text:
    H. G. HILDEBRANDT v. STATE.
    No. A-1751.
    Opinion Filed February 22, 1913.
    (130 Pac. 121.)
    INTOXICATING LIQUORS — Criminal Prosecutions — Sufficiency of Evidence. For evidence fully sustaining a conviction for keeping a place for the purpose of violating the prohibitory liquor law of Oklahoma, see opinion..
    (Syllabus by the Oourt.)

      Appeal from Garfield County Court; Winfield Scott, Judge.

    H. G. Hildebrandt was convicted of violation of the prohibitory liquor law, and his punishment assessed at a fine of $400 and confinement in the county jail for 120 days, and he appeals.
    Affirmed.

      W. O. Cromzvell, for appellant.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   FURMAN, J.

Appellant was charged with keeping and maintaining on the 4th day of February, 1912, a place located on the Chicago, Rock Island & Pacific right of way known as the Anheuser Busch Brewing Company’s cold storage building, at the corner of Second and East Park streets, in the city of Enid, Okla., where malt, spirituous, vinous, and fermented liquors" and imitations thereof, to wit, whisky and beer, capable of being used as a beverage, were received and kept for the purpose of unlawfully bartering, selling, giving away, and otherwise furnishing the same to others. It was proven that on the day alleged appellant occupied the building in question and exercised control over it, and that on said date the place was raided by the officers, and a man was found in one of the rooms of the house pouring whisky from a large bottle into small ones. Appellant was also present in the building at the time the raid was made. Whisky was also taken from the person of another man found in the building. In the building were found a number of barrels filled with empty bottles. Boxes and a lot of empty bottles were also found in the office of appellant. Wholesale and retail liquor dealer receipts for the payment of the United States internal revenue tax from July 1, 1911, to July 1, 1912, were found posted on the walls of the building. They were issued to appellant and designated this building as his place of business.

The agent of the Wells Fargo Express Company at Enid testified that on appellant’s order he had delivered whisky to various persons. It was also proven that the building occupied by appellant had the general reputation in that community of being a bootlegging joint, and that it was a place at which men who were in the habit of drinking resorted.

Appellant offered no testimony. We think the evidence of appellant’s guilt is conclusive. All of the questions presented by appellant having already been decided repeatedly by this court adversely to the contention of appellant, it is not necessary to discuss them again.

This court is not hunting for excuses or splitting hairs to set aside the verdicts of juries and the judgments of courts, and thereby keep guilty men out of jail. Instead of complaining at the sentence which he received, appellant should be exceedingly grateful that he was not sentenced to jail for six months and fined $500. When appellant has served the time in jail prescribed by the judgment, he will be'released from imprisonment upon the payment of his fine. If the fine is not then paid, he must be confined in jail until the fine is fully satisfied as the law directs.

We find no prejudicial error in, the record. The judgment of the lower court is therefore in all things affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    LYMAN BILLY v. STATE.
    No. 1306.
    Opinion Filed March 1, 1913.
    (130 Pac. 308.)
    HOMICIDE — Evidence—Sufficiency—Instructions. In a prosecution for murder, the evidence is held sufficient to support the verdict of manslaughter in the first degree, and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Pushmataha County; Malcolm B. Rosser, Judge.

    Lyman Billy was convicted of manslaughter, and brings error.
    Affirmed.

      C. B. Dudley, for plaintiff in error.

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

Plaintiff in error, Lyman Billy, hereinafter referred to as the “defendant,” was convicted of manslaughter in the first degree in the district court of Pushmataha county, on an information filed in said court December 21, 1910, charging him with the murder of Julius Hobson, on or about the 19th day of November, 1910. In accordance with the verdict of the jury he was sentenced to serve a term of ten years’ imprisonment in the state penitentiary. The judgment and sentence was entered on Eebruary 18, 1911. To reverse the judgment the defendant prosecuted an appeal by filing in this court August 12th a petition in error with case-made.

The errors assigned are: First, the admission of improper and incompetent evidence; and, second, the refusal to give a requested instruction.

The circumstances under which the homicide was committed are, briefly, as follows: Julius Hobson, the deceased, David Charley, and Samson Jackson, on the day of the homicide, went to Sina Homer’s house and passed by the defendant’s house; it being about 200 yards from where they were going. The deceased’s sister was staying at Sina Homer’s, and he was trying to persuade her to go home with him when the defendant appeared and told her to come to his house. The parties concerned were Choctaw Indians. David Charley, who the evidence shows had been living in adultery with Martha Hobson, told her she had better go home with the deceased, as he was her brother. The defendant then pulled a pistol, and the deceased ran towards him and fell over the fence. David Charley then pulled a pistol and fired at the defendant, and the defendant fired back, shooting all his cartridges at David Charley and the deceased; David Charley also shooting at the defendant. No one was hit by any of these shots. During the shooting Martha Hobson ran away from the scene, going west. After the shooting the defendant went south 200 yards to his house. Before reaching his house he was overtaken by David Charley, who told.him that it would be better to let the deceased alone, that he was drunk, and the defendant answered, “I am not making any trouble for you.” David Charley then returned to where the difficulty first started, and with Samson Jackson and the deceased they went towards the west, thus going away from the defendant’s house. All three were on horseback.

The testimony of C. M. Whatley, who lived on the defendant’s place, and J. J. Matthews, who was there at the time, and who, we gather from the record, were not related to any of the parties to the difficulty, shows that the defendant went into his house and immediately came out with a Winchester, and went back to Sina Homer’s house.'

The evidence tends further to show that the defendant followed the deceased at léast 200 yards before shooting him, and that the deceased was about 200 yards from him when he shot him. The evidence clearly established the fact that the defendant was pursuing the deceased when he fired the shot, and that the bullet entered his back.

The defendant testified on his own behalf that he was a Gospel worker and that his wife was Martha Hobson’s aunt. That David Charley tried to shoot him and he ran home. The record then shows his testimony as follows:

"Q. What did you do after you got home? A. I went in the closet of the house. Q. What did you get there, if anything? A. I was so excited and so scared that I do not know what I did get or what I was doing, but I found out I had a gun. Q. After you got that gun, did you shoot at anybody? A. The witnesses testify that I did, and I reckon I must have shot at him. Q. How far were you from your house when you shot? A. About 100 yards. Q. How far was Julius away from you when you shot at him? A. About 200 yards. Q. Was Julius walking or riding ? A. He was horseback. Q. Did he get down off his horse after you shot? A. Yes. Q. Did he get down immediately, right where you shot? A. After I shot he went on about 200 yards, and I saw him get off his horse. Q. Why did you shoot at Julius? A. I knew that they would kill me or hurt me, and I was excited, also scared, and that is why I shot at him.”

Coming now' to the errors assigned: First, objection is made to the ruling of the court in permitting the state’s witness David Charley, on redirect examination, to state, over objection of counsel for the defendant, that he had been convicted that morning for the part he took in the’difficulty. Witness had just testified on cross-examination as follows:

"Q. David, you were convicted for hog theft in the Choctaw court and whipped, were you not? A. Yes, sir; I was whipped. Q. For hog stealing? A. Yes, I stole him and got whipped.”

The record does not disclose for what offense witness was convicted that morning. So far as this court knows, it was beneficial to the defendant in tending to discredit the witness.

In support of this assignment, the case of Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314 is cited. In that case it was held that:

"Although evidence may be improperly admitted against the defendant, on account of which his conviction would be reversed, yet, if the defendant takes the witness stand and testifies to the same thing, the error in receiving the other evidence will become harmless, and then will not be ground for reversal.”

However, the court properly permitted this evidence to be received.

The second objection is made to the ruling of the court in refusing to let Martha Hobson, a witness for the defendant, answer the following question: “State to the jury how you happen to live with David Charley.” On the state’s objection, the following ruling was made: “The Court: Q. You can prove the actions of her brother at the time of the trouble, but it makes no difference how she commenced to live with David Charley. If her brother wanted her to live with David Charley in the beginning, or forced her to do so, it would make no difference now, or at the time of this transaction; but his conduct then is a proper matter for the jury.” This evidence would not have been admissible under .any rule. However, the defendant was permitted to prove by the witness that on the day of the homicide her brother wanted her to go bade and live with David Charley.

The only other error assigned is based upon the action of the court in refusing to give a requested instruction as follows:

“If you believe from the evidence that deceased and David Charley ran defendant almost to his house, and that, when defendant secured his Winchester, deceased and David Charley retreated, and defendant believed that they were retreating with the intention of renewing the attack, you are instructed that the defendant had a right to pursue them and slay them if he were not acting in revenge, nor after his defense had ceased.”

This instruction is clearly erroneous and was properly refused. It leaves out the question of imminent danger and the question as' to who was the aggressor. The facts in this case could not have justified such an instruction. The undisputed facts are that, before defendant left his home after going there to get his Winchester rifle, the deceased and the other parties were riding away on their horses; that there was a contest between the deceased and the defendant over Martha Hobson, who during the difficulty at Sina Homer’s house had run towards the west. While the defendant was going to his home the deceased had followed and overtaken Martha Hobson. The defendant followed them far enough, after getting his Winchester, to see that the deceased was about to win out and get Martha Hobson to go home with him. He stopped and, taking deliberate aim, shot Julius Hobson in the back as he was fleeing from him.

It cannot be doubted, we think, that the testimony of the defendant alone warranted the jury in finding him guilty of manslaughter in the first degree.

Our conclusion is that the defendant had a fair and impartial trial and has nothing to complain of at the hands of the court or the jury.

The judgment of the district court of Pushmataha county is affirmed.

ARMSTRONG, P. J., and FURMAN, J., concnr.


author: FURMAN, J.

text:
    STATE v. W. H. COYLE et al.

    Nos. A-662, A-665.
    Opinion Filed March 1, 1913.
    (130 Pac. 316.)
    1. MONOPOLIES — Criminal Prosecutions — Indefiniteness of AntiTrust Act. The anti-trust law of 1908 (Comp. Laws 1909, sees. 8800-8819) is not void for uncertainty, but the definitions of “trusts,” “monopolies,” and “unlawful combinations in restraint of trade and against public policy” therein contained are sufficient to define the offenses prescribed by said statute.
    2. CONSTITUTIONAL LAW' — Unjust Discrimination — Anti-Trust Law. An exception in favor of labor unions from an anti-trust law (Comp. Laws 1909, sees. 8800-8819) may constitute such a reasonable classification as will not invalidate such law upon the ground that it discriminates against and does not afford equal protection to all of the citizens of the United States.
    3. MONOPOLIES — Indictment—Sufficiency. In an indictment or information for any offense named in our anti-trust legislation it is sufficient to state the purpose or facts of the trust, monopoly, or unlawful combination in restraint of trade, and that the accused is a member of, acted with or in pursuance of it, or aided or assisted in carrying out its purpose, without giving the name or description of such trust, monopoly, or unlawful combination, or stating how, when, or where it was created.
    4. MONOPOLIES — Indictment — Sufficiency. For indictments for violating the provisions of our anti-trust law (Comp. Laws 1909, secs. 8800-8819),' which are held not to be bad for duplicity and to sufficiently state the offense charged, see opinion.
    (Syllabus by the Court.)
    Motion for rehearing.
    Denied.
    For former opinion, see 7 Okla. Cr. 50, 122 Pac. 243.

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

      Flynn, Chambers, Lowe & Richardson,, Devereux & Hil-dreth, Dale & Bierer, and C. G. Hornor, for appellees.
   FURMAN, J.

Counsel for appellees have filed a printed brief of 105 pages in support of their motion for a rehearing, in which the entire field of legal learning has been exhausted and everything has been said which ingenuity could suggest and argument could enforce from their standpoint.

Without intending in the least to be disrespectful to any court, yet it is a fact well known to the legal profession and to the country, that many of our appellate courts, both state and federal, have in the past been largely dominated by men, who, before their elevation to the bench and while they were practicing lawyers, were more or less under monopolistic influences. It matters not how honest, able, and learned a judge may be, his decisions are more or less colored by the viewpoint from which he considers questions which are submitted to him. Two judges of equal learning, ability, and integrity considering the same question from different viewpoints may, and often do, reach different conclusions. So the question of the viewpoint from which a case is considered is of the utmost importance. The viewpoint of a judge can sometimes be discovered by inquiring into his antecedents. All judges were once lawyers. A lawyer is necessarily and involuntarily affected by the views and interests of his clients with whom he is identified and upon whom he is dependent for his income. In fact, the lawyer who cannot sympathize with his clients, and who does not make their cause his cause, never attains eminence at the bar.

It is no secret that corporations and monopolies are active and tireless in their efforts to secure control of the appellate courts of'this country and thereby by judicial construction defeat the will of the people as expressed in legislation. As these influences are powerful and well organized, they often succeed in securing the election or’appointment of judges who are under' obligations to them for past favors. This evil has been carried to such an extent and has become so open and notorious that many good people have almost lost hope and have largely ceased to have confidence in the fairness, impartiality, and integrity of the courts where corporations, trusts, and monopolies are concerned. This constitutes one of the most alarming conditions now existing in America. A judge may desire to be entirely honest, yet if he is under influences which are antagonistic to the rights of the people, he will make an exceedingly dangerous judge. We are repeatedly told in the Bible that “a gift doth blind the eyes of the wise and pervert the words of the righteous.” Deut. xvi, 19; Ex. xxiii, 8. So we have the highest possible authority for the statement that, although a judge may ordinarily be a- wise and righteous man, yet, if he has been the recipient of favors at the hands of trusts and monopolies, he cannot safely be relied upon to reach just and correct conclusions in cases where their interests are involved, and that in such cases his eyes may become blind to the rights of the people and his judgment may become perverted without his being aware of the fact. It may not be popular in some circles to say this, but we believe that it is the absolute truth and that this is the main’ cause of the manifest .bias of many of our courts against all anti-trust legislation.

In view of the antecedents of many of the appellate judges of the United States and the general disposition which exists among American lawyers and courts to blindly follow precedents, and the further fact that trusts and monopolies always secure the services of the best lawyers obtainable who. have the ability to make the worse appear to be the better cause, we are not surprised at the number and respectability of the authorities supporting the contentions of counsel for appellees. But we are of the opinion that they prove too. much, for if they are to be followed it would be almost impossible to frame a law which would reach and destroy conspiracies in restraint of trade and •commerce. To sustain the contentions of counsel for appellees would be in effect to decide that in the state of Oklahoma trusts •and monopolies are practically above and superior to the law, •and that they may at pleasure through their combinations and conspiracies grind the people like grain beneath the upper and nether stone, take from the mouth of labor the bread which it has earned, and divert the stream of wealth produced by hard and honest toil from its rightful channels and pour it into the undeserved and already overflowing coffers of the few.

In this case, as in all other such cases, appellees are represented by lawyers who have few equals and no superiors in the United States and who have their clients’ interests at heart. They have certainly used every legal weapon at their command in their presentation of their side of the case. With this we find no fault. It is as it should be. We'admire and commend their zeal* and ability. But we are not unmindful of our duty to the entire people of Oklahoma, and that we should carefully consider the ground upon which we act and the consequences and effects of the decision which they have- asked us to render. If we concede the premises which they have laid down and follow the precedents which they have cited, we freely admit that we would be involved in' a maze of perplexities from which we would'find it difficult to extricate ourselves and escape from the conclusions at which they would have us arrive. We differ radically with counsel for •appellees at the very threshold of the case as to the principles which should control in its decision. It would therefore be useless consumption of time to consider in detail the cases which they have cited and the arguments which they have made. As. we understand it, the ancient learning of the common law has outlived the conditions which brought it into existence and has survived the reasons upon which it was based. In the early case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, this court announced that precedents should be weighed and hot counted, and that we would.not follow any precedent unless w.e under 7 stood and approved the principlea upon which it was based,- and that a multiciplicity of errors did not make -right that which was based upon false premises and. was therefore erroneous at its very inception.

In the case of Byers v. Territory, 1 Okla. Cr. 702, 103 Pac. 534, this court said:

“Justice demands that in the administration of law its processes should never be allowed to become a game of skill between contending counsel. There has been entirely too much of this-in the past. It has resulted in the miscarriage of justice in many cases and has bred a spirit of disgust for law and contempt for courts in the public mind.”

In the same case this court also said:

“Appellate courts should faithfully and fearlessly do their duty and decide every question presented with reference to the substantial merits of the case in which it arises. In this way only can justice be administered. Ignoring justice and deciding cases upon technicalities has not only largely lost the courts the confidence and respect of the people, but it has also greatly alarmed the profession of law itself.”

We have endeavored to adhere strictly to these principles in passing upon all questions submitted to- us. As applicable to the questions now before the court, we reiterate what was said in-the case of Turner v. State, ante, 126 Pac. 452, as follows:

“These statutes are largely a radical departure from the old common law with reference to criminal law and criminal procedure, and were evidently intended to place criminal law in Oklahoma upon the strong, sound, and safe basis of common sense, reason, and justice. It is on account of these statutes that some parties are unable to understand the policy of this court. We are simply trying in good faith to discharge the obligation of our oaths of office, for we have sworn that we would support the Constitution and laws of Oklahoma. If those who are disposed to criticise this court for its policy would place themselves in the position which we occupy, we believe that they would take a different view of this matter. It is natural for us to be prejudiced in favor of those things with which we are familiar. The writer knows from personal experience that it is an exceedingly difficult thing to break away from preconceived ideas and conditions, for the principles embodied in these statutes are the reverse of the school of law in which he was educated and which he practiced for many years. Herein lies the greatest difficulty in the way of reform in legal procedure. Judges and lawyers have been educated in and are accustomed to an antiquated system of procedure, and have been taught to look with reverence upon old legal theories, and are thereby unduly biased against any change in legal procedure. The result is that, even when the Legislatures attempt to reform legal procedure, many courts and lawyers are disposed to construe such legislation in the light of their preconceived ideas. They often do this without being aware of it, and in this way the purpose intended to be accomplished by remedial legislation is defeated. While this court respects the wisdom of the past and can see much in it to admire and to follow, yet we also believe that the world should be ruled by the living, and not by the dead; that the law should keep even step with the march of civilization and the necessities of society in the relation of its members to each other; and that the people have the right by legislation to alter the rules of legal procedure. When the Legislature has made a change in legal procedure, it is the duty of the courts to lay aside their preconceived ideas, and construe such legislation according to its spirit and reason. We .are not in sympathy with those who believe in the infallibility of the common-law rules of criminal procedure, or that form, ceremony, and shadow are more important than substance, reason, and justice. This court does not propose to grope its way through the accumulated dust, cobwebs, shadows, and darkness of the evening of the common-law rules of procedure; but it will be guided, as the statutes above quoted direct, by the increasing light and inspiration of the rising sun of reason, justice, common sense, and progress. As was well said in the November, 1911, issue of the Journal of the American Institute of Criminal Law and Criminology: 'As some people think more of a man’s clothes and style than of his principles, so some lawyers are concerned more with the mere procedure in a trial than with the triumph of the party that ought to succeed on the merits of the case. The quibbling of the logicians and disputants of the middle ages has often formed the subject for satire; but our present-day legal disputes over technical questions of procedure are pettier, less profitable, and more indefensible than the fine-spun arguments and theories of the much-abused schoolmen of the middle ages.’

“The effect of the statutes hereinbefore quoted is to prevent disputes over mere technical questions of procedure. If properly construed, they destroy legal quibbling. Their purpose is to eliminate from a trial all immaterial matters, and thereby better secure the triumph of the party who ought to succeed upon the actual merits of the case. Sections 2027 and 6487 repeal the common-law doctrine of a strict construction of penal statutes, .and substitute in its place the equitable doctrine of a liberal construction of such statutes. Courts of this state are not bound by the strict letter of a penal statute, but must construe it accord;-ing to its spirit and reason, so as to enable it to reach and destroy, the evil at which it was aimed, and thereby effect the object for which it was enacted and promote justice. Section 6957 with one stroke of the pen wipes out and destroys that ancient heresy of the common law that error presumes injury, and by its terms absolutely binds this court to disregard any and all technical errors, defects, and exceptions, unless the party complaining thereof can show from the record that he has been deprived of some substantial right thereby to his injury. .Sections 6704 and 6705 do away with all of the artificial distinctions of the common law in indictments or informations, and destroy that ancient refuge, stronghold, and citadel of defense of murderers, thieves, perjurers, and all other desperate criminals, that indictments must be certain to a certain intent in every particular, and place them upon a common-sense basis, and make an indictment sufficient if a person of ordinary understanding can know what was intended, and forbid the courts from holding insufficient any indictment or information, unless the defects therein are of such a character as to prejudice the substantial rights of the defendant upon the merits. All of these statutes are contrary to the common law and to the procedure in force in many of the states, but they are binding upon the courts of this state. For this reason it is an utter waste of time for lawyers in their briefs and oral arguments to cite and discuss decisions from states which have different statutes. It is not a question as to whether we like these statutes. It is enough for us to know that they are the law of Oklahoma. This court is not a forum of legislation. Our duty is ended when we obey the law, and we should either do this or resign and allow others to take the places which we occupy, who will regard the obligation of their oaths o'f office. The great trouble with the judiciary of the entire country is that many judges try to so twist and evade statutes as to enable them to substitute their own private views for regularly enacted statutes. This evil has become so great that there is now more judge-made law in the United States than there is law enacted by the people. If the courts do not correct this evil, no one can tell what the result will be. It will end in one of three'things, viz., peaceable reformation, bloody revolution, or a judicial oligarchy. This court proposes to do its dutv by rendering a ready and willing obedience to the regularly enacted laws of Oklahoma, and by doing all in its power to see that they are followed by the trial courts of this state.” .

In the case of Burns v. State, ante, 129 Pac. 657, this court said:

“It is the duty of this court to decide all questions submitted to it in the light of the moral atmosphere in which they are surrounded, and never to permit the law to become a cloak of protection for men to trample upon the sacred rights of others, and bid open defiance to decency and the best interests of society.” /-

From this standpoint we reaffirm all that was said by Judge Doyle in the original opinion in this case. See 7 Okla. Cr. 50, 122 Pac. 243.

There are only three questions with reference to which we desire to make any additional suggestions: First. It is contended that the law upon which the indictments in these cases are founded is void for uncertainty. Second. It is contended that, as certain combinations of labor are excepted from the penalties of the law, thereby all classes of citizens are not afforded that equal protection of -the law which the Constitution of the United States guarantees to every citizen of the United States. Third. It is contended that, even if the Oklahoma anti-trust law is valid, the indictments do not charge any offense against any of the appellees.

First. The statutes upon which these indictments are founded are copied in full in the original opinion of this court. See State v. Coyle et al., 7 Okla. Cr. 50, 122 Pac. 243. They are also to be found on pages 1766, 1767, 1768, 1769, and 1770, Comp. Laws 1909. If the Legislature had adopted the the plan suggested by counsel for appellees and had attempted to give a fixed definition of a trust or of a monopoly, it would have been found by experience that many abuses would arise to which the law would not be applicable, because they would not be included in the fixed definitions given. It would doubtless have been very gratifying to those persons engaged in such unlawful undertakings if the Legislature had attempted to give fixed definitions of trusts and monopolies, for then their able attorneys could point out how the same purposes could be accomplished by a slight variation in the methods used, and thereby they could do as they wished and escape the penalties of the law prescribed for a violation of the fixed definitions. It is simply impossible to please those persons who seek to violate the law. If a fixed definition of a trust and of a monopoly had been given, then they would have so shaped their business as to place it outside of this fixed definition, and under their favorite doctrine of a strict construction of penal statutes they would have been allowed to defy the law and rob the people at pleasure. The only way in which they can be reached is by general definitions and the doctrine of a liberal construction of penal statutes, and that is just what we have in Oklahoma; hence the law is going to be enforced, and those gentlemen must either abstain from their illegal conduct or suffer the consequences. We think that the definitions contained in the statutes are as certain as the nature of the evils at which they are aimed will admit. It would be unreasonable and would defeat the. very objects of the law to require greater certainty than the nature of the subject-matter under consideration would reasonably admit. Trusts and monopolies can be organized and built up under so many different and varying conditions that nothing except a general definition would grant relief from the evils which they inflict upon the people. We do not think that there is any danger of innocent men engaged in legitimate business enterprises being prosecuted and convicted under the provisions of our anti-trust law. We think it is the best the Legislature could do under the circumstances.

For these and the reasons given in the original opinion of this court in this case we cannot hold that the law is invalid for uncertainty.

Second. As a matter of first impression the second contention of counsel for appellees appears to present the most serious objection urged against the anti-trust. law of Oklahoma. That objection is based upon section 4042, Comp. Laws 1909, which was enacted at-the same session of the Legislature and at a later date than the passage of the anti-trust law and was intended to and does constitute a part of the anti-trust law itself. By the provisions of section 4042 no agreement, combination, or contract by or between two or more persons to do or procure to be done, or not to do or procure to be done, any act in contemplation or furtherance of any trade dispute between employers and employees in the state, shall be deemed as criminal, nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be punishable as a crime, .nor shall such agreement, combination, or contract be considered as in restraint of trade or commerce, nor shall any restraining order or injunction be issued in relation thereto, provided that force or violence are not used.

The contention of counsel for appellees is that, if the law protects combinations of labor or of any class of citizens of the state, it must also protect combinations of capital; otherwise a class of citizens who are not afforded this protection are discriminated against and deprived of that equal protection of the laws which the Constitution of the United States guarantees to every citizen of the United States. A careful consideration of this matter will show that the contention of counsel for appellees is not tenable. It must be conceded that the Legislature has the right and power to make reasonable classifications with reference to any proper subject of legislation. The assumption of counsel for appellees is that the rights of capital are equal to the rights of labor. Good morals do not sustain this assumption. While labor and capital are both entitled to the protection of the law, it is 'not true that the abstract rights of capital are equal to those of labor, and that they both stand upon an equal footing before the law. Labor is natural; capital is artificial. Labor was made by God; capital is made by man. Labor is not only blood and bone, but it also has a mind and a soul, and is animated by sympathy, hope, and love; capital is inanimate, soulless matter. Labor is the creator; capital is the creature. If all of the capital in the world was destroyed, a great injury would thereby be inflicted upon the entire human race; but the bright minds, the brave hearts, and the strong arms of labor would in time create new capital, and thus the injury would be ultimately cured. If all of the labor on earth wa§- destroyed, capital would lose its value and become absolutely worthless. The strength and glory of this country lies, not in its vast accumulations of capital, but it depends upon the arms that labor, the minds that think, and the hearts that feel. Labor is always a matter of necessity. Capital is largely a matter of luxury. Labor has been dignified by the example of God. The Savior of mankind was called the “carpenter’s son.” We are told in the Bible that “the love of money is the root of all evil.” This statement'is confirmed by the entire history of the human race. The love of money is the cause of the organization of trusts and monopolies. With what show of reason and justice, therefore, can the advocates of monopoly be heard to say that capital is the equal of labor? But if we concede that the assumption of counsel for appellees is well founded, and if we arbitrarily and in disregard of good morals place capital and labor upon an absolute equality before the law, another difficulty confronts them. Capital organizes to accomplish its purposes. Then, according to their own logic, it would be a denial of equal rights to labor to deny to it the right to organize and act without a breach of the peace to meet the aggression of capital.

We therefore hold from either view that the provisions of section 4042 constitute a reasonable classification such as the Legislature had the right to make, and that the anti-trust law of Oklahoma does not on this account violate the clause of the Constitution of the United States which guarantees equal protection to all of the citizens of the United States. We deny that trusts and monopolies are entitled to protection as citizens of the United States.

Third. Do the indictments charge an offense against appel-lees? The indictments in substance allege that at the date mentioned therein the appellees entered into a conspiracy, agreement, and combination to form a pool or trust for the purpose and with the intent to restrain trade and commerce in Logan county in cotton and the products thereof, all of which was against public policy and was done with the illegal, unlawful, and felonious intent of monopolizing the market for cotton and its products and to control and regulate the prices thereof, unreasonably in restraint of trade and commerce and • against public policy in Logan county at said date. The indictments then go further and allege by name the location of the different gins which appellees owned and controlled in Logan county in furtherance of such conspiracy, and that in pursuance of said conspiracy appellees did not operate certain specified gins, and that thereby the farmers of Logan county were forced and compelled to patronize the gins which were run and operated by appellees in pursuance of said agreement, and that thereby competitive bidding on seed cotton or ginning seed cotton in Logan county was destroyed and other buyers of both lint cotton, seed cotton, and cotton seed were excluded from the market of Logan county, and that as a result thereof appellees had raised the price of ginning cotton from $3.50 to $5 per bale, and that said price of $5 per bale for ginning cotton was unreasonable. The indictments are set out in full in the original opinion in this case. It is not necessary for us at this time to decide just what allegations an indictment or information should contain in charging the offense of a conspiracy in restraint of trade, but we do not think that appellees can be heard to complain that the indictments in these cases are duplicitous because they allege the specific acts done by appellees in pursuance of the conspiracy charged, as all of these acts relate to the same general purpose and are only so many different parts of the same general conspiracy. It is the agreement, contract, or combination in restraint of trade under which the acts alleged were committed which constitutes the crime of conspiracy.

The seventh section of our anti-trust law is as follows:

“In an indictment or information for any offense named in this act it is sufficient to state the purpose, or facts, .of the trust, monopoly, unlawful combination in restraint of trade or commerce, and that the accused is a member of, acted with,'or in pursuance of it, or aided or assisted in'carrying out its purpose without giving its name, or description, or stating how, when or where it was created.”

It occurs to us that the allegations of these indictments fully meet the requirements of this provision of our statute.

Section 6704, Comp. Laws 1909, provides that an indictment is sufficient if it can be understood therefrom that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

We think that the indictments do not charge separate and distinct offenses, but that they each do charge one offense only, and that is that appellees had entered into an illegal conspiracy in restraint of trade and against public policy, for the purpose of preventing competition in the matter of ginning cotton arid also in the matter of the price of cotton and cotton seed in Logan county, and of forcing the farmers of that section of the state to patronize gins owned by appellees, and of forcing such farmers to pay an unjust and unreasonable price for ginning their cotton. We think that a person of common understanding could not be mistaken as to what was intended by the allegations contained in these indictments, and, if this is true, all that the law requires has been complied with.’ The very idea of coercion and force, except when necessary to secure obedience to law, is repulsive to reason and natural justice and has always been odious to the American people. While Oklahoma has many different resources, yet agriculture is and will remain to be her chief reliance. Those who cultivate the soil constitute the most numerous portion of our population, and certainly there are none more meritorious. Their isolated condition and the constant attention which their farms require renders effective organization and united action among them exceedingly difficult, if not practically imppssible. Of all classes they are the easiest victims of greed and conspiracies and must depend entirely upon the law for their protection. Agriculture is the only occupation followed by men which was instituted by divine command. Savages and barbarians may exist without the cultivation of the soil, but civilization in its true sense begins and ends with the plow. The farmer gives value received for every dollar he digs out of the ground. He not only earns every dollar he gets, but he earns a great many dollars he never gets. For these reasons the facts charged in these indictments constitute a natural crime, for their result would be to enable appellees to reap where they had not sown and to eat in idleness the bread earned by the sweat of the farmer’s Trow. A single drop of sweat upon the brow of honest labor shines more brightly and is more precious in, the eyes of God and is of more benefit to the human race than all of the diamonds, that ever sparkled in the crown of any king. If the state did not protect the farmers of Oklahoma against such conspiracies as this, the law would be a miserable, contemptible farce, a snare, a mockery, a burden, and a delusion.

We are glad to, know that there is a growing disposition upon the part of the appellate courts of the United States to recognize the justice of and to sustain anti-trust legislation, and that common sense and substantial justice are taking the place of the obsolete and unjust distinctions and intricacies of the common law. This is shown by an opinion rendered on the 13th day of January, 1913, by the Supreme Court of the United S|ates in the case of United States v. James A. Patten. Patten was prosecuted in the United States Circuit Court for the Southern District of New York for violating the anti-trust act of the United States by' running a corner in the cotton market. Demurrers to the indictment were sustained in the lower court and Patten was discharged. 187 Fed. 664. The case was carried by the government by writ of error to the Supreme Court of the United States. In reversing the judgment of the lower court and in holding that the indictment did charge an offense against the law, the Supreme Court of the United States said:

“Although ruling that there was no allegation of a specific intent to obstruct interstate trade or commerce and that the raising of prices in markets other than the Cotton Exchange of New York was ‘in itself no part of the scheme/ the court assumed that' the conspirators intended ‘the necessary and unavoidable consequences of their acts/ and observed that ‘prices of cotton are so correlated that it may be said that the direct'result of the acts of the conspirators was to be the raising of the price of cotton throughout the country.’

“Upon the second argument the defendants contended, and counsel for the government expressly conceded, that ‘running a corner’ consists, broadly speaking, in acquiring control of all or the dominant portion of a commodity with the purpose of artificially enhancing the price, ‘one of the important features of which/- to use the language of the government’s brief, ‘is the, purchase for future delivery, coupled with a withholding from sale for a limited time’; and, as this definition is in substantial accord with that given by lexicographers and juridicial writers, we accept it for present purposes, although observing that not improbably in actual usage the expression includes modified modes of attaining substantially the same end.

“Whilst thus agreeing upon what constitutes running a corner, the parties widely differ as to whether what is so styled in this instance contained the elements necessary to make it operative. The point of difference is the presence or absence of an adequate allegation that the purchasing for future delivery was to be coupled with a withholding from sale, without which, it is conceded by both parties, the market could not be cornered. But the solution of the point turns upon the right construction of the counts, and that, as has been indicated, is not within our province on this writ of error. We must assume that the counts adequately allege whatever the Circuit Court treated them as alleging. Its opinion given at the time, although not containing any express ruling upon the point of difference, shows that the counts were treated as alleging an operative scheme, one by which the market could be cornered. The court spoke of it as ‘contraty to public policy,’ or ‘arbitrarily controlling the price of a commodity,’ and as ‘positively unlawful in any state having a statute against corners.’ Evidently, it was assumed that every element of running a corner was present. We accordingly indulge that assumption, but leave the parties free to present the question to the-District Court for its decision in the course of such further proceedings as may be had in that court.

“We come, then, to the question whether a conspiracy to run a corner in the available supply of a staple commodity, such as cotton, normally a subject of trade and commerce among the .states, and thereby to enhance artificially its price throughout the country and to compel all who have occasion to obtain it to pay the enhanced price or else to leave their needs unsatisfied, is within the terms of section 1 of the antitrust act, which makes it a criminal offense to ‘engage in’ a ‘conspiracy in restraint of trade or commerce among the .several states.’ The Circuit Court, as we have seen, answered the question in the negative; and this, although accepting as an allegation of fact, rather than as a mere economic theory of the pleader, the statement in the counts that interstate trade and commerce would necessarily be obstructed by the operation of the conspiracy. The reasons assigned for the ruling, and now pressed upon our attention, are: Cl) That the 'conspiracy does not belong to the class in which the members are engaged in interstate trade or commerce and agree to suppress competition among themselves; (2) that running a corner, instead of restraining competition, tends, temporarily at least, to stimulate it; and (3) that the obstruction of interstate trade and commerce resulting from the operation of the conspiracy, even although a necessary result, would be so indirect as not to be a restraint in the sense of the statute.

“Upon a careful reflection we are constrained to hold that the reasons given do not sustain the ruling and that the answer to the question must be in the affirmative.

“Section 1 of the act, upon which the counts are founded, is not confined to voluntary restraints, as where persons engaged in interstate trade or commerce agree to suppress competition among themselves, but, includes as well involuntary restraints, as where persons not so engaged conspire to compel action by others, or tp create artificial conditions, which necessarily impede or burden the due course of such trade or commerce or restrict the common liberty to engage therein. Loewe v. Lawler, 208 U. S. 274, 293, 301 [28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815]. As was said of this action in Standard Oil Co. v. United States, 221 U. S. 1, 59 [31 Sup. Ct. 502, 515 (55 L. Ed. 619, 34 L. R. A. [N. S.] 934, Ann. Cas. 1912D, 734)]: ‘The context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class, npt only contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which in practice have come to be considered as in restraint of trade in a broad sense.’

.“It well may be that running a corner tends for a time to stimulate competition, but this does not prevent it from being a forbidden restraint; for it also operates to thwart the usual operation of the laws of supply and demand, to withdraw the commodity from the normal current of trade, to enhance the price artificially, to hamper users and consumers in satisfying their needs, and to produce practically the same evils as does the suppression of competition. Of course, the statute does not apply where the trade or commerce affected is purely intrastate. Neither does it apply, as this court often has held, where the trade or commerce affected is interstate, unless the-effect thereon is direct, not merely indirect. But no difficulty, is encountered in applying these tests in the present case when its salient features are kept in view.

“It was a conspiracy to run a corner in the market. The commodity to be cornered was cotton, a product of the Southern states, largely used and consumed in the Northern states.' It was a subject of interstate trade and commerce, and through' that channel it was obtained from time to time by the many manufacturers of cotton fabrics in the Northern states. The corner was to be conducted on the Cotton Exchange in New York City, but by means which would enable the conspirators to obtain control of the available supply and to enhance the price to all buyers in every market of the country. This control and the enhancement of the price were features of the conspiracy upon the attainment of which it is conceded its success depended. Upon the corner becoming effective, there could be no trading in the commodity save at the will of the conspirators and at such price as their interests might prompt them to exact. And so, the conspiracy was to reach and to bring within its dominating influence the entire cotton trade of the country. Bearing in mind that such was the nature, object, and scope of the conspiracy, we regard it as altogether plain that by its necessary operation it would directly ánd materially impede and burden the due course of trade and commerce among the states, and therefore inflict upon the public the injuries which the anti-trust act is designed to prevent. See Swift & Co. v. United States, 196 U. S. 375, 396-400 [25 Sup. Ct. 276, 49 L. Ed. 518]; Loewe v. Lawlor, 208 U. S. 274 [28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815]; Standard Oil Co. v. United States, 221 U. S. 1 [31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734]; United States v. American Tobacco Co., 221 U. S. 106 [31 Sup. Ct. 632, 55 L. Ed. 663], And that there is no allegation of a specific intent to restrain such trade or commerce does not make against this conclusion, for, as is shown by prior decisions of this court, the conspirators must be held to have intended the necessary and direct consequences of their acts and cannot be heard to say the contrary. In other words, by purposely engaging in a conspiracy which necessarily and directly produces the result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 243 [20 Sup. Ct. 96, 44 L. Ed. 136]; United States v. Reading Co., 226 U. S. 324, 370 [33 Sup. Ct. 90, 57 L. Ed.—].

“The defendants place some reliance upon Ware & Leland v. Mobile County, 209 U. S. 405 [28 Sup. Ct. 526, 52 L. Ed. 855, 14 Ann Cas. 1031], as showing that the operation of the conspiracy did not involve interstate trade or commerce; but we think the case does not go as far and is not in point. It presented only 'the question of the effect upon interstate trade or commerce of the taxing by a state" of the business of a broker who was dealing in contracts for the future delivery of cotton, where there was no obligation to ship from one state to another; while here we are concerned with a conspiracy which was to reach and' bring within its dominating influence the entire cotton trade of the country and which was to be executed, in part only, through contracts for future delivery. It hardly needs statement that the character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. Montague & Co. v. Lowry, 193 U. S. 38, 45, 46 [24 Sup. Ct. 307, 48 L. Ed. 608]; Swift & Co. v. United States, 196 U. S. 375, 386, 387 [25 Sup. Ct. 276, 49 L. Ed. 518].”

We are entirely satisfied with the citation and discussion of authorities contained in the original opinion of this court and merely quote the case of United States v. Patten, supra, because it was rendered since the rendition of the original opinion in this case and is in harmony with the conclusion at which we had previously arrived.

The motion for a rehearing is denied, and the judgment of the district court sustaining the demurrers to the indictments in each of these cases is set aside, and the cases are remanded, with directions to the district court to proceed therein in accordance with the views expressed in the original opinion of this court and in this opinion.

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


text:
    HENRY ADDINGTON v. STATE.
    No. A-1345.
    Opinion Filed March 1, 1913.
    (130 Pac. 311.)
    1. APPEAL — Refusal of Continuance. An application for continuance in a criminal case is addressed to tbe discretion of the trial court; and its action thereon will not be disturbed, unless there appears to have been a clear abuse of discretion.
    2. TRIAL — Furnishing Lists of Witnesses — Default—Failure to Ob- ‘ ject. Section 20 of the Bill of Rights provides: “In all crimina» prosecutions the accused shall ■ have the right * * * to be heard by himself and counsel, and in capital cases, at least two days before t.he ease is called for trial, he shall be furnished with a list of witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses. ’ ’ Held, that' it would be error to allow witnesses to testify against him in chief whose names have not been so furnished, if he seasonably asserts his constitutional right. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection; and the constitutional right given him by this section will be waived.
    3. HOMICIDE — “Dying Declarations.” Proof that decedent was shot in the afternoon and died the next day about midday, that his wounds were necessarily fatal, and that he stated to persons present, immediately after he was shot, that he was dying, and that he expressed no hope of recovery, sufficiently shows that decedent appreciated the certainty and imminence of his impending death, and is, in itself, a sufficient predicate for the admission of his statements of the circumstances of the homicide as “dying declarations.”
    4: SAME — Admissibility. Where decedent, mortally wounded and without hope of recovery, under the solemn conviction of impending death, mates several statements of material facts concerning the cause and circumstances of the homicide, one of which statements was reduced to writing, the prosecution is not confined to the written statement, but may offer evidence of other statements, whether the several statements were similar or not. Should any of said statements be inconsistent or contradictory, it is open to the defense to show this fact.
    5. HOMICIDE — Confronting Witnesses — Dying Declarations. The constitutional provision (Bill of Bights, sec. 20) that in all criminal prosecutions the accused shall “be confronted with the witnesses against him” refers to living witnesses, and not to dying declarations.
    6. TRIAL — Exclusion of Evidence — Harmless Error. The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.
    (Syllabus by the Court.)

      Appeal from District Court, McCurtain County; Summers Hardy, Judge.

    Henry Addington was convicted of manslaughter, and appeals.
    Affirmed.

      Hasey & Leggett, for plaintiff in error.

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

Plaintiff in error, Henry Addington, hereinafter referred to a's the defendant, was convicted of manslaughter in the district court of McCurtain county on an information filed in said court on February 6, 1911, charging him with the murder of Boliver McWhorter, in said county, on or about December 18, 1910, and in accordance with the verdict of the jury was sentenced to serve a term of ten years’ imprisonment in the state penitentiary. The judgment and sentence was entered on March 4, 1911.' To reverse the judgment, the defendant prosecuted an appeal by filing in this court, August 3, 1911, a petition in error with case-made.

In order to better understand the errors assigned, the following brief statement of the facts disclosed by the testimony is made, also extracts from the testimony of certain witnesses for the state and of the defendant, describing the immediate facts and circumstances of the homicide:

The deceased and the defendant, residents of Idabel, were, respectively, 81 and 18 years of age. The deceased, son of a Methodist minister, and the defendant, a store clerk, were rivals for the hand of one Miss Myrtle Suggs, which caused a misunderstanding. The evening before the killing there was a party at the Garrison home, about two miles from Idabel. That day the deceased received a note, warning him to be a little' slow, and that if he continued to take the stand which he had in the past he could have some one there to haul him home, signed “H. A.” That evening they met at the party, and the deceased threatened to whip the defendant. The next day the defendant armed himself with a pistol, avowedly to settle with the deceased. After stating to several persons that he was looking for the deceased, he rode on horseback about a mile out of town and met the deceased coming to town. They talked for some time, and the defendant fired two shots at the deceased; one of them penetrating his bowels. The defendant then mounted his horse and rode back to Idabel, there meeting some of the persons he had talked to before leaving town. He said, “I killed him out on the big road.”

Several witnesses testified to dying declarations, and a written statement was admitted, also. The written declaration was as follows:

“Dec. 18, 1910. I, J. B. McWhorter, being aware of approaching death, make this my dying statement: We, Henry Ad-dington and I, met and were talking, and he said he had started to my house to settle a difficulty that we had had. I asked him to read a letter. He did so, and wanted to keep it, and drew his revolver. I remarked that he could shoot; that I had no arms. He put his gun in his pocket, and again drew it. I saw a buggy coming, and we walked'up the road about a mile. We were comparing' paper. I pulled off my glove to get the paper in my pocket, to get the paper, and he shot me. Had no knife in my hand. I asked him not shoot any more; he had shot me once. Made in the presence of C. T. Coonrod, Guy Short, C. H. Morris, A. F. ICerley.”

W. M. Moore and two of his neighbors were standing in his yard, near the scene of the tragedy, and, hearing the first shot, their attention was directed to where the shot was fired. They testified: That when the defendant fired the second shot he was advancing upon the deceased, who was backing away from him. That they went to where the deceased had fallen, and reached there with four or five other neighbors. The deceased said that he was dying and commenced to vomit, and asked for water. A search for weapons was made, but none found. Two doctors from Idabel appeared and placed the deceased in an automobile and took him to town, where he died the next day about midday.

The defendant, as a witness in his own behalf, testified: That his first quarrel with the deceased was at the store where he was employed on the Saturday evening before the tragedy, and that the deceased said to him, “You have been knocking on me;” and “I told him that I did not understand it,” and he said: “'You are; before I get through with you, if everything proves up like I think it is, you will have me to kill, or I will kill you.” That about 8 o’clock he hired a horse and went to a party at Mrs. Garrison’s, a couple of miles in the country. That his horse was turned loose, and he went out in the yard, where the deceased was standing, and asked who turned his horse loose. That the deceased said, “No one,” but “you have sent to Idabel for officers.” That the deceased said: “Come on down the road. I will settle that with you.” And the defendant said, “I don’t want to fight.” That the deceased pulled a gun and said, “Now, if you don’t run, I am going to kill you,” and came up to him and put his hand on his shoulder, and said: “Your mother and sister are both ladies; you are a G- d — — son of a b-; right here is where we get together.” And the defendant said: “I am not able to fight you fair;' all you hold in your hand is all that keeps me from getting on you right here.” That the deceased turned around with two or three oaths and said: “No; he will not fight.” That the next day, after dinner, he went to the livery stable and got a horse and started to Bill Mayhall’s.

The record then shows his testimony to be as follows:

“Q. Why were you going to Bill Mayhall’s? A. Going to Bill Mayhall’s to see the one that made up the party on Saturday night and asked me to go. I goes out there to see him. I was going to see if he would give another party, and I wanted to see him to see if he asked me, or merely told these boys to ask me, or merely told me to come. I don’t know whether I was invited or not. I was going to see him to see whether I was invited before I said anything about the racket between me and Boliver McWhorter. Q. Begin and state what occurred from the time you left town on that trip. A. I gets out of town. Something near a mile out southwest of town here two boys were standing on the roadside, Belton Taylor, and Suggs, I think, made the remark if I knew who Boliver McWhorter was; I said ‘Yes’ and sort of laughed; I was going in a close place, but managed to get out. They asked me where I was going. I said I was going to Mayhall’s. ‘Do you know where he lives?’ ‘Yes; but he has gone to Shawnee town in a wagon along about 2 o’clock.’ I said, T am going to see him tonight.’ I goes ahead and goes up a long lane and rode up a hill; it was about a quarter from where I met these boys there was a top of a hill. You couldn’t see any one coming from the south, or any one going towards the north, until you both got nearly to the top of the hill. When I got up to the top of the hill, I seen McWhorter coming on the other side of the hill. There we were with a fence on both sides, and the only way I could get away was to go back the way I went. I thought I had best not do it, although I was thinking of what he had said the night before. I was going in a lope; I gets up pretty close together. He was headed north and me south. He turns his pony angling in the road in front of me and kind of pulled his glove off. I asked him what he was pulling his glove off for. Before he told me, he never said anything, but just started with his hand towards his pocket. I made for my pocket. He stopped a minute and said; T haven’t got anything to harm you with.’ I says: ‘How do I know? You had last night; I don’t know what you have done with it.’ I says: ‘Don’t you go to your pocket; I am prepared today; I ain’t going to let you run over me today.’ He looked up the road and saw a buggy coming, and says, ‘Yonder comes father and mother.’ I kept my eyes on him; I was afraid if I looked around he might get the advantage of me; I was afraid of him on account of the way he had done me. I gets down off my horse. He got down, and he pulled a note out of his pocket, and I stayed on the west side of my horse; I was still afraid. On that side I kept my horse between us, provided he got out his gun, or anything else he may have had. I looked at the note; I couldn’t make out the words; I told him I didn’t know anything about the note. He says, ‘I received this at the post office yesterday evening.’ I denied it, and said if he could prove that I wrote the note I would make him a present of $20 bill. He said: ‘Let’s walk on down the road; I don’t want that buggy to get closer.’ I walks with him. While I was looking at the note, my horse broke loose; it was a scary horse. He started back down the road. I says: ‘Yes; I guess I will. My horse is loose; if I had my horse, I would go on where I started.’ He said, ‘Where are you going?’ I says, ‘I am going down to see Bill Mayhall,’ I said, ‘I heard he was going to Shawnee town.’ He says: ‘Yes; he is down there in a ■wagon with some girls, in a wagon down the road.’ tie kept talking about the note. I says: ‘I don’t know anything about it ; I don’t have the least idea who wrote the note.’ We came on up the road; we passed a buggy; it was a negro and a white man; it wasn’t his father and mother. I was still looking; I was scared of him. We came on up the road, I guess, a quarter from where we first met; my horse got away from me. Q. Did you turn back towards town? A. Yes; came on up the road, and I stopped by the fence. We walked out of the road a little piece. Some people come along in a wagon. I always kept him in front of me some way, so I could watch him. He says, ‘Have you a book in your pocket?’ We didn’t say but a few words there; he kind of walked around, and kind of got angling a little tó the left of me. The fence run north and south, and the road run the same; the woods was right east of us towards town. He come a little northwest of me, and was standing talking, and I was standing by the fence, with my arm upon the fence. He was standing nearly in front of me. I was watching him all of the time. He said the trouble wasn’t nothing; one or the 'other of us would have to go to our grave. I says: T don’t want to die; I am in the prime of life; I suppose you are.’ While I was in my pocket to get out everything I had — I was going to show him in regard to that note; I had been trying with my head down; I had a little book with some papers in my pocket; they had got crossways in my pocket — while I was trying to get them, there is where he got at me with the pocketknife. As he run up, I pulled my gun; I had it in my pocket. As I pulled it around, he caught it in his left hand. As he caught it, it fired. As he make a strike, I run backwards. When it fired, he turned the barrel loose; he made a strike. I fired, and hit him in the stomach or chest. He threw his hands up, and I backed up. He leaned over on his face; he says, ‘Don’t shoot me any more.’ I says, ‘I won’t.’ 1 laid my gun down, and put him down on the stump. I pulled his clothes out and saw where I had hit him. He says: ‘I am going to die; get me a doctor.’ I says, ‘I will do anything for you.’ I gets on my horse. I says, ‘Which doctor do you want ?’ He says, ‘McCaskell.’ I telephoned for the doctor and telephoned for the sheriff to come out.”

Lawrence Jones testified that a few days after the killing he went to the place of the shooting with Mr. Leggett, at his request, and Mr. Woods went with them to make a diagram of the place; that while he was there he found a pocketknife lying in the leaves, and he gave it to Mr. Leggett.

The first assignment of error is that the court erred in overruling the defendant’s application for a continuance. The defendant’s affidavit for continuance sets forth:

“That Albert Addington and Claud Addington live at Bethel, and Robert Addington lives at Lukfata, and that he has used due diligence to obtain the attendance of these witnesses; that he has been informed and believe! that the state will attempt to introduce a note threatening the life of the deceased, purported to have been written and mailed to the deceased; that said witnesses are defendant’s brothers, and are familiar with his handwriting, and if present would testify that the handwriting of said note is not his handwriting; that the defendant has not had said witnesses subpoenaed because of the fact that immediately after his examining trial he was taken to Hugo, and there placed in the county jail for safe-keeping, by reason of which he was unable to have free intercourse and discussion of his defense with his attorneys, Hosey & Leggett, who reside in Idabel; that he was brought from Hugo to Idabel upon convening of the distinct court at Idabel at the February, 1911, term thereof, was arraigned, and given one day in which to plead; that the district court was adjourned before the fixing of a day for trial of this defendant in said term, and the defendant was then transferred to the county jail of Carter county, at Ardmore, and was not brought back to Idabel until the 27th day of February, 1911, on which day his case was assigned for trial, and he did not have an opportunity to talk with his attorneys and arrange with them for his defense herein, and has not been able to properly prepare for trial at this time and to obtain the above said witnesses herein by reason of that fact, and cannot at this time go to trial without said witnesses, and if forced to trial would not be given that fair and impartial trial that is guaranteed him by the Constitution.”

It will be noticed that the defendant did not contend in said motion that he had not had sufficient time to prepare his defense, and the continuance is not asked on that ground. The allegations of the affidavit, as to the time allowed -him for preparation, were made for the sole purpose of showing due diligence on his part in trying to obtain the testimony of these three witnesses, and did not contend that it injured him in any other manner.

Upon the hearing, the record shows the following proceeding:

“The Court: I will not overrule it; I will hold the matter open until you have an opportunity to get these witnesses. If they don’t come, I will permit you to use that as a deposition. Are you gentlemen now ready to proceed with the understanding you have? Mr.' Leggett: Yes; I guess so. The Court: The court will see that you have ample opportunity to get these witnesses.”

Presumably the defendant had such opportunity; for nowhere else in the record is any compfaint made against proceeding with the trial on this ground. On the other hand, the record shows that two of these witnesses were sworn and testified for the defendant. Besides these, four other witnesses testified to the same facts which the defendant expected to prove by the witnesses named in his affidavit for continuance.

“The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court; and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment.” (Milton v. State, 7 Okla. Cr. 407, 124 Pac. 81.)

The court certainly did not abuse its discretion in refusing the continuance in this case; nor was the defendant in any manner injured by the court’s action.

The second assignment is “that the court erred in overruling the defendant’s motion to dismiss ’ the information against him,” and the same objection goes to assignments Nos. 3, 4, and 5, and will here be considered as one.

These assignments of error are based upon the contention that a list of witnesses wa's not served upon the defendant as is required by the Constitution of the state of Oklahoma. Section 20, Bill of Rights, provides:

“He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses.”

The record shows as follows:

“State of Oklahoma v. Henry Addington. Murder. Now, on this the 13th day of February, 1911, the defendant, Henry Ad-dington, is present in open court in his own person and represented by his attorneys, Hosey & Leggett, and the defendant is arraigned by the information herein being read to him in open court by N. W. Gore, county attorney pr tern, of McCurtain county, Oklahoma;, and the defendant says that his true name is Henry Addington, and asks and is by the court allowed a day in which to plead to the charge contained in said information; and thereupon the defendant, Henry Addington, is served in open court with a true and correct copy of the information herein, together with a list of witnesses, containing their post office addresses, to be called by the state to testify in chief in this case. Summers Hardy, District Judge.”

The record further shows that on March 1st, when the case was called for trial:

“And now both the state and the defendant announce ready for trial, the state being present and represented by G. M. Barrett, county attorney of McCurtain county, Oklahoma, and T. A. Hope, and the defendant, Henry Addington, still being present in open court and represented by bis attorneys, Hosey & Leggett.”

In the case of State v. Frisbie, ante, 127 Pac. 1091, it is held:

“Any person prosecuted in Oklahoma for a capital offense has the constitutional right to have furnished to him, at least two days before the trial begins, a list of the witnesses to be produced against him in chief by the state; and it would be error to force him into trial and allow such witnesses to testify against him whose names have not been so furnished, if he seasonably asserts his rights. But if he fails to object to going on trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection; and the constitutional right given him by this provision will be waived.”

See, also, Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356.

On the face of the record, the objections made in these assignments are not well taken.

The sixth, seventh, eighth, ninth, and tenth assignments of error relate to the ruling of the court upon the admission of dying declarations, and will be considered together.

It is contended that “there is nothing in the record to show that the deceased made the statements under a sense of impending death.” The record shows that the evidence' when offered, was not objected to on this ground. However, we think the evidence conclusively shows such a sense of impending death as to make such dying declarations admissible. The record shows that he was shot Sunday afternoon, and died about midday Monday ; that in the presence of seven or eight witnesses, who reached him immediately after the shooting, he said he was dying. Dr. McCaskell testified that he found his intestines punctured in eleven different. places, and that he stated to witness several times that he knew that he was going to die. There is no testimony tending to show that he had any hope of recovery.

In the case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, it is said :

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what the injured person said, or where, from the nature and extent of his injuries, it is evident that he must have known that he could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declarations and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to in order to ascertain the state of declarant’s mind.”

It is next contended that the court erred in admitting testimony as to an oral statement of the deceased, first admitted by the court and then rejected, because it appeared that the deceased had acquiesced in a written statement; and counsel insist that the error in admitting it was not cured by its rejection.

The oral statement made by the deceased, to which the witness testified, was made contemporaneously with the written statement admitted. The only material difference is that when the buggy was coming the deceased said: “There comes father and mother; don’t let them see we are having any trouble; I'would not have them know it for anything in the world.” The only error was the ruling of the court rejecting the oral statement.

In Morris v. State, supra, it is said:

“We think the sound rule, supported by reason and authority, is that, where statements of material facts concerning the cause and circumstances of the nomicide are made at different times by the victim, under the solemn conviction of irftpending death, one of which was reduced to writing, the prosecution is not confined to the written statement, but may offer oral evi-déncé of the statements made at other times, whether the several statements were similar or not.”

See Wigmore on Evidence, secs. 1332, 1449, and 1450; State v. Carrington, 15 Utah, 480, 50 Pac. 526; and 4 Encyc. of Ev. 1012, and notes.

We know of no law or rule that would confine either the state or the' defendant to "the written dying declaration, where other and different statements are made contemporaneously with the .written declaration, or made subsequent thereto. Should any of such separate statements be inconsistent or contradictory, it is open to the defense to show the fact.

“Dying declarations are statements of material facts concerning the cause and circumstances of the homicide, made by the victim under the solemn conviction of impending death, and as such are to be distinguished from other admissible declarations, such as declarations which constitute a part of the res gestae, or declarations made in the presence of the accused. Such declarations are admissible as evidence against the accused, because they were admissible at common law. The constitutionality of this rule has been so uniformly affirmed that the question is no longer an open one. They may be oral or in writing. Being a substitute for sworn testimony, they must be such narrative statements as would be admissible had the victim been sworn as a witness. Mere conclusions or matters of opinion or belief, which would not be received if the declarant was a witness, are inadmissible; and, upon objection properly made, such statements or clauses should be rejected. In the absence of a statute, the rule requiring a dying declaration to go in as a whole has no application here.” ' (Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.)

The eleventh assignment is that the court erred in permitting the note, warning the deceased not to attend the party, to be admitted in evidence over their objection, for the reason that said note was not sufficiently identified to be admissible. There can be no doubt about its identification, if the evidence of the oral dying declarations be admitted. We have herein shown that this testimony was competent, and was erroneously rejected by the trial court after first being admitted. But in that part of the testimony which was allowed to go to the jury the witness Coon-rod identifies this note as being the one he took out of the pocket of the deceased, and that he showed it to the deceased, who identified it as the. one “that the racket came up over.” This part of the testimony is not excepted to, and was not rejected by the court. The note was not admitted as proof of a prior threat of the defendant, but as a circumstance attending the shooting. The testimony on the part of the state and the defendant’s own testimony show that the defendant and the deceased were looking at and discussing this note at the time the killing occurred. It was clearly competent as a part of the res gestae.

The last assignment is that the court further erred in refusing to allow witness W. H. Neal to testify as to the general reputation of the deceased for violence. The state objected, for the reason that no proper foundation had been laid in this: That the witness has not stated that he knew that the deceased lived at the place named, and that the time was too remote, being three or four years prior thereto.

If the court’s ruling was erroneous, we think it was harmless, as the defense was allowed to offer proof as to decedent’s reputation while living. at Idabel; and the testimony of these witnesses was not contradicted by any evidence offered by the state. “The exclusion of evidence, whether it is or is not com-, petent, is harmless, where it reasonably appears that its admission would not have affected the verdict.” And: “The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.” 12 Cyc. 925 and 926, and cases cited in notes 85 and 87.

No complaint is made to the charge. The court instructed the jury fully and liberally for the defendant.

After a most careful review of the record, we have been unable to discover any prejudicial error. The defendant was convicted only of manslaughter in the first degree. As we view the record, his youth and the humanities of the law are all that saved him from a conviction of murder.

The judgment is affirmed.

ARMSTRONG, P. J„ and RURMAN, J., concur.


author: DOYEE, J.

text:
      Ex parte THEODORE GRAVES.
    No. A-1832.
    Opinion Filed March 4, 1913.
    (130 Pac. 307.)
    STATES — Powers of Territories — Laws Defining and Punishing Murder and Manslaughter. Oklahoma Territory had the authority and power to enact laws defining the crimes of murder and manslaughter, and to prescribe punishment' therefor.
    (Syllabus by the Court.)
    Application of Theodore Graves for writ of habeas corpus.

    Writ denied.

      W. D. Halfhill, for petitioner.

      Chas. West, Atty. Gen., and Jno. L. Hull, Special Asst. Atty. Gen., for respondent.
   DOYEE, J.

This is a petition for writ of habeas corpus, and is filed for the purpose of setting at liberty Theodore Graves. It is alleged in the petition that he is restrained of his liberty, and is unlawfully imprisoned in the state penitentiary at Mc-Alester, by R. W. Dick, warden.

It appears from the petition that Theodore Graves was in the district court of Washita county, Oklahoma Territory, duly convicted of the crime of manslaughter in the first degree, and was on November 22, 1904, sentenced to imprisonment for a term of ten years; that on February 9, 1909, he was paroled by the state board of pardons and paroles; and that, by direction of the Governer of the state of Oklahoma, said parole so granted was later revoked. It is alleged:

“That the Governor of the state of Oklahoma has no constitutional or lawful right or authority to order the imprisonment, in the pentientiary of the state of Oklahoma, this petitioner; that, upon the contrary, said warrant and imprisonment of petitioner aforesaid is a violation of the rights of this petitioner, in this, to ' wit: That said order of the Governor aforesaid, if carried out, will imprison this petitioner for a longer time than he would ha.ve been imprisoned by the order, judgment, and decree of the court in which he was originally sentenced; that the Governor of the state of Oklahoma has no judicial authority, or any legal right or capacity, to fix a time in which the petitioner should be imprisoned, beyond the time fixed and limited by the court, where said petitioner was tried, convicted, and sentenced by said court aforesaid; and that his present imprisonment and restraint of this petitioner is. an imprisonment ‘without due process of law,’ and in violation of the Constitution of the United States of America.”

It is also alleged that the Code of Criminal Procedure of the territory of Oklahoma was never duly enacted, in that the same was never signed by the presiding officer of the council, nor of the House of Representatives, nor the Governor of the territory of Oklahoma, as required by the “organic act” of said territory. It is further alleged that the district court of Washita county had no jurisdiction to try said cause for the reason that, at the time of the passage of the organic act (Act May 2, 1890, c. 182, 26 Stat. 81), there was in force in the territory, included within the limits of Oklahoma, certain laws of the United States, which covered specifically the offense of murder and manslaughter, when committed in a place or district under the exclusive jurisdiction of the United States.

The petition was filed with the clerk of this court September 17, 1912, but was not presented to the court, or any member thereof. Uater a brief was filed, and the Attorney General filed an answering brief. No proof was offered in support of the averments of the petition. The petition does not contain a copy of the original judgment of conviction, nor of the parole, nor of the order revoking the parole; nor is a copy of the warrant and order of arrest issued upon the revocation of the parole attached to the petition. Therefore no question is properly presented by the averments relating thereto; the jurisdictional questions sought to be raised having been heretofore determined, adversely to the contentions of petitioner’s counsel. Oklahoma Territory had the right and power to enact laws defining the crime of murder and of manslaughter, and to prescribe punishment therefor.

The application of the petitioner fails to show that the judgment and commitment under which he is imprisoned are void or that he is entitled to a release, hence it will be denied.

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


text:
    JONAH FOSTER v. STATE.
    No. A-1341.
    Opinion Filed March 5, 1913.

    (130 Pac. 310.)
    1. ESCAPE — Imprisonment in County Jail — Misdemeanor. Under section 7073, Code of Criminal Procedure, it is merely a misdemeanor for a person imprisoned, pursuant to a sentence of imprisonment in the county jail, to break jail and escape.
    2. ESCAPE — Breaking Jail — Punishment. Section 2161 of the Penal Code, and section 7073, Code of Criminal Procedure, are not repugnant.
    (Syllabus.by the Court.)

      Appeal from District Court,, Garvin County; R. McMillan, Judge.

    Jonah Foster was convicted of escaping jail, and appeals.
    Reversed, with directions.

      Carr & Field, for plaintiff in error.

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

Plaintiff in error was convicted in the district court of Garvin county on an information which charged that, cn or about the 19th day of May, 1911, Jonah Foster did escape from the county jail of Garvin county, a prison other than the state prison; the said Jonah Foster being then and there a prisoner confined in said county jail of Garvin county. The information was filed May 23d; on the same day he was arraigned and entered a plea of guilty, and' was thereupon sentenced to imprisonment in the penitentiary for a term of one year and one day. The following day plaintiff in error employed counsel and had a motion prepared asking that he be permitted, upon the grounds and reasons therein set forth, to withdraw his plea of guilty, and that he be granted a trial, which motion was overruled.

On May 27th, 1911, in execution of the judgment, plaintiff in error was delivered to the warden of the penitentiary, where be remained confined until released upon an- order of supersedeas made by this court, when his appeal to this court had been perfected. April 10, 1912, the Attorney” General and the county attorney filed in this court a motion to remand, with instructions to dismiss, in part as follows:

“This prosecution was had under the provisions of section .2164, Compiled Laws of Oklahoma 1909, Snyder, when in t^uth this plaintiff should have been prosecuted under the provisions of section 7073, Id., as the admitted facts in this case are that plaintiff in error-had been convicted of the offense of selling intoxicating liquor in said county, and pursuant to such conviction was confined in the county jail of said county, and was by order of the board of county commissioners required to work on the public highways therein; that, while so employed, he escaped and was thereafter captured by the sheriff, and this charge was lodged against him. Such escape was accomplished without.the use of force or fraud. Plaintiff in error has already been committed in the state penitentiary under this charge for the period of four months, and the county attorney of Garvin county is of the opinion that he has been sufficiently punished under a mistaken apprehension as to what the law was. Therefore we respectfully suggest that the district court of Garvin county was without jurisdiction in this case, and the same should be remanded to the said district court with instructions that it be dismissed.”

. Presumably the district court assumed jurisdiction on the theory that a violation of section 2164 of the Penal Code was charged.

Section 7073, Code of Criminal Procedure, -provides:

“If any person who may be imprisoned pursuant to a sentence of imprisonment in the county jail, or any person who shall be committed for the purpose of detaining him for trial, for any offense not capital, shall break prison and escape, he shall be imprisoned in the county jail for the term of six months.”

The offense charged in the information constitutes a misdemeanor under the aforesaid section 7073, and the district court was without jurisdiction or power to try the information, or to render the judgment of conviction, or to issue the commitment thereon.

In Ex parte Martin, 6 Okla. Cr. 224, 118 Pac. 155, it is said:

"As we view these provisions, they are not repugnant; and, while they were passed by the same Legislature, section 7073 is the later act, having been approved subsequently to section 2164. If there is any repugnancy, the later act must prevail.”

The confession of error is confirmed, and the judgment of the district court of Garvin county is reversed, and the cause remanded thereto, with direction to dismiss.

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


author: PER CURIAM:

text:
    JOHN ROAN v. STATE.
    No. A-1282.
    Opinion Filed August 21, 1912.
    Appeal from Johnston County Court; Nick Wolfe, Judge.
    John Roan was convicted of violating the prohibitory law, and' appeals:
    Appeal dismissed.
    J. S. Ratliff, Newman & Lawrence, and J. B. O’Bryan, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM:

Plaintiff in error, John Roan, was convicted in the county court of Johnston county, at the April, 1911, term, on a charge of selling intoxicating liquor, and on the 7th day of said month was sentenced to pay a fine of two hundred fifty dollars and be confined in the county jail for a period of ninety days. On the 5th day of May, thereafter, an order was made extending the time within which to make and serve ease-made forty days from the 7th day of May; but no order was made extending the time within which the appeal could be perfected in this court. The petition in error and case-made were not filed in this court until the 3rd day of July, 1911, more than sixty days after the rendition of judgment. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not filed in this court within the time prescribed by law.

The motion is sustained, and the appeal accordingly dismissed.


text:
    P. W. HOLDEN v. STATE.
    No. A-1450.
    Opinion Filed August 21, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    P. ,W. Holden was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Pruiett, Wilson, Sniggs & Wilson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM:

The plaintiff in error, P. W. Holden, was convicted at the May, 1911, term of the county court of Oklahoma county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a period of six months and a fine of five hundred dollars. We have carefully examined the record and find no error sufficient to justify a reversal of the judgment. It is therefore affirmed.


text:
    JOHN NIDIFFER v. STATE.
    No. A-1114.
    Opinion Filed August 26, 1912.
    Appeal from Ottawa County Court; W. T. Quigley, Judge.
    John Nidiffer was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    O. F. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiff in error, John Nidiffer, was convicted at the January, 1911, term of the county court of Ottawa county, on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of-one hundred fifty dollars. Upon careful examination of the record we find no error sufficient to justify a reversal of this cause. The judgment of the trial court is therefore affirmed.


author: PER CURIAM.

text:
    THEODORE E. KELLEY v. STATE.
    No. A-1115.
    Opinion Filed August 26, 1912.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Theodore E. Kelley was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    O. E. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Theodore E. Kelley, was convicted at the January, 1911, term of the county court of Ottawa county, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred fifty dollars and imprisonment in the county jail for a period of sixty days. Upon a careful examination of the record we find no error sufficient to justify a reversal of this cause. The judgment of the trial court is therefore affirmed.


text:
    MRS. J. M. FOSSETT v. STATE.
    No. A-929.
    Opinion Filed September 3, 1912.
    Appeal from Custer County Court; E. P. Phillips, Special Judge.
    Mrs. J. M. Eossett was convicted of a violation of the prohibition law and appeals.
    Affirmed.
    Leroy Jones, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiff in error was convicted on an information which charged the unlawful possession of thirty-two pints of 'whisky and twelve bottles of beer, with the intent to sell the same, and was sentenced to be confined in the county jail for a period of thirty days and to pay a fine of three hundred and fifty dollars. The ease was tried without a jury by consent of the parties. It is contended that the evidence is insufficient to support the findings and judgment of the trial court. On a careful examination of the record we are of the opinion that the appeal in this ease is without merit. The judgment of the county court of Custer county is therefore affirmed. - '


text:
    ABE OGEE v. STATE.
    No. A-1316.
    Opinion Filed September 6, 1912.
    Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge.
    "W. N. Maben and McClain Taylor, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

Appellant was convicted in the superior court of Pottawatomie county of assault and battery, and his punishment was assessed at a fine of five dollars. Judgment was rendered on the 18th day of February, 1911, but the appeal was not perfected by filing a transcript of the record in this court until the 17th day of August, 1911, which was long after the time allowed by law for perfecting the appeal. The appeal is therefore dismissed, and mandate will issue at once.


text:
    W. T. CRABTREE v. STATE.
    No. A-1438.
    Opinion Filed September 12, 1912.
    Appeal from Osage County Court; C. T. Bennett, Judge.
    W. T. Crabtree was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    'Roberts & Scales, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, W. T. Crabtree, was convicted at the July, 1911, term of the county court of Osage county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of two hundred fifty dollars and imprisonment in the county jail for a period of three months. The Attorney General has moved to dismiss the appeal on the following grounds: “Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Osage county on the 24th day of July, 1911, and the petition in error and ease-made were not filed in this court until the 18th day of October, 1911, more than 60 days after the rendition of such judgment, no order having been made extending the time within which to file petition in error and ease-ma'de in this court beyond the 60 days allowed by law." The motion is well taken and must be sustained. The appeal is accordingly dismissed.