered in a case where the information charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased.
    (Syllabus by the Court.)

      Appeal from Superior Court, Pottazvatomie County; George C. Abernathy, Judge.

    W. C. Byars was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the state penitentiary for fifteen years, and he appeals.
    Affirmed.
    The following is a condensed statement of the material portion of the testimony:
    J. I. Miller testified for the state that about the 1st of August, 1909, in Pottawatomie county, witness saw the deceased late Sunday afternoon lying on the spring seat in his wagon; that deceased appeared to be shot in the mouth; that there was blood all over his face and also on the seat and wagon.

      Charles Green testified for the state: That just after sundown on the 1st of August, 1909, the team and wagon of the •deceased came up to the house of witness. That witness stopped the team and found the deceased lying dead on the front seat ■of the wagon, shot in the mouth. That witness heard gunshots, •and heard a wagon driving very fast. This was just a few minutes before the team of deceased came up to the house of witness. That witness then took the back tracks of the wagon, and about a mile from there found a gun and the hat of deceased, where the team had apparently stopped. Witness found at this place horses’ tracks and men’s tracks. This was on the public road. There were some trees near where the wagon was stopped. The road was sixty odd feet wide, and had a three-strand wire fence on each side. Witness found the gun under •a tree south of where the wagon stopped. The gun was lying on •a pile of brush. The hat of the deceased was found west of the wagon. Witness also found an empty cartridge hull ten or fifteen feet northwest of the wagon. There were some horses’ tracks and men’s tracks near where witness found the empty cartridge hull. It was a Winchester shotgun, with two loaded shells in the gun. These shells were loaded with No. 8 buckshot. The gun was a No. 12 shotgun. Tracks led from where the ■empty shell was found to the wagon, both men’s tracks and horses’ tracks. The ground where the empty hull was found was elevated about three feet above where the wagon stood.
    Arthur Stanley testified for the state that on Sunday afternoon, the 1st of August, 1909, witness was on the place of Mr. ■Charles Green, and heard two shots about one-quarter of a mile west of where witness was. Witness did not hear anything else for a few minutes; then he saw a wagon coming. The wagon passed witness about fifty yards, and went to Mr. Charles Green’s house. No one was driving the wagon. The deceased was in the wagon, apparently dead. Deceased was balanced across the wagon seat. Deceased appeared to be shot in the mouth.
    W. M. Williams testified for the state that he went out to the house of Mr. Charles Green. That he found the deceased lying in his wagon in front of Mr. Green’s house. Deceased was dead. He appeared to be shot in the mouth. The front of the wagon where deceased was was covered with blood. Witness, in company with other persons, went up the road in the direction the team had come from, and went south about a mile and west about a quarter, and found the place where' there had apparently been a scuffle in the road. That they found a lot of horses’ tracks and men’s tracks. They also found a gun eighteen or twenty feet from the road on the south side of the road, where the wagon had stood. The gun had one load in the barrel and two in the magazine. They also found a hat about twenty feet from the gun on the southwest side of the road. Witness noticed tracks leading from where the wagon stood going in the- direction of the town of .Byars, and followed these tracks to Byars.
    It was admitted that Dr. Burfield had testified in the preliminary trial of appellant, and had since died.
    Hal Johnson, being sworn, testified for the state: That he was justice of the peace and resided in Shawnee, Pottawatomie county, Okla. Witness was also a stenographer. That he was present at the preliminary trial of appellant and took the testimony in the case. That Dr. Burfield testified at said' trial. That appellant was present and represented by counsel, who cross-examined the witness Burfield. That on said trial said Burfield testified that he resided at Byars, and was constable there. That on the night of the killing witness saw the appellant, Will Byars, and arrested him on the charge of being implicated in the murder of deceased. That appellant rode up to the house of witness and called him, and said:
    “T suppose you have heard of Snapp being shot?’ I says: ‘No; what time?’ I says. Pie says: ‘Tonight.’ Then he went on and told me. He says: ‘Hawk Jones, Pat Ellis, John Rudell, and myself, we all went down.’ And I asked hirh what they went for, and he said to get some beer, and when they got down there that Mr. Snapp had left the ford, and was on his road home; and he said: ‘We overtook him, and when we overtook him in the lane, about three-quarters of a mile from the ford, and John Rudell rode up on the left side and got off his horse, and Pat Ellis rode up on the right-hand side.’ And that him and Hawk Jones was back in the rear somewhere. He said John Rudell picked up the shotgun, and said, ‘Will this thing shoot?’ and pointed it at Snapp, and it went off. And I asked him then what was doing on the other side, and he said that Pat was off his horse, but didn’t think that Pat was doing anything. And I examined him further, and asked what he had done with the gun. ‘When the gun .fired,’ he said, ‘Snapp fell over on the spring seat, and the team started off in a trot;’ and that Pat Ellis followed the team down the road, perhaps two or three hundred yards, or something like that — I believe the remark was two or three. I asked him, ‘What did Ellis say when he came back?’ He said, ‘Pie said he was asleep or drunk,’ and I says, ‘What did you do then?’ And he says, ‘We rode back home.’, ‘What did you do with the gun?’ I says. He said: ‘Rudell threw the gun on a brush pile, and we came on home.’ I says, ‘What time was this?’ ,He says: ‘It was about dark, or maybe a little after dark.’ And I says, ‘Where did you go to then?’ And he says, ‘We came to Johnsonville and ate some ice cream there and rested a little bit; and I left Pat Ellis and Hawk Jones there and came on. to town, me and Rudell.’ ‘Then what?’ I says. He says: T went home and went to bed and couldn’t sleep; got to studying over this matter; and Mamma told me I had better come up and tell you just what I knew about it,’ he says.”
    George H. Layton, being sworn, testified: That he was city marshal of the town of Wanette, and knew the deceased when he was living. That between eight and nine o’clock on Sunday night, the 1st of August, 1909, witness went to the house of Mr. Charles Green, in Pottawatomie county, and there he found the deceased dead on his wagon seat. That witness then went to Byars, in 'McClain county, to see if he could find the person who had killed deceased. Witness returned, bringing with him Will Byars, Pat Ellis, Hawk Jones, and John Rudell. That on the way back appellant said to witness: “I can’t see what caused that fellow to want to shoot that fellow. I think it was an accident.”
    J. P. Hawkins testified for the state that' he. lived near the road which led from Johnsonville to. the place where the deceased was killed, in McClain county, Okla.; that on Sunday afternoon, the 1st day of August, 1909, appellant, Will Byars, and Pat Ellis passed the house of witness traveling east toward the place where Snapp was killed; that after dark on the same night three or four men on horseback passed the house of witness going west, and they traveled pretty fast.
    Claud Hankins testified for the state: That he resided two miles north of Byars and about one-half mile north of Johnsonville. That the road from Johnsonville to the place where deceased was killed leads past the house of witness. That on the evening of the killing witness saw Hawk Jones, John Rudell, Pat Ellis, and appellant, Byars, pass the house of witness traveling northeast in the direction of the place where Snapp was killed. Hawk Jones and Rudell passed about 4 o’clock. Pat Ellis and appellant, Byars, passed about sundown. These parties came back about dark. Witness saw them all. They were riding rapidly; their horses being in a run. They were running as fast as they could. Witness was standing on his porch and saw them when they passed.
    Tom Cummings testified for the state that witness saw the body of deceased lying in his wagon seat in front of the house of Mr. Green about 9 o’clock at night. Witness assisted in washing and dressing the body. Deceased was shot right in the mouth. Deceased had a moustache, but it was not powder burned.
    Mark Thompson testified for the state that on the night of the homicide, in company with his brother, John Thompson, he heard some parties coming from the direction of the place where the deceased was killed, and they were riding their horses as fast' as they could run. These parties passed within twenty feet of witness. They were Will Byars, - Rudell, Hawk Jones, and Pat Ellis. They were talking loudly to each other, and they passed by where witness was. One of them said, “I wish we had got his pocketbook.” Another one said, “Didn’t you get his whisky?” The man said this was the hind one. It was Will Byars, the appellant, who said, “Why didn’t you get his pocketbook?” Witness did not understand what answer was made to this. Witness is acquainted with all of these parties. Witness lives about a mile from where the killing occurred.
    John Thompson testified for the state: That he lived on the road leading from the place where the deceased was killed, in Pottawatomie county, to the town of Johnsonville, in McClain county. That between sundown and dark on the evening when the deceased was killed he heard some persons riding their horses, apparently going in the direction of where deceased was killed from the town of Johnsonville. That witness was standing at his kitchen door. That Will Byars, Hawk Jones, Pat Ellis, and John Rudell passed, traveling on the road going to Johnsonville. That they were riding as fast as their horses could run. That as they passed where witness was he heard one of them say, “Why didn’t you get the son of a bitch’s pocketbook and whisky?” Witness could not swear which one said this. That they passed within thirty feet of where witness was standing.
    George Hankins testified for the state that he resided about three miles northeast of the town of Byars, in McClain county, Okla., near where the South Canadian river runs between McClain county and Pottawatomie county; that he remembered the occasion when the deceased was killed; that a little while before sundown on that day he saw appellant and some one else, whom he did not recognize, traveling on the road going in the direction of the place where deceased was killed; that just before dark he saw four men on horseback coming from the direction of the place where deceased was killed traveling pretty fast.
    A. Y. Rollow, being sworn, testified that he lived in the town of Byars, in McClain county, Okla.; that he kept a hotel there; that on the evening when the'deceased was killed, appellant, Byars, came to the hotel and inquired for Pat Ellis, who boarded at the hotel; that he heard appellant, Byars, say to Ellis that he was going to prize up a little hell, or something like that; that Ellis and appellant, Byars, left the hotel of Byars a little before sundown.

      Tom McCall testified for the state that he lived near Wanette, in Pottawatomie county, Okla.; that witness heard of the death of deceased; that he went to Mr. Green’s house, where the wagon of deceased was, and found deceased dead in his wagon bed; that ten or twenty minutes before learning of the death of deceased he heard some shooting coming from the direction of the place where they found that the killing had occurred.
    O. W. Cottrell ceased for burial after his death; that deceased was shot in and his neck was broken.
    J. A. Rickstrater testified for the state: That he resided in Wanette, Okla.; that he was acquainted with deceased and assisted in preparing deceased for burial; that deceased was shot in the. mouth, and his neck was apparently broken.
    Mrs. M. V. Snapp testified: was the deceased. That she last saw him alive about 8 o’clock on Sunday morning. I-Ie then left the house, driving a small light wagon. He took with him his gun, a water cooler, his dinner bucket and water jug. He put the gun in .the back of the wagon. Witness never saw her husband again until after midnight. Pie was dead. He was shot in the mouth.
    Charlie Green testified for used by the deceased was a small wagon. The bed of the wagon was about fourteen inches deep. That it had in it an ordinary spring seat. That the back of the seat was about ten inches .high in the center and six inches high at the ends: That deceased weighed about two hundred pounds, and was about six feet tall.
    It was proven upon the part of the state that the deceased was a whisky peddler, and that some time before the homicide the deceased had refused credit to Hawk Jones for whisky, upon the ground that said Jones was then in debt to him for whisky purchased in the past.
    John quainted with appellant, Pat Ellis, and Hawk Jones. That witness resided in Texas, and had only been in the town of Byars a few days before the homicide. That witness had purchased whisky and beer from deceased on two occasions previous to the homicide. That deceased carried his beer and whisky in a small wagon. That beer was kept in a water cooler with ice. That witness and some other parties had been buying beer and whisky from the deceased on Sunday, August 1, 1909, and had started back to McClain county, when he met appellant, Will Byars, and Pat Ellis about sundown, about three-quarters of a mile from where they, left deceased. That they all took a drink. That appellant, Byars, and Pat Ellis requested witness to go back with them and get some more beer. Hawk Jones and witness then went with appellant and Ellis back to where deceased’s wagon was. That when they got there his wagon had left. The parties then decided to overtake him, as he could not have gone far. Witness had had seven or eight bottles of beer that day and a drink of whisky. The parties were' riding in a lope, and overtook the deceased traveling in a wagon. The deceased stopped the wagon and wrapped the lines around the brake. Pat Ellis and appellant, Byars, were in front, and got to the wagon first. Appellant rode to the north side of the wagon and stopped opposite the front wheel. Hawk Jones stopped at the rear of the wagon. Witness stopped about the center of the wagon and got off of his horse. Witness had no angry feeling toward deceased, and deceased had no angry feeling toward witness. Witness did' not. owe deceased anything. When the parties got up to the wagon of deceased, Pat Ellis said, “Hello.” Witness then testified as follows:
    “Q. Then what did’ he say? A. He said, ‘Give me four bottles of beer.’ Q. What, if anything, did Mr. Snapp say? A. Pie said something; I didn’t hear it. Q. Where were you? A. On the other side of the wagon getting off my horse. Q. Did you get off your horse? A. Yes, sir. Q. Where did you leave your horse? Did you tie it, or what did you do? A. I dropped the reins on the ground; I left him standing there. Q. Where was Will Byars • from you ? A. At the front side of the wagon. Q. Where was Hawk Jones? A. At the rear of the wagon. Q. And where was Pat Ellis? A. On the opposite side. Q. Was Pat off his horse? A. No, sir. Q. And was Hawk Jones on his horse? A. Yes, sir. Q. What, if anything, did you see in that wagon? A. I saw a water cooler covered up with a wagon sheet, I suppose, and I saw the gun and some sacks. Q. Where was the water cooler? A. In the center and towards the back. Q. Did you see any bottles in the sacks in there? A. Yes, sir; some sacks. Q. Did you see anything in the way of a gun in that wagon? A. Yes, sir. Q. Where was that? A. Leaning against the water cooler. Q. Leaning against it in this position, or laying up against it? A. It was up against it. Q. Which direction was it pointing? A. To the south and back of the wagon. Q. Then you think the gun pointed this way? A. Yes, sir; to the back and to the south. Q. Where was the stock of the gun? A. It was in the wagon bed. Q. Was there anything else in the wagon, except what you spoke of and the gun? A. Some sacks. Q. What did you do? A. I walked up to the wagon and caught hold of the gun, intending to pick it up. Q. Where did you take hold of the gun? A. In the center. Q. Did you take hold of the trigger? A. No, sir. Q. What was your intention when you picked up the gun? A. I just wanted to look at it. Q. Just a matter of curiosity? A. Yes, sir. Q. What did you do with it as.you picked it up, or what did you intend to do? A. To bring it out to me and look at it. Q. And it pointed this way? A. Yes. sir. Q. And you took it in your right hand? A. Yes, sir. Q. How did you start to take it to you? A. My elbow was on the back wheel, and I caught it up in my hand and turned it over, and — Q. AVhat happened when you got it off the bottom of the wagon bed? A. As I was turning the gun over it .went off. -Q. Do you know what caused it to go off? A. No, sir. Q. Did you point it at Mr. Snapp? A. No, sir. Q. Did you have any hostile feeling toward him? A.. Not a bit in the world; no, sir. Q. Did it go off after or before you put your left hand on it? A. Before. . O. At the instant the gun was fired, where was Pat Ellis? A. On the opposite side of the wagon. O.. Where was Hawk Jones? A. At the rear of the wagon. Q. Were they on their horses? A. Both of them; yes, sir. Q. Where was Willie Byars? A. At the front of the wagon. Q. What was he doing? A. I don’t know. Q. You didn’t notice him? A. No, sir. Q. How far was Pat from you? A. A few feet. Q. Where was Hawk from you? A. At the rear of the wagon. O. How far was Mr. Snapp from you ? A. He was on the spring seat. Q. What was he doing when the gun was fired? A. Sitting on the seat his leg thrown over the seat looking back; his head was turned to the north. Q. That was after Pat Ellis had given him the dollar? A. Yes, sir; whatever it was he had given him. O. Did he turn in the seat? A. Yes, sir. Q. And he was facing which direction? A. To the north and northwest. Q. That would be in the direction in which you stood? A. Yes, sir. Q. Did you get your left’hand on the gun before it was discharged? A. Yes, sir. Q. When the gun was discharged, what did you do? A. I jumped back, the team lunged, and I jumped back and grabbed the gun with my other hand. Q. Did it jar you? A. Yes, sir. Q. Who did you next see after that? A. Hawk Jones. Q. What did Mr. Snapp’s team do? A. They run. Q. Where did you see Hawk Jones? A. He came to me up at the side of the wagon. Q. What did Will Byars do? A. His horse was cutting up, and I never paid no attention to him; I saw his horse going backwards. Q. What did Pat Ellis do? A. He turned and followed the wagon. Q. What did Hawk Jones say, or what did you say to him, when he came to you? A. He said, ‘What’s the matter with that?’ and he took the gun out of my hand, and said: ‘Go catch your horse; he’s going off.’ Q. What did you do? A. I went and caught my horse. O. Where was your horse? A. Going down the road a short ways. Q. Running or walking? A. He was walking when I got to him; the reins dragging on the ground. Q. What did Hawk Jones do with the gun while you was gone for your horse? A. I don’t know. Q. Did you fire it again? A. No, sir. Q. How far did you go after your horse? A. Just a short ways. Q. Did you see Mr. Snapp after that? A. No, sir. Q. You went after your horse? A. Yes, sir. Q. What did Mr. Snapp’s. team do at the instant the gun fired? A. The team jumped and ran. Q. John, when you got your horse, what did you do? A. I came back where Hawk was. Q. Where was Hawk? A. Standing about where the wagon stood. Q. Did you have any conversation with him there? A. Yes, sir. Q. What was it? A. I asked him what he was going to do with the gun, carry it on or not; and I told him I guess we had better take it, and he said, ‘No;’ we would lay it out there, and if Mr. Snapp didn’t get it we would tell him where it was. Q. Where did you put the gun? A. On the side of the road on some bushes. Q. How far was that from where the wagon had stood ? A. Just a few feet; I don’t remember how far. Q. Did you know Mr. Snapp was hurt? A. I did not. Q. How long after that was it before you saw Pat Ellis ? A. A few minutes. Q. Where did Pat come from? A. From where the wagon had stood, ■ Q. Did you say anything to him? A. Yes, sir; I said, ‘Is there anything hurt?’ Q. What did Pat say? A. He said: ‘Hell, no; nothing hurt.’ Q. And what did you boys do then? A. We, went back to Johnsonville. * * * Q. Had Will Byars had. anything to do with that gun that day? A. Not that I saw; no, sir. Q. Did Will Byars touch that gun. A. No, sir; I don’t think he did. Q. Did Hawk Jones touch that gun? A. Yes, sir. Q. Did Pat Ellis touch the gun? A. No, sir. Q. Was there any conversation between you boys, prior to this time, concerning Mr. Snapp? A. No, sir. Q. Was there any feeling of hostility mentioned by either one of you ? A. No, sir. Q. Did you intend, when you went over there, to kill him? A. No, sir, O. Did you ever intend to kill him. A. No, sir.”
    Pat Ellis, being sworn, testified for the defendant: That he had known the deceased for about a week before his death, and had never had an}' angry feeling toward him. That appellant, Byars, came to the hotel where witness was eating supper the evening of the killing, and asked if witness wanted to ride around with him a while. Witness replied he didn’t care. Witness and appellant met John Rudell and Hawk Jones, and it was suggested that they go to Snapp’s wagon and buy some whisky and beer, and they all went together. They went to where the wagon had been standing, and it was gone, and they decided it couldn’t have gone very far, and they would' catch up with it. They overtook the wagon. This witness gave substantially the same account of the shooting as testified to by the witness John Rudell.
    Hawk Jones testified for appellant. His testimony was substantially the same as that of Rudell and Ellis.
    George PI. Layton testified for the state in rebuttal that on the night of the homicide he heard Hawk Jones state that when the gun went off it was in Pat Ellis’ hands. .

      Carr & Field, and Mornan Pruiett, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and C. P. Holt, Co. Atty., and Hunter Johnson, Asst. Co. Atty., for the State.
   FURMAN, P. J.

(after stating the facts as above.) First. Counsel for appellant with great earnestness insist that the verdict of the jury is contrary to the evidence. If the state was bound by the evidence offered by the appellant, and if nothing else could be considered, this contention would be correct, and the killing would not be more than a mere misadventure. But when we come to consider all of the evidence in the record, we think that the testimony' offered by appellant is not only unreasonable, but that it is absolutely incredible.

The first witness for appellant, John Rudell, claimed that the gun was in his hands when the fatal shot was fired, and he testified that when he reached for the gun he was standing at the side of the middle’of the wagon, between the first and hind wheels; that his right elbow was on the hind wheel; that as he turned the gun over, getting it off of the bottom of the bed, the gun was discharged, and he does not know how it came to be fired. He also .testified that the deceased was sitting on the front seat of the wagon bed, and was looking backward. The deceased was shot in the mouth. The shot went directly backward and broke his neck. If the gun was fired, as Rudell says, just as he was getting the gun off of the bottom of the wagon, the shot, after entering the mouth of the deceased, would not have gone back and broken the neck, but would have torn out the roof of his mouth and penetrated his brain, because the mouth of deceased must have been several feet above the muzzle of the gun when it was fired, if Ru-dell’s statement was true. There is no proof that any shot took this direction. ’ The fact that the shot went back through his mouth and broke his neck shows that the gun must have been on a level with the mouth of the deceased when it was fired, which would have been above the bottom of the wagon bed. This is not a matter of expert testimony, but something that is within the experience and knowledge of all men. Ru-dell’s statement as to how the gun came to be discharged is contradicted by the statement made by appellant to Dr. Burfield in Byars; for appellant said that Rudell picked up the gun and pointed it at deceased before it was fired. If the deceased was sitting in the spring seat on the wagon bed looking backward when he received the fatal shot, every one knows that a spring seat of a wagon is over and a little behind the axle of the front wheels; and if the witness was standing between the first and hind wheels the muzzle of the gun when it was discharged must have been within a few inches of the face of the deceased. Under these conditions, the face of the deceased would have been powder burned, yet there were no powder-burned spots found on his face or moustache. If the gun was in the middle of the wagon, and was pointing toward the rear of the wagon, as was testified to by appellant’s witnesses, and was accidentally discharged as they contend, how was it possible for the shot, after leaving the muzzle of the gun, to turn back and strike deceased in the mouth; deceased being in the front part of the wagon? This destroys the testimony of appellant, and stamps it as being a fabrication. The testimony of appellant is that only one shot was fired, yet the state’s witnesses testified that they heard two shots. The gun was a Winchester pump shotgun. If the killing was the result of an accidental shot, how does it happen that an empty cartridge was found some fifteen feet from where the wagon stood, and that a loaded cartridge was found in the barrel of the gun? These facts entirely destroy the credibility of the testimony for appellant. They conclusively show that the shooting did not occur as testified to by his witnesses. Because witnesses may have testified to a statement does not necessarily establish the truthfulness of such testimony. The Roman soldiers swore that while they were asleep the disciples came and stole the body of Christ. This evidence impeached itself, because it would be impossible .for them to know what became of the body of ■Christ, if they were asleep.

It is equally impossible to reconcile the evidence of appellant with the indisputable facts in this case, and we think the jury was entirely justifiable in rejecting the testimony for appellant. The testimony of the state is strongly suggestive of the guilt of appellant, and we think would have warranted a conviction for murder. It is utterly immaterial as to who fired the fatal shot, when the parties are all acting together. The conduct of appellant and those acting with him at the time of the killing indicates conscious guilt. It is hard to believe that innocent men would have conducted themselves in this manner. Appellant cannot say that they acted in ignorance of the fact that deceased had been shot, because, he was the first person who announced this fact at the town of Byars, and because he stated that the gun was pointed at deceased when it was fired. The language testified to as having been used by appellant when he was riding his horse away from the scene of the homicide cannot be explained consistently with his innocence. The truthfulness of this testimony was for the jury to determine. The fact that the testimony introduced by appellant is manifestly untrue is also a strong circumstance against him. If a mistake was made by the jury, it was in finding appellant guilty of manslaughter, instead of murder. The jury having found that the testimony for the state was true and the testimony for appellant was false, we cannot say that their verdict is contrary to the evidence. The universal rule of this court is that, whenever there is any evidence in the record from which the jury could legitimately draw the conclusion of the appellant’s guilt, the verdict will not be disturbed upon the ground that it is contrary to the evidence.

Second. The next proposition submitted by counsel for appellant is in the following language:

“The indictment in this case is drawn under the first subdivision of our statute, and charges that Will Byars murdered Snapp without authority of law, and with a premeditated design to effect the same. Had the murder been committed under any of the other subdivisions, the question of the premeditated 'design would have cut no figure in the case, and the state would not have been required to prove the same, either by direct or inferential evidence. The statute has drawn these distinctions, and we believe the courts will require the pleadings in cases of this character to conform to the reasonable rule that the defendant shall be informed of the charge that is lodged against him.”

Among other things, the court instructed the jury as follows :

“You are instructed that, if from the evidence you find, beyond a reasonable doubt, that the defendants named in the indictment entered into a common design to seize and take from the deceased any intoxicating liquors or other property, and in the carrying out of said common design one of such persons fired the shot that killed the deceased, Hampton Snapp, and if you further find from the evidence, beyond a reasonable doubt, that it was a part of the common design between all of said persons to take such property or intoxicating liquors by force from the presence of Hampton Snapp, against his will and by means of placing said Snapp in fear of unlawful and immediate injury to his person or property, then, if you should further find from the evidence, beyond a reasonable doubt, that all such persons were acting together, and trying to take such intoxicating liquors or other property with such intention, and under such circumstances, and one of such persons fired a gun at the said Hampton Snapp, then you should find the defendant, Will Byars, guilty of murder; and, unless you so find that such common design was formed, and the defendant was a party in such design and aided or abetted same, you should 'find the defendant not guilty, as instructed in this instruction. * * *

“Gentlemen of the jury, you are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant, Will Byars, and the other persons named in the indictment, entered into an agreement to take and carry away intoxicating liquor or other property from the deceased, but not by force, as set forth in the preceding instruction, but with the felonious intent of appropriating it to their own use, and of depriving the deceased thereof against his will, then, if you should find from the evidence, beyond a reasonable doubt, that in the taking of such property with such intent one of such persons accidentally discharged said gun, which inflicted a mortal wound upon the said Snapp, from which he died, as alleged in the indictment, then, if you find that the defendant was present and aiding and abetting in the execution of such design, you should find him guilty of manslaughter in the first degree; and, unless you so find that such an agreement was made, and that the defendant, Will Byars, was a party thereto, and was aiding or abetting the same, your verdict should be not guilty, as hereinabove instructed.”

Our statutes upon the subject of murder and manslaughter are as follows:

“Sec. 2268, Comp. Laws 1909. Homicide is murder in the following cases: 1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being. 2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. 3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

“Sec. 2276. Homicide is manslaughter in the first degree in the following cases: 1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor. 2. When-perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide. 3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such an attempt shall have failed.”

The fact that appellant was not convicted of murder eliminates from the case and renders it unnecessary to discuss the objections made to the instructions given upon the subject of murder, in the absence of a showing that appellant was injured thereby. Morgan v. Territory, 16 Okla. 530, 85 Pac. 718. Even if appellant had been convicted of murder, the instruction given-would not have been erroneous. See Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300. We think that the instructions upon the subject of manslaughter are more favorable to appellant than the law provides. Under the circumstances mentioned in the instruction, such taking might have been a felony, and in that event the killing would have been murder. But it is not necessary to discuss this question, because, as it inured to the benefit of appellant, he cannot be heard to complain thereat. But it is insisted by counsel for appellant that a conviction cannot be had for manslaughter, where the indictment or information charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased. This question has long since been settled adversely to the contention of counsel for appellant. It was first passed upon in the case of Tom Jones v. Territory, 4 Okla. 45, 43 Pac. 1072. Judge Burford, speaking for the court, there said:

“The appellant, Tom Jones, was prosecuted in the district court of Payne county for the crime of murder, tried by a jury and convicted of manslaughter in the first degree, and sentenced to fifty years in the territorial penitentiary at Lansing, Kansas. He brings the case to this court upon certified copies of the indictment and journal entries embracing the trial, verdict of the jury, judgment, and sentence of the court. No other parts of the record or proceedings of the trial court are before this court.

“The assignment of error contains thirteen alleged errors. The first of which is as follows: ‘The verdict of the jury find^ the defendant guilty of two offenses, both of murder and manslaughter in the first degree.’ The verdict as set out in the journal entry is as follows: ‘Territory of Oklahoma v. Tom Jones. Verdict of Jury. We, the jury, in the above-entitled cause, do upon our oaths find the defendant guilty in manner and form as charged in the indictment of manslaughter in the first degree. N. S. Davis, Foreman.’ There is no merit in the contention that this verdict finds the defendant guilty of two crimes. The indictment charged murder in the usual form, and embraces within its terms the charge of manslaughter in the first degree. It was proper, on a trial of the charge of murder, for the jury to find the defendant guilty of any charge necessarily embraced within that contained in the indictment, and the jury in their verdict make certain that which they intended to do by finding the defendant guilty of manslaughter in the first degree in manner and form as charged in the indictment.”

Judge Burford thought so little of the position assumed by counsel that he did not refer to the allegations of the indictment. We have examined the original record of that case now on file in the office of the clerk, of this court, and find that the indictment did charge that the homicide was committed with a premeditated design to effect the death of the deceased, just as is charged in the information in this case.

This question has also been passed upon by this court in the case of Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314. This court there said:

“From this it is seen that our ‘statute divides felonious homicides into two degrees, namely, murder and manslaughter. While in one sense they are separate , and - distinct crimes, yet in a broader'sense they both involve but one offense, and that is a felonious homicide; in other words, they are simply different degrees of one and the same crime. There is therefore no necessity of including in an indictment for murder a separate count charging manslaughter; for the rule of criminal pleading is universal that an indictment for the highest degree of a crime includes all of the lower degrees of the same crime. If a.defendant is acquitted on an indictment for murder, who will contend that he can afterwards be indicted and convicted for manslaughter for the same homicide? This alone demonstrates that manslaughter is included in an indictment for murder. Every proper indictment for murder informs the defendant that he is charged with the felonious killing of a human being. This certainly gives him full notice of the nature and cause of •the accusation against him. He cannot be heard to complain if he is found guilty of a lower degree of the very crime with which he is accused than that stated in the indictment.

“We could fill volumes with quotations from authorities sustaining these views. Mr. Wharton, in his great work on Homicide (section 653, on page 1043), says:, ‘On an indictment for murder, the jury may find a verdict of manslaughter or of murder in the second degree; so, also, on an indictment for murder in the second degree, there can be a conviction for manslaughter. Different defendants may be convicted of different degrees, and a verdict in a prosecution for murder of guilty as charged of manslaughter is sufficiently certain to warrant a judgment, and does not find the accused guilty of two offenses. This rule applies to a verdict in a prosecution for murder of involuntary manslaughter, consisting of a killing in the commission of an unlawful act, not amounting to a felony, or of a lawful act done in an unlawful manner, or without due caution or circumspection. And a person charged with murder may be convicted of negligent homicide. And a conviction of involuntary manslaughter, consisting of the killing of á white person, though it does not apply where the involuntary manslaughter has special statutory ingredients which may be alleged, and which are not included in a general charge contained in the indictment, 'or where such manslaughter is regarded as a misdemeanor only. And a verdict for manslaughter may be returned in a prosecution for murder under a statute declaring an attempt to produce an abortion, which causes death, to be murder, as well as in the case of an indictment for any other kind of murder.”

The other propositions submitted by counsel for appellant are either not sustained by the record, or do not go to the substantial merits of the case. It is therefore not necessary to discuss them.

We have read the entire record containing over five hundred pages, and have carefully considered all of the propositions presented in the brief of counsel for appellant, and we fail to find wherein the defendant has been deprived of any substantial right to his injury. From the record it appears that appellant was fairly tried. We cannot say that the verdict is' contrary to the evidence. The jury were the exclusive judges of the credibility of the witnessss, and we see nothing in the record to cause us to believe the jury were influenced by improper motives in arriving at their verdict. We therefore regard it as our duty to affirm the judgment of the trial court; and it is so ordered.

ARMSTRONG and DOYLE, JJ.,'concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BENJAMIN M. FLATHERS v. STATE.
    No. A-1313.
    Opinion Filed August 21, 1912.
    (125 Pac. 902.)
    1. COURTS — -Appellate Jurisdiction — Criminal Court of Appeals. Under the Constitution (article 7, sec. 2; 187, Williams') and the statute (sections 1916 and 1917, Comp. Laws 1909), the Criminal Court of Appeals has exclusive appellate jurisdiction to review and correct proceedings of inferior courts in criminal eases. Neither the Constitution nor the statute has conferred on this court jurisdiction to review remedial proceedings as for a contempt.
    2. CONTEMPT — Proceeding to Punish — Nature and Form. A proceeding against a party for contempt for an alleged violation of an order of the court in a civil action is a civil proceeding.
    3. SAME. Willful disobedience of an order of tlie court in a civil action is not criminal contempt; in such a case the. punishment is only ordered for the purpose of enforcing such order.

      4. SAME — Imprisonment. A person imprisoned as punishment for criminal contempt, properly so called, is imprisoned in execution under a sentence for a crime.
    (Syllabus by the Court.)

      Appeal from District Court, Bilis County; G. A. Brown,' Judge.

    Benjamin M. Flatliers was adjudged guilty of contempt and committed to jail, and appeals.
    Dismissed.

      C. B. Leedy and J. G. Aubuchon, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen. (John H. Bur ford and W. H. Springfield, of counsel), for the State.
   DOYLE, J.

The judgment and order of commitment sought to be reversed in this case was rendered in a proceeding instituted against plaintiff in error for an alleged contempt of court.

Said judgment is as follows:

“Emily J. Flathers, Plaintiff, v. Benjamin M. Flathers, Defendant. Case Pending in the • District Court of Ellis County, Oklahoma. On this 5th day of August, 1911, this cause came on for a hearing upon the matter' of contempt charged against the defendant, Benjamin M. Flathers, and the court, being fully advised in the premises, finds that the defendant, Benjamin M. Flathers, has disobeyed various orders of the court, requiring him to pay certain sums as alimony in the above-entitled cause, and especially has he disobeyed the order of this court, madq on the 14th day of July, 1911, requiring-him to pay $70 to Emily J. Flathers within six days after service of said order upon him; said sum being the aggregate amount of payments ordered to be made by him as alimony up to and including the 19th day of July, 1911. And the court finds that the defendant refused to comply with the order and make said payments in the case of Emily J. Flathers against Benjamin M. Flathers, and that the defendant -was able to make such payments, and that the defendant is in contempt of this court in refusing to comply with said orders. It is therefore ordered by the court that the defendant, Benjamin M. Flathers, be committed to the county jail of Ellis County, Oklahoma, until 'the said order of this court is complied with, or until he shall - execute and deliver to said Emily J. Flathers a quitclaim deed for all claim by him in and to lots 18, 19, and 20, in block 4, of McCrate’s addition to the town of Shattuck, in said Ellis county, together with the appurtenances thereunto incident and belonging. Upon 'the execution and delivery of the quitclaim deed as herein above stated, or upon payments of said sum of $70 to Emily J. Flathers, together with all costs in this behalf incurred, the said Benjamin M. Flathers shall be released from said prison and custody. It is further ordered that the said defendant, Benjamin M. Flathers, who is now present, be and he is hereby committed to the custody of the sheriff of said Ellis county, who is hereby ordered and directed to enforce this order. Witness my hand in chambers in the city of Mangum, in Greer county. Oklahoma, this fifth day of August, 1911. G. A. Brown, District Judge of the Eighteen Judicial District of Oklahoma, including Ellis and Greer Counties.

“Filed August 8, 1911. O. E. Null, Clerk District Court.”

The Attorney General has filed a motion to dismiss this appeal, because, as shown by the record, the contempt proceedings are civil, not criminal, and this court has no jurisdiction. We are clearly of the opinion that the motion should be sustained, and the only order that can properly be made by this court is one dismissing the purported appeal. While this court has jurisdiction to review an order or judgment committing a person for a criminal contempt, neither the Constitution nor the statute has conferred on this court jurisdiction to review remedial proceedings as for a contempt, where the matter of contempt consists of disobedience of orders or decrees rendered in civil actions.

At common law, judgments of superior courts of record in matters of contempt were final, and ,not reviewable in any other court upon appeal or writ of error. By statute in some states the remedy of appeal and writ of error has been given. There is no good reason, however, in any case that we have examined, why cases of criminal contempt are not subject to review in some manner by the appellate court.

In an able article on criminal contempts, in the Criminal Law Magazine, vol. 5, p. 647, the distinguished writer, Mr. Seymour D. Thompson, says with regard to jurisdiction in which writs of error and appeals lie:

“In several of the American states, under the operation of constitutional or statutory provisions, and, perhaps, in one or two cases, by judicial decisions contrary to the general course of authority, writs of error lie in the Supreme Court, or other appellate court, to revise the final judgments or orders of the inferior courts in proceedings for contempt. * * * Most of the decisions which relate to the inquiry under what circumstances appeals lie in proceedings for contempt arise out of that use of process of contempt which, as explained in a former article, was in courts of equity simply a process of execution — in other words, in what are called remedial proceedings as for contempt — and the inquiry, for the most part, is whether the order appealed from is final and dispositive of a substantial right, or interlocutory merely. The general rule, varied in some jurisdictions by local statutes, perhaps by judicial decisions, is that.such orders are appealable. On the other hand, proceedings as for contempt, which, in their nature, are interlocutory only, are not appealable.”

Contempts of court are of- two kinds, civil and criminal. Much confusion exists in judicial decisions as to whether or not contempt proceedings are civil or criminal. As a general rule, these designations must be considered with reference to the specific question before the court. In the article of Mr. Thompson, above referred to, he says:

“The boundary between these two kinds. of contempt is, in many cases, shadowy; but the substantial distinction is that one is a mode of execution of judgments and decrees in civil cases, while the other is punishment for an offense of a criminal -nature. The distinction is said to be this: Tf'the contempt consist in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed until he complies with the order. The order in such a case is not punitive, but executive. If, on the other hand, the contempt consists in a threatened act injurious to the other party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive. In the former case, the private party alone has an interest in the enforcement of the order, and the moment he is satisfied the imprisonment terminates; in the latter, the state alone is interested in the enforcement of the penalty.”

In the absence of a statutory classification, it is impracticable to state a general rule by which, in all cases, to distinguish these two classes, in the one or the other of which every act of contempt must be classified. But substantially the main distinction is stated by this court as follows:

“A ‘civil contempt’ is where a person fails or refuses to do something which he has been ordered to do for the benefit of the opposite party to the cause. The punishment by imprisonment is for the purpose of coercing the performance of the act. A civil contempt is instituted by a private individual, for the purpose of protecting or enforcing his rights. The order in such a case is not in the nature of a punishment, but is coercive to compel him to act in accordance with the order of the court. A ‘criminal contempt’ embraces all acts committed against the majesty of the law, and the primary -purpose of their punishment is the vindication of public authority and the dignity of the courts. In the case of a criminal contempt, the proceeding for its punishment should conform as nearly as possible to proceedings in criminal cases.” {Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39.)

See, also, Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Hake v. People, 230 Ill. 174, 82 N. E. 561; Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 112 N. W. 1095, 13 L. R. A. (N. S.) 591.

Under the Constitution (article 7, section 2) and the statute (sections 1916 and 1917, Comp. Laws 1909), this court has exclusive appellate jurisdiction to review and correct proceedings of inferior courts in criminal cases brought before it for determination in the manner provided by law. Eubanks v. Cole, 4 Okla. Cr. 25, 109 Pac. 736. The appellate jurisdiction of the Supreme Court extends to all civil cases at law and in equity.

Disobedience to an order of the district court, or judge thereof, to pay alimony in a divorce action is not a criminal contempt. In such a case the punishment is only ordered for the purpose of enforcing an-order in a civil action.

The order allowing bail and staying execution is hereby revoked, and the purported appeal is hereby dismissed, and the case remanded to the district court of Ellis county, with direction that the plaintiff in error be remanded to the custody of the sheriff of Ellis county in accordance with the judgment and order of the court.

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


text:
    JOE ROLLEN v. STATE.
    No. A-1073.
    Opinion Filed August 26, 1912.
    (125 Pac. 1087.)
    1. INDICTMENT AND INFORMATION — Amendment—Time. By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered,, and before the trial is begun.
    2. SAME — Form. By leave of court, an information may be amended, as to matters of form, after the jury has been impaneled,, when the same can be done without prejudice' to the substantial rights of the defendant.
    3. HOMICIDE — Assault to Kill. One who seeks and brings on an affray cannot shield himself under a plea of self-defense.
    4. SAME — Self-Defense. On the facts of this ease, it is considered by the court that there was no evidence tending to show that the shooting was in self-defense.
    5.. SAME — Appeal—Prejudice. Error, if any, in an instruction defining the law of self-defense was not prejudicial to defendant* where the evidence did not justify an instruction on self-defense.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; John H. King, Judge.

    Joe Rollen was convicted o'f shooting Ray Feaster with intent to kill, and he appeals.
    Affirmed.

      Archibald Bonds and J. I. Hozmrd, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of assault with intent to kill by shooting one Ray Feaster, and was sentenced, in accordance with the verdict of the jury, to imprisonment for five years in the penitentiaiy. The defendant was prosecuted under an information filed September 24, 1910, and the case was tried December 10, 1910. The judgment and sentence was entered on December 13, 1910.

The information charged:

“That Joe Rollen did, in Wagoner county and in the state of Oklahoma, on the 27th day of August in the year of our Lord one thousand nine hundred and ten, and anterior to the presentment hereof, commit the crime of assault with intent to kill, in the manner and form as follows, to wit: That the said Joe Rollen, at and in the county and state aforesaid, on the day, month, and year aforesaid, did then and there intentionally, wrongfully, unlawfully, and feloniously upon one Ray Feaster, with a certain deadly weapon, to wit, a loaded pistol, in the hands of him, the said Ray Feaster, then and there held with force and violence, make an assault and battery by then and there shooting and wounding him, the said Ray Feaster, with the felonious intent then and thereby to kill and murder him the said Ray Feaster, contrary,” etc.

Upon arraignment the defendant entered a plea of not guilty. The case was called for trial, and after the jury had been impaneled to try the case, and the state had placed the prosecuting witness, Ra'y Feaster, on the stand to testify, the state asked leave of court for permission to amend the information by changing the name Ray Feaster, underscored above, to Joe Rollen. The court permitted this amendment to the information to be made by drawing a line through the name Ray Feaster and writing the name Joe Rollen just above the same. The defendant excepted, and moved the court to direct the jury to acquit, which motion was overruled. Thereupon the amended information was filed. The defendant, not objecting to proceeding with the trial, and not asking for additional time in which to plead, stood mute. The court ordered a plea of not guilty entered for him, and the trial proceeded.

The learned-counsel for the defendant now contend that:

“There being no process of law by which an indictment may be amended, and no provisions of the statute authorizing the amendment of an information charging felony, the court was without power to allow an amendment of the information, after the defendant had been put upon his trial in said cause; therefore the court erred in permitting the county attorney to amend this information.”

We do not think that this contention'is well founded. The amendment was one in matter of form only. The'original information sufficiently charged the offense, when not attacked by demurrer thereto.

“Even in the absence of a statute, information, not being found upon the oath of a grand jury, but filed by the public prosecutor, may be amended, either in matter of form or substance, by leave of court, at any time before trial, even after motion to quash, demurrer, or plea; and the rule applies to informations for felonies under statutes allowing such mode of prosecution, although at common law prosecution by information was limited to misdemeanors. But an information cannot be amended in matter of substance after trial and verdict, or, -by the weight of authority, even during the trial.” (22 Cvc. 436.)

Counsel does not point out in what manner the defendant was prejudiced by this action of the court.

In the case of Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 375, 107 Pac. 735, this court passed upon this question. Mr. Justice Owen, delivering the opinion of the court, said:

“There is nothing in the record which would indicate that it was with material prejudice to the rights of the defendant. Counsel do not undertake in the brief to indicate how the defendant was prejudiced by the interlineation, and if they are not able to point out any substantial right denied the defendant, or any prejudice done him, certainly this court would not be expected to assume that the court erred in permitting the county .attorney to make the amendment.”

In Bishop’s New Criminal Procedure (volume 1, 714), the learned author says:

“As to amendments, an information differs from an indictment. Since the prosecuting officer, unlike the grand jury, is always present in court, he may, on leave, amend it to any extent not interfering with the due order of judicial proceedings or otherwise with public interests or private rights. The application may, indeed, be denied; and some hold it not permissible to add new counts or charges; while others allow this. though not properly to' the introduction of matter barred by the statute of limitations. It may be amended to cure a defect objected to by plea in abatement, or a variance appearing at the. trial. ‘After a record has been sealed up,’ said Holt, C. J., ‘I have known it amended, even just as it was going to be tried ’ Of course, therefore, - it may be amended after a plea in bar. * * * Mere formal amendments may be permitted without terms, even after issue joined.”

In the case of State v. Cooper, 31 Kan. 505, 3 Pac. 429. the headnote is as follows:

“Where an information filed February, 1883, charged in the past tense that defendant did, in December, 1883, commit an assault with intent to kill, to which information defendant pleaded not guilty, and, after a jury had been impaneled and sworn, he objected to the introduction of any testimony, on the ground that the time charged was subsequent to • that of the filing of the information, held, that the court did not err in permitting the ■county attorney to amend the information by changing the figure 3 to 2, so as to show a date anterior to that of the filing of the information. Such a change is not one working prejudice to the substantial rights of the defendant.”

It is obvious that the amendment here permitted by the •court was not one in matter of substance, and therefore could not have been prejudicial to the substantial rights of the defendant.

It is also contended that the court erred in the instructions defining the law of self-defense. The error, if any, was harmless, for the reason that the evidence in the case did not justify an instruction upon self-defense. The evidence in substance was as follows: Feaster, the victim of the assault, was sitting in the front room of Ada Wells’ house of prostitution in Wagoner, about 10 p. m. August 27, 1910, when the defendant entered and shot him; the ball passing through the left side just above the heart.

According to Feaster's testimony, the first time he ever saw the defendant was when he came into the room where he was talking to Ivy King. The defendant said to her, “You run off and left me and come in here,” and said to Feaster, “I am a game son of a bitch,” and shot him sitting in the chair. Feaster ran out, and the defendant fired several more shots as he was leaving.

The defendant testified on his own behalf: That he was a Cherokee citizen; lived near Claremore. That on the day in question he was in Wagoner and went to the house where the shooting occurred. That Ivy King met him at the door and told him there was a fellow there that would shoot him if he came in. She then went in, and he followed her. That Feaster, who was sitting down, made an attempt to get up, and, in the language of the defendant, “I taken him to make an effort to get a gun or something, and I jerked my gun; if he hadn’t raised up out of his chair, I would never have shot him.” And that was the first time he ever met Feaster.

On cross-examination he was asked why he went into the room if he thought Feaster would kill him, and answered: “I thought I would give him a trial if he wanted to shoot me; let him shoot me.”

There was no evidence tending, in the remotest degree, to prove that the defendant was, at the time of the shooting, in any apparent imminent danger. On the contrary, the evidence shows, without conflict, that the shooting was without even a plausible pretext of provocation; the sole reliance of the defense for justification being the defendant’s statement as to what Ivy King told him. When we consider the rule that what the defendant testifies to against his interest is to be taken as true, there is no evidence tending to show that the defendant acted in self-defense when he made the assault. One who seeks and brings on an affray, cannot shield himself under the plea of self-defense. The facts, as testified to by the defendant on his own behalf, afford no justification for his murderous assault.

As, in our opinion, no error of law to the prejudice of the substantial rights of the defendant occurred on the trial, the judgment is affirmed.

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


text:
    JAY GOULD BROWN v. STATE.
    No. A-1317.
    Opinion Filed August 26, 1912.
    (126 Pac. 263.)
    1. LARCENY — Cattle Theft — Evidence. Evidence on a prosecution for larceny of cattle held sufficient to sustain a conviction.
    2. SAME — Nature of Offense — Intent. The evidence in this case disclosed that the defendant is either guilty as a principal, or else-is not guilty at all. There is no evidence in this record that proves the defendant guilty as a receiver of stolen property, as defined by the statutes of Arkansas in force in the Indian Territory at the time this crime was committed.
    3. APPEAL — Review. Where there is evidence in the record from which the jury could have legitimately drawn the conclusion that the defendant was guilty, this court will not disturb the verdict.

      i. TRIAL — Circumstantial Evidence — Instructions. In a prosecution-for larceny, where circumstantial evidence is introduced, there is no necessity for a specific instruction upon the value of circumstantial evidence; it being sufficient that the jury be clearly instructed that, unless, after due consideration, they are satisfied beyond a reasonable doubt of the guilt of the defendant, they should acquit.
    5. EVIDENCE — Weight and Sufficiency. A jury is not bound to accept as true the theories or testimony of the defendants, but may give them such weight as they deem proper, even to the extent of wholly disregarding the same, if they believe the testimony unworthy of belief.
    (Syllabus by the Court.)

      .Appeal from District Court, Atoka County; Robt. M. Rainey, Judge.

    Jay Gould Brown was convicted of cattle stealing, and he appeals.
    Affirmed.

      J. G. Ralls, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Jay Gould Brown, was indicted in the United States Court for the Central District of the Indian Territory for the -larceny of certain cattle.

Upon a trial in the district court of Atoka county, to which •court the case was transferred after statehood, the jury by their verdict found the defendant guilty, but failed to agree upon the punishment.

On May 2, 1911, the court overruled a motion for new trial, and sentenced the defendant to imprisonment in the penitentiary for a term of one year and nine months. From which judgment an appeal was perfected by filing in this court, on August 18, 1911, a petition in error with case-made attached. The defendant failed to execute an appeal bond, and is now •confined in the penitentiary.

It is' contended in support of the appeal that the evidence tending to show the commission of the crime of larceny by the defendant is not sufficient to support the verdict.

The evidence, briefly stated, shows: That William Tipton, •a farmer living about three miles southeast of the town of Atoka, in what was then the Central District of the Indian Territory, was, on September 15, 1903, the owner of the two head of cattle described in the indictment.. Said cattle were branded “W. T. bar” on the left side, and that on or about said day he missed said cattle from the range. That he gave no person permission to take them or to sell them. That about three days afterwards he found the cattle in the pasture of William Minton, a butcher in the town of Lehigh. That Le-high is about twelve or fourteen miles northwest of where witness lived.

Will Gray testified: That he had known the defendant for about twenty years, and saw him in September, 1903, near Bassett’s slaughter pen northwest of the town of Atoka, together with his brothers Jack and Toronto. That they were driving cattle in the direction of Lehigh. The cattle were branded “W. T. bar.”

William Minton testified that he lived in Lehigh, and was running a meat market in 1903; that along about the middle of September he bought the two head of cattle described in the indictment from the defendant, Jay Gould Brown, but that

William Tipton came and claimed them on the second day after he bought them; that he paid Jay Gould Brown $27.50 for them; that he saw Toronto Brown out there at the pasture when he the cattle, but did not see Jack Brown at the time.

On behalf of the defendant, Toronto- Brown testified that he and his brother Jack took the cattle from the range a little before daylight, and drove them about four miles to their father’s place, arriving there a little after sunup; that he called his brother Jay Gould Brown, the defendant, and got a horse for him, and told him that he wanted him to go to Lehigh to sellsome cattle; that the three brothers then drove the cattle from their father’s to Lehigh, where the defendant, Jay Gould Brown, sold the cattle to Bill Minton and afterwards gave witness the money he received for them.

On cross-examination, witness testified that when was tried for stealing these cattle in the United States Court ha testified on his own behalf that he did not steal the cattle; that he was tried twice for this cattle theft; that the first time he was found guilty, and on his second trial not guilty.

The defendant, Jay Gould Brown, on half : That his brother Toronto asked him to go to Lehigh with him, and there sent him after Mr. Minton. When Mr. Minton went to look at the cattle, Toronto rode off, and that he sold the cattle to Mr. Minton and afterwards turned the money he received over to Toronto. That he did not know anything about his brothers going to get the cattle, and that they did not tell him how they got the cattle, and he did not know whose cattle they were.

This is substantially all the evidence in the case.

The contention is made that Toronto and Jack Brown stole the cattle some time prior to the aforesaid driving and disposing. In other words, it is claimed that the cattle were stolen before the defendant assisted in driving them to Lehigh, and that the defendant had no knowledge that they had been stolen, and therefore the cattle could not be stolen again by the defendant; that if the defendant knew the cattle were stolen he would have been guilty, under the statutes of Arkansas, of the crime of receiving stolen property.

The Attorney General contends that, the evidence introduced on behalf of the state is wholly sufficient to sustain the verdict, and that it was a question of fact for the jury to determine, under all the evidence, whether or not the theory of the state was true that the defendant was a principal and assisted in the unlawful taking of property, or whether the theory of the de-, fendant was true that the defendant was not present at the taking of the property, and had no knowledge of the larceny, or that it was to take place, and had no knowledge that the cattle were stolen cattle, but that all the connection he had with the transaction was perfectly innocent, in that he, in good faith, assisted his brothers in driving the cattle from his home to Lehigh, and there sold them to the butcher with the honest belief that they were the property of his brothers.

The testimony of Toronto Brown and the defendant on 'his own behalf is so contradictory and the story told of itself so unbelievable that they impeach themselves. Their own testimony tends to show that he is guilty as a principal. The issue 'here is that it is a question of the intent with which the defendant entered into the asportation of the property and the disposal of it; and if he did with the' intent of stealing the ■property and depriving the owner of it he is guilty as a principal, and not as a receiver of stolen goods, under the statute. The right of possession, as well as the right of property, remained in the owner all the time, as a matter of law, if the original taking and transportation of the property was under such circumstances as constituted a larceny. Bivens v. State, 6 Okla. Cr. 621, 120 Pac. 1033.

The larceny was not complete until the deliver}'' to the butcher. The evidence of the defense does not show that the ■crime was complete, or that they had left the cattle there at his father’s house. It shows that they were in the act of driving these cattle, and that the defendant joined- in to assist in driving ■.them. Then, assuming their testimony to have been true, the evidence is such, and all the circumstances surrounding the defendant’s connection with the case are such, as to lead to but one conclusion, and that is that he must have known that his brothers were in the act of stealing these cattle, and were driving them on to the place of sale, and he voluntarily joined in with them and assisted them in accomplishing their design. He knew that his brothers did not have any cattle of this kind; he knew that they were not branded in their brand; he knew that they were bringing them there early in the morning and woke him up to assist them. When they reached Lehigh, under his own statement, the conduct of his brother Toronto was such as must have cpnvinced him that the cattle were stolen, because his brother would not go up to the town of Lehigh to assist in selling the cattle, and as soon as he saw the butcher coming to look at the cattle he says that Toronto drove over the hill and out of sight, so as not to be seen. This was a circumstance certainly sufficient to convince the defendant that the cattle were stolen, and afterwards he sells the cattle and takes the money into his own possession, fixing upon a price to be paid for the cattle without consulting his brothers; yet he testified that he had no interest in the cattle, and did not have any agreement with his brothers as to the price that they should bring. Such evidence, taken in connection with the fact that he was seen driving the cattle b)'- the witness Gray, is convincing that he was a principal in the larceny of these cattle.

Toronto Brown, having been acquitted of the crime by denying any knowledge whatever of the larceny of the cattle, now appears in court and, for -the purpose of acquitting his brother, testifies that he is the thief, and that his brother, this defendant, had nothing whatever to do with the stealing, and did not even know that the cattle were stolen. We are not surprised at the fact that the jury wholly disregarded and refused to believe such a flimsy fabrication as this, given for the sole purpose of procuring an acquittal of his brother of a crime of which they were all three guilty, and the jury is to be commended for refusing to discharge this defendant, even though another jury was hoodwinked into acquitting his brother Toronto.

Juries are not bound to accept as true the theories or the testimony of defendants, but may give it such weight as they deem proper, even to the extent of wholly' disregarding the same, if they believe such testimony unworthy of belief. Under the statute in force in the Indian Territory, a receiver of stolen goods is defined as follows (section 574, Ind. Ter. St. 1899 [section 163, Mansf. Dig. Ark.] ):

“Whoever shall receive or buy-any stolen goods, moneys or •chattels, knowing them to be stolen, with intent to. deprive the true owner thereof, shall, upon conviction, be punished as is or may be by law prescribed for larceny of such goods or chattels.”

It cannot be contended that under the evidence in this case the plaintiff in error is guilty of the crime of receiving or buying the stolen cattle, knowing them to be stolen. The proof is not that he bought the cattle from his brothers, or received them from them, but that he aided and assisted them in driving the cattle to the place of sale and took possession of the proceeds of the sale. We have nowhere found any authorities that say such conduct amounts to a receiving of stolen.property. Therefore this defendant is guilty as a principal, or else he is not guilty of any crime.

Larceny has been held to be a continuing offense; and statutes providing that the thief may be prosecuted in any county into which he takes the stolen goods have been held to be constitutional, where the provisions of the Constitution are that the prosecution must be in the county where the crime is committed. Bivens v. State, supra, 2 Bishop’s New Crim. Law, par. 839; 1 Bishop’s New Crim. Proc. par. 59.

Upon this theory, one who joins in- with the thieves and assists in the asportation and disposal of stolen property, knowing at the time he does so that the others acting with him are in the very act of carrying away the property of another, must be held guilty as a principal.

In the case of State v. Grant, 76 Mo. 245, the court said:

“It has been strenuously insisted that the larceny was complete at the time that the defendant and his companion passed by Fleming’s saloon, and in one sense this is true. But it is also true, considering the distance from where the prisoner was observed with the butter to the point where the larceny of it was committed, from 300 to 600 yards, there was sufficient evidence to go to the jury that the taking of the butter, and its being carried away, was, up to the point where the prisoner was observed, one continuous act. If a person, with larcenous intent, should barely raise an article from the floor, the caption and asportation would be so far complete as to make the act a criminal one. But could the act as to one of the elements of the larceny, the asportation, be still regarded incomplete — be still regarded a continuing act — as long as the original caption was still unbroken, and the original asportation was yet in progress? We are of opinion that so it should be regarded.”

The issue of the defendant’s guilt was fairly submitted under the instructions given by the court. We do not think the case calls for specific instructions of the kind the defendant’s counsel’ now contends should have been given. The evidence, when properly viewed, tended either to acquit or convict the defendant, without the necessity of any special consideration as to the rule in regard to circumstantial evidence. The case was without complication, and depended merely upon the credit which the jury should attach to the testimony of the defendant and his brother Toronto Brown, when considered with the undisputed facts in the case.

Instructions were given as follows:

“If you believe from the evidence in this case the defendant Jay Gould Brown acted in good faith and in honest belief that the cattle which he drove to Lehigh and sold to William Min-ton were the property of his brother Toronto Brown, or Jack Brown, or both, or if you have a reasonable doubt that such was the case, it will be your duty to acquit him, even though you believe said cattle were taken by Toronto or Jack Brown, or both.

“But if you believe from all the evidence in the case beyond a reasonable doubt, that at the time the defendant, Jay Gould Brown, drove the cattle to Lehigh, or assisted in driving them, and at the time he sold them to the witness William Minton, he knew said cattle were the property of William Tipton, he would be guilty of larceny, and it will be your duty to convict him.

“If, on the whole of. the evidence in this case, you entertain a reasonable doubt as to the guilt of the defendant, that doubt should be resolved in favor of the defendant, and you should acquit him.”

We think these instructions fully covered the matter. Our conclusion is that the guilt of the defendant was established beyond any doubt; and finding no error in'the record the judgment of conviction is affirmed.

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


author: ARMSTRONG, J.

text:
    WILLIAM VAUGHAN v. STATE.
    No. A-789.
    Opinion Filed December 22, 1911.
    EVIDENCE — Admissibility—Statements of Other Persons in Presence of Accused — Silence. It is error in the trial of a criminal ease for the court to admit testimony as to declarations between an officer who had accused under arrest and the state’s witnesses, or other persons, in the presence of the accused, tending to connect him with the offense charged, and that the accused remained silent as to such conversation; and when a Conviction results with such testimony before the jury a new trial- should be granted.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge.

    William Vaughan was convicted of murder, and appeals.
    Reversed.

      Blakeney & Maxey, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

William Vaughan was convicted at the November, 1909, term of the district court of Pottawatomie county. He was charged under the name of William Canalis, together with Irene McKinney, with having murdered Victoria Page in September of the same year. At the regular term of the court in January, 1910, this case was set for the 1th day of the following March. When it was called for trial the defendants named in the indictment elected to be tried separately, and the cause was tried as to Vaughan, resulting in his conviction on the 9th day of March, thereafter. He was subsequently sentenced by the court to life imprisonment in the state penitentiary in accordance with the verdict.

The proof shows that Mrs. Page, the deceased, and her daughter, Irene McKinney, with some other children, were picking cotton on a farm belonging to Mrs. Shawnee, the mother of the accused, in September, 1909. That they had been in the community only a few days, and the accused had known them only since they had come to his mother’s farm. On the morning of the 12th of September the accused, Mrs. Page, and Irene McKinney walked from the Shawnee farm a distance of about two miles to the city of Shawnee, and spent the day there. They left the city of Shawnee for Benson park, which is situated about two or three miles south of Shawnee, about 8 o’clock in the evening. This park appears to be east from the Shawnee farm where the parties lived. After arriving at the park a man named Winfred Shifflet was introduced to Mrs. Page, and the party wandered around the park until about 10 o’clock, when they started home. It appears that there was a public road about two hundred yards south of the park leading to the home of the parties, and that there was a trail from the southwest corner of the park to this road. The accused appears to have spent the entire evening with Irene McKinney, and when they started home Shifflet was with Mrs. Page, and the accused' and Irene McKinney were ahead of them going along this trail to the road leading home. The parties had crossed the fence and walked probably forty or fifty yards when a shot was fired which killed Mrs. Page. At this place a brush top lay across the trail, and the accused and Irene McKinney were on one side of this brush top, and the deceased and Shifflet on the other. The evidence conflicts some as to just what happened after the persons named had crossed the park fence. The accused contended that he heard Shifflet say that he could not go any farther than the fence, and that he and Irene McKinney walked on thinking Shifflet was telling Mrs. Page goodbye; that when they had gotten a distance of about thirty-five ■ steps they passed around the brush top, and had gone about fifteen steps farther when the shot was fired; that he did not fire the shot, and believed that it came from the direction of the park fence'; that a man ran by him and Irene McKinney, and that they ran to the fence; that after getting to the fence the girl called to her mother two or three times but she did not answer, and they went back to the brush top and found that she had been killed. The state contended that the accused and Irene McKinney crossed the fence; that Shifflet got on the fence and assisted Mrs. Page over, and that they stopped at the brush top; that while there a man passed by and Shifflet looked up and saw it was not the defendant; that the steps went on down the path, and in a short space of time a shot was fired; that the witness, Shifflet, ran around the brush top and passed near the accused and Irene McKinney, who were about thirty steps away and running also. Later on the accused and the McKinney girl went to the night watchman of the park and inquired about a car for Shawnee. The night watchman informed them it was due in a short time. The girl began to cry and told him that somebody had killed her mother. Officers at Shawnee were notified and they went to the park and arrested the accused and Irene McKinney and carried them to town. The next day Sheriff Pierce went over to Shawnee from Tecumseh and had a talk with Irene McKinney and secured a statement from her to the effect that the accused had done the shooting, saying that he slipped up to the brush pile, fired the shot, threw the gun in a nearby creek, and ran off; and that afterwards they came back and found that he had killed Mrs. Page. She was then taken into the presence of the accused by the officer and asked to re-state what she had stated to the sheriff. She refused to do so, and said the defendant was not guilty and that she would not make any such statement. The officer repeated the conversation in the presence of the defendant, and she denied it and said it was a story. The accused neither denied nor affirmed the statement. The testimony relative to these statements was introduced over the objection and exception of the accused.

The case was submitted, and after the jury had been out about a day they returned into court and said they could not agree as to what the evidence was, and asked that the evidence of the . officer who made the arrest be read, which was done, including the statements made by Irene McKinney to the sheriff. Counsel for the accused renewed the objections to the statements, and asked that they be stricken, which was overruled. Several hours later the court recalled the jury and had other evidence read to them. At this time the accused requested the court to instruct the jury that they must consider the evidence read with all the other evidence in the case. This the court abruptly refused to do, ordered counsel to sit down, and censured them for making the request. The request was proper and the corn! should have so instructed the jury.

A great many exceptions were taken both as to the admission of evidence and the instructions of the court, and are urged here by proper assignments of error; but the only question we deem it necessary to consider is the question of the admissibility of the declarations made by the officers in the presence of the defendant while he was in custody.

Counsel for the accused contend that the defendant was not required to deny anything or any statements made in his presence by any one while he was under arrest and confined in prison. The contention is correct. This proposition is raised by the testimony of the officers quoted supra. In the case of Gardner v. State, 34 S. W. 945, the Court of Criminal Appeals of Texas lays down the rule in the following language:

“Were these facts, and especially the silence of appellant, competent evidence? They were not. In Com. v. McDermott, 123 Mass. 440, it is held: ‘A person who is held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence by another person in answer to his inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.’ This case cites Com. v. Kenney, 12 Metc. (Mass.) 235; Com. v. Walker, 13 Allen, 12. To give silence the effect of an admission, the party charged with it must have been in a position to explain. If the party is under arrest, his silence cannot be used as sustaining the hypothesis of acquiescence thereto.”

The court then cites a number of cases, and says:

“We deem these authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in his presence by others.”

See Simmons v. State, 50 Tex. Cr. 527, 97 S. W. 1052; Merriweather v. Commonwealth, 118 Ky. 870, 82 S. W. 592; State v. Eppstein, 25 R. I. 132, 55 Atl. 204; State v. Weaver, 57 Ia. 730; State v. Carter, 106 La. 407; State v. Howard, 102 Mo. 142.

There are other errors complained of, most of which involve the competency of testimony. There is hardly sufficient competent testimony in this record to justify an examining magistrate in holding the accused for trial, much less to warrant a conviction for murder.

Let the judgment be reversed and the cause remanded, with directions to grant a new trial.

FURMAN, P. J„ and DOYLE, J., concur.


author: PEE CURIAM.

text:
    J. N. DUPREE v. STATE.

      No. A-712.
    Opinion Filed October 31, 1911.
    Appeal from Coal County Court; B. H. Wells, Judge.
    George Trice, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CURIAM.

J. N.' Dupree, plaintiff in error, was convicted of the crime of selling intoxicating liquor and. his punishment was assessed at imprisonment in the county jail for a period of ninety days and to pay a fine of three hundred dollars. The judgment and sentence was entered on February 10, 1910. An appeal was taken by filing in this court on April 11, 1910, a petition in error with case-made. It is assigned that the court erred in overruling an application for a change of judge, and in overruling the plea to the, jurisdiction of the court. The record shows the filing of the statutory affidavits for a change oí judge conformable to section 1984, Comp. Laws 1909. This section was repealed by section 2012, Comp. Laws 1909. The application for change of judge was properly overruled. We are clearly of the opinion that the appeal is without merit. Finding no prejudicial error in the proceeding, the judgment of the lower court is affirmed.


author: PER CUEIAM.

text:
    BEN FORD et al. v. STATE.
    No. A-1136.
    Opinion Filed November 4, 1911.
    Appeal from Caddo County Court; C. Boss Hume; Judge.
    Ben Ford and Otto Dishon were convicted for violation of the
    prohibitory law, and appeal.
    Appeal • dismissed as to Ben Ford.
    Bristow & McFadyen, for appellants.
    Smith C. Matson, Asst. Atty Gen., for the State.
   PER CUEIAM.

On the 30th day of March, 1911, appellants were found guilty in the county court of Caddo county of a violation of the prohibitory liquor law and were sentenced to thirty days’ imprisonment each in the county jail, and to pay a fine of $200 each. From this judgment appellants appealed. On the 31st day of October, 1911, counsel for appellants filed in this court the following motion:

“Comes now Ben Ford, one of the plaintiffs in error in the above entitled cause, and for and on behalf of himself and himself alone, dismisses the appeal in the above entitled cause as to himself, and asks that mandate issue at once.”

The motion to dismiss this appeal made on behalf of Ben Ford is hereby allowed, and this appeal is continued as to Otto Dishon. Appeal dismissed as to Ben Ford. Mandate of this court will issue immediately directing the county court of Caddo county to carry its judgment into execution against appellant Ben Ford.


author: PER CURIAM.

text:
    LEE SPURLOCK v. STATE.
    No. A-773.
    Opinion Filed November 24, 1911.
    Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.
    Lee Spurlock was convicted'of violating the prohibitory law. and appeals.
    Affirmed.

      S. M. Butherford, for plaintiff in error.
    E. G-. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1910, term of the superior court of Muskogee eounty, on a charge of having possession of intoxicating liquor for the unlawful purpose of selling the same. A careful examination of the record in this case discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is, therefore, affirmed.


text:
    JOHN BUSH v. STATE.
    No. A-1256.
    Opinion Filed November 25, 1911.
    ■ Appeal from Oklahoma County Court; John W. Hayson, Judge.
    John Bush was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    A. D. Brown, for plaintiff in error.
    Smith G. Matson, Asst. Atty. Gen., for the State.
   PEE CURIAM.

Plaintiff in error was convicted at the January, 1911, term of the eounty court of Oklahoma county on a charge of selling intoxicating liquor, and was on the 15th day of April, 1911, sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for a period of thirty days. The appeal was filed in this court on the 14th day of July, 1911. Following the rule laid down in the case of Stumpf v. State, 6 Okla. Cr. 159, 117 Pac. 648, the appeal is hereby dismissed.


text:
    ANGELO POZZINI v. STATE.
    No. A-671.
    Opinion Filed November 25, 1911.
    Appeal from Coal County Court; E. H. Wells, Judge.
    Angelo Pozzini was convicted of violating the prohibitory law, and appeals.
    Reversed.
    C. M. Threadgill, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Angelo Pozzini, was convicted in the county court of Coal county at the January, 1910, term, on a charge of violating the qjrohibitory law, and his punishment fixed at imprisonment in the eounty jail for a period of thirty days and a fine, of one hundred dollars. It appears from the record that at the conclusion of the trial there was a fatal variance between the allegation in .the information and the proof adduced. The county attorney thereupon asked leave to amend the information to conform to the facts proved, which leave was granted by the court. This was error. If an information is to be amended it should be done before the ease goes to trial. It cannot be amended in matter of substance after the empaneling of a jury, and can be amended in matters of form only when such can be done without prejudice to the rights of the accused. Let the judgment be reversed and the cause remanded for a new trial.


author: BEE CUEIAM.

text:
    BOB BRAZIEL v. STATE.
    No. A-1090.
    Opinion Filed January 5, 1912.
    Appeal from Carter County Com't; M. P. Winfrey, Judge.
    Bob Braziel was convicted of violating the prohibitory law, and appeals.
    Affirmed.
   BEE CUEIAM.

Bob Braziel, plaintiff in error; was convicted in the eounty court of Carter eounty of a violation of the prohibitory law and was on February 17, 1911, in pursuance to the verdict of the jury, sentenced to serve a term of ninety days in the county jail and pay a fine of one hundred dollars. Prom which judgment an appeal was taken by filing in this court on April 15, 1911, a„petition in error with ease-made. When the ease was called for final submission on the regular assignment of this day, there was a withdrawal by counsel of record of further appearance in the ease. Whereupon the Attorney General moved to affirm for failure to prosecute the appeal. Wherefore, the judgment of the lower court is affirmed for failure to proseeute the appeal. Mandate to issue forthwith.


text:
    WALT COOK v. STATE.
    No. A-927.
    Opinion Filed January 23, 1912.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    Walt Cook was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    H. J. Sturgis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garfield county on a charge of violating the prohibitory law, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of one hundred and eighty days. Judgment and sentence was rendered on the 8th day of June, 1910. The appeal was filed in this court on the 6th day of October, 1910. The Attorney General has filed the following motion to dismiss the appeal: "Comes now Charles West, Attorney General, and appearing specially and for the purposes of this motion alone, moves the court to dismiss the pretended appeal in this case for the following •reason: Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Garfield county on the 8th day of June, 1910, at which time the court granted 60 days to make and serve the case-made and 90 days to file the petition in error in this court (Record, pp. 57-8); thereafter, towit., on the 7th day of September, 1910, said trial judge attempted to extend the time for filing the petition in error and case-made in this court for a period of thirty days, but the Attorney General, says that said trial judge had lost jurisdiction to make such order because the time theretofore granted, to wit, 90 days from the 8th day of June, 1910, to file petition in error and ease-made in this court had expired on and with the 6th day of September, 1910. Wherefore, the Attorney General says that said order of September 7, 1910, attempting to extend the time of filing petition in error and ease-made in this court is absolutely void and that said ease-made was not filed in this court until the 6th day of October, 1910, and after the ninety days from the Sth day of June; 1910, had expired. Wherefore, the Attorney General says that this court is without jurisdiction to consider this case, except to dismiss the appeal.”

We have carefully examined the record and find that the motion is well taken. This court has no jurisdiction to determine the appeal on its merits. The motion to dismiss is sustained, and the appeal accordingly dismissed.