author: ABMSTBONG, P. J.

text:
    WILL RUSSELL v. STATE.
    No. A-1481.
    Opinion Filed June 21, 1913.
    (133 Pac. 475.)
    1. ASSAULT — Indictment—Statutory Offenses, (a) On an information based on sec. 2307, Comp. Laws 1909 (sec. 2336, Rev. Laws 1910), charging that the defendant “with a sharp and dangerous weapon did unlawfully, willfully and feloniously assault, cut and wound one Stony Lemons, with the intent, then and there on the part of the said Will Russell, to kill , said 'Stony Lemons, contrary”, etc., the accused may properly be convicted of the offense defined by sec. 2308, Comp. Laws 1909 (sec. 2337, Rev. Laws 1910), of “assault with intent to kill”; or of the offense defined by sec. 2337, Comp. Laws 1909 (sec. 2344, Rev. Laws 1910), of “assault with any sharp or dangerous weapon with intent to do bodily harm”; or of the offense of assault and battery as defined by sec. 2333, Comp. Laws 1909 (sec. 2341, Rev. Laws 1910), and the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests.
    (b) The proof on the part of the state on such charge must conform to the doctrine announced in Clemons v. State, 8 Okla. Cr. 452.
    2. INDICTMENT AND INFORMATION — Charging Particular Offenses — Instructions. When an information fails to charge an offense under a particular provision of the penal code, and the instructions of the court do not submit any other provision covered by the allegations in the information and evidence, a conviction cannot be upheld.
    (Syllabus by the Court.)

      Appeal from District Court, Love Countyj S. II. Bussell, Judge.

    Will Bussell was convicted of felonious assault, and appeals.
    Beversed.

      Eddleman & Graham, for plaintiff in error.

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

The plaintiff in error, Will Bus-sell, was tried and convicted at the June, 1911, term of the district court of Love county on a charge of assault with intent to hill, and his punishment fixed at imprisonment in the state penitentiary for one year and one day.

The charging part of the information upon which this conviction is based is as follows:

“That the above named Will Bussell did, in Love county, and in the state of Oklahoma, on the 25th day of December in the year of our Lord, 1910, commit the crime of assault with intent to kill, in manner and form as follows: That in the state and county aforesaid, and on the day and year aforesaid, the said Will Bussell, with a sharp and dangerous weapon did unlawfully, willfully and feloniously assault, cut and wound one Stony Lemons with the intent then and there on the part of the said Will Bussell, to kill the said Stony Lemons, contrary,” etc.

The facts in the record indicate that the difficulty out of which this prosecution grows was a mutual combat. That the prosecuting witness used a six-shooter, beating the accused, and that the accused used a knife of some kind, inflicting wounds on the prosecuting witness.

In its instruction to the jury the court charged as follows :

“Therefore, if you believe from the evidence, beyond a reasonable doubt, that in the county of Love and state of Oklahoma, on or about the 25th day of December, 1910, the ■defendant, Will Russell, as charged in. the information, did with a sharp and dangerous weapon, to wit-: a knife, intentionally and wrongfully, that is unlawfully, willfully and feloniously assault, cut and wound Stony Lemons, with the intent on the part of him, the said Will Russell, to kill the said Stony Lemons, then in such case, if you so believe, it is your duty to find the defendant Will Russell guilty of an assault • with the intent to ■ kill, and assess his punishment 'by imprisonment in the state penitentiary for a term not to exceed ten years.”

This instruction is based on section 2336, Revised Laws 1910 (sec. 2307, Comp. Laws 1909), which is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of a firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

Section 2337, Revised Laws 1910 (sec. 2308, Comp. Laws 1909), is as follows:

“Any person who is guilty of an assault with intent to kill any person, the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in the penitentiary for a term not exceeding five years or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The information does not charge an offense under section 2336, Revised Laws, supra,, but does charge an offense under section 2337. The court’s instruction, however, submits only the first section, supra, when it should have submitted every degree of assault which the information covers and which the evidence in any reasonable view of it suggests.

As said by this court in Clemons v. State, 8 Okla. Cr. 452:

“The means prescribed in sections 2307 and 2308, Comp. Laws 1909 (secs. 2337 and 2336, Rev. Laws 1910), by which the offense may be committed are in substance identical, and the material difference arises only in the punishment prescribed. In the first, punishment must be by imprisonment in the penitentiary, with ten years the maximum; in the second, the maximum is five years, and the punishment may be for a misdemeanor. In the first, the essential element is an assault and battery by means of a deadly weapon or by such other means or force as is likely to produce ‘death. In the second, the assault must be with intent to kill. In section 2337, Comp. Laws 1909 (sec. 2344, Rev. Laws 1910), the essential element is the intent to do- (bodily harm with any sharp or dangerous weapon. The offenses are all of the same character. An assault with intent to kill necessarily includes an assault with intent to do bodily harm, for a person cannot be killed without bodily harm being done; and an assault and battery by means of a deadly weapon necessarily includes an assault with any sharp or dangerous weapon. Section 6857, Procedure Criminal- (Comp. Laws 1909), provides: ‘In charging the jury the court (must state to them all matters of 1-aw which it thinks necessary for -their information in giving their verdict/ Section 6875 provides: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of -an attempt to commit the offense.’
“Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial.”

Under the foregoing doctrine the issues were not properly submitted to the jury, and for that reason the judgment will have to be reversed. See Collegenia v. State, 9 Okla. Cr. —, 132 Pac. 375.

It is very evident that the county attorney in drawing the information in this case confused section 2307, Comp. Laws 1909, being section 2337, Revised Laws 1910, with section 2337, Comp. Laws 1909, being section 2344, Revised Laws 1910. In all probability this prosecution .should have been under the latter section. That, however, is a matter of election with the county attorney,, but the court should submit all these sections in its charge to the jury when -the facts so warrant.

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

DOYLE and FURMAN, JJ., concur.


source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    BEN BOND v. STATE.
    No. A-577.
    Opinion Filed February 1, 1913.
    (129 Pac. 666.)
    1. INDICTMENT AND INFORMATION — Election Between Counts— Duplicity. (a) Under an indictment containing two or more counts, each based upon the same act and charging the same oifense, it is not error for the trial court to refuse to require the state to elect upon which count in the indictment it will put the defendant upon trial.
    (b) Por an indictment charging the offense of bribery which is held not to be bad upon the ground of duplicity, see opinion.
    2. EVIDENCE — Acts of Conspirators — Bribery — Writ of Error —Harmless Error, (a) Where persons enter into a conspiracy or general plan to bribe officers and thereby secure immunity from prosecution for violations of law, all said and done in pursuance of this conspiracy or general plan by any of the co-conspirators and which tends to throw light upon a specific charge of bribery made against one of the co-conspirators is admissible in evidence.
    (b) Any fact or circumstance which has probative value as to a conspiracy or the purpose for which it was formed and anything that was done in pursuance thereof is admissible against a co-conspirator as though said and done by himself, when the defendant is on trial for a ;-pecifie offense included in such conspiracy or general plan.
    (c) If, upon a review of the entire record, the guilt of the accused is conclusively established, and there is no reason to believe that an intelligent and honest jury would or could have arrived at a different verdict, a conviction will not be set aside upon the ground of admission of illegal testimony.
    3. TRIAL — Province of Court and Jury — Correction of Errors, (a) Courts should carefully abstain from expressing any opinion in the presence of the jury as to the weight, effect, or credibility of the testimony; and, where the evidence presents any issue upon which a verdict of acquittal might he reached, such expression of the trial court will he reversible error.
    (b) Where the trial court in the presence of the jury inadvertently expresses an opinion as to the weight or effect of any testimony, and upon objection being made promptly withdraws the improper remarks and instructs the jury not to consider them, this will ordinarily cure the error committed.
    (c) For remarks made by the trial court in the presence of the jury as to the effect of certain evidence which were promptly withdrawn, and which in the light of the entire record did riot constitute reversible error, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Pottcmatomie County; J. B. A. Robertson, Judge.

    Ben Bond was convicted of bribery of officers of the law, and his punishment assessed at confinement in the penitentiary for five years, and he appeals.
    Affirmed.

      Freeling & Hood, for appellant.

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

The transcript of the record in this case contains over 1,000 pages, and the briefs in the ease for both parties contain about 300 pages, every word of which has been read and re-read and carefully considered iby' this court. If we were to attempt to make anything like a fair abridgement of the testimony, and to discuss and decide all of the various questions presented, our opinion would fill an entire volume of our reports. Every step in this case was bitterly contested by able, learned, and experienced lawyers, and the entire field of legal learning has been appealed to to sustain the contentions of counsel for appellant. We do not question the right of counsel to reserve an exception to every ruling of the court that they may deem erroneous and prejudicial, but, when a record shows that an exception was taken to everything done by the court, it naturally suggests the inference that counsel did not have very much confidence in any exception reserved, and were depending rather upon the number than upon the weight of the objections made. We hardly think that immaterial errors in 'mere matters of form which did not affect the substantial merits of the cause, in the absence of a disposition on the part of the trial judge to be unfair, should secure the reversal of a conviction upon the doctrine of cumulative error, because in lengthy and hotly contested cases a greater or lesser number of immaterial errors will necessarily get into a record.

We have endeavored as best we can to select from the great number of alleged errors presented those which are material to the proper determination of this ease.

First. Counsel in their brief say:

“We think the court erred in admitting evidence upon the part of the defendant in error, prejudicial to the rights of the plaintiff in error, and also in refusing to require the state to elect upon which count in the indictment it would put the defendant upon trial.”

The judgment 'in this case charges, in substance, that Ben Bond 'did on the 15th day of January, 1909, give a bribe, to wit, $250, to William N. Maben, a judicial officer, and to V. R. Biggers, county attorney of Pottawatomie county, and to E. D. Reasor, county judge of said county, and to W. F. Sims, chief of police of the city of Shawnee, said county and state, with the felonious intent of the said Bond to influence the acts, opinions, decisions, and judgments of them, the said above-named officers, in their official capacity, to wit: The question of whether B. 0. Johnson should be arrested, prosecuted, tried, sentenced and punished as by law required for a violation of any of the provisions of the Constitution or the laws of the state of Oklahoma relating to the sale of intoxicating liquors. The indictment contains six counts. In the first count the defendant is charged with bribing all of the officers named, and in the remaining five counts the defendant is charged with bribing, for the same purpose, and at the same time, each of the above-named officers, separately. Section 6699, Comp. Laws “1909 (Bev. Laws, 5741), is as follows :

“The indictment must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses' ¡may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different -means, the means may be alleged in the alternative in the same count.”

We think that the different counts in the indictment all charge one and the same offense and axe based upon the same transaction, and that they were inserted in the indictment merely for the purpose of avoiding'the possibility of a variance between the allegations and the evidence. See Williams v. United states, 17 Okla. 33, 87 Pac. 647; Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538. The trial court therefore did not err in refusing to require sthe state to elect upon which count in the indictment it would put the defendant upon trial.

Second. Upon the trial of 'this cause the court- admitted a great deal of testimony with reference to a number -of different transactions upon the ground that they tended to show a conspiracy or general plan, of which the offense charged constituted a part and with which the defendant was connected, the purpose of which conspiracy being to corrupt officers, and secure immunity from prosecution for violations of the prohibitory and gambling laws of the state. In the ease of Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, appellant was convicted of embezzlement. TTpon the trial of that cause the court instructed the jury as follows:

“(5) You are instructed that testimony has been submitted to you by the court as competent for your consideration tending to show various other embezzlements of sums of money, other than as charged in the indictment, and that false entries thereof were made and committed by the defendant, and in this matter you are instructed that, if you believe from the evidence beyond a reasonable doubt that the defendant did embezzle such sums .and make such false entries and fraudulently appropriate such sums of money to his own use as therein mentioned, then, in such case, said evidence is only to be considered by you as bearing upon the fact whether or not the defendant embezzled and fraudulently appropriated the specific amount alleged in the indictment, and at the time alleged in the indictment, and as tending to show the intent, if any, of the defendant in the commission' of the offense alleged against him, and for this or such purpose alone you will consider such evidence of other offenses. And in this connection you are told that although you may believe that such other offenses were committed by the defendant, •but you should have a reasonable doubt that he committed the specific offense alleged against him in the indictment, then it would be your duty to acquit him. Otherwise you should convict him.”

In discussing this instruction this court said:

“The only possible objection that can be offered to those instructions is that paragraph 5, with reference to other similar offenses, might have been broader, and the jury might have -been instructed that if they found from the testimony, beyond a reasonable doubt, that the other similar offenses testified to had been committed, and that they constituted parts of a plan or system of the defendant of embezzlement, to the very act of taking at issue, then the jury might consider the testimony as to these similar offenses for the purpose of assisting them in determining .as -to whether the defendant did take the money which he was charged in the indictment with having taken, and also to show the intent with which the act was committed. See 1 Wigmore on Evidence, see. 329, p. 417; 11 Ency. of Evidence, pp. 805, 806. But the failure to include this view of the law in paragraph 5 of the instructions was beneficial to the appellant, and he therefore cannot be heard to complain at this omission. With the view above suggested incorporated in paragraph 5, the instructions given would be above criticism.”

For a discussion of the question of the responsibility of co-conspirators for all that is done and said in pursuance of a common design, and also all that is done and said in any collateral undertaking incident to such common design, see James Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; S. L. Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657. For an exhaustive brief supporting the views expressed in the above cases, see annotations to the case of People v. Lawrence, 68 L. R. A. 193. The admissibility of such evidence is for the court alone. The weight to be attached to the testimony is a question for the jury. The state is necessarily confronted with great difficulty in establishing prosecutions of this kind, because conspiracies are always secret and are discovered with great difficulty. Therefore any evidence which tends to establish a conspiracy should be submitted to- the jury. Conspiracies of this kind are- necessarily proven largely by circumstantial evidence, and any circumstance should be admitted in evidence which in the slightest degree tends to prove such conspiracy. In State v. Dulaney, 87 Ark. 17, 112 S. W. 158, 15 Ann. Cas. 192, the defendant was indicted for bribery. The state offered evidence of other similar offenses, but the court refused -to- admit the testimony, and the defendant was acquitted. The state appealed. In discussing this question the Supreme Court of Arkansas said:

“The principle of evidence that offenses or acts similar to the one charged may be competent for the purpose of showing knowledge, intent, or design is as thoroughly established as the general proposition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime. While the principle is usually spoken of as ■being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but -merely evidence of other acts which are from their nature competent as showing knowledge, intent, or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another- crime does not prevent it being admissible when otherwise it would be competent on the issue under trial. Higgins v. State, 157 Ind. 57, 60 N. E. 685; 1 Wigmore on Evidence, sec.’ 300. This court has applied the principle under discussion in Howard v. State, 72 Ark. 586, 82 S. W. 196; Johnson v. State, 75 Ark. 427, 88 S. W. 905; Woodward v. State, 84 Ark. 119, 104 S. W. 1109. The Court of Appeals in New York stated the principle as follows: ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related -to each other that proof of one tends to establish the others; (5) the identity of the person charged with the- commission of the crime on trial/ And in discussing the fourth ground above enumerated, it says: ‘Fourth. As to a common plan or scheme, it sometimes happens that two or more crimes are committed by the same person in pursuance of a single design, or under circumstancees which render it impossible to prove one without proving all. To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of a general and composite plan or scheme, or they must be so related to each other as to show a common motive or intent running through both.' People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. Mr. Wigmore, in speaking of the admissibility of such evidence in charges of bribery, says: ‘On a charge of bribery, any of the three general principles — knowledge, intent, and design' — may came into play. To' show knowledge of the nature of the transactions, a former transaction of the sort may serve, as indicating an understanding of the particular transactions. To show intent, another transaction of the sort may serve to negative good faith. To show a general design a former -attempt towards the same general end may be significant/ 1 Wigmore on Evidence, sec. 343. In the notes to this section may be found a review of the authorities; and it is found that they are not uniform in sustaining the principles announced by Mr. Wigmore, and he indulges in some caustic criticism of the courts that take views opposite to his statement of the correct principle. The best thought on the subject seems to be with Mr. Wigmore, and is found applied in the following bribery cases: Guthrie v. State, 16 Neb. 667, 21 N. W. 455; Higgins v. State, 157 Ind. 57, 60 N. E. 685; State v. Schnettler, 181 Mo. 173, 79 S. W. 1123. The last case is especially pertinent here., Schnettler was on trial charged with accepting a bribe when a member of the House of Delegates in the city of St. Louis, in regard to a certain bill authorizing a corporation to construct, maintain, and operate a street railway business on certain streets and other public places in said city. Evidence was' adduced to show that a 'combine/ as it was called, was formed by members of the House of Delegates to corruptly control legislation. Over the objection of the defendant, the state was permitted to prove that the defendant. had received $2,500 as a bribe to induce him to cast his official vote in favor of a bill previously pending before the House of Delegates affecting the lighting of the public streets of St. Louis —a separate and distinct measure from the one concerning which he was charged with bribery. The court said: 'The authorities all hold that as a general rule the state cannot prove against a defendant the commission of offenses other ■than the one charged and for which he is -upon trial; but an exception exists with respect to this rule where the collateral crime is brought into a common system, a system of mutually dependent crimes, or is linked to the crime under trial as to .show that it' is part of the same scheme or understanding, or in some way have some logical connection with the crime ■charged/ Applying- the above-announced principle to the facts of the case, the court then said: 'It appears from the evidence • that about the time of the organization of the House ■of Delegates a combination was entered into between various members of that body, including the defendant, for the purpose of controlling legislation by the members of the combine demanding and receiving money consideration for the passage ■or defeat of certain bills which might be brought before them, to be paid by the individuals, coporations, or parties interested therein, and that defendant did, - in fact, receive the sum of $2,500 on account of his vote on the lighting deal. This arrangement was not only with respect to the lighting deal in which he received $2,500 for his vote, but it applied to all other matters of a similar character which might come before the House of Delegates, and was therefore part of the same scheme, or arrangement, and logically connected with the charge in the information, hence formed an exception to the general rule, and the facts in respect thereto were admissible in evidence for the purpose of showing that the crime charged was within the scope of the purpose of which the conspirators were banded together, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged/ The bill mentioned in this indictment was before the committee of which. defendant was chairman. The evidence offered tended to prove that all bills affecting .corporations which were referred to the committee of which he was chairman should be looked after by him in the -interest of his corrupt general agreement with Cox, where C-ox was interested, and that Cox was interested in this bill, while it is not offered to be shown -that Dulaney knew Cox was interested in this particular bill, yet the bill was of that character that was covered by his general agreement with Cox, and it was a part of the same scheme and arrangement, and logically connected with the matters covered in his general agreement. A perusal of the evidence in the-ease shows that, had the state’s witnesses been believed, the jury would have been authorized to convict; and, on the other hand, -had the defendant’s witnesses been believed, the defendant was fully exonerated of the charge against him, and the jury warranted in believing the charge against him an effort to ruin him by his personal and political enemies. In view of such -state of the evidence, it was manifestly important that proper corroborating evidence of either side be not excluded. The evidence offered was admissible for the purpose-of showing that the crime charged was within the scope of the purpose for which it was alleged the defendant and Cox had conspired, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged,, which testimony might be meaningless unless pointedly explained by this general corrupt agreement to which it was. alleged this defendant was a party. It is therefore the opinion of the court that the circuit court erred in not admitting the-offered evidence.”

We could quote authorities indefinitely to the same effect;but as this count has repeatedly announced the same doctrine,, a further discussion of this question is unnecessary. If the-evidence in this record is worthy of credence, it reveals an. appalling and almost incredible condition of official corruption existing at that time in Pottawatomie county. In the absence of any showing that the jury was influenced by improper motives in arriving at their verdict, the credibility of the witnesses was for the jury alone. Much of the evidence was positive .and direct. Some of it was only remotely connected with the chargé under investigation, but we. cannot say it did not tend to .establish a conspiracy to corrupt the officers of Pottawatomie county, and thereby secure immunity from prosecutions for violating the prohibitory and gambling laws of the state, and that it did not tend to. .show that the offense of which appellant was convicted constituted a part of such conspiracy. While the court may have erred as to the' introduction of some of this testimony, yet, upon the entire record, the guilt of appellant is so conclusively established that we feel it would be a miscarriage of justice to set this verdict aside upon the ground that it was not proven that appellant was connected with some of 'the transactions in evidence.

Third. Counsel complained of remarks made -by the trial judge in the presence of the jury. When John Eogers, a state’s witness, was on the stand, and was being examined by the Attorney General as to a certain transaction, the record shows that the following took place:

“Mr. Freeling: I am going to renew the request to connect the defendant with this in some way — this and the September transaction. I would like to have it connected with Mr. Bond; absolutely nothing to connect it, and admittedly so.
“The Court: The same order on this proposition — there will be no use — connect it with the September meeting—
“Mr. West: The defendant is already connected with the September meeting.
“The Court: I understand he is connected, but I understood you were going to continue this matter with this witness.
“Mr. West: I am going to show how this habeas corpus matter operated.
“Mr. Freeling: Does it make any difference how this operated ?
“The Court: No, sir; it is only collateral to the general plan.
“Mr. Freeling: We object to any further testimony on this line until the defendant is connected with it.
“The Court: I .am satisfied as I said a while ago that he has been connected with it as a part of this general plan.
“Mr. Freeling: Note our exception to the language of the court.
“The Court: Gentlemen of the jury, you will disregard the statement of the court made a while ago with reference to anything of the connection of this defendant with any transaction at any time and any place. It is not the province of the court to act in performing the duties of the jurors, and you will disabuse your mind entirely of it, and must not take into consideration anything I said at that time concerning this defendant or his connection with any transaction whatever. These are matters for you to determine, and you will not consider at all in any way or any ananner that statement, and that part of the language of the court with reference to that matter will be stricken from the record and from the jury.”

It was unfortunate that the trial judge expressed an opinion .as to whether or not the evidence established the fact that the defendant was connected with the transaction in question. This was a question for the jury alone. It is true that there must have been some evidence showing a general plan and connecting the defendant with the particular transaction before such evidence would be ¡admissible. Of this question the court was the judge, and the fact that the court overruled the objection to this evidence might have created the impression upon the minds of the jury that there was at least some evidence in the record connecting the defendant with it. But this is a matter of which the defendant cannot complain, because it would arise every time the court overruled the objection to the ¡admission of such testimony. In fact, it would be an unavoidable incident in the administration of justice, but the trial court should always be careful to avoid -anything like an expression of an opinion in the presence of .the jury as to the weight, effect, or credibility of any testimony. We know that it is exceedingly difficult in ruling upon the testimony to always avoid -expressing the views of the court with reference to -the testimony objected to, and that improper remarks will sometimes be made by the ablest and most impartial trial judge which are afterwards regretted. This is illustrated by the instructions which the court gave the jury as -soon as the trial judge had had time to think of what he had said. The jury was positively instructed to disregard the statements made by the court, and the different duties of the court and jury were clearly stated. The remarks -of the court were withdrawn' -and stricken from the consideration of the jury. We think under the circumstances this cured the error complained of.

In the case of Richards et al. v. Commonwealth (Ky.) 67 S. W. 818, one of the grounds for reversal of that case was that the court had made a remark with reference to the evidence. The Court of Appeals of Kentucky, in passing upon the alleged ground for reversal, said:

“Another ground of complaint is that upon the trial of the case the presiding judge, in the presence of the jury, said to the commonwealth’s attorney, T think you have proven enough against Snow already/ Upon objection being made, the judge at once instructed the jury to pay no attention to' his remark to the commonwealth’s attorney. The remark was very improper, but in view of the fact that the judge immediately cautioned the jury to pay no attention to it, and the additional fact that the testimony in the case establishes the guilt of appellants beyond all peradventure, it was not such prejudicial error as would justify a reversal of the case.”

In the -ease of State v. Gatlin, 170 Mo. 354, 70 S. W. 885, one of the alleged grounds for reversing the case was that the court remarked in the presence, of the jury that a conspiracy was shown to exist. The court disposed of the contention. of the defendant very promptly by the nse of this language:

“Indeed, in this connection, the inadvertent remark of the trial judge in passing upon defendant’s objection to Bozarth’s testimony that there was evidence of a conspiracy was promptly remedied by his telling .the jury he was simply, passing upon the objection and not to pay any attention to what he said as to the evidence. This explanation to the jury left the defendant no ground for complaint.”

See, also, Smith v. State, 107 Ala. 139, 18 South. 306; Bone v. State, 86 Ga. 108, 12 S. E. 205; State v. Stephen Jacobs; 106 N. C. 695, 10 S. E. 1031; Carethaus et al. v. State, 78 Wis. 560, 47 N. W. 629; State v. Burwell; 52 Kan. 686, 35 Pac. 780; Cone v. Smyth, 3 Kan. App. 607, 45 Pac. 247; State v. Crawford, 39 S. C. 343, 17 S. E. 799; Ward v. State, 85 Ark. 179, 107 S. W. 677; Dailey v. State (Tex. Cr. App.) 55 S. W. 821; State v. Coleman, 17 S. D. 594, 98 N. W. 175; State v. Walker, 50 La. Ann. 420, 23 South. 967.

Even if the fact that the trial court did withdraw from the consideration of the jury the objectionable remarks complained of did not have the effect of curing the error committed, we would hesitate long before ' reversing this conviction on this account alone. If there was any reason to believe that the jury would or might have reached .a verdict favorable to the defendant upon the testimony, then such remarks, if permitted to stand, would constitute reversible error. But, where it is manifest from the record that the jury have reached the only possible conclusion which intelligent- men could arrive at, we do not -believe a verdict should be set aside for any except the most grave and serious grounds. We have carefully read and re-read and considered all of the testimony in this case, and, taken as a whole, it conclusively points to the guilt of appellant. In the case of Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, this court said:

“Where the evidence in a case is clear as to the guilt of the accused, and there is no reason to believe that upon a second trial an intelligent and honest jury could arrive at any other verdict than that of the guilt of . the accused, the judgement of the lower court will not be set .aside for anything less than fundamental errors.”

This is the settled policy of this court, and ’ we believe is necessary for the administration of justice in Oklahoma. In addition to the conclusive character of the testimony in the case, there is another consideration which should not be overlooked. The offense of which appellant has been convicted strikes at the very foundation of the administration of justice in Oklahoma. As long as the courts are honest, fair, and courageous, liberty and justice can be protected and enforced, but if the courts become cowardly and corrupt, or if the confidence of the people is destroyed or shaken in the fairness, justice, courage, and integrity of the courts, government becomes a farce, and it is impossible to conceive or describe the demoralization which would result in social conditions among the people. The offense of which appellant has been proven guilty is in the same class with perjury, and is second in infamy only to offenses against the chastity of woman, and when it is proven that a defendant.is guilty of an attempt to brille or of bribing and corrupting a judge of a court, or the officers or jury' thereof, -he should not be permitted to escape upon any light and trivial grounds. In this case it is absolutely clear that the county attorney was corrupted by means of the conspiracy of which the act of which appellant was convicted constituted a part.

The judgment of the lower court is therefore in ’all things affirmed.

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


author: PER CURIAM.

text:
    PRINCE CAROLINA v. STATE.
    No. A-1446.
    Opinion Filed March 4, 1913.
    Appeal from District Court, Seminole County; Tom D. McKeown, Judge.
    Prince Carolina- was informed against for the crime of murder and convicted of manslaughter in the first degree, and appeals.
    Appeal dismissed.
    J. Coody Johnson, and Crump, Fowler & Skinner, for plaintiff in error.
    Claud Davenport, Asst.. Atty. Gen., Jos. L. Hull, Spec. Asst. Atty. Gen., for the 'State.
   PER CURIAM.

Plaintiff in error, Prince Carolina, was convicted of first degree manslaughter, in the district court of Seminole county, on an information charging him with the murder of one Dennis Stewart, on or about the 8th day of April, 1910, and was on the 29th day of April, 1911, sentenced to serve a term of eight years imprisonment in the state penitentiary.

To reverse this judgment an appeal was perfected by filing in this court on October 24th, 1911, a petition in error with case-made. When the case was called, on the regular assignment, March 4th, no appearance was made on behalf of plaintiff in error. The Attorney General’s office moved for an order dismissing the appeal for the reason that after said appeal had been perfected the said plaintiff* in error, Prince Carolina, killed a deputy sheriff in Seminole county, and became a fugitive from justice, by fleeing beyond the jurisdiction of this court, and by reason thereof he is no longer entitled to have his appeal considered and determined.

Following the decision of this court in the case of Tyler v. State, 3 Okla. Cr. 1Y9, 104 Pac. 919, we are of opinion that the motion to dismiss the appeal should be sustained. The appeal is therefore dismissed and the cause remanded to the district court of Seminole county, with directions to cause its judgment and sentence to be carried into execution.


author: PER CURIAM:

text:
    M. E. TERRY and CLARENCE SEARCY v. STATE.
    No. A-1918.
    Opinion Filed March 6, 1913.
    Application for babeas corpus.
    J. W. Bartholomew, for petitioner.
   PER CURIAM:

This is a petition for writ of habeas corpus, filed February 22nd, 1913, wherein it is alleged that petitioners M. E. Terry and Clarence Searcey are restrained of their liberty and are unlawfully imprisoned by John C. Lewis, sheriff of Grady county.

On consideration the application presented in open court this 22nd day of February, the writ is. denied.


text:
    In re CHARLES WARNER.
    No. A-1917.
    Opinion Filed March 6, 1913.
    Application for writ of habeas corpus.
    D. P. Farrell, for petitioner.
   PER CURIAM.

This is an application for writ of habeas, corpus, wherein Charles Warner alleges that he is restrained of his liberty and is unlawfully imprisoned in the county jail of Okmulgee county by the sheriff of said county.

It appears from the petition that he was committed on a judgment of conviction of violation of the prohibition law, and sentenced to be confined for ninety days and to pay a fine of five hundred dollars.

It is alleged that the county court exceeded its jurisdiction in adjudging further confinement in default of the payment of the fine, for the reason that under the statutes of Oklahoma there is no provision, or provisions by which a judgment which calls for both fine and imprisonment can be so executed.

The questions presented have been determined by this court in the case of Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20.

Por the reasons given in the opinion in that case the writ of habeas corpus is denied.


text:
    CLAUD H. WELDON et al. v. STATE.
    Nos. A-1357 and 1394.
    Opinion Filed March 6, 1913.
    Appeal from District Court, Wagoner County; R. C. Allen, Judge.
    Claud H. Weldon and Sidney Littrell, were convicted of contempt and appeal.
    Reversed and remanded.
    Robert P. Blair and Henry M.. Brown, for plaintiffs in error.
    Chas. West, Atty. Gen., Jos L. Hull, Special Asst., Atty., for the State.
   PER CURIAM.

The plaintiffs in error were by proper proceedings under the statute (Sec. 14, Ch. 70, Sess. Laws 1911) enjoined as owners of a building known as the Central Drug Co. building in the city of Wagoner, from keeping, or permitting to be kept on said premises, intoxicating liquors for unlawful sale.

Upon affidavit of the county attorney, charging them with contempt of court in violating the terms of the injunction, an order of attachment was issued to the sheriff, and they were immediately arrested and brought before the court, and the case was called for trial. Whereupon counsel for plaintiffs in error demanded a trial by jury, which demand was then and there denied by the court, and exceptions allowed, and the trial proceeded.

Upon the hearing the court found that plaintiffs in error had violated the terms of the injunction and were in contempt of court and subject to imprisonment therefor, and adjudged that they be confined in the county jail for a term of three months each and pay a fine of two hundred and fifty dollars each. They gave notice of appeal and asked to be admitted to bail pending appeal, which request was denied by the trial court. An appeal was properly perfected' and an order made by this court granting supersedeas pending the determination of said appeal.

The only question presented was passed upon by this court in the companion case of Nichols et al. v. State, 8 Okla. Cr. 550, 129 Pao. 673.

Unquestionably the court erred In denying the demand of the defendants for a trial by jury.

For the reasons given in the-opinion in the Nichols case, the judgment of conviction is reversed.


text:
    PEARL JONES v. STATE.
    No. A-1908.
    Opinion Filed March 6, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    C. D. Roseman, for plaintiff in error.
   PER CURIAM.

Pearl Jones, plaintiff in error was convicted of the crime of maintaining a place for the illegal sale of intoxicating liquors, and was on December 16th, 1912, sentenced to serve a term of sixty days in the county jail and to pay a fine of four hundred dollars. To reverse this judgment an appeal was perfected by filing in this court, on February 10th, 1913, a petition in error with case-made. Now, on this 6th day of March, 1913, plaintiff in error by his counsel of record has filed a motion to dismiss the appeal. The motion to dismiss is hereby granted, and said appeal is dismissed and the cause is remanded to the county court of Garfield county with •direction to enforce its judgment and sentence therein.


author: PER CURIAM..

text:
    Ex parte CLIFFORD WOODARD et al.
    No. A-1479.
    Opinion Filed March 8, 1913.
    Petition for the writ of habeas corpus.
    Writ denied.
    Ed. M. Frye and Curtis & Pitehford, for petitioners.
    T. F. Shackelford, Co. Atty., contra.
   PER CURIAM..

This is a petition for the writ of habeas corpus on the part of Clifford Woodard, Barney Tisher, Edward Sanders, Wolf Porter, Ernest Williams, and Felix Lee, who are in the custody of the sheriff of Sequoyah county, for the purpose of being admitted to bail. Bail of Clifford Woodard is fixed at ten thousand dollars. Bail is denied as to the other petitioners.


text:
    DICKINSON BROS. GRAIN & HAY CO., a. Corporation, v. TOWN OF OWASSO.
    No. A-1443.
    Opinion Filed March 8, 1913.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Hindman & Woodford, Ewing and Good & Good for plaintiff in error.
    Benjamin C. Conner, for defendant in error.
   PER CURIAM.

This is an appeal from a judgment of the county court of Tulsa county imposing a fine of ten dollars on the plaintiff in error for violating a town ordinance of the town of Owasso, the plaintiff in error having been prosecuted in the county court on an appeal from the municipal court of the town of Owasso.

Counsel for the defendant in error has filed a motion to dismiss the appeal on the following grounds: First; because the proceedings were not filed in this court within sixty days from the date of judgment, no extension of time having been granted by the trial court. 'Second; that this court has no jurisdiction on appeals of actions brought to enforce a town ordinance, the same not being a criminal action.

The motion is sustained as.to the first ground- and the appeal accordingly dismissed.


text:
    W. F. JONES v. STATE.
    No. A-1586.
    Opinion Filed March 8, 1913.
    Appeal from Okfuskee County Court; W. A. ITuser, Judge.
    W. F. Jones was convicted of a violation of the prohibition law and appeals.
    Affirmed.
    Huddleston & Iiockensmith, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. and E. G. Spilman, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on an information charging him with the offense of • unlawfully having in his possession certain intoxicating liquors with the intent on his part to violate provisions of the prohibition law, and was sentenced to serve a term of ninety days in the county jail and to pay a fine of three hundred dollars. An appeal was properly perfected.

The record shows that the defendant filed an application for transfer to the county court at Weleetka, which omitting the formal parts is as follows;

“W. F. Jones, the above named defendant, being duly sworn, upon his oath states that he resides nearer to the town of We-leotka in Okfuskee county than he does to the town of Okemah in Okfuskee county, Oklahoma. Wherefore he prays this honorable court to make an order transferring the above entitled cause pending against him to the county court of Okfuskee county held at Weleetka in Ok-fuskee county, Oklahoma. (Signed) W. F. Jones.”

Acting on this affidavit the court made an order transferring the cause to Weleetka for trial, where the cause was tried.

The only error assigned that is argued in the brief is: “That the action of the court in the impaneling of the jury and trying said cause in the town of Weleetka, Oklahoma is null and void.”

And it is argued that the act providing for the holding of terms of the county court at Weleetka is unconstitutional; for the reason that the notice required by Art. 5, sec. 32 (94 Williams) of the Constitution was insufficient.

It was not until the defendant had been tried and convicted that he raised this objection. The cause was transferred on the defendants application and he will not be heard in this court on appeal to question the action of the trial court in granting his application.

It is our opinion that the appeal is wholly without merit. The judgment is therefore affirmed.


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    B. L. SINDERSON v. STATE. OTIS TITTLE AND T. W. PRITCHETT v. STATE.
    OTIS TITTLE AND T. W. PRITCHETT v. STATE. OTIS TITTLE AND CHARLES WEBB v. STATE.
    No. A-1585.
    No. A-1538.
    No. A-1646.
    No. A-1647.
    Opinions Filed March 8, 1913.
    In each of the above numbered and entitled causes the appellants were convicted for violations of the prohibitory liquor law and appealed.
    Appeals dismissed.
   PER CURIAM.

It having- been made to appear to the satisfaction of this court that B. L. Sinderson, the appellant in case No. A-1585 is a fugitive from justice and therefore is not subject to the jurisdiction of this court, and that appellant, Otis Tittle in causes Numbered A-1538, A-1646 and A-1647 is a fugitive from justice and is not subject to the jurisdiction of this court. It is therefore ordered by the court that said appeals of B. L. Sinderson and Otis Tittle be dismissed. But in causes No. A-1538 and A-1547 the appeals of T. W. Pritchett are not to be affected by this order. In cause No. A-1647 the appeal of Charles Webb is not "to be affected by this order.

Mandates will issue at once in the cases against Otis Tittle and B. L. Sinderson.


text:
    HOMER WILSON v. STATE.
    No. A-1609.
    Opinion Filed March 11, 1913.
    Appeal from Murray County Court; Harry W. Fielding, Judge.
    Homer Wilson was convicted of a violation of the prohibition law and appeals.
    Appeal dismissed.
   PER CURIAM.

Plaintiff in error, Homer Wilson, was convicted of a violation of the prohibition laws and was on November 9th, 1911, in accordance with the verdict of the jury, sentenced to serve a term of thirty days in the county jail 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 for the following reasons: First: That he has been surrendered by his bondsmen and is now in the county jail. Second: That he is arranging to apply to the Governor for a parol. The motion to dismiss the appeal is allowed and the" appeal is hereby dismissel. Mandate will issue forthwith.


text:
    WM. HENRY v. STATE.
    No. A-1499.
    Opinion Filed March 15, 1913.
    Appeal from District Court, Canadian County; John J. Carney, Judge.
    Roberson & Roberson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Wm. Henry, was convicted in the district court of Canadian county of the crime of grand larceny, and was sentenced to serve a term of three years imprisonment in ' the state penitentiary. The judgment and sentence was entered June 1st, 1911. An appeal was perfected by filing in this court November 25th, 1911, a petition in error with case-made.

No briefs have been filed, and when the case was called, on the regular assignment, this term, no appearance was made on behalf of plaintiff in error.

The attorney general has filed a motion to affirm the judgment for failure to prosecute the appeal.

Where no briefs have been filed, or oral argument made, we do not consider it the duty of this court to make an examination of the transcript of the testimony to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information, the instructions of the court, and the judgment and sentence, and we find no prejudicial error. The motion to affirm is sustained, and the judgment of the district court of Canadian county is affirmed.


text:
    R. G. HILL v. CITY OF KINGFISHER.
    No. A-1432.
    Opinion Filed March 22, 1913.
    Appeal from Kingfisher County Court; Jno. W. Graham, Judge.
    R. G. Hill was convicted of violating an ordinance of the city of Kingfisher, and appeals.
    Affirmed.
    D. K. Cunningham, for plaintiff in error.
    John T. Bradley, Jr., for defendant in error.
   PER CURIAM.

The plaintiff in error, R.. G. Kill, was tried and convicted in the police court of the city of Kingfisher on a charge of violating a city ordinance and appealed to the county court, • where he was again tried and convicted and judgment pronounced imposing a fine of ten dollars and costs. Prom this judgment the appeal is to this court. We have carefully considered the record and the briefs in this case and are of the opinion that the judgment of the trial court is just and right. It is therefore affirmed.


text:
    LARMA BRADFORD v. STATE.
    No. A-1734.
    Opinion Filed April 5, 1913.
   PER CURIAM.

This cause coming on to be heard upon motion of the plaintiff in error requesting that his appeal be dismissed, upon due consideration by the court it is considered that the motion should be sustained, and the appeal dismissed. It is so ordered.


text:
    JESS TOMERLIN v. STATE.
    No. A-1722.
    Opinion Filed April 5, 1913.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Jess Tomerlin was convicted ,of operating a gambling game, and appeals.
    Reversed,
    Pruiett, Sniggs & Wilson and Kistler, McAdams & Haskell, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State. Herbert M. Peck, of counsel.
   PER CURIAM.

Plaintiff in error, Jess Tomerlin, was convicted at the January, 1912, term of the county court of Oklahoma county, on a charge of operating a roulette wheel, and his punishment fixed at a fine of one thousand dollars and imprisonment in the county jail for a period of four months. This is a companion case to the Cecil Proctor case decided at the present term of court* For the reasons given in that case the judgment in this case is reversed and the cause remanded with direction to the trial court to grant a new trial and require the county attorney to file a proper information and proceed according to law.


text:
    In re CHARLES WARNER.
    No. A-1917.
    Opinion Filed April 5, 1913.
   PER CURIAM.

This cause coming on to be heard upon a motion of the petitioner requesting that his petition be dismissed, upon due consideration by the court the request is granted and the petition for the writ of habeas corpus dismissed.


text:
    FRED FINLEY v. STATE.
    No. A-1560.
    Opinion Filed April 5, 1913.
    Appeal from Greer County Court; Jarret Todd, Judge.
    Fred Finley was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Eagin & Eagin, for plaintiff in error.
    C. J. Daveuport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Fred Finley, was convicted at the July, 1911, term of the county court of Greer county, on a charge of violating the prohibitory law, and on the 30th day of August, thereafter, judgment was pronounced by the court imposing a punishment of thirty days imprisonment and a fine of fifty dollars. Time was given and extended within which to rile this appeal, amounting to one hundred twenty days, the statutory limit. The appeal was not filed in this court until the 30th day of December, 1911, more than one hundred twenty days after the rendition of the judgment. The appeal not having been filed within the time provided by the statute, we are without jurisdiction to review the errors complained of, and upon motion of the Attorney General the appeal is dismissed.


text:
    In re LOTTIE HOLDEN.
    No. A-1409.
    Opinion Filed April 5, 1913.
    Al. J. Jennings, for petitioner.
   PER CURIAM.

This is a petition for the writ of habeas corpus filed in this court on the 30th day of September, 1911. The petition was never presented to this court nor to the presiding judge thereof. It is based upon the contention that the petitioner was convicted in the district court of Oklahoma county on a charge of manslaughter and sentenced to twenty years imprisonment in the state penitentiary; that bail was fixed in the sum of twenty thousand dollars, and that said bail was excessive. There has been no appeal perfected in this court from the original judgment and the time has long since lapsed in which this appeal could have been taken. The writ of habeas corpus is not the proper remedy in this class of cases anyway and in all probability counsel abandoned this application as well as an effort to appeal from the original judgment. The petition does not state grounds for relief and is dismissed for want of prosecution.


author: HER CURIAM.

text:
    T. J. BASHAM v. STATE.
    No. A-1885.
    Opinion Filed April 5, 1913.
    Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.
    T. J. Basham was convicted for obtaining property under false pretenses, and appeals.
    Appeal dismissed.
    J. Q. A. Harrod, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   HER CURIAM.

Plaintiff in error was convicted in the district court of Oklahoma county on an information which charged the crime of obtaining property under falsa pretenses from one A. M. DeBolt, in said county, on or about September 1st, 1911, and was, in accordance with the verdict of the jury, sentenced to pay a fine of eighteen hundred and twenty dollars, and in default of the payment of said fine to be confined in the county jail until the same is satisfied as by law provided.

From this judgment an appeal was attempted to be taken by case-made. January 13th, 1913, the Attorney General filed a motion to dismiss the appeal for the followingi reasons: “Because the record discloses that this is an attempted appeal, by case-made alone, from a judgment of conviction for a- felony rendered in the district court of Oklahoma county on the 5th day of July, 1912, at which time the court granted 30 days to plaintiff to prepare and serve case-made on the county attorney. Thereafter, to wit: On the 3rd day of August, 1912, the trial court granted 30 days additional to the time theretofore granted in which to prepare and serve said case-made. Thereafter, to wit: On September 3, 1912, the court granted 30 days additional to the time theretofore granted in which to prepare and serve said case-made, making a total of 90 days from the 5th day of July, 1912, in which to preparo and serve said said case. Said 90 days expiring on and with the 3rd day of October, 1912. Thereafter, to wit: On the 6th day of October, 1912, the trial court attempted to make another and additional order extending time to prepare and serve such case, as also attempted orders of October 31, 1912, and November 30, 1912., But such orders were wholly void because the jurisdiction of the court to make any order extending time to serve case after the order of September 3, 1912, expired on and with October 3, 1912. 'Said case-made was not served upon the county attorney until the 17th day of December, 1912.”

From an examination of the record we find that it does not contain a certificate of the clerk of the district, court, certifying to the record proper. Upon hearing this day had, the motion of the Attorney General to require good and sufficient appeal bond, the court finds that no sufficient bond has been given in said cause. And further finds that said case-made was not served within the time properly allowed by the court, and that the motion to dismiss should be sustained. The purported appeal is therefore dismissed, and the cause remanded the district court of Oklahoma county, with direction to enforce its judgment and sentence therein.


text:
    BEN JOHNSON v. STATE.
    No. A-1796.
    Opinion Filed April 5, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    Ben Johnson was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    D. W. Buckner, for plaintiff in error.
    Chas. West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for the State.
   PER CURIAM..

Plaintiff in error was convicted in the county court of Garfield county, on a charge of selling intoxicating liquor, and was sentenced to be confined in the county jail 'for thirty days and to pay a fine of fifty dollars.

The judgment and sentence was entered on May 2nd, 1912.

When judgment was rendered the defendant was given sixty days to perfect his appeal to this court. On June 29th, an order was made extending the time ten days; which time expired July 12th. On July 19th, after the expiration of the time granted by the court, a further extension of time was entered for a period of ten days. The second order extending the time was made after the trial court had lost jurisdiction of the case, and the order made giving such extension was void. July 30th, 1912, a petition in error with cas»'-made was filed in this court.

Under the statute (Sec. 6948):

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered; providing, however, that the trial court or judge, may for good cause shown, extend the time within which said appeal may be taken, not exceeding sixty days.”

An extension of time within which to perfect an appeal under the statute should be secured by written application, presented to the ■court or judge, and if the order so extending the time is not made within the time allowed by the statute, or within the extended time, the. court or trial judge is without authority, and such order is void.

The Attorney General has filed a motion to dismiss the appeal for the reasons stated. Which motion is sustained, and the appeal is hereby dismissed, and the cause remanded to the county court of Garfield county with direction to enforce its judgment and sentence therein.


text:
    CHARLEY BAUGH AND S. MOORE v. STATE.
    No. A-1866.
    Opinion Filed April 12, 1913.
    Appeal from Seminole County Court; T. S. Cobb, Judge.
    A. S. Norvell, for appellants.
    C. J.. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellants were found guilty of violating the prohibitory liquor law, and their punishment was assessed at a fine -of $75 each and 30 days each confinement in the county jail. Wfe find no material error in the record. The judgment of the lower court is in all things affirmed. It being made to appear to tne court that the present county judge of 'Seminole county is disqualified from acting in this matter, the clerk of the county court of- Seminole county is hereby directed upon receipt of the mandate of this court to forthwith issue warrants for the enforcement of the judgments against both of the appellants.


text:
    Ex parte EMMA RIVERS.
    No. A-1974.
    Opinion Filed April 28, 1913.
    Petition for habeas corpus from Grady County.
    P. E. Riddle, for petitioner.
    Oscar 'Simpson, Co. Atty., and B. P. Holding, Asst.. Co. Atty. for the State.
   PER CURIAM.

Petitioner being confined in the county jail of Grady county, Oklahoma, has applied for the issuance of a writ of habeas corpus in order that she may be admitted to bail pending trial on said charge. This application is made upon two grounds. First. That the proof is not evident or the presumption great that petitioner is guilty of the crime of which she is charged. Second. That petitioner is afflicted with a chronic disease which has been greatly aggravated by her imprisonment, and that her continued confinement in- the county jail of Grady county pending her final trial upon said charge will result in a serious and permanent impairment of her health.

This court expresses no opinion as to the guilt or innocence of petitioner, but upon a consideration of the entire record, in view of the health of petitioner, the court is of the opinion that she should be admitted to bail in the sum of $10,000. It is therefore ordered that the application for writ of habeas corpus be sustained and that petitioner be admitted to bail in the sum of $10,000, to be approved by the clerk of the district court of Grady c.ounty.


text:
    DAN BEATS v. STATE.
    No. A-1710.
    Opinion Filed May 5, 1913.
    Appeal from Superior Court, Pittsburg County; W. C. Liedke, Judge.
    Wilkerson & Keith, for appellant.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted in the superior court of Pittsburg county for an assault with intent to murder, and his punishment was assessed' at two years confinement in the penitentiary. Prom this judgment he appealed. The Attorney General has suggested to the court the death of appellant and that this cause be abated. It is therefore ordered by the court that this cause be abated and stricken from the docket.


text:
    In re JESSE O’DANIELL.
    No. A-1340.
    Opinion Filed May 6, 1913.
    S. B. Garrett and S. J. Castleman, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petition for writ of habeas corpus discloses the fact that petitioner is confined in the county jail of Jackson county under and by virtue of two separate commitments issued on two separate judgments rendered in the county court of said county against him for violations of the prohibitory law. The petitioner avers that his imprisonment is_ illegal in that the two sentences as a matter of law run concurrently, not being made cumulative by the judgment of the court, and petitioner having been confined a sufficient length of time to thus execute and satisfy both sentences is therefore entitled to be discharged. The record shows the first judgment was rendered at the January term, and the second at the May term.

By numerous decisions of this court it has been held that if the defendant has been convicted of two or more offenses before the judgment and sentence in any one has been executed and satisfied the imprisonment under one sentence is to commence on the execution of the other, whether or not the judgment and sentence so recites.

Our Penal Code provides: (Sec. 2818.)

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

The application of the petitioner fails to show, that the judgment and sentence under which he is imprisoned has'been executed or satisfied, cr that he is entitled to release. Hence, the writ of habeas corpus is denied.


text:
    WALT COOK V. STATE.
    No. A-1568.
    Opinion Filed May 9, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    Walt Cook was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    W. O. Cromwell, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Garfield county, of the offense 'of unlawfully selling intoxicating liquors. September 30th, 1911, he was sentenced to serve a term of one hundred fifty days in the county jail and to pay a fine of two hundred dollars. To reverse this judgment there was filed in this court! January 5th, 1912, a petition in error with case-made. From a careful examination of the record it is apparent that the several assignments of error are without merit. The information was sufficient.

Two witnesses, George Hennington and Tom 'Seaton, testified for the state that they bought bottled beer in the defendant’s place of business during the month of June, 1911, and there is evidence of the payment by the defendant of the special tax required of liquor dealers by the United States on December 10th, 1910, which did not expire until the end of the following June. There was no evidence offered on behalf of the defendant. The judgment is affirmed.


text:
    DAN MATER AND E. L. BROWN v. STATE.
    No. A-1544.
    Opinion Filed May 10, 1913.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    Dan Mater and E. L. Brown were convicted of violating- the prohibitory law, and appeal.
    Affirmed.
    H. C. Olds, for plaintiffs in error.
    Smith C. Matson and E. G. 'Spilman, Asst. Attys. Gen,, for the State.
   PER CURIAM.

The plaintiffs in error, Dan Mater and E. L. Brown, were tried and convicted at the July, 1911, term of the superior court of Logan county on a charge of unlawful possession of intoxicating liquors with intent to sell the same. The punishment of the plaintiff in error, Dan Mater, was fixed at a fine of thrfee hundred fifty dollars and imprisonment in the county jail for a period of sixty days, and that of plaintiff in error, E, L. Brown, at a fine of fifty dollars and thirty days’ imprisonment. We have carefully examined the record, and find no error sufficient to justify a reversal. The judgment is therefore affirmed.


author: PER' CURIAM.

text:
    SAM KYLE v. STATE.
    No. A-1554.
    Opinion Filed May 10, 1913.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Sam Kyle was convicted of violating the prohibitory law and appeals.
    Modified and affirmed.
    Jennings & Levy, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER' CURIAM.

The plaintiff in error, Sam Kyle, was tried and -convicted at the October, 1911, term- of the county court of Oklahoma county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at confinement in the county jail for a period of three months and the payment of a fine of two hundred fifty dollars and costs.

Upon a careful examination of the record we think the judgment should be affirmed. It appears, however, that the trial éourt in entering the judgment provided for the imprisonment of the plaintiff in error for the payment of the costs. The judgment as to the imprisonment and fine should stand, but that portion providing for the imprisonment of the plaintiff in error until the costs are paid exceeds the authority of the court and the judgment is therefore 'modified by striking out that portion. The trial court should read the opinion of this court in Ex parte Jake Harry, 6 Okla. Cr. 168, and follow the doctrine therein enunciated in imposing fines and costs.

The judgment as modified is affirmed.


text:
    CHARLES KYLE v. STATE
    No. A-1555.
    Opinion Filed May 10, 1913.
    Appeal from Superior Court, Logan County. S. S. Lawrence, Judge.
    -Charles Kyle was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      H. C. Olds, for plaintiff in error.
    Charles West, Atty. Gen., and John Adams, Co. Atty., for .the State.
   PER CURIAM.

The plaintiff in error, Charles Kyle, was tried and convicted at the July, 1911, term of the superior court of Logan county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of fifty dollars.

We have carefully examined the record and find no sufficient reason for interfering with the judgment of the trial court, and it is therefore affirmed.


text:
    ORSON L. EARLY v. STATE.
    No. A-1557.
    Opinion Filed May 10, 1913.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Orson L. Earley was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Pruiett, Wilson & Sniggs, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Orson L. Early, was tried and convicted in the county court of Oklahoma county in -September, 1911, on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of two hundred and fifty dollars and imprisonment in the county jail for a period of ninety days. The appeal was filed in this court on December 30, 1911. Briefs were filed by the state on May 24, 1912. No briefs have been filed on behalf of the plaintiff in error and no appearance made for oral argument. The record has been examined for fundamental error and, none appearing, the judgment of the trial court is affirmed.


text:
    HARRY SANDERS v. STATE.
    No. A-1849.
    Opinion Filed May 14, 1913.
    Appeal from McCurtain County Court; E. E. Cochran, Judge.
    Harry Sanders was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    H. P. Hosey and Steel, Lake & Head, for plaintiff in error.
    Smith C. Matson and C. J. Davenport, Asst. Attys. Gon., for the State.
   PER CURIAM.

The plaintiff in error, Harry Sanders, was tried and convicted at the July, 1912, term of the county court of McCur-tain county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of fifty dollars. Upon a careful examination of the record we find no error sufficient to justify a reversal of the judgment of the trial court. It is therefore affirmed.

The clerk is directed to issue the mandate instanter.


text:
    SAM HOGAN v. STATE.
    No. A-1569.
    Opinion Filed May 17, 1913.
    Appeal from Garfield County Court; ^ Winfield Scott, Judge.
    Sam Hogan was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    W. O. Cromwell, for appellant.
    Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Special Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant, Sam Hogan, was convicted at the October, 1911, term of the county court of Garfield county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of four hundred dollars and imprisonment in the county jail for a period of one hundred twenty days. Upon a careful examination of the record we find some irregularities in the trial, but upon the whole case the proof of the guilt of appellant is conclusive. There are errors of law which in our judgment justify a reversal of the judgment.' It is therefore affirmed.

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


text:
    SLIM ADAY v. STATE.
    No. A-1992.
    Opinion Filed May 17, 1913.
    Appeal from Cotton County Court; Austin Akins, Judge.
    Slim Aday was convicted of violating the prohibitory' law, and appeals.
    Appeal dismissed.
    Anderson & Norman for plaintiff in error.
   PER CURIAM.

The plaintiff in error, Slim Aday, was convicted at the March, 1913, term of the county court of Cotton county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred dollars and confinement in the county jail for a period of thirty days. The appeal was filed in this court on the 5th day of May, 1913. On the 12th day of said month counsel for the plaintiff in error filed a motion asking that the appeal be dismissed. The motion is sustained and the appeal dismissed.


text:
    LUCIUS GARRETT v. STATE.
    No. A-1581.
    Opinion Filed May 13, 1913.
    Appeal from 'Superior Court, Logan County; S. S. Lawrence, Judge.
    Lucius Garrett was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    B. F. Garrett, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Lucius Garrett, was convicted at the September, 1911, term of the superior court of Logan county on a charge of having! the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of one hundred dollars and) confinement in the county jail for a period of -sixty days. A careful examination of the record discloses no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    WALTER STANDIFER v. STATE.
    No. A-1574.
    Opinion Filed May 17, 1913.
    Appeal from Pottawatomie County Court; Ross F. Lockridge, Judge.
    Walter Standifer was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Baldwin & Carlton and C. G. Pitman, for plaintiff in error. '
    'Smith C. Matson, Asst. Atty. Gen., for the State. Monroe Osborn, of counsel.
   PER CURIAM.

Plaintiff in error, Walter Standifer, was convicted at the October, 1911, term of the county court of Pottawatomie county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of one hundred fifty dollars and confinement in the county jail for a period of sixty days. The record in this case discloses the fact that there was some incompetent testimony admitted at the trial, but upon the whole case we are unable to say that this judgment should be reversed. In our judgment there is no miscarriage of justice. The plaintiff in error is clearly guilty. Let the judgment of the trial court be affirmed.


text:
    In re GUS BARBEE.
    No. A-1970.
    Opinion Filed May 24, 1913.
    Baldwin & Carlton, for petitioner.
    C. J. Davenport, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus, wherein Gus Barbee alleges that he is unlawfully restrained and imprisoned in the common jail of Pottawatomie county, by Jeff Mc-Colgan, sheriff of said county. Petitioner alleges that said restraint and imprisonment is illegal and unauthorized, because the information upon which he was tried and convicted for the alleged offense of conducting games of poker and craps, fails to state a public offense, and by reason of such fact the county court of Pottawatomie county had no jurisdiction to try petitioner, and no jurisdiction to pronounce judgment and sentence. From an examination of the record it clearly appears that the petitioner was put upon trial before a court of competent jurisdiction under an information sufficient in form and substance to sustain a ' conviction for the crime therein charged. It is our opinion that the application of the petitioner is without merit. Hence, the writ of habeas corpus is denied.


text:
    MOSE HUNTER v. STATE.
    No. A-1539.
    Opinion Filed May 24, 1913.
    Appeal from Coal County Court; R. H. Wells, Judge. '
    Mose Hunter was convicted of violating the prohibitory lav/, ana appeals.
    Affirmed
    Jahn & Gibson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Mose Hunter, was convicted at the October, 1911, term of the county court of Coal county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of two hundred dollars and imprisonment in the county jail for a period of sixty days.

The judgment' of the trial court is affirmed.


text:
    In re WALTER E. McMILLAN.
    No. A-1510.
    Opinion Filed May 24, 1913.
    Jennings & Levy, and Miller & Gray, for petitioner.
   PER CURIAM.

Upon a duly verified petition a writ issued returnable forthwith. It appears from the petition that Walter E. McMillan is held by the respondent, Jack Spain, sheriff of Oklahoma county on a warrant issued on a complaint charging petitioner with being a fugitive from justice from the state of Kansas. Upon a hearing had upon the return of the writ, it was held that there was no irregularity in the proceeding for the arrest and detention of the petitioner sufficient to authorize his release. The writ is therefore discharged and petitioner remanded to the custody of the respondent.


text:
    CARL OELKE v. STATE.
    Nos. A-1575 and A-1577.
    Opinion Filed May 24, 1913.
    Appeal from Canadian County Court; W. A. Maurer, Judge.
    Carl Oelke was convicted of violating the prohibitory law, in two cases, and appeals.
    Affirmed, as to A-1575, and reversed, as to ’ A-1677.
    Forrest & Sanson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Carl Oelke, was tried and convicted at the October, 1911, term of the county court of Canadian county on two charges of Selling intoxicating liquors. In No. A-1575 his punishment was fixed at imprisonment in the county jail for a period of six months and a fine of five hundred dollars; and in No. A-1577 at imprisonment for ninety days and a fine of three hundred fifty dollars. The prosecuting witnesses were the same in each of these cases, and it appears from the facts in both records that these convictions grew out of the same transaction.

It is our conclusion that but one of these convictions should be sustained. We think the judgment in No. A-1575, imposing a fine of five hundred dollars and imprisonment for a period of six months, should be affirmed; and it is so ordered. And for the reason stated the judgment in No. A1577 should be reversed, with directions to the trial court to dismiss the prosecution; and it is so ordered.


text:
    SAM CHISM v. STATE.
    No. A-1558.
    Opinion Filed May 31, 1913.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Davidson & Williams, for appellant. ,
    Smith C. Matson, Asst. Atty. Gen., and J. S. Estes, of counsel, for the State.
   PER CURIAM.

Appellant was convicted in the county court of Tulsa county charged with having violated the prohibitory liquor law, • and his punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. We find no prejudicial error in the record which authorizes a reversal of the judgment. See section 6005, Rev. Laws 1910. The judgment of the lower court is therefore in all things affirmed.


author: FURMAN,

text:
    LEE HERMAN v. STATE.
    No. A-1545.
    Opinion Filed May 31, 1913.
    Appeal from Kay County Court; Claud Duval, Judge.
    Herman S. Gurley, for appellant.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   FURMAN,

J. R. M. Herman and Lee Herman were jointly prosecuted in the county court of Kay county by information, charged witn the offense of having unlawful possession of certain intoxicating liquors with intent to sell the same. Separate trials were had and both of the defendants were found guilty, and appealed. The conviction of R. M. Herman was affirmed.. See Herman v. State, 8 Okla. Cr. 422

Upon an investigation of the record we are of the opinion that there is not sufficient evidence connecting Lee Herman with this transaction to sustain the verdict against him. The judgment of the lower court is therefore reversed, and’a new trial is granted.,

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


author: ■PER .CURIAM.

text:
    Alex McIntyre v. state.
    No. A-1590.
    Opinion Filed June 4, 1913.
    Appeal from Pittsburg County Court; B. P. Hammond, Judge.
    Alex McIntyre was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
   ■PER .CURIAM.

Plaintiff in error was ¡informed against and convicted of having in his possession intoxicating liquors with the intention of selling the same in violation of the prohibition law.

Upon his trial the jury found him guilty, and assessed his punishment at confinement in the county jail' for thirty days, and that he pay a fine of fifty dollars.

No brief has been filed, nor oral argument made on behalf of the defendant. The Attorney General has filed a motion to affirm for failure to prosecute the appeal. From an examination of the record, our conclusion is that this appeal was taken purely for delay, as there is not the semblance! of merit in the errors assigned. The judgment of the county court of Pittsburg county is therefore affirmed. Mandate forthwith.


author: ' PER CURIAM.

text:
    LOGAN BILLINGSLEY v. STATE.
    No. A-1716.
    Opinion Filed June 7, 1913.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Logan Billingsley was convicted of conducting a gambling game, and he appeals.
    Appeal dismissed.

      Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   ' PER CURIAM.

The plaintiff in error, Logan Billingsley, -was convicted at the January, 1912, term of the county court of Oklahoma county on a charge of conducting a gambling game, commonly known as “Klondike,” and his punishment fixed at a fine of three hundred dollars and imprisonment in the county jail for a period of thirty days. The appeal was filed in'this court on the 29th day of April, 1912. There is no petition in error filed, and no briefs filed or appearance made for oral argument. This case was assigned for oral argument on the 6th day of June, .1913.. When it was called the Attorney General in open court moved the dismissal of the appeal on the ground that the plaintiff in error had not paid the costs incurred thereby. The motion is sustained. See Clarady v. State, ante, decided at this term of court.

The appeal is dismissed, with direction to the trial court to cause the judgment and sentence to be forthwith carried into execution.


text:
    JOHN WOOLIVER v. CITY OF McALESTER.
    No. A-1620.
    Opinion Filed June 7, 1913.
    Appeal from Pittsburg County Court; B. P. Hammond, Judge.
    John Wooliver was convicted of violating an ordinance of the city of McAlester, and he appeals.
    Affirmed.
    J. G. Harley and Jas. R. Miller, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, John Wooliver, was tried and convicted in the police court of the city of McAlester on a charge of violating a city ordinance. He appealed to the county court and on the trial anew was again convicted, and bis punishment fixed at a fine of seventy-five dollars. There are some irregularities shown in the record, but upon the whole case we think the judgment is a proper one and should be affirmed. The judgment is affirmed with direction to the lower court to enforce the same.


text:
    ARTHUR N. HOWE v. STATE.
    No. A-1610.
    Opinion Filed June 7, 1913.
    Appeal from District Court, Beaver County; R. H. Loofbourrow, Judge.
   PER CURIAM.

The Attorney General has filed the following motion to dismiss the appeal;

“Comes now the State of Oklahoma by the Attorney General and, appearing specially for the purpose of this motion, moves the court to dismiss the appeal herein, and as grounds therefor shows: That plaintiff in error was prosecuted for the offense of assault with intent to kill; that he was convicted of aggravated assault, and the punishment was assessed at confinement in the county jail for thirty days. That the judgment was rendered on August 9, 1911; that on February 6, 1912, a case-made was filed in this court, but no petition in error was filed at said time or at any other time.”

No answer to said motion has been filed. When the case was called for trial on this day on the regular assignment no appearance was made on behalf of the plaintiff in error. The motion to dismiss the appeal is therefore allowed and the cause remanded to the district court of Beaver county -with direction to enforce its judgment therein.


text:
    JOHN MCDONALD v. STATE.
    No. A-1690.
    Opinion filed June 7, 1913.
    Appeal from Love County Court; R. A. Keller, Judge.
   PER CURIAM.

John McDonald, plaintiff in error, was convicted of unlawful conveying intoxicating liquor, and was on the 30th day of January, 1912, sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. Prom this judgment he appealed. No briefs have been filed. Por this reason the'Attorney General, when the case was called for final submission, moved to affirm for failure to prosecute the appeal.

The motion to affirm is sustained and the judgment is affirmed.


text:
    B. P. SMITH v. STATE.
    No. A-1608.
    Opinion Filed June 7, 1913.
    Appeal from Carter County Court; M. P. Winfrey, Judge.
    B. P. Smith was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    W. C. Cruce, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. W. R. Bleakmore, of counsel, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Carter county for the crime of unlawful conveying whisky and was sentenced in accordance with the verdict of the jury to be confined in the county jail for a period of sixty days and that he pay a fine of one hundred fifty dollars. To reverse this judgment an appeal was perfected.

The only assignment of error argued in the brief is that the evidence is insufficient to sustain the verdict. The proof on- the part of the state shows that the defendant was arrested on the road between Overbrook and Ardmore with thirteen gallons of whisky in his buggy. Ten gallons of which belonged to him and three gallons to his co-defendant, John Black. Black entered a plea of guilty and served his sentence.

The defendant, a negro doctor, residing in the city of Ardmore claimed that he had been called in his professional capacity to attend the wife of a negro, Tom Waters, who lived near Marietta, ten miles beyond Overbrook; that he procured a horse and buggy from the livery stable and drove to Overbrook where he expected Waters to meet him and convey him to his patient; that he took Sam Wool-ridge with him to bring the horse back to the livery stable. That he was practically forced to carry the liquor after Black had placed it in his buggy. The record discloses that the defendant had a fair and impartial trial. The sufficiency of the evidence was a question purely for the jury. The jury under the law are the sole judges of the credibility of the witnesses and of the weight to be given to the evidence of each witness who testifies in the. case. Where the verdict of the jury has been approved by the trial court, this court- will not disturb the judgment where there is evidence to support the verdict, unless it is apparent that injustice has been done.

It is our opinion that the evidence is clearly sufficient to support the verdict. The judgment is affirmed.


author: 3?ER CURIAM.

text:
    HORACE LINDSEY v. STATE.
    No. A-1602.
    Opinion Filed June 7, 1913.
    Appeal from Murray County Court; Harry W. Fielding, Judge.
    Horace Lindsey was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    W. N. Lewis and Emanuel & Broadbent, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   3?ER CURIAM.

The plaintiff in error was convicted in the county court of Murray county on an information which after stating the time and venue charged: “Did then and there have in his possession beer and whisky for the unlawful purpose of unlawful sale.” Upon his trial the jury returned a verdict of guilty. Motion for new trial was filed and overruled, and on November 13th, 1911, he was sentenced to be confined in the county jail for ninety days and to pay a fine of three hundred dollars. To reverse this judgment an appeal was taken. It is contended that the verdict is contrary to the evidence and contrary to law. The sheriff and his deputy testified that in serving a search warrant they found at the home of the defendant six bottles of beer in a candy bucket on ice, and ten bottles of beer in a sack under a bed, and a bottle of alcohol in a trunk. The defendant conducted a small country store near the river bridge, west of Davis. There was no evidence of the defendant’s intent to violate any provisions of the prohibition law.

We are of opinion that the evidence is insufficient to sustain the conviction. The mere possession of intoxicating liquor, in the home, is not in itself sufficient to prove an unlawful intent to sell as charged in this case, as there was no proof of payment of the special tax required of liquor dealers by the United States.

It is also contended that the court erred in refusing to grant a new trial on the ground that the county attorney in his argument improperly called the attention of the jury to the fact that the defendant did not testify. It is unnecessary to review this assignment as the case must be reversed for failure to prove an intent to violate the prohibitory law. For this reason the judgment of the county court of Murray county is reversed.


text:
    T. C. HUSTED v. STATE.
    No. A-1603.
    Opinion Filed June 7, 1913.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    T. C. ITusted, was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    J. R. Clark and Charles L. Fildes, for plaintiff in error.
    Chas. West, Atty. Gen., 'Smith C. Matson, Asst. Atty. Gen., and Monroe Osborn, for the State.
   PER CURIAM.

The plaintiff in error was convicted on an indictment which charged that he did sell to one H. C. Vandeewater two bottles of beer, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of ninety days and to pay a fine of two hundred fifty dollars.

An appeal was perfected. The defendant acted as his own attorney in the trial and filed a plea to the jurisdiction of the county court on the ground that the indictment was not transferred from the district court to the county court as required by law, which plea was overruled. There was no question properly raised by the so-called plea, and the same was properly overruled. It is also claimed that the court erred in admittng in evidence, irrelevant, immaterial and hearsay testimony. The objections are without merit. H. C. Vandeewater testified that the beer in question was bought by him at a place known as Husted’s roadhouse, from a negro; that defendant was in possession of said house; that witness had seen him there frequently and had seen him in conversation with the negro who had sold witness the beer; saw the negro working around the place, while the defendant was assuming control of the place. The defendant in his own behalf testified that he rented the house referred to and sold it in a few days and then staid around there for a while trying to get his money for it, and h'e finally collected it and never returned there again. That he did not sell anything there; that he had sold the property a few days before the date of the alleged sale. The sufficiency of the evidence was a question for the jury. They are the sole judges of the credibility of the witnesses and of the weight to be givn the evidence of'each witness who- testifies in the case. And where the verdict of the jury has been approved by the trial court, in the absence of prejudicial error, this court will not disturb the judgment where there is evidence to support the verdict, unless it is apparent that injustice has been done.

■ There being no prejudicial errors in the record, the judgment is affirmed.


text:
    S. E. PECK v. STATE.
    No. A-1542.
    Opinion Filed June 7, 1913.
    Appeal from Blaine County Court; George W. Ferguson, Judge.
    S. E. Peck was convicted of assault, and appeals.
    Appeal dismissed.
    D. K. Cunningham, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information charging him with assault, and in accordance with the verdict of the jury was sentenced to pay a fine of five dollars and costs. To reverse the judgment an appeal was taken to this court. Plaintiff in error now files a motion to v dismiss his appeal. Prom this motion it appears that while the appeal was pending in this court a motion for a new trial was made, upon the ground of newly discovered evidence, under that provision of Procedure Criminal (sec. 5938, Rev. Laws 1910) w'hich provides that:

“A motion for a new trial on the ground of • newly discovered evidence may be made after judgment at the term at which the case was tried, or in vacation, before the judge or at the next term of court.”

And that a new trial was granted. Attached to the motion to . dismiss is a certified copy of the order awarding a new trial. The motion to dismiss said appeal is granted and the appeal is dismissed.


text:
    JOE WILKERSON et al. v. STATE.
    No. A-1855.
    Opinion Filed June 7, 1913.
   Joe Wilkerson and another were convicted in the district court of Atoka county of larceny, and appeal. Appeal dismissed at request of attorneys for appellant.


text:
    GEORGE OSBORNE v. STATE.
    No. A-1552.
    Opinion Filed June 14, 1913.
    Appeal from Blaine County Court; Geo. W. Ferguson, Judge.
    George Osborne was convicted of violating the prohibitiory Taw, and appeals.
    Reversed.
    Seymour Foose and R. C. Brown, for plaintiff in error.
    'Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, George Osborne, was convicted at the October, 1911, term of the county court of Blaine county on a charge of unlawfully transporting intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. The evidence on the part of the state shows simply a conveyance of liquor from one place in Blaine county to another place therein. The testimony of the accused shows that the whisky in question was an interstate shipment, purchased in Kansas City; that he was taking the same from his house to a place where he was working, for his own use. Nobody contradicts his testimony in any way. A number of witnesses testified to his good' character and to the fact that he had never been suspected of violating the prohibitory law, and bore a good reputation as a law-abiding citizen. No witnesses denied these facts.

The record discloses the fact that the accused was prosecuted for having possession of the same whisky, and that after the jury had been impaneled and sworn to try thei charge of unlawful possession with intent to sell, the county attorney dismissed that case, tie should have dismissed this one also. The conviction is wholly unwarranted. See Gastineau v. State, 7 Okla. Cr. 512.

The judgment is reversed and the cause remanded with direction to grant a new trial.


author: PISE. CURIAM.

text:
    JOHN MARRS v. STATE.
    No. A-1601.
    Opinion Filed June 14, 1913.
    Appeal from Murray County Court; Harry W. Fielding, Judge.
    John Marrs was convicted! of violating the prohibitory law, and appeals.
    Affirmed.
    W. N. Lewis and Emanuel & Broadbent, for plaintiff in error. Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PISE. CURIAM.

The plaintiff in error, John Marrs, was convicted at the November, 1911, term of the county court of Murray county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of three hundred dollars and confinement in the county jail for a period of ninety days. We have carefully Examined the record in this case and can find no error prejudicial to the rights of the accused. The facts were sufficient to warrant the submission of the case to the jury by the trial court, and are such that this court cannot say any injustice was done. The judgment of conviction is therefore affirmed.