author: IIE RCURIAM.

text:
    LEE PIERCE v. STATE.
    No. A-1909.
    Opinion Filed February 27, 1914.
    Appeal from County Court, Garfield County; Winfield Scott, Judge.

      Lee Pierce was convicted of maintaining a place wherein intoxicating liquors were kept for sale, and appeals.
    ¡Reversed.
    O. D. Roseman, for plaintiff in error.
    O. J. Davenport, Asst. Atty. Gen., for the State.
   IIE RCURIAM.

The plaintiff in error, Lee Pierce, was convicted at the October, 1912, term, of the county court of Garfield county on a charge of maintaining' a plaee wherein intoxicating liquors were kept for the purpose of sale, and his punishment fixed at a fine of $400 and imprisonment in the county jail for a period of thirty days. The proof on behalf of the state shows that a raid was made on the place kept by the plaintiff in error in the town of Enid on the 19th day of May, 1912, and two bottles of whisky and some ten bottle of beer were found; that plaintiff in error was in possession of the premises. Certain enforcement officers testified that the place had a reputation of being a plaee wherein intoxicating liquors were kept and sold; that such plaee had had such reputation for two years or more. No proof was offered on behalf of the state tending to show that pilaintiff in error had paid a special internal revenue tax or that he had ever sold any intoxicating liquors in this or any other plaee. Proof on behalf of plaintiff in error shows that he had two bottles of whisky and ten bottles of beer in the building; that he had owned the plaee from April to May 1st; that prior to that time the building had been locked up under a restraining order from the courts on account of the fact that former owner had been selling intoxicating liquor therein. Plaintiff in error testified that he went to the plaee some time in April and moved out about the first of May; that he sold the plaee about the 8th or 9th of May to a man by the name of King; that he never sold any intoxicating liquor in the place and was not maintaining the place for that purpose. The proof disclosed by the record is insufficient as a matter of law to sustain the conviction. There is not a line of testimony on behalf of the state to indicate that the plaintiff in error ever sold liquor in the building or was interested directly or indirectly in any sale that had ever been made therein. In fact, there is no proof in this record to indicate that any sale ever had been made in the building during the time it was in possession of plaintiff in error. The greater piortion of the testimony introduced on behalf of the state was incompetent as against this plaintiff in error. The law in this state prohibits and penalizes the maintaining of a jjlace wherein intoxicating liquors are kept for the purpose of sale. The proof that a small quantity of liquor is kept in the plaee where a person resides, and no proof that the special revenue tax had been paid being offered, and no proof of any sale ever having been made being offered, it is asking a great deal of a court or jury to send a man to prison for maintaining a plaee wherein such liquors are kept for sale; in fact it is more than the fair minded citizenship of any community demands or the law tolerates. We think that this judgment should not be allowed to stand. The county attorney, if he expects to maintain convictions, should make out a case that will conform with the rules of law. Unless he can do so, the county should be saved the expense of unnecessary litigation. The judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN A. TUCKER v. STATE.
    No. A-1780.
    Opinion Filed February 10, 1914.
    Appeal from Superior Court, Grady County; Will Linn, Judge.
    John A. Tucker was convicted of a violation of the prohibition law, and appeals.
    Reversed.
    Bearfoot & Carmichael, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the superior court of Grady county, in which plaintiff in error was found guilty of unlawfully having possession of intoxicating liquors. It is a companion case with that of John A. Tucker v. State, 9 Okla. Cr. 555, 132 Pac. 689, and presents the identical question passed upon in that case. For the reasons given in the opinion in that case, the judgment of the lower court is reversed and a new trial awarded and the cause remanded to the county court of Grady county, as the successor to the superior court of Grady county in all matters therein theretofore pending.


text:
    TOM UPTON v. STATE.
    No. A-1896.
    Opinion Filed February 14, 1914.
    Appeal from County Court, Tulsa County; N. J. Gubser, Judge.
    Tom Upton was convicted of having unlawful possession of liquor, and appeals.
    Affirmed.
    Flowers Nelson and J. R. League, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Tom Upton, was convicted at the October, 1912, term of the county court of Tulsa county on a charge of having unlawful possession of intqxi eating liquors with intent to sell the same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of ninety days. A careful reading of the record in this cause reveal's no error sufficient to disturb the judgment of the lower court. It is therefore affirmed.


author: PEB CURIAM.

text:
    IRVIN BARRETT v. STATE.
    No. A-1941.
    Opinion Filed February 21, 1914.
    Appeal from County Court, Hughes County; J. Ross Bailey, Judge.

      Irvin Barrett was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Crump & Skinner, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PEB CURIAM.

The plaintiff in error was convicted upon an information charging the unlawful sale of intoxicating liquor to one Aaron Toby, and on the 27th day of January, 1913, in accordance with the verdict of the jury, he was sentenced to be confined thirty days in the county jail, and to pay a fine of one hundred dollars. No brief has been filed. We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment. The judgment is therefore affirmed. Mandate forthwith.


author: PEB CUBIAM.

text:
    M. A. WAITS v. STATE.
    No. A-1942.
    Opinion Filed February 21, 1914.
    Appeal from County Court, Hughes County; J. Boss Bailey, Judge.
    M. A. Waits was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Crump & Skinner, for plaintiff in error.
    The Attorney General, for the State.
   PEB CUBIAM.

The plaintiff in error was convicted in the county court of Hughes county upon an information charging the unlawful sale of intoxicating liquor to one B. E. Stiles, and in accordance with the verdict of the jury he was, on the 20th day of January, sentenced to be confined for thirty days in the eounty jail, and to pay a fine of fifty dollars. An appeal was taken by filing in this court on March IS, 1913, petition in error with caso-made. No brief has been filed, and the Attorney General has filed a motion to affirm, for failure to prosecute the appeal. In cases of this kind, we do not consider it the duty of this court to examine the record, to determine whether or not the trial court erred in the admission and rejection of testimony. We have examined the record proper, and find no error. The motion to affirm is sustained. The judgment is therefore affirmed. Mandate forthwith.


author: PER GTJRIAM.

text:
    ELMER DEER v. CITY OF NOWATA.
    No. A-1945.
    Opinion Filed February 21, 1914.
    Appeal from County Court, Nowata County; Wm. P. Gilluly, Judge.
    Elmer Deer was convicted of a violation of a city prohibition ordinance, and appeals.
    Dismissed.
   PER GTJRIAM.

Plaintiff in error, on appeal from the police court of the city of Nowata, was tried and convicted in the county court for the unlawful possession of intoxicating liquor, contrary to an ordinance of said city, and he was sentenced to be confined for fifteen days in the city jail, and to pay a fine of seventy-five dollars. An appeal was taken by filing in this court on March 19, 1913, a petition in error with case-made. No brief has been filed, and no appearance made. It appearing that the appeal has been abandoned, said appeal is dismissed and the cause remanded to the county court of Nowata county. Mandate forthwith.


text:
    FRANK PALMER v. CITY OF NOWATA.
    No. A-1943.
    Opinion Filed February 21, 1914.
    Appeal from County Court, Nowata County; Wm. M. G-illuly, Judge*
    Prank Palmer was convicted of a violation of a city prohibition ordinance, and appeals.
    Dismissed.
   PER CURIAM.

Plaintiff in error, on appeal from the police court of the city of Nowata, was tried and convicted in the county court for the unlawful possession of intoxicating liquor, contrary to an ordinance of said city, and he was sentenced to be confined for thirty days in the city jail and to pay a fine of fifty dollars. An appeal was taken by filing in this court on March 19, 1913, petition in error with case-made. No brief has been filed, and no appearance made. It appearing that the appeal has been abandoned, said appeal is dismissed and the cause remanded to the eounty court of Nowata county. Mandate forthwith.


text:
    FRANK COLLINS v. CITY OF NOWATA.
    No. A-1944.
    Opinion Filed February 21, 1914.
    Appeal from County Court, Nowata County; Wm, P. Gilluly, Judge.
    Prank Collins was convicted of a violation of a city prohibition ordinance, and appeals. Dismissed.
   PER CURIAM.

Plaintiff in error, on appeal from the police court of the city of Nowata, was tried and convicted in the county court for the unlawful possession of intoxicating liquor, contrary to an ordinance of said city, and he was sentenced to be confined for thirty days in the city jail, and to pay a fine of seventy-five dollars. An appeal was taken by filing in this court on March 19, 1913, a petition in error with case-made. No brief has been filed, and no appearance made. It appearing that the appeal has been abandoned, said appeal is dismissed and the cause remanded to the county court of Nowata county. Mandate forthwith.


text:
    T. V. GRANT v. STATE.
    No. A-1972.
    Opinion Filed March 17, 1914.
    Appeal from District Court, Pontotoc County; Tom D. MeKeown, Judge.
    T. W. Grant was convicted of embezzlement, and appeals.
    Reversed.
    C. C. Williams, C. E. Green, and J. E. McKeel, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, T. W. Grant, was convicted at the November, 1912, term of the district court of Pontotoc county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a period of one year. We have carefully read the record in this ease and to our minds there is no offense disclosed by the proof and also no question of fact which should have been submitted to the jury. The plaintiff in error was prosecuted for embezzlement upon the theory that as agent of one Starritt he embezzled the proceeds of certain ties. The relation of principal and agent did not exist. The facts clearly disclose the relation of debtor and ■creditor instead, and the ease must therefore fall. We are of the opinion that a statement of the facts and an elaborate discussion of the questions involved would serve no good purpose. The judgment of the trial court is reversed and the cause remanded with directions to dismiss.


text:
    WALTER BOWERS v. STATE.
    No. A-1971.
    Opinion Filed March 1, 1914.
    Appeal from County Court, Rogers County; Walter W. Shaw, Judge.
    Walter Bowers was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    D. G. Elliott, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Walter Bowers, was convicted at the February, 1913, term of the county court of Rogers country on a charge of selling intoxicating liquors, and his punishment fixed at a fine of $250 and imprisonment for sixty days. The appeal was taken to this court on the 18th day of April, 1913, and the cause submitted in this court for final determination on the 5th day of March, 1914. No briefs have been filed on behalf of the plaintiff in error, and no appearance made for oral argument. The assistant Attorney General, on the hearing, moved for an affirmance of this ■ cause on the ground that the appeal had been abandoned. We have examined the record and find no error. The judgment of the trial court is therefore affirmed.


text:
    OSCAR CAUDILL v. STATE.
    No. A-1993.
    Opinion Filed March 21, 1914.
    Appeal from District Court, Beckham County; G. A. Brown, Judge.
    Oscar Caudill was convicted of assault and battery, and appeals.
    Affirmed.
    Hendrix & Tracy and W. B. Merrill, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Oscar Caudill, was convicted on December 7, 1912, in the district court of Beckham county on a charge of assault and battery, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of thirty days. Upon a careful examination of the record we feel that the judgment of the trial court should be affirmed, and it is so ordered.


text:
    NELSON JELTS v. STATE.
    No. A-1990.
    Opinion Filed March 21, 1914.
    Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.
    Nelson Jelts was convicted of violating. the prohibitory law, and appeals.
    Dismissed.
    G. A. Outcelt, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEB CURIAM.

The plaintiff in error, Nelson Jelts, was tried and convicted at the January, 1913, term of the county court of Pottawatomie county on a charge of maintaining a place wherein intoxicating liquors were received and kept for the purpose of sale. Judgment was rendered on the 28th day of February, 1913, at which time the court allowed thirty days for preparing and serving a case-made, and sixty days within which to effect the appeal under the statute. The petition in error and case-made were not filed until the 3d day of May, 1913, more than sixty days after rendition of the judgment, no further extension of time having been made as provided by law. The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not filed within the time allowed by the statute and under the orders of the court. The motion is well founded and is therefore sustained. The appeal is accordingly dismissed.


text:
    MARK LANCASTER v. STATE.
    No. A-1982.
    Opinion Filed March 21, 1914.
    Appeal from County Court, Pontotoc County; I. M. King, Judge.

      Mark Lancaster was convicted of conducting a gambling bouse, and appeals.
    Affirmed.
    Crawford & Bolen, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Mark Lancaster, was convicted at the January, 1913, term of the county court of Pontotoc county on a charge of conducting a gambling house, and his punishment fixed at a fine of two hundred dollars and imprisonment in the county jail for a period of sixty days. A careful examination of the record discloses no fundamental error. There were no briefs filed on behalf of the plaintiff in error and no appearance made for oral argument. No fundamental error appearing, the judgment of the trial court is affirmed.


text:
    WILLIAM BROCKHAUS v. STATE.
    No. A-2008.
    Opinion Filed March 28, 1914.
    Appeal from County Court, Kingfisher County; R. P. Shutter, Judge.
    William Brockhaus was convicted of selling intoxicating- liquor, and appeals.
    Affirmed.
    D. K. Cunningham, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, William Brockhaus, was convicted at the January, 1913, term of the county court of Kingfisher county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of'$200 and imprisonment in the county jail for a period of thirty days. The testimony on behalf of the state was by two witnesses, a deputy sheriff and a man named Anderson. Each testified that they went into the place of business belonging to the accused and got a pint bottle of whisky about the 17th day of January, 1913. Counsel contend that the evidence does not show a sale, but, if anything, a gift. Witness Rutherford testified on cross-examination as follows: “Q. Where did you say you got this bottle? A. I bought it from this man Brockhaus? Q. AVho give you this bottle? A. This man Brockhaus. Q. You asked him. for a bottle of whisky? A. Yes, sir.” The witness ‘had previously testified that the bottle contained whisky. It was opened in the presence of 'the court and jury, and submitted to the jury for inspection. This is the only testimony bearing on the question of the sale. In our judgment it was amply sufficient to warrant the jury in finding the accused guilty as charged. We find no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    HUBERT SPEARS v. STATE.
    No. A-1957.
    Opinion Filed March 28, 1914.
    Appeal from County Court, Jackson Comity; B. N. Woodson, Judge.
    Hubert Spears was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Lawson & Dabney, for plaintiff in error.
    Chas. West, Atty. Gen., and C. E. Hall, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error, Hubert Spears, was tried and convicted at the January, 1913, term of the county court of Jaekson county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $175 and imprisonment in the county jail for a period of thirty days. We have carefully examined the record and are of opinion that the judgment should be affirmed. It is therefore so ordered.


text:
    A. P. McALEXANDER v. STATE.
    No. A-1950.
    Opinion Filed March 21, 1914.
    Appeal from County Court, Johnston County; Nick Wolf, Judge.
    A. P. McAlexander was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    P. B. II. Shearer and J. S. Ratliff, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information which charged that he “did unlawfully and willfully make a malt liquor to wit: Choctaw Beer in the amount of ten gallons, contrary" etc. The state’s evidence was substantially as follows: Mart Miller testified that he was under-sheriff and went to Mr. Mc-Alexander's residence with Ras.Chance and found no one there, so they opened the door and went in and found two kegs; one of them full of Choctaw Beer; that he turned the faucet on the one that was full and let the gas out of it; that he did not know what Choctaw Beer is made out of; that some of it is intoxicating; that he did not drink any of this beer. That he heard the sheriff say he destroyed it. Ras Chance testified that he was a deputy sheriff .and was with Mart Miller when they searched Mr. McAlexander’s house and found the keg; that Chostaw Beer “is made out of copperas, yeast and something." That Mr. McAlexander told him he made Choctaw Beer and root beer. The defendant moved to direct a verdict of not guilty, which was overruled. We think the motion should have been sustained. The evidence is insufficient to show that the keg contained intoxicating liquor, or that the defendant had manufactured intoxicating liquor as charged. The judgment of conviction is therefore reversed.


text:
    WYLIE JONES v. STATE.
    No. A-1998.
    Opinion Filed March 21, 1914.
    Appeal from County Court, Kiowa County; J. W. Mansell, Judge.
    Wylie Jones was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Rummons & Logan, for plaintiff in error.
    C. J. Davenport^ Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted of the offense of unlawfully transporting intoxicating liquor. On the 13th day of November, 1912, 'in accordance with the verdict of the jury he was sentenced to be confined for thirty days in the county jail and to pay a fine of fifty dollars. No brief has been filed, nor oral arfiument made. The Attorney General has filed a motion to affirm for failure to prosecute the appeal. Which motion is sustained and the judgment of the county court of Kiowa county is hereby affirmed. Mandate forthwith.


text:
    J. W. SHOCKEY v. STATE.
    No. A-2000.
    Opinion Filed March 21, 1914.
    Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.
    J. W. Shoekey was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    J. P. Evers, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted upon an information which charged the possession of intoxicating liquors, with the unlawful intent to violate provisions of the prohibitory law, and in accordance with the verdict of the jury he was on the 18th day of March, 1918, sentenced to be confined in the county jail for a term of sixty days and to pay a fine of five hundred dollars. The evidence for the state shows that the defendant was arrested with four boxes of whisky in his possession and fifteen or twenty gunny sacks of liquor in a wagon. The defendant offered no evidence. A careful review of the record discloses no reversible error. The judgment of conviction is therefore affirmed.


text:
    HENRY BAKER v. STATE.
    No. A-1962.
    Opinion Filed March 21, 1914.
    Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

      Henry Baker was convicted of violating tlie prohibitory law, and appeals.
    Affirmed.
    W. W. Momyer, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Ilenry Baker, was convicted at the January, 1913, term of the superior court of Muskogee county on a. charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of fifty dollars, and imprisonment in the county jail for a period of thirty days. The only assignment argued on behalf of plaintiff in error is that the evidence introduced in the trial was insufficient to sustain a conviction. We have carefully examined the' record and find that there is evidence sufficient to warrant the jury in reaching the conclusion they did in this case. In fact many convictions have been sustained on much slighter testimony. There is no error disclosed by the record and we would not be warranted in reversing this judgment on the ground that the evidence is insufficient. It is therefore affirmed.


text:
    VAL GARDNER v. STATE.
    No. A-2219.
    Opinion Filed March 28, 1914.
    Appeal from County Court, Comanche County; II. N. Whalin, Judge.
    Val Gardner was convicted of conducting a gambling game, and appeals.
    Reversed.
    Pain & Young, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Comanche county, on the 7th day of Pebruary, of this year, in which plaintiff in error was found guilty of conducting-a gambling game. The petition in error with case-made was filed in this court on March 25, 1914. The next day the Attorney General filed a confession of error, which, omitting the title, reads as follows: "Comes now the state of Oklahoma by the Attorney General and respectfully calls this honorable court’s attention to the charging part of the information filed in this ease, which is as follows: "On the 16th day of August, 1913, Val Gardner then and there being, did then and there, willfully, unlawfully conduct as owner there of a game of roulette for money, checks and credit,” etc. To this information the defendant filed a demurrer upon the ground that the facts stated in said information did not constitute a public offense. This demurrer was overruled by the court, to which ruling the defendant exeepted at the time, and the error of the court in so overruling the demurrer was set up in the motion for new trial, as well as in the motion in arrest of judgment, and the motion for a new trial was overruled, to which the defendant exeepted, and the ruling of the court as aforesaid is assigned as error in the petition in error filed in this ease. Under the holding of this court in the ease of Brown v. State, 5 Okla. Cr. 41, Morgan et al. v. State, 7 Okla. Cr. 45, and Proctor v. State, 9 Okla. Cr. 81, the overruling of this demurrer constitutes reversible error, for the information must allege that those who played at the game, so conducted, played for money or some representative of value. Por the above reason the Attorney General believes that under the holdings of this court sufficient error appears of record to require a reversal of this judgment, and confesses error accordingly, and moves the court for a speedy’disposition of the case.-’' We are of opinion that the confession of error is well founded, and should be sustained. The judgment of conviction herein is therefore reversed, and the cause remanded with direction to sustain the demurrer to the information. Mandate forthwith.


author: PEE CUEIAM.

text:
    WILL BRIGGS v. STATE.
    No. A-1991.
    Opinion Filed April 18, 1914.
    Appeal from County Court, Cleveland County; F. B. Swank, Judge.
    Will Briggs whs convicted of violating the prohibitory law, and appeals.
    Dismissed.
    B. P. Wolf, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for defendant in error.
   PEE CUEIAM.

The plaintiff in error, Will Briggs, was convicted at the January, 1913, term of the county court of Cleveland county, on a charge of having the unlawful possession of intoxicating liquor with the intent to sell the same and liis punishment fixed at a fine of two hundred fifty dollars and imprisonment in the county jail for a period of ninety days. An appeal was filed in this court on the 3d day of May, 1913. ' On the 22d day of September, 1913, the Attorney General filed a motion to dismiss the appeal, on the ground that the plaintiff in error had become a fugitive from justice and not amenable to any order of the court made in this case. Satisfactory showing is made that the motion is well founded. No response has been made to the showing made by the state. The motion is sustained and the appeal is dismissed. Mandate forthwith.


author: PEE CUBIAM.

text:
    TOM FLEEMAN v. STATE.
    No. A-1899.
    Opinion Filed March 28, 1914.
    Appeal from County Court, Greer County; Jarrett Todd, Judge.
    Tom Fleeman was convicted of a violation of the prohibitory law, and appeals.
    Beversed.

      J. A. Powers, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and H. D. Henry, Go. Atty., for the State.
   PEE CUBIAM.

This appeal is prosecuted from a conviction had in the county court of Greer county in which plaintiff in error was by the judgment of the court sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. The Attorney General has filed a confession of error, which is in part as follows: “Among other instructions the trial court gave the following, which said instruction was excepted to at the time by plaintiff in error, and exceptions allowed by the court: ‘If you believe from the evidence that any witness has willfully sworn falsely, then you may disregard the testimony of such witness only in so far as it is corroborated by other testimony which you do believe.” This is equivalent to saying that perjured testimony cannot be believed when it is corroborated by credible testimony; in other words it leaves the impression that such testimony must be believed if uncorroborated by credible evidence. This instruction is plainly erroneous, and in view of the evidence in this ease and the circumstances under which this alleged offense was committed, we think the giving of the same prejudicial to the plaintiff in error. The trial court evidently intended to word instruction .five (5) similarly to the one given in the case of Gibbons v. Ter., 5 Okla. Cr. 212; that is to say, that the jury could disregard such testimony except in so far as the same was corroborated by other credible evidence, but even such instructions have been severely criti-cised by this court and in several eases held to be reversible error. Gibbons v. Ter., 5 Okla. Cr. 212; Rea v. State, 3 Okla. Cr. 381; Henry v. State, 6 Okla. Cr. 430. This court has on all occasions indicated plainly an intent to discourage the giving of such instructions and has even gone so far as to point out the proper one to give on this subject. Henry v. State, 6 Okla. Cr. 430. Por the reasons above given we think instruction No. 5 given by the court and excepted to was erroneorrs, and we confess error accordingly.” We are of opinion that the confession of error should be sustained. The judgment of conviction herein is therefore reversed and a new trial granted. Mandate forthwith.


text:
    H. W. JACKSON v. STATE.

      No. A-1981.

    Opinion Filed April 11, 1914.
    Appeal from County Court, Okmulgee County; Mark Bozarth, Judge.
    H. W. Jackson was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Wallace & Stephens, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, I-I. W. Jackson, was convicted at the January, 1913, term of the county court of Okmulgee county, on a charge of having the unlawful possession of intoxicating liquor with inteat to sell the same, and his punishment fixed at 'a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. Upon a careful examination of the record we are of opinion that the judgment should be affirmed, and it is so ordered. Mandate ordered forthwith.


text:
    JOEL COLLINS v. STATE.
    No. A-2132.
    Opinion Filed April 25, 1914.
    Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.
    Joel Collins was convicted of larceny, and appeals.
    Dismissed.
    F. E. Kennamer, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, Joel Collins, was convieted of larceny of domestic animals, at the May, 1913, term of the district court of Marshall county and his punishment fixed at imprisonment in the state penitentiary for a term of two years. The appeal was filed in this court on the 17th day of November, 1913: The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error has abandoned the appeal and become a fugitive from justice and cannot now be made to respond to any judgment of this court. A satisfactory showing in support of the motion is attached thereto. It is the judgment of the court that the motion should be sustained and the appeal dismissed. It is so ordered. Mandate forthwith.


text:
    S. D. REAMS v. STATE.
    No. A-1989.
    Opinion Filed April 4, 1914.
    Appeal from County Court,, Oklahoma County; John W. Hayson, Judge.
    S. D. Beams was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    Yaught & Ready and Ledru Guthrie, for plaintiff in error.
    Ohas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convieted upon an information which charged that “S. D. Reams did, in Oklahoma county, on the 7th day of August, 1912, commit the crime of having intoxicating liquors in his possession with the unlawful intent on the part of said defendant to sell, barter, give away and otherwise furnish the same to parties unknown." Many alleged errors are assigned as grounds for a reversal of the judgment, but it is only necessary to notice the one, “that the court erred in overruling a motion of the defendant to direct a verdict of not guilt y.” A. E. Smith and J. B. Dalton testified that they were deputy enforcement officers and went into the pool hall at 128 West First street in Oklahoma City, and had a conversation with a colored man, and Smith asked Mm for a half pint of whisky; that the negro went out “through the back door, the rear door some place,” and when he came back he had a half pint of whisky, and Smith gave him fifty cents for it. The defendant was not present, and there was no proof that the negro was employed by him, or connected with him in any way. In order to support a conviction for the offense charged, there must be some evidence tending to show the defendant’s possession of the intoxicating liquor. There was no such evidence in this ease. Therefore, the evidence was not sufficient to support the conviction, and the motion to direct a verdict of not guilty should have been sustained. The judgment of conviction is reversed.


text:
    JOHN GRAY v. STATE.
    No. A-1854.
    Opinion Filed April 11, 1914.
    Appeal from Oounty Court, LeFlore County;' B. 0. Bolger, Judge.
    John Gray was convicted of pointing a pistol, and appeals.
    Affirmed.
    Tom W. Neal, for plaintiff in error.
    Chas. West, Atty. Gen., and 0. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

Plaintiff in error was convicted upon an information which, after alleging the date and venue, charged: “That the said John Gray, did then and there willfully and unlawfully point a pistol at and towards one W. E. Sweeney.” In accordance with the verdict of the jury he was sentenced to be confined in the county jail for three months and pay a fine of fifty dollars. After a careful examination of the record, we have discovered no error in the rulings complained of. The judgment of the county court of LeFlore county herein is therefore affirmed.


author: PEE OTJEIAM.

text:
    W. S. BIGGS v. STATE.
    No. A-2187.
    Opinion Filed April 25, 1914.
    Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.
    W. S. Biggs was convicted of violating the prohibitory law, and appeals.
    Dismissed.

      W. W. Momyer, for plaintiff in error.
    O. J. Davenport, Asst. Atty. Gen., for defendant in error.
   PEE OTJEIAM.

The plaintiff in error, W. S. Biggs, was eonvieted at the November, 1913, term of the superior court of Muskogee county, on a charge of having the unlawful possession 0f intoxicating liquor with intent to sell the same and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of sixty days. Judgment was pronounced on the 13th day of December, 1913. The appeal was filed in this court on the 12th day of Pebruary, 1914. The Attorney General filed a motion to dismiss the appeal on the ground that the same was not filed in this court within the time allowed by the statute and the orders of the trial court. That court fixed sixty days within which plaintiff in error was required to perfect an appeal in this court. No extension of this time is shown by the record. The appeal was not filed within that time. It therefore follows that the motion to dismiss is well taken and must be sustained. This court has no jurisdiction to determine any question raised by record on the merits. The appeal is dismissed.


text:
    CHARLES L. TORR v. STATE.
    No. A-1938.
    Opinion Filed April 18, 1914.
    Appeal from District Court, Muskogee County; E. C. Allen, Judge.
    Charles L. Torr was convicted of embezzlement, and appeals.
    Dismissed.
    Kistler & McAdams, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles L. Torr, was convicted at the September, 1912, term of the district court of Muskogee county, on a charge of embezzlement and his punishment fixed at imprisonment in the state penitentiary for a term of one year. Upon motion of counsel for plaintiff in error the appeal in this case is dismissed.


text:
    CLARENCE NEAL v. STATE.
    No. A-2207.
    Opinion Filed April 18, 1914.
    Appeal from County Court, Washington County; James T. Shipman, Judge.
    Clarence Neal was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    O. C. Julian, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, -Clarence Neal, was convicted at the November, 1913, term ol the Washington county court, on a charge of maintaining a place wherein intoxicating liquors were kept for sale, and his punishment fixed at a fine of $75 and imprisonment in the county jail for a term of thirty days. Judgment was pronounced on the 15th day of November, at which time the court allowed sixty days in which to make and serve the case-made, but fixed no additional time other than that allowed by the statute within which the appeal should be lodged in this court. At a later date a supplementary order was made allowing ten days additional time for making and serving the case-made, but no order was made at this time extending the time for filing the appeal and the record does not indicate that any was requested. The appeal was filed in this court on the 21st day of February, 1914, long after the expiration of the time fixed by the statute in which the appeal could be taken without additional time allowed by proper orders from the trial court. The Attorney General has filed a motion to dismiss this appeal on the ground that the same was not taken in the manner and filed within the time provided by law. No response has been made to the motion. We have no alternative except to dismiss the appeal and direct the trial court to enforce the judgment and sentence, and it is so ordered. Mandate forthwith.


text:
    JOE OLIVER v. STATE.
    No. A-2086.
    Opinion Filed April 18, 1914.
    Appeal from County Court, Rogers County; Walter W. Shaw, Judge.
    Joe Oliver was convicted of selling intoxicating liquor, and appeals.
    Dismissed.
    H. Tom Eight, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error, Joe Oliver, was convicted at the March, 1913, term of the county court of Eogers county, on a charge of selling 'intoxicating liquor and his punishment fixed at a fine of $100 and imprisonment in the county jail for a term of ninety days. The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not taken in the manner and perfected within the time provided by law. Counsel for plaintiff in error filed a motion to dismiss the appeal on the ground that the plaintiff in error has become a fugitive from justice and the appeal is therefore abandoned. There is no question but that the appeal should be dismissed and for all practical purposes it is immaterial which motion is sustained. The appeal is dismissed. Mandate ordered forthwith.


text:
    ROBERT HILBRETH v. STATE.
    No. A-2189.
    Opinion Filed April 25, 1914.
    Appeal from County Court, McCurtain County; E. E. Cochran, Judge.
    Robert Hilbreth was convicted of a violation of the prohibitory law, and appeals.
    Dismissed.
   PER CURIAM.

Robert Hilbreth, plaintiff in error, was convicted in the county court of McCurtain county of a violation of the prohibitory law, and in accordance with the verdict of the jury, he was on the 18th day of July, 1913, sentenced to be confined in the county jail for a term of thirty days and to pay a fine of fifty dollars. To reverse this judgment an appeal was attempted to be taken by filing in this courtf on February 16, 1914, a petition in error with case-made. On March 10, 1914, the Attorney General filed a motion to dismiss the appeal for the reason that the same was not filed in this court until long after the expiration of the time allowed by law in which an appeal could be taken in a misdemeanor case. It appearing from the record that the petition in .error and case-made were not filed in this court until three or four months after the limit fixed by law for taking an appeal had expired, the motion to dismiss is well taken. The purported appeal herein is therefore dismissed, and the cause remanded.


text:
    PHINEAS S. THOMPSON v. STATE.
    No. A-2094.
    Opinion Filed April 25, 1914.
    Appeal from County Court, McIntosh County; Ben D. Gross, Judge.
    Phineas S. Thompson was convicted of a violation of the prohibitory law, and appeals.
    Dismissed.
   PER CURIAM.

Phineas S. Thompson, plaintiff in error, was convicted in the county court of McIntosh county of a violation of the prohibition law, and in accordance with the verdict of the jury he was, on the 25th day of July, 1913, sentenced to be confined in the county jail for a term of thirty days and to pay a fine of seventy-five dollars. To reverse this judgment an appeal was attempted t® be taken by. filing in this court on September 24, 1913, a petition in error with case-made. On October '2, 1913, the Attorney General filed a motion to dismiss the appeal for the reason that the same was not filed 'in this court within sixty days from the rendition of the judgment. It appearing from the record that the statutory time had not been extended by order of the court, and it appearing further that the appeal was lodged in this court one day too late, the motion to dismiss must be sustained. The purported appeal is therefore dismissed and the cause remanded.


author: PER CIJRIAM.

text:
    GEORGE WARD v. STATE.
    No. A-2117.
    Opinion Filed April 25, 1914.
    Appeal from County Court, Pittsburg County; B. P. Hammond, 'Judge.
    George AVard was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    J. R. Miller, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for defendant in error.
   PER CIJRIAM.

Plaintiff in error, George AAard, was convicted at the July, 1913, term of the county court of Pittsburg county, on a charge of having the unlawful possession of intoxicating liquor with the intent to sell the same, and his punishment fixed at a fine of $75 and imprisonment in the eounty jail for >a period of thirty days. Judgment’was pronounced by the trial court on the 25th day of August, 1913. No order was made at the time extending the sixty days allowed' by the statute within which the appeal should be perfected in this court. The appeal was not filed here until the 27th day of August, 1913, more than sixty days subsequent to the rendition of the judgment. The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not perfected within the time allowed by the law. The motion was well founded and is sustained. The appeal is dismissed.


text:
    CHARLES CONNERS v. STATE.
    No. A-2074.
    Opinion Filed April 25, 1914.
    Appeal from County Court, Canadian County; Chas. Maurer, Judge.
    Charles Conners was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    J. N. Roberts, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles Conners, was convicted at the March, 1913, term of the county court of- Canadian county on a charge of having unlawful possession of ixffcoxieating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a term of six months and a fine of $500. Judgment was pronounced by the trial court on the 27th day of May, 1913, at which time plaintiff in error was given thirty days to prepare and serve case-made, and sixty days within whieh to lodge his appeal in the Criminal Court of Appeals. The appeal was filed in this court on the 23d day of August, 1913, more tl^an sixty days after the rendition of the judgment, no order having been made by the trial court extending the time beyond sixty days. An appeal is taken to this court by filing a petition in error and attaching a case-made. In this case it appears that the case-made was filed 'in July; that the petition in error was not filed until the 23d of August. The appeal, therefore, was not perfected in the manner provided by law. We, therefore, have no jurisdiction to determine any of the questions raised or attempted to be raised and have jurisdiction only to dismiss the appeal and direct the trial court to enforce the judgment, and it is so ordered.


text:
    C. G. TRINKEL v. STATE.
    No. A-2111.
    Opinion Filed April 25, 1934.
    Appeal from County Court, Hughes County; J. Ross Bailey, Judge.
    . C. G. Trinkle was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    Witty & Meyer, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. G. Trinkle, was eonvicted of a violation of the prohibitory law, and in accordance with the verdict of the jury, he was on the 9th day of July, 1913, by the court, sentenced to be confined in the county jail for a term of ninety days and to pay a fine of one hundred fifty dollars. To reverse this judgment an appeal was attempted to be taken by filing in this court on October 17, 1913, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal, for the reason that the same was not filed in this court within sixty days from the rendition of the judgment. It appearing from the record that the statutory time had not been extended by the order of the court, and it appearing further that appeal was not lodged in this court within the time l'imit fixed by the statute, the motion to dismiss must be sustained. The purported appeal is therefore dismissed and the cause remanded.


text:
    J. T. FISHER v. STATE.
    No. A-2110.
    Opinion Filed April 28, 1914.
    Appeal from the County Court, Kiowa County; J. S. Carpenter, Judge.
    J. T. Pisher was convicted of the offense of suppressing evidence, and appeals.
    Appeal dismissed.
    I-Iays & Hughes, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was tried and convicted in the county court of Kiowa county, upon an information which charged a violation of section 2258 (Rev. Laws 1910) of the Penal Code. On the 16th day of August, 1913, he was by the court sentenced in accordance with the verdict of the jury to be confined in the county jail for a period of three hundred sixty-five days. To reverse the judgment an appeal was perfected. On April 15, 1914, plaintiff: in error filed a motion to dismiss his appeal, which motion is by this court allowed, and the appeal herein is ordered to be dismissed, and.the cause remanded to the lower court.


text:
    MOLLIE MITCHELL v. STATE.
    No. A-1961.
    Opinion Filed May 2, 1914.
    Appeal from District Court, Seminole County; Tom D. MeKeown, Judge.
    Mollie Mitchell was convicted of adultery, and appeals.
    Affirmed.
    Willmott & Dean, for plaintiff in error.
    Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Mollie Mitchell, was tried for the correlative offense just considered, in the case of Kitchens v. State, ante. She also was found guilty and her punishment assessed at confinement in the penitentiary for a period of one year. The judgment and sentence was rendered and entered on the 11th day of October, 1912. The facts in the case are substantially the same, and the questions presented are the same as those just decided in the companion case. Eor the reasons stated in the opinion in the ease of Kitchens v. State, supra, the judgment of conviction herein is affirmed.


text:
    DOT GORRELL v. STATE.
    No. A-1968.
    Opinion Filed May 2, 1914.
    Appeal from District Court, Marshall County; A. H. Eerguson,, Judge.
    Dot Gorrell was convicted of the larceny of a domestic animal, and appeals.
    Appeal dismissed.
    Wm. M. Eranklin and Geo. S.'March, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Dot Gorrell, was convicted in the district court of Marshall county on an information which charged the larceny of a horse. The judgment and sentence of the court, rendered and entered on the 23d day of November, 1912, was that he be imprisoned in the penitentiary for a term of one year and one day. Prom this judgment an appeal was taken by filing in this court on April 10, 1913, a petition in error with case-made. A motion to dis-miss the appeal has been filed, which, omitting the formal parts, reads as follows: “Comes now the state of Oklahoma by the Attorney General and gives the court to understand that the plaintiff 'in. error, Dot Gorrell, soon after his conviction and sentence in the district court of Marshall county, from which this appeal originated, made and executed a bond for appeal; that after the execution of said bond the plaintiff in error voluntarily left the state of Oklahoma and went to the state of Texas, and while there the plaintiff in error was tried and convicted of larceny, in the district court of Grayson county, Texas; that the sentence in said ease in the district court of Grayson county, Texas, was that plaintiff in error be imprisoned in the state penitentiary for a period of one year; that thereafter said Dot Gorrell took steps to appeal from said judgment to the Court of Criminal Appeals of the state of Texas, and thereafter abandoned said appeal; and as the Attorney General is informed and believes, the said plaintiff in error is now serving said sentence of said court of Grayson county, Texas; that there are pending against plaintiff in error -in the district court of Marshall county, state of Oklahoma, five informations charging plaintiff in error with larceny; that the appearance bond in one of said cases has been forfeited by the district court of Marshall county; all of which said facts appear from an affidavit of O. A. Coakley, county attorney of Marshall county, state of Oklahoma, marked Exhibit “A” hereto attached and made a part hereof; that by reason of said facts, plaintiff in error is a fugitive from justice; that he has voluntarily placed himself beyond the rights of this court or the lower court, and has forfeited his right to have the~same Considered, and that this appeal ought to bo dismissed. Wherefore, the Attorney General prays that an order be made dismissing this appeal and directing that the original judgment of conviction and sentence of imprisonment be executed, and the Attorney General further moves that this motion be set down for immediate action by this court.” No answer or response to the aforesaid motion has been filed on behalf of plaintiff in error. The question presented by the motion to dismiss is the same as that decided in Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515, and Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548. In those cases it was held that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, a.nd where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice, this court will on motion dismiss his appeal. It is our opinion that plaintiff in error has waived the right to have h'is appeal in this case considered and determined. The motion to dismiss is sustained; the appeal is dismissed and the cause remanded to the district court of Marshall county.


text:
    JACK KINDRICK v. STATE.
    No. A-2024.
    Opinion Filed May 9, 1914.
    Appeal from County Court, Tillman County; W. C. Lukenbill, Judge.
    Jack Kindrick was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      Johnson & Red, for plaintiff in error.
    Chas. West, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and eonvieted upon an information charging that Jack Kindriek did in Tillman county, Oklahoma, on or about the 11th day of January, 1913, sell one quart of whisky. On the 28th day of Pebruary, 1913, the court rendered judgment and sentenced the defendant in accordance with the verdict of the jury to. be confined in the county jail for a period of five months and to pay a fine of three hundred fifty dollars. After a careful examination of the record, we are of opinion that no reversible error was committed upon the trial. The judgment of the county court of Tillman county 'is therefore affirmed. Mandate forthwith.


text:
    OSCAR PEERY v. STATE.
    No. A-2039.
    Opinion Filed May 9, 1914.
    Appeal from County Court, Grady County; 3ST. M. Williams, Judge.
    Oscar Peery was convicted of a misdemeanor, and appeals.
    Appeal dismissed.
    Bond, Melton & Melton, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information, which charged that he did willfully and unlawfully point at and towards one A. B. Hoblett, a certain deadly weapon, to wit, a shot gun. On April 28, 1913, judgment was entered, and he was sentenced to be confined in the county jail for a term of three months and to pay a fine of fifty dollars. To reverse this judgment an appeal was perfected. Plaintiff in error has filed a motion to dismiss his appeal herein. The motion to dismiss is sustained.


text:
    JAKE BEARD v. STATE.
    No. A-2035.
    Opinion Filed May 16, 1914.
    Appeal from County Court, Murray -County; I-Iarry W. Pieldi-ng, Judge.
    Jake Beard was convicted of unlawfully conveying intoxicating liquor, and appeals.
    Affirmed.
    W.' N. Lewis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Jake Beard, was convicted at the May, 1913, term of the county court of Murray county on a charge of unlawfully conveying intoxicating liquor from one place in Murray county to another, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of thirty days. Upon a careful examination of this record, we are of opinion that the judgment should be affirmed, and it is so ordered.


text:
    JOHN HESTER v. STATE.
    No. A-1977.
    Opinion Filed May 16, 1914.
    Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.
    John Hester was convicted of gaming, and appeals.
    Affirmed.
    Pitman & Goode, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, John Hester, was convicted at the January, 1913, term of the county court of Pottawatomie county on a charge of conducting a gambling game, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of thirty days. Upon a careful examination of this record we are of opinion that the accused had a fair and impartial trial and that no prejudicial error occurred in the trial court. The judgment is therefore affirmed.


text:
    ED CONLEY v. STATE.
    No. A-2027.
    Opinion Filed May 16, 1914.
    Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
    Ed Conley was convicted of violating the prohibitory law, and appeals.
    Reversed.
    Giddings & Gidd'ings, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ed Conley, was convicted at the March, 1913, term of the county court of Oklahoma county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fineiof $300 and imprisonment in the county jail for a period of sixty days. Upon a careful examination of the record and briefs in this case it is conclusively apparent that the state • did not make a case of unlawful possession of intoxicating liquor with intent to sell the same, against the accused. The competent proof in the record establishes the fact that an enforcement officer purchased a half pint of whisky on the 5th day of August, 1912, at a place on West California street, from some person who lie says was not the aeeused. There is no testimony which tends to connect the accused with the transaction. This prosecution should have been against the person who made the sale for having made same. There is no evidence in the record ■ tending to show that the accused ever received a shipment of whisky or other intoxicating liquor of any kind. There is no connection of any kind shown between the party making the sale and the accused. In order to justify a conviction the state should show the possession of intoxicating- liquor as charged, as well as facts which warrant a legitimate deduction of intent to sell. Possession may be had by a person through his agent, but the connection must be established. In other words, the crime must be proved and the accused connected with the commission thereof. "We cannot conscientiously say that this was done in this case. The judgment is therefore reversed.


author: ARMSTRONG, P. J.

text:
    A. OVERTON v. STATE.

      No. A-2029.
    Opinion Filed June 6, 1914.
    (140 Pac. 1135.)
    1. APPEAL — Verdict—Evidence. When the faets disclosed by the record, under any reasonable construction thereof, support a verdict of guilty, this court will not reverse a conviction, in the absence of errors of law.
    2. INTOXICATING LIQUORS — Unlawful Possession — Evidence—Admissibility — Sufficiency, (a) On a trial of a person charged with having unlawful possession of intoxicating liquor with intent to sell the same, the quantity and kind of liquor, the size and number of packages, the occasion upon and circumstances under which it is found, the conduct and demeanor of the accused at the time and prior to the discovery, and any and all other circumstances reasonably calculated to throw light on the purpose and intent with which the liquor was possessed, are admissible in evidence, and are all entitled to consideration by the jury in arriving at a verdict.
    (b) Por facts sufficient to sustain a conviction, see opinion.
    (Syllabus by the Court.)

      Appeal from County Court, Tillman County; W. C. Lukenbill, Judge.

      A. Overton was convicted of having unlawful possession of intoxicating liquor with intent to sell the 'same, and appeals.
    Affirmed.

      Mounts & Davis and Gray & McVay, for plaintiff in error.

      B- G. Spilman, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

Plaintiff in error, A. Overton, was tried and convicted at the January, 1913, term of the county court of Tillman county on a charge of having unlawful possession of intoxicating liquor with intent to sell- the same, and his punishment fixed at a fine of $125- and imprisonment in the county jail for a period of 60 days.

The evidence on behalf of the state tends to establish the following facts: That on the date alleged by the information the plaintiff in error went to a public gathering at Panther Springs, in Tillman county; that he carried thirteen bottles of intoxicating liquors; that he was discovered by a deputy sheriff in the act of taking one of the bottles from a buggy, whereupon he dropped the bottle and ran; that he was overtaken by the sheriff and arrested. When the officer came up he said: “You just beat me to it.” When the officer went back to the buggy he found the other twelve pints of whisky. In addition to the whisky, nine quarts of beer were found in possession of the accused. After the arrest the accused inquired of the officer how many cases would be filed against him, and he was informed that there would be three. Pie admitted being the owner of the whisky, and indicated a willingness to plead guilty to one charge if the others were left off.

Defendant testified in his own behalf that he owned the fourteen pints of whisky; that the carried them to the picnic; that he drank some of the whisky at the picnic; that he was fixing to take a drink when the officer discovered him; that he dropped the whisky and ran into a cornfield; that he did not intend to sell it.

The whjsky was apparently carried to the picnic grounds about 7 o’clock in the morning. The evidence nowhere indicates that any sale had been made or attempted. Upon this state of facts conviction resulted in the trial court, and counsel here argue that- the verdict is not supported by the evidence, and is contrary to law. This proposition was raised in the trial court and. preserved by exceptions for review here. Counsel for accused endeavor to invoke the doctrine announced by this court to the effect that mere possession of a limited amount of liquor, standing alone, without any other circumstances, is not sufficient to justify-a conviction under the statute which penalizes possession of liquor with an unlawful intent to sell the same.

We have examined this record carefully,.and are of opinion that there are many circumstances in addition to possession which indicate the intention required by the statute. In the first place, this whisky was purchased at Wichita Falls the day before the picnic. On the morning of the picnic at an early hour it was conveyed to the picnic ground, and kept under cover until discovered by the officers, and, when discovered, the accused immediately took flight. It calls to our minds a much quoted passage, to wit:

“The wicked flee when no man pursueth, but the righteous are as bold as a lion.”

No law-abiding citizen has any inclination to attend a public gathering in possession of fourteen pints of whisky. It is a matter of common knowledge that bootleggers are usually on hand plying their trade around public 'gatherings, much to the annoyance of all good people, and many times endangering life. If the accused had any lawful use for fourteen pints of whisky he certainly did not have any such lawful use for it on the 1st day of August at a Tillman county picnic. The jury is the final arbiter of the facts, and while ardinarily the possession of a small quantity of liquor, standing alone, is insufficient to justify conviction, yet we are not prepared to say that fourteen pints of whisky is a small quantity within the purview of the law. No sick man' can use that amount in one day, and no well man has a right to attend such a gathering with the purpose of endeavoring to use it. All the facts and circumstances surrounding the acquiring of this whisky, the place to which it was taken, the size of the packages, the number of packages, the total quantity of the liquor possessed, the acts of accused in connection with the whole transaction, are to 'be considered by the jury, and the fact that a person was found in possession of the quantity this accused admits having, and the size and number of the packages he had at a public picnic, in our judgment, amply warranted the jury in convicting him of having unlawful possession with intent to sell, as contemplated by law.

This court would not hesitate to reverse a conviction if all the facts and circumstances indicated that the accitsed was a good citizen and innocent of any wrongdoing, or any violation of the law, or any intent to violate the law, but it is our judgment that this conviction is entirely proper. The doctrine laid down by this court to the effect that possession, standing alone, was insufficient to support conviction is not to be extended for the purpose of aiding the violation of the law in any particular. That doctrine is only justified under the law as it exists in this state for the purpose of protecting good citizens thereof in possession of small quantities of liquor for medicinal and other legitimate use, and is not now, and will not be, extended to aid or protect the violator of the law.

We are of opinion that the judgment of the trial court should be affirmed, and it is so ordered.

DOYLE and FURMAN, JJ., concur.


author: DOYEE, J.

text:
    CHARLES CULVER v. STATE.
    No. A-1774.
    Opinion Filed June 8, 1914.
    (141 Pac. 26.)
    1. RAPE — Sufficiency of Evidence. In a prosecution for statutory rape, tlie evidence examined, and held to be insufficient to sup- ■ port a verdict of guilty as found and returned by the jury.
    2. CRIMINAL LAW — Right to Speedy Trial — Dismissal, Bill of Rights, sec. 20, guarantees a speedy trial to every person charged with crime, and section 6096, Rev. Laws 1910, Procedure Criminal, requires that unless good cause to the contrary be shown, the court must order the prosecution to be dismissed, if a defendant whose trial has not been postponed upon his application is not brought to trial at the next term of court in which the indictment or information is triable after it is filed. Held, that a defendant against whom an indictment was returned at the October, 1910, term, who was arraigned and pleaded not guilty, and who demanded a trial at the March, 1911, term and again at the May, 1911, term when the case was continued on the mere statement of the county attorney “that he had not had time and opportunity to investigate the ease as it should be, ’ ’ was denied his constitutional right to a speedy trial; and it was therefore error to deny the defendant’s motion to dismiss the ease.
    (Syllabus by the Court.)

      Appeal from District Cotirt, Craig County; Preston S. Davis, Judge.

      Charles Culver was convicted of statutory rape, and appeals.
    Reversed.

      W. H. Kornegay, for plaintiff in error.
   DOYEE, J.

Plaintiff in error, herein referred to as the defendant, was convicted in the district court of Craig county upon an indictment returned and presented on the 15th day of October, 1910, wherein he was charged with having had sexual intercourse on the 10th day of May, 1910, with Alpha B. Culver, an unmarried female under the age of sixteen years. Upon arraignment he entered a plea of not guilty, and the case was set for trial on the 15th day of March, 1911. At that time, over the defendant’s objection, the case was continued to the May term, and set for trial on May 15th. The defendant prepared for trial by causing subpoenas to issue for his witnesses. When the case was called for trial on May 15th, the county attorney stated that he had not had time and opportunity to investigate the case as it should be, and asked that it be continued. Thereupon the case was continued for the term over the defendant’s objection and exception.’ On the 11th day of November, 1911, the defendant filed a motion to dismiss the prosecution, “because the case has not been brought to trial for two terms of court after the finding of the indictment.” The court overruled the motion to dismiss, allowed an exception, and ordered the trial to proceed, which resulted in a verdict of guilty, with punishment assessed at a term of ten years in the penitentiary.

The evidence shows that the defendant lived on his wife’s allotment near Bluejacket; that in January, 1909, his mother-in-law died, leaving two unmarried daughters, who went to live with the defendant. Shortly afterward Stewart Mercer married the eldest of the two. He was the main witness for the state, and testified that he called at defendant’s place in September, 1909, and went to the barn and there saw the defendant and Alpha Hudson standing facing each other, and she had her clothes up and he had his pants unbuttoned; that nothing was said about the matter at the time. That a few days after the marriage of Alpha Hudson and Earl Culver, he went with them to Bluejacket and they made complaint before a justice of the peace, charging the defendant with the crime of rape. On cross-examination he stated that he was convicted and sentenced to serve one year in the military prison at Ft. Leavenworth for desertion; that while in prison he wrote letters to the prosecutrix and to the defendant, and to his wife, concerning the rape charge, and proposing to compromise with the defendant for the sum of $1,200. The letters were produced and identified by witness and offered in evidence as a part of his cross-examination. The county attorney objected, and the court sustained the objection, holding that the letters were not proper cross-examination.

Several witnesses, over the objection of the defendant, were permitted to testify that they had heard the prosecutrix say, when the defendant was not present, that she liked the defendant better than she liked her husband.

Earl Culver testified that the defendant compelled him to’ marry Alpha Hudson; that the defendant accused him of having, intercourse with her, and said he would kill him if he did not marry her.

The testimony of the prosecutrix, as a witness for the state, following the preliminary questions, is as follows:

“Q. Were you ever married to the defendant, Charles Cul-ver? A. No, sir. Q. Flow many children have you got? A. One. Q. Flow old is it? A. Eleven months old yesterday. Q. Are you the same Alpha B. Culver who married Earl Culver at Columbus, Kan.? A. Yes, sir. Q. In what county and state were you in when you had sexual intercourse with the father of your child? A. Craig county. Q. What state? A. Oklahoma.”

On cross-examination she was asked who was the father of her child. The state objected-as improper cross-examination. Objection sustained, and exception taken. The state rested, and the defendant moved to direct a verdict of acquittal, which was overruled and exception taken.

The prosecutrix, Alpha B. Culver, called as a witness on behalf of the defendant, testified that she was married to Earl Culver on the 16th day of May, 1910; that her baby was born on the 12th day of December, 1910; that her husband, Earl Cul-ver, was the father of her child; that he had sexual intercourse with her at least three times before they were married; that her husband and Stewart Mercer compelled her to make complaint against the defendant; that they said they could compel -defendant to pay them $1,200 to compromise the case; that a day or two later she left her husband and returned to make her home with her sister, the defendant’s wife; that her sister, Mrs. Culver, caught Earl Culver having intercourse with her in the kitchen one night in April, 1910, and he ran away; that the defendant and his wife then insisted that she and Earl should marry. She denied ever having any improper relations with the defendant, or that Stewart Mercer was ever in the defendant’s barn while she was there with the defendant.

Mamie Culver testified that she was defendant’s wife, and they had three children; that- on her mother’s request she took her two sisters to live with her after her mother’s death; that the eldest married Stewart Mercer, and the other Earl Culver; that in April, 1910, she discovered Earl Culver and her sister having sexual intercourse; that she told her husband, and he said he thought they had better get married; that-she insisted on their getting married; and that she had no reason to believe that any Improper relations existed between her husband and her sister Alpha.

Charles Culver, as a witness in his own behalf, denied all acts of improper conduct with the prosecutrix. The letter which state’s witness Mercer admitted that he wrote to defendant was permitted to be introduced in connection with the defendant's testimony. The letter, dated July 13, 1910, contains the following statement:

“I will say .for you that I don’t want to see any innocent man suffer, as I have a taste of that myself, and you remember I told you if you were innocent I wanted to see you prove it, and it begins to look as if you were innocent of the awful crime, but you can’t blame me for believing it when they both told me so, and asked me to take them to town, and all I ever said was just what they told me, and I told every one that I talked to that I was surprised of you doing such an act as that. If the girl says that you are an innocent man, then she can not expect any money from you, but I thought if you were guilty and wanted to buy off, that twelve hundred dollars would be a small sum to give her.”

Also there was introduced a letter written to the prose-cutrix by witness Mercer, advising her not h> compromise unless the defendant would come up' to Ft. Leavenworth and give Mercer $1,200, and stating that he would hold the money for her, and when he got out of prison he would build a nice home for her and buy her a nice piano. Three or four other letters of like tenor, written by Mercer to his wife and the prosecutrix, discussing the manner and method of securing the $1,200 from the defendant, which were offered as a part of Mercer’s cross-examination, and to which the court then sustained objections as not proper cross-examination, were admitted as part of the defense.

The Attorney General very properly declines to support the conviction in this case, by brief or argument.

After carefully considering the proceedings, we are constrained to conclude that the trial in this case was conducted irregularly and without due regard to the rights of the defendant. It appears that nearly every objection to evidence made by counsel for the defendant was overruled, and nearly every objection of the prosecuting attorney to evidence offered on behalf of the defendant was sustained, and many of the rulings of the court upon the evidence are erroneous.

It is also our opinion that the evidence is entirely insufficient to establish the felonious act. The only witness who testified to the act was impeached by his own written statements, and the proof tended to show that he had conspired with one Charles Howell and the husband of the prosecutrix to extort money from the defendant. The prosecutrix denied that the defendant had ever been guilty of any impropr relations with her, and her testimony is corroborated by that of the defendant’s wife, and by the defendant as a witness in his own behalf.

There is another view of the case which renders it unnecessary to notice the numerous errors assigned and relied upon to secure a reversal of the judgment and the awarding of a new trial. This view is based upon the defendant’s contention that he was •denied his constitutional right to a "speedy trial, and that the •court erred in overruling his motion to dismiss the case on the ground that he had not been brought to trial within the time prescribed by law. The record discloses that a complaint was filed against the defendant in July, 1910, and on a preliminary examination he was held to answer. It does not appear whether or not an information was filed. The indictment was returned at the October, 1910, term. A plea of not guilty was entered. The defendant demanded a trial at the March, 1911, term. At the May, 1911, term, the defendant again demanded a trial, and over his •objection the case was again continued for the term on the application of the county attorney. No showing was made on the part of the state, and the only ground for continuance was the mere statement of the county attorney that he had not had time and opportunity to investigate the case as it should be. The Constitution guarantees a speedy and public trial to the accused, in all criminal prosecutions. Section 20, Bill of Rights. The Legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial, unless good ■cause is shown for further delay.

Section 6096, Rev. Laws 1910, Procedure Criminal, provides :

“If a defendant, prosecuted for a public offense, whose trial Las not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

We are inclined to think that the action of the court in continuing the case over the May term without requiring the state to show cause operated as a discontinuance. Where any valid reason exists, or legal ground is shown by the state for the continuance, .the granting of the same is a matter within the sound discretion of the court, but under section 6096, supra, a defendant indicted for, or charged by information with, a public offense, whose trial has not been postponed upon his application, is entitled to his discharge for failure to try his case within the statutory time, in the absence of any good reason for further delay. The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial. The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that thej' constitute a legislative construction or definition of the constitutional provisions. State ex rel. Eubanks v. Cole, 4 Okla. Cr. 26, 109 Pac. 736. See, also, McLeod v. Graham, 6 Okla. Cr. 197, 118 Pac. 160.

Upon the failure of the state to make a proper showing for a continuance at the May term, and the defendant not consenting thereto, the case should have been dismissed. It was therefore error to deny the defendant’s motion to dismiss.' It follows that the judgment should be reversed, with direction to discharge the defendant.

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


author: DOYLE, J.

text:
    DAVE BARNETT v. STATE.
    No. A-2016.
    Opinion Filed June 13, 1914.
    (141 Pac. 234.)
    INTOXICATING LIQUORS — Unlawful Sale — Sufficiency of Evidence. In a prosecution for the unlawful sale of intoxicating liquor, the evidence examined, and held to be sufficient to sustain the verdict.
    (Syllabus by the Court.)

      Appeal from County Court, Hughes County; J. Ross Bailey, Judge.

    Dave Barnett was convicted of a violation of the prohibitory law, and appeals. Affirmed.

      Crump & Skinner, for plaintiff in error.

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

Plaintiff in error was tried and convicted on an information which charged that he, Dave Barnett, did, in Hughes county, on or about the 23d day of March, 1913, commit the crime of selling intoxicating liquor, to wit, alcohol, to Ben Lewis. On the 15th day of April, 19-13, in accordance with the verdict, the court sentenced said defendant to be confined in the county jail for a period of 60 days, and to pay a fine of $100. To reverse the judgment an appeal was taken.

The principal question presented is whether the evidence justifies the conviction.

Ben Lewis, the complaining witness, testified that on March '23d, being Sunday, he went to the defendant’s place and bought “white whisky"’ alcohol, and paid him $2.50 for a quart; that Edmond Hobia was with witness.

Edmond Hobia testified that he was with Ben Lewis when he bought a quart of “white whisky” alcohol from the defendant, for which Lewis paid $2.50.

Both witnesses for the state were full-blood Creek Indians.

The defendant, as a witness in his own behalf, testified that he was a full-blood Creek Indian; that on the day alleged Ben Lewis and Hobia came to his place drunk; that he did not sell them alcohol.

Cannuggy Harjo testified that he saw Lewis and Hobia at the defendant’s place; that defendant did not sell them any alcohol.

Robert Francis testified that he was at the defendant’s place when Lewis and Hobia were there; that they appeared to .be drinking; that they did not buy any alcohol there; that he did not see them when they were talking to the defendant.

John Davis testified that he was at the defendant’s place, and that Lewis and Hobia asked the defendant for whisky, and the defendant told them he did not have any.

According to the settled rules adopted and followed by this -court for the review of cases where a conviction has been had upon conflicting evidence, it is not within the province of this court to disturb the verdict of the jury. Where there is evidence upon a controverted question of fact, it is the peculiar province of the jury to determine its effect and sufficiency.

We have examined the record, and do not find that it contains any error prejudicial to the substantial rights of the defendant. The judgment of the trial court is affirmed.

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


text:
    MASSA SILVA v. STATE.

      No. A-2037.
    Opinion Filed June 13, 1914.
    (141 Pac. 235.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Proof. A judgment of eonviction for possession of intoxicating liquor with unlawful intent, resting solely upon slight circumstantial evidence, which is offset by the positive denial of the defendant, whose good character is unquestioned, is not warranted by the evidence.
    (Syllabus by the Court.)

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

    Massa Silva was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      Andrews & Day, for plaintiff in error.

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

Plaintiff in error was tried and convicted on an information which charged that he, Massa Silva, did unlawfully have possession of one quart of whisky with the intention of selling the same, and, in accordance with the verdict of the jury, he was, on the 14th day of May, 1913, sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days. He appeals from the judgment.

Several assignments of error relate to rulings of the court in the admission of evidence, some of which are not destitute of merit, but the only question which we think it necessary to consider is the sufficiency of the evidence to sustain the conviction. Our conclusion as to that will dispose of the appeal.

The testimony on the part of the state was as follows: Tee Pollock testified that he was a deputy sheriff, and on January 18, 1913, searched the place in the town of Krebs where the defendant was working and found five or six other persons there; that Sheriff Tatum, who was with him, found somewhere behind the counter a part of a quart of whisky; that the place was a lunch room, but was known as a boóze joint, and it had changed hands about twenty times in the last five years, and was then owned by a man named Grego, who manufactured sausage.

Chaney Hayes, the only other witness for the state, testified that for three or four years the place had had the reputation of a booze joint.

On behalf of the defense, Barney Larshona testified that he had lived in Krebs eight years; that John Grego owned the lunch stand and sold chili and things like that, and the boy Massa Silva clerked for him.

Domeneck Moffa testified that he had worked in the mines there eleven years, and that the defendant was employed by John Grego.

The defendant, as a witness in his own behalf, testified that John Grego owned the place; that he had been working for him two and one-half months; that they made sausage; that Grego was there that day, and was a man who drank some; that he did not know the bottle found by the sheriff was there, and knew nothing about it before the sheriff found it; that he was at a barber shop near there when the officers raided the place; that he was eighteen years of age, and had never been arrested before this charge was made.

We think the evidence is insufficient to establish the fact of the defendant’s possession. To prove his possession the state relied upon circumstances that tended to show possession by the owner of the place, and it is undisputed that the defendant was only an employee.

When we recall the presumption that the law always indulges as to the innocence of one accused of crime, and the necessity of establishing the guilt of the defendant bej'ond a reasonable doubt, we think that, assuming that there were some circumstances in evidence tending to show possession by the ■defendant, it would be destroying the presumption in favor of innocence, and permitting the subversion of the rule requiring the establishment of guilt beyond a reasonable doubt, to allow this conviction to stand. The defendant, as a witness, met the charge with a positive denial and evidence of good character. He is a mere boy, and we cannot help thinking that a conviction upon testimony so slight and insufficient was more the result of prejudice and public sentiment than the dispassionate ■conclusion of the jury upon the facts in evidence.

The judgment is therefore reversed.

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


text:
    JESSE HARRISON v. STATE
    No. A-1771.
    Opinion Filed June 13, 1914.
    (141 Pac. 236.)
    1. TR.IAL — Conduct of Court — Interrogation of Witnesses. While it is the right of a trial judge to interrogate witnesses, when essential to the administration oí -justice, yet the practice of so doing, except when absolutely necessary, should be discouraged, and when it appears that there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the ease, which was prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.
    .2. SAME — Conduct of Court — Expression of Opinion — Credibility of Witnesses. It is the duty of trial courts to refrain from allowing their actions or words to indicate to the jury their opinion of the credibility of any witness who testifies in the case upon trial before them,, or of the merits of any such ease.
    (Syllabus by the Court.)

      Appeal from District Court, Craig County; Preston S. Davis, Judge. .

      Jesse Harrison was convicted of robbery,• and appeals.
    Reversed.

      W. P. Thompson and W. M. Simms, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (C. I. Davenport, Asst. Atty. Gen., of counsel), for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the district court of Craig county, in which the defendant was found guilty of robbery in the first degree, and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of ten years. On the 6th day of November, 1911, judgment and sentence were rendered in accordance with the verdict. The defendant appealed from the judgment by filing in this court on June 17, 1912, a petitidn in error with case-made.

The information charged in substance that on or about the loth day of November, 1910, the defendant, Jesse Harrison, did feloniously and with force take from the person of one Amanda Cansdall, and against her will, personal property, to wit, $21.50.

The only witness on the part of the state to the fact of the robbery was Amanda Cansdall. In substance her testimony is: That on the evening of the day in question she came on the train from Muskogee to Vinita and met the defendant near the depot, and he asked her if she was hunting a rooming house or hotel, and said that his. sister was running a rooming house, and invited her to come there. That she went with him until they passed a livery barn, and she told him she did nti-t believe she would go any further. That he took her pocketbook off her arm after a scuffle, and had it in his-possession for a few minutes. That there was about $22 in money in the pocketbook, and when he returned it to her $21 of the money was gone. At the close of the county attorney’s examination, the court asked the witness several questions.

Jake Smith testified: That he was a deputy sheriff, and about '9 o’clock that night the prosecuting witness phoned him that she had been robbed by Jesse Harrison, and he went and arrested the defendant, and took him to Mrs. Cansdall, who identified him as the man who robbed her. That the defendant at the time denied any knowledge of the woman.

The defendant took the witness stand in his own behalf .and denied that he took the pocketbook, and testified: That he was at the depot that evening with Henry Clark, looking at the people getting off the train that had stopped for supper at the new eating house, and some one in the car knocked on the •window, and Clark said, “Somebody is knocking at you”; and Mrs. Cansdall, who was sitting in the chair car, beckoned to 'him and said, “I believe I know .you”; and he went into the -car and talked to her; and she said she would like to stop over .at Vinita to-night, and get some beer and lunch, and have a good time; and he told her, “I am out for a good time with you”; and they got off the train; and she gave him $2 to get some beer. That they walked down the street, and he asked Henry •Trott if he knew where he could get some beer, and he said no, and .she said, “Let us go down by-Old Swain Park”; and on the way there they bought a half pint of whisky. That they sat down on a bench in the park and drank the whisky, and he gave her his name and address. That he saw a cab across the street and went over to call it, and when he came back she was gone. That he went up the street to a pool hall and was arrested. That he did not take her pocketbook from her, or any money except the $2 she gave him. That he knew all her folks over on Big Creek and had known Mrs. Cansdall for ten years. After cross-examination by the county attorney, the court proceeded ■to interrogate the defendant regarding the matter.

Henry Trott testified that, on the night Jesse Harrison was arrested, he saw him- get on the train and then get off with a woman, and later he met them down on the street near the International Bank corner, and they asked him where they could get some beer. Plere counsel for the defendant was interrupted by the trial court for the purpose of permitting the court to interrogate the witness.

The ground of newly discovered evidence in the motion for new trial was supported by the affidavits of Mamie Z. Culver and Alpha B. Culver, who depose that, while waiting in the county attorney's office, they met a woman who said “that she was the prosecuting witness against a boy named Harrison, who was charged with knocking her down and robbing her; that she further said that the boy was innocent of the charge, but that she would stick him for spite if she could.”

The errors assigned are, in effect, that the verdict was contrary to law and the evidence; that the court erred in overruling the motion for a new trial; irregularity in the proceedings; and remarks made by the court in the presence of the jury during the progress of the trial, which were prejudicial to the rights of the defendant, and by which the defendant was prevented from having a fair and impartial trial.

A careful examination of the record leads to the conclusion that the judgment in this case cannot be permitted to stand, and this altogether without regard to the merits of the question of guilt or innocence of the defendant, and the only question which we think it necessary to consider arises upon the contention that the trial court abused its discretion in interrogating witnesses during the trial of the cause. While it is the right of a trial judge to interrogate witnesses when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged. Where, however, the questions asked are of such character as tend to indicate to the jury that the court is of the opinion the defendant is guilty, and that the questions are propounded for the purpose of fastening guilt on him, such procedure is clearly prejudicial to the substantial rights of the defendant.

The examination of the defendant by the court after the county attorney had closed his cross-examination was as follows :

“By the Court: Q. This woman had gotten on the train going west, and she pecked on the window and picked you out to have a good time, and you took her to Swain’s Park; she gave you $2 to buy beer with; you had no trouble you stated; you still had her $2; she was standing there, and you told her you were coming back; you were going to see this cabman and see about the beer; how do you account for the fact that she had you arrested and charged with this crime? What explanation do you make of that to the jury? A. I couldn’t tell what her motive was in the matter. Q. Why do you think she would go to work and charge you with this crime? A. I don’t know what she would do that for. She would have no cause to do anything like that; we had no words or falling out in the meantime.”

We cannot escape the conclusion that the fair and impartial trial, to which the defendant was entitled, was prejudiced by the trial court’s examination of the defendant, and that such examination constituted an abuse of discretion by the trial court that was highly prejudicial to the substantial rights of the defendant. Under our system of criminal jurisprudence, the jury are the exclusive judges of the weight and credibility to be given to the testimony of a witness, and the questions propounded by the trial court to the defendant were of such character as to constitute an improper invasion of the province of the jury. Wilson v. Territory, 9 Okla. 331, 60 Pac. 112; Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110; Hicks v. United States, 2 Okla. Cr. 626, 103 Pac. 873; Reed v. State, 5 Okla. Cr. 365, 114 Pac. 1114; Koonts v. State, 10 Okla. Cr. 553, 139 Pac. 842.

In the case of Reed v. State, supra, it is held that:

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

It is our opinion that the questions asked the defendant by the court were prejudicial to his rights, and prevented that fair and impartial trial contemplated by law.

The judgment of conviction is therefore reversed.

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


text:
    CON PRUITT v. STATE.
    No. A-2052.
    Opinion Filed June 23, 1914.
    (141 Pac. 284.)
    APPEAL — Presentation for Review — Affirmance. Where the defendant appeals from a judgment of conviction, and no briefs are filed, or oral argument presented, this court will make an examination of the information, instructions excepted to, and the judgment, and if no error is apparent will affirm the judgment.
    (Syllabus by the Court.)

      Appeal from District Court, Carter County; Stillzvell H. Russell, Judge.

    Con Prúitt was convicted of burglary, and appeals.
    Affirmed.

      R. F. Turner, for plaintiff in error.

      Chas. West, • Atty. Gen., for the State.
   DOYEE, J.

The plaintiff in error was convicted in the district court of Carter county of -the crime of burglary, committed on or about the 4th day of July, 1912, by breaking and entering a building in the town of Eox, in which a stock of general merchandise was kept, all the property of one A. D. Davis, with the felonious intent to take, steal, and carry away said property so kept in said building. On the 3d day of February, judgment was rendered, and he was sentenced in accordance with the verdict to imprisonment in the penitentiary for the term of four years.

No brief has been filed, or oral argument made in behalf of plaintiff in error. In cases of this kind; we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether the trial court erred in its rulings on the admission or rejection of testimony. We have examined the record proper, and we have discovered no error which will warrant a Reversal of the judgment.

There being no error in the record, the judgment is affirmed.

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


text:
    WILLIAM ISAAC v. STATE.
    No. A-2063.
    Opinion Filed June 23, 1914.
    (141 Pac. 285.)
    1. HOMICIDE — Assault with Intent to Kill — Sufficiency of Evidence. The' evidence upon a trial of an information for assault and battery with intent to kill, examined, and held to be sufficient to warrant a verdict convicting the defendant of assault and battery.
    2. SAME — Appeal—Harmless Error — Instruction. Where the information charges assault and battery with intent to kill, and the defendant is convicted of assault and battery, an exception taken to an instruction upon the issue of assault and battery with intent to kill, will not be considered upon the appeal.
    (Syllabus by the Court.)

      Appeal from District Court, Pontotoc County; Tom D. McKeown, Judge.

    William Isaac was convicted of an assault and battery, and appeals.
    Affirmed.

      Williams & Dean, for plaintiff in error.

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

This appeal is from a judgment of the district court of Pontotoc county, rendered on the 17th day of February, 1913, upon a verdict convicting the defendant of the crime of assault and battery, and assessing the maximum punishment of 30 days’ confinement in the county jail, and $100 fine.

The information charged assault and battery with intent to kill. The assault was alleged to have been committed upon one B. F. Brashears. The admitted and undisputed facts are that the parties concerned attended a Christmas tree gathering on the 24th day of December, 1912, at Frank’s schoolhouse; the defendant, under the influence of intoxicating liquor, staggered against the child of the complaining witness, and he pushed him off, and the defendant struck him, cutting his jaw. The complaining witness knocked him down and struck him several times. There was little conflict in the testimony upon the trial, and no exceptions were taken to the admission or exclusion of evidence. The witnesses for the state testified that the defendant had a knife in his hand. Witnesses on the part of the defense testified that the defendant did not have a knife. All agreed that the defendant was intoxicated. The defendant did not take the witness stand in his own behalf.

The only real question open for the determination of the jury related to the grade of the offense, whether it was assault with intent to kill, aggravated assault, or assaidt and battery.

There are but two assignments of error relied upon for a reversal of the judgment — insufficiency of the evidence, and an alleged erroneous, instruction on the issue of assault with intent to kill. Both are destitute of merit. The fact that the defendant was not convicted of assault with intent to kill eliminates from the case and renders it unnecessary to discuss the exception taken to the instruction given upon that issue. The evidence is conclusive of the defendant’s guilt, and we are convinced that he has had a fair and impartial trial, and that no error prejudicial to his rights was committed.

It follows that the judgment should be and is hereby affirmed.

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