text:
    FRANK JONES v. STATE.
    No. A-2984.
    Opinion Filed February 20, 1919.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Frank Jones was convicted of keeping a place with a felonious intent to sell intoxicating liquors, and appeals.
    Reversed.

      S. J. Castleman, Brown, Williams & Brown, for plaintiff in error.
    Tile Attorney General, for tlie State.
   PER CURIAM.

Plaintiff in error, Prank Jones, was convicted on a charge that he did feloniously keep a place in the town of Wilson, Carter county, with the intent and purpose then and there ana tnerem of selling intoxicating liquors, and was sentenced to serve a term of one year in the penitentiary and to pay a fine of two hundred dollars. To reverse the judgment he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution was based was held unconstitutional and void. For the reasons stated in that opinion, the judgment appealed from is reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ERNEST KEY v. STATE.
    No. A-3026.
    Opinion Filed March 11, 1919.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Ernest Key was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and appeals.
    Reversed.
    Norman & Mathers and J. B. Champion, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was by indictment duly returned by a grand jury of the-district court of Carter county charged with keeping a place in the city of Ardmore, with the intent and purpose of selling intoxicating liquors. To reverse the judgment rendered on the verdict he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution was based was held unconstitutional and void. For the reasons stated in that opinion, the judgment appealed from is reversed.


text:
    HARRY ADAMS v. STATE. THOMAS CARTER v. STATE. ORB. M. NEIGHBORS v. STATE. JACK POWELL v. STATE.
    No. A-3045.
    No. A-3046.
    No. A-3047.
    No. A-3048.
    Opinion Filed March 11, 1919.
    Appeals from District Court, Payne County; John P. Hiekam, Judge.

      J. M. Springer, for plaintiffs in error.
    Tile Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appeals in the above entitled and numbered oases are from judgments of the district court of .Payne county, rendered in accordance with the verdicts returned by the jury in each of said causes. The information in each case charged the defendant with keeping a place in the town of Yale, Payne county, with the intent and purpose of selling intoxicating liquors.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute (see. 4, ch. 26, Session Laws 1913) upon which these prosecutions were based was held unconstitutional and void. For the reasons stated in that opinion, the judgments appealed from are reversea.


text:
    JIM KYLE v. STATE.
    No. A-3075.
    Opinion Filed March 20, 1919.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Jim Kyle was' convicted of a felony, and appeals.
    Reversed.
    Jas. H. Mathers and Wm. Pfeiffer, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Jim Kyle, was convicted of keeping a place in the town of Wirt, Carter county, with the felonious intent of there selling intoxicating liquors. To reverse the judgment rendered on the verdict, he appeals. In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771. the statute upon which the prosecution was based was held unconstitutional. For the reasons stated in that opinion the judgment is reversed.


text:
    B. M. BILLINGS et al. v. STATE.
    No. A-3077.
    Opinion Filed March 26, 1919.
    Appeal from District Court, Garfield County; James B. Cullison, Judge.
    B. M. Billings .and George Billings, convicted of keeping a place with the felonious intent to violate provisions of the prohibitory liquor law, appeal.
    Reversed.
    John F. Curran, for plaintiffs in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, B. M. and George Billings, were jointly tried and convicted on an information charging that they did keep a place in the city of Enid, with the felonious intent and 'purpose of selling intoxicating liquors. To reverse the judgments rendered in accordance with the verdict, an appeal was perfected by filing in this court, on July 17, 1917, a petition in error with case-made attached.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which the prosecution in this case was based was hela unconstitutional and void. For the reasons stated in the opinion in the Proctor Case, the judgments appealed from are reversed.


text:
    TIM HAWKINS et al. v. STATE.
    No. A-3079.
    Opinion Filed April 3, 1919.
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    Tim and Mary Hawkins were convicted of a violation of the prohibitory law, and appeal.
    Reversed.
    J. W. Steen and L. C. McLean, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted of keeping a place in the city of Enid with the felonious intent and purpose of selling intoxicating liquors, and their punishment fixed at one year in the penitentiary and two hundred dollars fine each. To reverse the judgments rendered on the verdict, they appeal.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution was based was held unconstitutional and void. For the reasons stated in that opinion, the judgments appealed from are reversed.


text:
    HOMER MATHEWS v. STATE.
    No. A-3127.
    Opinion Filed April 4, 1919.
    Appeal from District Court, Muskogee County; R. P. deGraffenried, Judge.
    Homer Mathews was convicted of assault with intent to kill, and appeals.
    Dismissed.
    W. H. Twine, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Homer Mathews, was convicted in the district court of Muskogee county on an information' charging that in said county on the 26th day of December, 1916, he did commit the crime of assault with intent to kill one G. O. Poole, by attempting to shoot him with a pistol. His punishment was fixed at six years’ imprisonment in the penitentiary. From the judgment rendered on the verdict, he appealed by filing in this court on September 5, 1917, a petition in error with ease-made.

Plaintiff in error by his counsel of record has filed a motion to dismiss his appeal, which motion is hereby sustained, and the appeal herein is dismissed and the cause remanded to the district court of Muskogee county, with direction to enforce the judgment and sentence.


text:
    SAM BLANK v. STATE.
    No. A-3078.
    Opinion Filed April 4, 1919.
    (178 Pac. 891.)
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    Sam Blank was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and he appeals.
    Reversed.
    L. C. McLean and E. C. Patton, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Garfield county upon a charge that he did keep a place in the city of Enid with the intent and purpose of selling intoxicating liquors, and his punishment fixed at 30 days in jail and a fine of $300. To reverse the judgment, he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution was based was held unconstitutional and void. For the reasons stated in the opinion, the judgment is reversed.


text:
    HENRY WILLIAMS v. STATE.
    No. A-3157.
    Opinion Filed April 5, 1919.
    Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.
    Henry Williams was found guilty of the unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $50 and imprisonment for thirty days, and he appeals.
    Affirmed.
   PER CURIAM.

This appeal has been pending in this court since the 28th day of September, 1917. No brief has been filed in beualf of plaintiff in error, and no appearance was made by counsel for plaintiff in error to orally argue the cause when the case was submitted on April — 1919.

The court has examined the information, the instructions, and the judgment. No fundamental error appearing, the judgment is affirmed.


text:
    LUCILE DUMAS et al. v. STATE.
    No. A-3175.
    Opinion Filed April 5, 1919.
    Appeal from County Court, Okmulgee County; Dudley C. Monk, Judge.
    Lucile Dumas and Jessie McBride were convicted of the crime of unlawful possession of intoxicating liquors, and each sentenced to pay a fine of $50 and to serve thirty days in the county jail, and both appeal.
    Affirmed.
   PER CURIAM.

This cause has been pending in this court since the 22d day of October, 1917, no brief having been filed in behalf of plaintiffs in error, and no appearance made by counsel to orally argue the same on the date the cause was submitted.

The court has examined the information, instructions of the court, and judgment and sentence, and finds the proceedings regular.

No reversible error having been urged either in a brief or by oral argument, and none appearing from an examination of the record, the judgment of conviction as to each plaintiff in error is affirmed.


text:
    ROSS BECKETT v. STATE.
    No. A-3193.
    Opinion Filed April 5, 1919.
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    H. J. Sturgis, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., Tor tne State.
   PER CURIAM.

Plaintiff in error, Ross Beckett, was convicted of keeping a place in the city of Enid with the felonious intent and pul-póse of selling intoxicating liquors. To reverse the judgment rendered on the verdict, he appeals. In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution was based, is held unconstitutional and void. For the reasons stated in the opinion in that case, the judgment is reversed.


text:
    CHARLEY EVANS v. STATE.
    No. A-3183.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Coal County; C. M. Threadgill, Judge.
    Charley Evans, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.

      Wilhelm & Holland, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charley Evans, was convicted on a charge that he did sell one pint of whiskey to Alfred Hilhurn, and was sentenced to be confined for thirty days in the county jail and to pay a fine of fifty dollars.

No brief has been filed on behalf of plaintiff in error, and the cause was submitted on the motion of the Attorney General to affirm the judgment for failure to prosecute the appeal.

For this reason the judgment herein is affirmed. Mandate forthwith.


text:
    FRANK MARSHALL v. STATE.
    No. A-3173.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    Frank Marshall, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.
    M. T. Perkins, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Frank Marshall, was convicted in the county court of Comanche county on a charge that he did have possession of intoxicating liquors with intent to sell the same, and his punishment was fixed at thirty days’ confinement in the county jail and a fine of $50. He appeals from the judgment rendered on the verdict. The proof on the part of the state was uncontroverted. An examination of the record discloses that the errors assigned are destitute of merit. The judgment of the trial court is therefore affirmed. Mandate forthwith.


text:
    ALEX WILKERSON v. STATE.
    No. A-3156.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    Alex Wilkerson, convicted of a violation of the prohibitory liquor law. appeals.
    Affirmed.
    J. A. Diffendaffer, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Alex Wilkerson, was convicted on a charge that he did have whiskey in his possession with intent to sell the sameKand was sentenced to be confined in the county jail for thirty days and to pay a.fine of $100 and the costs.

No brief has been filed, and the cause was submitted on; the motion of the Attorney General to affirm the judgment for failure to prosecute the appeal. For this reason the judgment of the lower court is affirmed, and the cause remanded, with direction to the trial court to enforce its-judgment therein.


text:
    WILSON PHILLIPS v. STATE.
    No. A-3184.
    Opinion Filed April 11, 1919.
    Appeal-from County Court, Coal County; C. M. Threadgill, Judge.
    Wilson Phillips, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.
    Wilhelm & Holland, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Wilson Phillips, w-as convicted on the charge of transporting about twelve cases of whiskey in Coal county, and was sentenced to be confined for thirty days in the county jail and to pay a fine of $50.

No brief has been filed on behalf of plaintiff in error, -and the cause was submitted on the motion of the Attorney General to affirm the judgment for failure to prosecute the appeal. For this reason the motion to affirm is sustained, and the cause remanded to the trial court, with direction to enforce its judgment therein.


text:
    BILLIE JONES et al. v. STATE.
    No. A-3150.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    Billie Jones and Bobby Young, convicted of a violation of the prohibitory law, appeal.
    Affirmed.
    J. A. Diffendaffer, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, Billie Jones and Bobby Young, were jointly tried and convicted on the charge that they did have in their possession intoxicating liquors with intent to sell the same, and in accordance with the verdicts of the jury they were each sentenced to be confined for thirty days in the county jail and t-o pay a fine of $50 dollars, and they appeal.

No briefs have been filed, and the cause was submitted on motion of the Attorney General to affirm the judgment for failure to prosecute the appeal. For this reason the'motion to affirm is sustained, and the cause remanded, with direction to the trial court to cause its judgment to be carried into execution.


text:
    BERT ELLIOTT v. STATE.
    No. A-3093.
    Opinion Filed April 10, 1919.
    Appeal from District Court, Carter County; W. F. Freeman, Judge. ¿

    Bert Elliott, convicted of a felony, appeals.
    Reversed.
    R. F. Turner, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bert Elliott, was convicted in the district court of Carter county of keeping a place in the town of Wirt with the felonious intent and purpose of selling intoxicating liquors, and his punishment fixed at imprisonment for two years and a fine of $50. To reverse the judgment rendered on the verdict, he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution is based was held unconstitutional and void. For the reasons stated in the opinion in that case, the judgment is reversed. •• '


text:
    WILLIE MANN v. STATE.
    No. A-3181.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Coal County; C. M. Threadgill, Judge.
    Willie Mann was convicted of .the crime of selling intoxicating liquor, and sentenced to pay a fine of $50 and to serve thirty days confinement in the county jail, and appeals.
    Affirmed.
   PER CURIAM.

This cause lias been pending on appeal in this court since the 1st day of November, 1917. No brief has been riled in behalf of plaintiff in error, nor was any appearance made to orally argue this cause at the time same was submitted.

Rule IX of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After a careful examination of the record, the court finds no error sufficiently prejudicial to authorize a reversal of this judgment, and. the same is affirmed.


text:
    HENRY GRADER v. STATE.
    No. A-3180.
    Opinion Filed April 10, 1919.
    Appeal from County Court, Coal County; George Trice, Special Judge.
    Henry Grader was convicted of the crime of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to serve thirty days’ confinement in the county jail, and appeals.
    Affirmed.
   PER CURIAM.

This cause has been pending on appeal in this court since the 1st day of November. 1917. No brief has been filed in behalf of plaintiff in error, nor was any appearance made to orally argue this cause at the time same was submitted.

Rule IX of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After a careful examination of the record, the court finds no error sufficiently prejudicial to authorize a reversal of this judgment, and the same is affirmed.


text:
    BELLE VENTERS v. STATE.
    No. A-3218.
    Opinion Filed April 12, 1919.
    Appeal from County Court, Pittsburg County; S. E. Brown, Judge.
    Belle Venters, convicted of a violation of the prohibitory liquor law, appeals.
    Dismissed.
    W. N. Redwine, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Belle Venters, was convicted in the county court of Pittsburg county on an indictment returned by a grand jury in the district court of said county and duly transferred to said county court, and in pursuance of the judgment she was sentenced to be confined for thirty days in the county jail and to pay a fine of $100. An appeal was perfected by filing in this court on December 7, 1917, a petition in error with case-made.

When the case was called’ for final submission, plaintiff in error, by her counsel of record, moved the court to dismiss the appeal, which motion is sustained and the cause is remanded to the trial court, with direction to carry into execution the judgment and sentence.


text:
    RED HARRIS v. STATE.
    No. A-3208.
    Opinion Filed April 12, 1919.
    Appeal from County Court. Pittsburg County; S. P. Brown, Judge.
    Red Harris, convicted of a violation of the prohibitory liquor lawr appeals.
    Affirmed.
    Jno. W. Crow, for plaintiff in error. ■
    W. C. Hall. Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Red Harris, was convicted on a charge that he did have in his possession certain intoxicating liquor, to wit, about forty-eight gallons of Choctaw beer, with intent to sell the same, and was sentenced to be confined in the county jail for forty days and to pay a fine of $75, and the costs.

No brief has been filed in behalf of plaintiff in error, and the cause was submitted on motion of the Attorney General to affirm the judgment for failure to prosecute the appeal. The evidence for the state .supports the allegations of the information and is uncontradicted. The judgment is therefore affirmed.


text:
    E. G. GOLDSMITH v. STATE.
    No. A-3361.
    Opinion Filed April 17, 1919.
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    E. G. Goldsmith, convicted of Seeping a place with intent to sell' intoxicating liquors, appeals.
    Reversed.
    H. J. Sturgis, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, E. G. Goldsmith, was convicted in the district court of Garfield county of keeping a place in the city of Enid, known as the “Eagle Hall,” wifh the felonious intent and purpose of selling intoxicating liquors and his punishment fixed at confinement in the county jail for thirty days and a fine of $250. To reverse the-judgment an appeal was perfected by filing in this court on May 16, 1918, a petition in error with case-made.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution -is based was held unconstitutional and void. For the reasons stated in the opinion in that case, the judgment is reversed.


text:
    ENOC McGILL v. STATE.
    No. A-3312.
    Opinion Filed April 17, 1919.
    Appeal from District Court, Logan County; John P. Hickam, Judge.
    Enoc McGill, convicted of keeping ■ a place with felonious intent to sell intoxicating liquor, appeals.
    Reversed.
    B. E. Garrett, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the ;State.
   PER CURIAM.

Plaintiff in error. Enoc McGill, was convicted in the district court of Logan county of keeping a place in the city of Guthrie with the felonious intent and purpose of selling intoxicating liquors, and his punishment fixed at confinement in the county jail for thirty days' and a fine of $200. To reverse the judgment rendered on the verdict, he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this prosecution is based was held unconstitutional, and void. Eor the reasons stated in the opinion in that case, the judgment is reversed.


text:
    ROBERT P. PORTER v. STATE.
    No. A-3409.
    Opinion Filed April 17, 1919.
    Appeal from District Court, Payne County; John P. Hickam, Judge.
    Robert P. Porter, convicted of a felony, .appeals.
    Reversed.
    J. M. Springer, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the .'State.
   PER CURIAM.

Plaintiff in error, Porter, was convicted in the •district court of Payne county of keeping a place in the town of Cush-ing, with the felonious intent and purpose of selling intoxicating liquors. To reverse the judgment rendered on the verdict, he appealed hy filing in this court on June 29, 1918, a petition in error with case-made.

In the case of Proctor v. State, 15 Okla. Cr. 338. 176 Pac. 771, the statute upon which this prosecution is based was held unconstitutional and void. For the reasons stated in the opinion in that case, the judgment is reversed.


text:
    J. H. COOK et al. v. STATE.
    No. A-3188.
    Opinion Filed April 17, 1919.
    (179 Pac. 624.)
    Appeal from District Court, Garfield County; J. C. Robberts, Judge.
    J. H. Cook and E. J. Brown were convicted of a felony, and they appeal.
    Reversed.
    E. C. Patton, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, J. H. Cook and E. J. Brown,, were jointly tried and convicted in the district'court of Garfield county of keeping a place in the city of Enid with the felonious intent and purpose of selling intoxicating liquor. To reverse the judgments rendered on the verdict, they appealed-.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the-statute upon which this proescution is based was held unconstitutional and void. For the reasons stated in the opinion in that case, the judgments are reversed.


text:
    ROY ROSE v. STATE.
    No. A-3224.
    Opinion Filed April 19, 1919.
    Appeal from County Court, Atoka County; W. M. Rainey, Judge.
    Roy Rose was convicted of the crime of conveying intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of sixty days, and he appeals.
    Affirmed.
   PER CURIAM.

Roy Rose was convicted of the crime of conveying intoxicating liquor, and his punishment fixed as above stated.

This appeal has been pending in this court since the 12th day of December, 1917. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted.

Rule IX of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

After an examination of the entire record, including a transcript of the evidence, the court finds that no prejudicial error occurred during the progress of the trial sufficient to authorize a reversal of this judgment, and the same is, therefore, affirmed.


author: DOYLE, P. J.

text:
    HATTIE HOLCOMB v. STATE.
    No. A-2530.
    Opinion Filed July 31, 1917.
    (166 Pac. 754.)
    VENUE — Change of Venue — New or Amended Information— Where Filed. The same rules of procedure which obtain in prosecutions by indictment shall obtain in prosecutions by information, and where a change of venue is had. a new or amended information cannot be filed in the county to which the case is removed; such information can be lawfully filed only in the county where the original information was first filed, and the court from which the action is removed must, upon the application of the county attorney, order the same +o be transmitted by the clerk.
    SAME — Effect of Failure to File. In this case it appears that an information was filed in the district court of Jefferson county, charging the crime of murder; a change of venue was granted to Stephens county, and the cíonnty attorney of Jefferson county there filed a hew information, upon which defendant was tried and convicted. Held, that, the new information not having been filed in Jefferson county, the district court of Stephens county was without jurisdiction to try defendant thereon, and the proceedings subsequent to the filing of the new or so called amended information were null and void.
    TRIAL — Argument—Comment on Change of Venue. Where in a criminal case, the venue has been changed, such fact is not a proper or legitimate subject of discussion by counsel for the prosecution in his argument to the jury.

      4. SAME. It is error for the trial court to allow counsel for the prosecution to read defendant’s affidavit for a change of venue, and to comment upon the same in addressing the jury.
    5. TRIAL — Argument of Counsel — Time to Object — Duty of Court. As a general rule, in order to make improper argument available as a ground for new trial, objection should be interposed at the time when the prejudicial statements are made; after verdict it comes too late. However, there are exceptions to the rule, and where private counsel assisting the county attorney in his closing argument to the jury abuses his privilege and makes statements of prejudicial facts outside the evidence, and appeals to prejudices irrelevant to the case, it is the duty of the court to stop him then and there, and it is error for the court not to instruct the jury to disregard such statements.
    6. SAME. It is the duty of trial courts to interfere of their own motion in homicide cases where counsel for the prosecution in argument to the jury abuses his privileges by commenting on matters outside the record and outside the proof that are calculated to create prejudice against the accused.

      Appeal from District Court, Stephens County; Cham Jones, Judge.

    Hattie Holcomb was convicted of murder, and she appeals.
    Reversed and remanded.

      Bridges & Vertrees and Womack & Brown, for plaintiff in error.

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

Plaintiff in error, Hattie Holcomb, herein referred to as defendant, was convicted in the district court of Stephens county, on a change of venue from Jefferson county, of the crime of murder. She has appealed from the judgment rendered upon.such conviction.

It appears from the record that on the 25th day of March, 1915, an information was filed in the district court of-.Jefferson county, charging that in said county, on the 14th day of March, 1915, the said Hattie Holcomb did kill and murder Sam Holcomb, by shooting him with a pistol. Oh •defendant’s application the court granted a changé of venue to Stephens county, and on the 3d day of April, 1915, the: papers in said cause were transmitted by the court clerk of Jefferson county to the court clerk of Stephens county.. On the 5th day of April the county attorney of Jefferson county filed an amended information in the district, court of Stephens county charging that the said Hattie Holcomb did aid, abet, assist, counsel and advise the death of said Sam Holcomb by then and there aiding, abetting, advising and assisting one Henry Self to do, commit, and perpetrate said murder. A general demurrer was interposed to the amended information, which was overruled.. Thereupon defendant was arraigned and pleaded not guilty.

In the view we have taken of the disposition necessary to be made of this case, there is no occasion for a discussion of the facts in evidence, further than to sav that defendant’s husband, Sam Holcomb, was shot and killed at their home-about 9 o’clock p. an., on March 14,1915. Henry Self, who it: appears was by a separate information charged with the-crime, and who upon his arraignment pleaded guilty and was sentenced to life imprisonment, was brought from the penitentiary and as a witness for the state testified that he killed Sam Holcomb by shooting him with a pistol, that he had been criminally intimate with defendant, and that she advised him to kill her husband.

The filing of the new or so-called amended information in the district court to which the change of venue was granted, presents a question of jurisdiction, which is not assigned as error, but it is now insisted, upon behalf of defendant, that the new information was unlawfully filed, in that the Constitution and laws of this state do not authorize the county attorney of Jefferson county to file in Stephens county a new or amended information in a case there pending on a change of venue. It appears from the record that an entirely new information was filed in the district court of Stephens county by the county attorney of Jefferson county, and it had not been filed in the district court of Jefferson county.

The Constitution of Oklahoma (article 2, sec. 17) provides that prosecutions for felonies shall be by indictment, or may be by information after the accused has had a preliminary examination before an examining magistrate, or having waived the same, and they are concurrent remedies. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241. An indictment cannot be amended as to matters of substance except by the grand jury of the county in which the crime was committed, and where a change of venue is had, an indictment must be amended, if at all, in the county from which it came. The same rules of procedure which obtain in prosecutions by indictment shall obtain in prosecutions by information. When an order for a change of venue shall be made the statute requires the clerk of the county in which the cause is pending to — ■

“make out, and within ten days transmit to the county to which the action is removed a certified copy of the order of removal and the record, and shall transmit the pleadings, including the undertaking for the appearance of the defendant, and of the witnesses, and the cause must be docketed and stand for trial at the first term of the court after the cause has been transferred.” Proc. Crim., sec. 5817, Rev. Laws 1910.

“If it is necessary to have any * * * original pleadings or other papers before such court, the court from which the action is removed must at any time, upon the application of the county attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being, retained.” Proc. Crim., sec. 5821, Rev. Laws 1910.

In this state all crimes are statutory, and the practice, and procedure in the prosecution thereof, including the form of the accusation and the manner in which, and by whom, preferred, is for the Legislature to determine, except when restrained by the state or federal Constitution, and we have .no statute authorizing the county attorney of one county to file an information in any county other than his official county. Here the so-called amended information recites:

“Now comes P. T. Hamilton, the duly qualified and acting county attorney in and for Jefferson county, state of Oklahoma, and gives the district court of Stephens county, and state of Oklahoma to know and be informed that one Hattie Holcomb did, in .Jefferson county,” etc.

The principle on which our decision must rest was stated and discussed by Sherwood, P. J., in State v. Bartlett, 170 Mo. 658, 71 S. W. 148, 59 L. R. A. 761. He said:

“The like considerations induce comment on the amended information filed in this cause in the circuit court of Lewis county, by the prosecuting attornéy of Scotland county. By the amendment .to our Constitution adopted in 1900, it is provided that: ‘No person shall be prosecuted criminally for felony or misdemeanor otherwise than by in--dictment or information, which shall be concurrent remedies.’ Prior to the adoption of this amendment, as is well known, felony could only have been prosecuted by indictment. When this was the constitutional rule and limitation, it was decided by this court, in Slater’s Case, 72 Mo. 102, followed by many subsequent cases, that, though authorized by statute, the grand jury of one county could not find an indictment for a crime committed in another county. Now the amendment declares that both these forms of procedure shall be ‘concurrent remedies’; if concurrent, then a prosecuting attorney of one county would have no greater power over an information which he could file in his own county than would a grand jury over an indictment they had found in their own county. As they could not find one for a crime done outside of their own county, neither could he file an information outside of his own county for a crime done in his own county, unless the Constitution so permitted. And the mere fact that the general statute commands a prosecuting attorney to follow to other counties indictments and informa-tions originating in his county does not enlarge his powers as to amending an information any more than it does amending an indictment. The only way to get a new indictment is to have new action taken by the grand jury of the original' county, and the only way to have a new information is to have the amended or new information filed in the original county. This point was not raised in the motion in arrest, but, being a matter of record, and a question of jurisdiction, we have thought best to notice it.”

The new information upon which defendant was tried having been filed in Stephens county without authority of law, it follows that the whole proceedings subsequent to the filing of the new or so-called amended information in Stephens county were null and void, and for the' reasons stated the district court was without jurisdiction to try the new information or to render the judgment appealed from.

One of the grounds of the motion for new trial, and upon which error is assigned, is:

“That defendant was prevented from having a fair and impartial trial as guaranteed to her by law by reason of the conduct of counsel for the state in his closing argument, in which he read to the jury defendant’s petition and affidavit on file in this cause, by which .this defendant asked and obtained a change of venue from Jefferson county to Stephens county, which conduct of said counsel was highly improper and prejudicial to the rights of this defendant', and other improper remarks made by counsel for the state in said argument.”

In view of another trial, and as this is the first tima that this question has come before this court, we are asked to pass upon it.

lit appears in the record that Mr. John M. 'Stanley, private counsel who assisted the county attorney and who made the closing argument for the state, in the course of his address used the following language:

“What did she do after she was charged with this crime ? They say that from the fact that this woman lived in that county a long time and worked and struggled that she is not guilty. All right, she has been down there, we vvill say 15 years, been a powerful good woman before this trouble came up, never was a bit of suspicion against her character, and then she is charged with the murder of her husband and haled into court right down there where she had made a reputation for being a praying mother, right down there where she had made a reputation for being a good woman, living there for the last 15 years, and then she came into court and swore she could not get a fair trial down there among the people with whom she had associated, and with whom she had worked from day to day. Here is what this mother said: ‘In the District Court of Jefferson County, State of Oklahoma, Plaintiff, v. Hattie Holcomb, Defendant. Petition for change of venue. Comes now the defendant, Hattie Holcomb, and moves the court that she be granted a change of venue in said cause, and that -she be sent to some other county in this judicial district for trial, and for reason states.’ Now, mind you, she lived in Jefferson county, this mother who prays and attends meeting and has standing in the Baptist Church comes and says when she is charged with crime that she wants to be taken from the neighborhood in which she has prayed and in which she has worked for the following reasons: Now listen to these reasons. Counsel said: ‘Stanley will call your attention to this. I will forget lots of things and he will call your attention to it.’ He says she has prayed, and that she is a mother, and that she has fellowship in the Baptist 'Church, and that she is -innocent. Here is what she said. ‘Been living down there 15 or 20 years.’ Suppose your wife was arrested for crime out in your community, and when she was 'haled into court, and when the charge was brought up against her she would swear, ‘I have 'lived here for 20 years, and demeaned myself like a Southern lady, but still I can’t get justice here in the county where the crime was committed.’ You know that if you were to tell me that as a juror that my wife had •been living over 20 years and prayed and paid the preacher and demeaned herself like a lady ought to, and then she came up and said, ‘I can’t get a fair trial here,’ what would I think? What did you want to do it for? You lived down there 15 years, paid the preacher, and prayed to God for mercy for the conversion and salvation of your husband — all of this had been done — and she got up and said, ‘Great God Almighty, I can’t get a fair trial down here where I was put down by Him who controls the destiny of the world.’ That within itself ought to be enough for this jury to write a verdict of guilty. .Why, Great God! let’s apply the rule of common sense. Just say, his honor is not here, and the county attorney not here, say the woman was gone with her baby, and there was a man here in her stead, and say you have lived'in a community 15 years and been a good man and paid the preacher and paid your debts, and say that a wrongful charge had been brought against you and you .were innocent; would you move it to another county to be tried, where you didn’t know a man, woman, or child; would you do it? Now, that is all tommyrot, and when my friend Bridges, who is a fine, elegant lawyer, said: ‘This is a powerfully good woman; she has been a praying pillar in the church for 15 years’; but still when she was charged with crime she swore she couldn’t get a fair and impartial trial. You ought to apologize to .this court. She swore she could not get this fair and impartial trial. Let’s see what her reasons were.” . .

Here counsel reads to the jury defendant’s affidavit for a change of venue. He then proceeded to enlarge upon the theme, concluding as follows:

“It would be a sad commentary upon the motherhood of the state of Oklahoma if they lived in a community for 15 years and charged with a crime and they were innocent, if the mother would make an affidavit that she wanted the case to be carried to your county of Stephens, where she had not established a reputation, and where they didn’t know anything about her acts; would you want your mother or wife to do that?”

It is hardly necessary .to say that the character and course of argument indulged in by counsel for the state was grossly improper and highly prejudicial to the substantial rights of the defendant. We think it was such a palpable abuse of the privilege of counsel as, without a disregard of all rules governing the fair administration of justice, cannot be excused. The defendant, as was her constitutional right, applied for a change of venue, and 'it was granted. Her affidavit for change of venue was no part of the evidence in the case, and should not have been read to the jury or referred to in any way, and counsel went beyond the legitimate scope of all argument by thus commenting on facts not in evidence. Defendant was entitled as of right to have the question of her guilt determined solely upon the evidence, adduced upon the trial, and such argument, if it could be called argument, should not have been tolerated for a moment. The cases uniformly hold that the proceeding upon an application for a change of venue in a criminal case are inadmissible in evidence against the accused. In State v. Phillips & Ross, 24 Mo. 475, it appeared that the attorney for the state read to the jury the application for a change of venue, ' and the affidavits of the defendants in support of it. The court said:

“We see no warrant in the law for reading, against the protest of the accused, the proceedings on the application for the change of venue and the order thereupon. Whether there was a change of venue or not, or whether it was properly awarded or not, was a question with which the jury had nothing to do; and it is surprising that, against the objection of the accused, the attorney for the state should have done such a thing. What motive could there be to such an act but the hope of reproducing that very state of things from which the law in its mercy had rescued the defendants ? It was making the law guilty of the absurdity of awarding a change of venue, and at the same time depriving the party of the advantage expected from it, a fair and impartial trial.”

In Shamburger v. State, 24 Tex. App. 433, 6 S. W. 540, it appeared that the prosecuting attorney read in evidence to the jury the order changing the venue. The court said:

“In this case the fact in issue was the guilt of the defendant of the crime with which he was charged. The order changing the venue in the cause in no way related to that issue. It tended in no degree to prove or disprove said issue. But, notwithstanding its irrelevant character, its recitals were well calculated to prejudice the minds of the jury against the defendant. Hunt county was the home of the defendant, and the county in which the alleged * oifense was committed. The order showed that it was upon his motion that the cause had been transferred for trial from the county of his home; from the people among whom he resided, and who were acquainted with him, to another county, and upon the grounds that in his own county, and among those best acquainted with him and with the facts of the alleged crime, there existed against him such a prejudice as would prevent him from having a fair and impartial trial in said county, and that there existed against him in said county a cotoihination of influential persons, etc. A recital of these facts to a jury would naturally and certainly prejudice their minds against the defendant. A defendant is entitled to a verdict oin competent evidence, and the admission of incompetent evidence, such as might influence a jury, requires a conviction to be set aside, even though there be sufficient legal evidence to sustain it.”

In State v. Smith, 75 N. C. 306, it appeared that the prosecuting attorney in addressing the jury used the following language:

“The defendant was such a scoundrel that he was compelled to move his trial from Jones county to a county where he was- not known.”

The court said:

“The purpose and natural effect of such language was to create a prejudice against the defendant, not arising out of any legal evidence before them; for the jury were precluded from inquiry into the causes or motives for moving the trial, and even from the knowledge whether the trial was moved by the state or the defendant. •* * * In Dennis v. Haywood, 63 N. C. 53, the course here pursued by the solicitor is strongly reprobated. ‘Suppose,’ said the court, ‘a defendant is to be tried for his life, and to escape unreasonable prejudices in one county he removes his trial to another; the fact that he does so may be used to excite the prejudice that he is endeavoring to escape justice, and thus he would escape the prejudices of one cotmmunity to find them intensified in another. Would the court allow the fact to be given in evidence or commented on by the counsel ? Certainly not.’

Counsel for the state insist that for two reasons such references as were made to the petition for a change of venue do not constitute reversible error: First, defendant by her own testimony and the testimony of her. witnesses bad placed her character in issue; second, no objection was made when Mr. Stanley was making this speech. The evidence of defendant’s reputation and previous good character properly referred to a period prior to the commission of the crime charged and not subsequent thereto. It follows that the argument as made was totally irrelevant to any issue upon the trial.

As a general rule, in order to make improper argument available as a ground for new trial, objection should be interposed at the time when the prejudicial statements are made; after verdict it comes too late. However, there are exceptions to the rule, and where counsel for the prosecution abuses his privilege and makes statements of material or prejudicial facts outside the evidence, or appeals to prejudices irrelevant to the case, it is the duty of the court to stop him then and there, and it is error for the court not to instruct the jury to disregard such statements. It is ■the duty of trial courts to see that no injustice is done to a person, accused of crime on trial therefor by the improper conduct of counsel for the state, and to see that such person is tried according to the law and the evidence, and this duty is emphasized in a capital case. This-is due to truth and justice; and is necessary in order to preserve the rules regulating the conduct of trials in courts of justice and the benefit of an impartial trial by an impartial jury to the accused. With the preservation of these rules and the maintenance of this right the courts and their officers are charged, and it must be insisted upon that they are not violated.

' For the reason first stated, the judgment of the district court of Stephens county is reversed, and the cause remanded to that court for further proceedings in accordance with the views herein expressed.

ARMSTRONG and BRETT, JJ., concur.


author: MATSON, J.

text:
    A. R. LAY et al. v. STATE.
    No. A-3162.
    Opinion Filed April 5, 1919.
    (179 Pac. 793.)
    APPEAL AND ERROR — Review—Affirmance. When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken, thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.

      Appeal from District Court, Okfuskee County; John L. Norman, Special Judge.

    A. R. Lay and Jim Whitten were found guilty of the crime of larceny of live stock, and each sentenced to serve a period of two years’ confinement in the state penitentiary, and they appeal.
    Judgment affirmed as to each.

      C. T. Huddleston and J. Hugh Nolen, for plaintiffs in. error.

      S. P. Freeling, Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Okfuskee county, wherein A. R. Lay and Jim Whitten were jointly charged nd convicted of the crime of larceny of live stock, consisting of three heifer jersey calves, the property of one C. J. Jordan, a merchant of the town of Paden in said county. The jury sentenced the defendants each to serve a term of two years in the state- penitentiary, and the court pronounced judgments in -accordance with the verdict of the jury.

The appeal from these respective judgments has been pending in this court since the 6th day of October, 1917. No briefs have been filed in behalf of either plaintiff in error, and no counsel appeared to orally argue the case when the .same was regularly submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the •court, will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment •and sentence, and if no prejudicial error appears, will affirm the judgment.”

In addition to examining the foregoing portions of the record included within rule 9, supra, the writer of this opinion has taken occasion to carefully read the entire transcript otf the evidence in this case. The state relied upon circumstantial evidence to sustain the conviction, and the defense interposed was an alibi. The evidence on behalf of the state and that on behalf of the defendants were directly in conflict, but it is not for this court to substitute its judgment on conflicting theories of fact for that of the jury. Where there is evidence reasonably tending to support the judgment, it is the duty of this court, under the law of this state, to affirm a judgment of conviction in a criminal cause.

The sufficiency of the information is not attacked in this court. It sufficiently charges the crime of larceny of live •stock. The instructions appear to be fair to each defendant; in fact, no error is urged by either in the petition in error 'that any instruction was erroneous. The judgments conform to the charge contained in the information and the '.verdict returned by the jury.

The proceedings in the trial court are regular in every respect, and, no prejudicial error appearing from the record, the judgment is affirmed in accordance with the provisions of mule 9 of this court, supra.

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


text:
    F. E. PITT v. STATE.
    No. A-2454.
    Opinion Filed April 26, 1919.
    (180 Pac. 383.)
    1 CHAMPERTY AND MAINTENANCE. — Restricted Indian Lands —Prosecution. Section 2260, Revised Laws of Oklahoma 1910, defining the crime of “champerty,” does not apply to restricted' Indian lands. Where a person is in possession of lands which' formed a part of the allotment of a member of the Choctaw Tribe- . of Indians, it is necessary for the state to prove in a champerty prosecution that such person is in possession of said lands under-a valid conveyance, made in compliance with the acts of Congress; and the rules and regulations of the Department of the Interior-affecting conveyances by the members of said tribe of Indians.
    2. SAME — Evidence—Directed Verdict. Where there is an entire absence of evidence to show whether the party in possession of' such lands claims title under a void or a valid deed to the same, the prosecution must fail for lack of necessary evidence to sustain the same, and a motion by the defendant to direct a verdict in his-favor should have been sustained.
    3. SAME — Sufficiency of Information. Information examined, and’ held sufficient to charge an offense within the meaning of section 2260, .Rev. Laws of Oklahoma 1910.

      Appeal from County Court, Pittsburg County; S. F. Broum, Judge.

    F. E. Pitt was convicted of the crime of champerty, and sentenced to serve a term of six months in the county jail and to pay a fine of $500, and he appeals.
    Reversed and remanded.

      Carl Monk and Wilkinson & Seott, for plaintiff in error.

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

This is an appeal from the county court of Pittsburg county, wherein the defendant, F. E. Pitt, was convicted of champerty and sentenced to serve a term of six months’ imprisonment in the county jail and to pay a fine of $500. The prosecution is based on section 2260, Rev. Laws 1910, which provides:

“Any person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such prolmise or covenant has been in possession, or he and those by whom he claims have been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and profits thereof for the space of one year before such -grant, conveyance, sale, promise or covenant made, is guilty of a misdemeanor.”

The information is as follows:

“ * * * That F. E. Pitt did, in Pittsburg county, and in the state of Oklahoma, on or about the 10th day of March in the year of our Lord one thousand nine hundred and fourteen and anterior to the presentment hereof, commit the offense of misdemeanor by knowingly, willfully and wrongfully and unlawffully procuring Annie Fulsorn to sell and convey to Rodney Pitt for a valuable consideration a pretended right and title to the following described lands .and tenements in Pittsburg county, Okla., to wit, the south-east quarter of section thirteen (13), township six (6) north, range thirteen (13) east; and the said Annie Fulsorn had not been in- possession of said lands .and tenements or of the reversion and remainder thereof in person or under those by whom she claimed the same, and those undter whom she claimed have not been in possession of said lands and tenements or of the reversion and remainder thereof, and that the said Annie Fulsorn and those under whom she claimed had not taken the rents and profits of said lands and tenelments or of the reversion and remainder thereaffor the space of one year before said sale and conveyance, contrary to -the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Numerous questions are involved for decision in this appeal. Counsel for the defendant, among other assignments of error, contend that- the trial court erred in not directing a verdict for the defendant at the conclusion of the state’s testimony.

It is contended that Annie Fulsom, whom the defendant is alleged to have procured.to make a champertous deed to one Rodney Pitt, was an intermarried citizen of the Choctaw Nation (a fact not disputed by the state). It is also admitted that, before the removal of restrictions as to the alienation of her allotment as a member of the Choctaw Tribe of Indians,, she made a conveyance of that portion of her allotment involved in this prosecution to one Berry Self, and that subsequent thereto the said Berry Self con.veyed these lands to one J. C. Coe, who was in possession of the same, and had been in such possession openly adverse to said Annie Fulsom for the period of over four years prior to the making of the alleged champertous conveyance bv the said Annie Fulsom to Rodney Pitt. It is intimated that after the removal of her restrictions the-said Annie Fulsom made another conveyance of these particular lands to Berry Self, prior to the time that the said land was conveyed by her to Rodney Pitt; but, if any such second conveyance was made, the state did not -show the execution of .any such deed to Berry -Self, neither does ihe record show whether Berry Self conveyed these lands to J. C. Coe by warranty or quitclaim deed.

This case was prosecuted by the representatives of the estate upon the theory that it was immaterial whether the said J. C. Coe was in adverse possession of said land under a void or a valid deed from Annie Fulsom, and. in support of the contention of counsel, the decisions of the Supreme Court in the following cases are cited: Huston v. Scott, 20 Okla. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721; Miller v. Fryer, 35 Okla. 145, 128 Pac. 713; and others t& like effect. In the case of Miller v. Fryer, the Supreme Court held:

“By reason of section 2215, Comp. Laws 1909, a deed, conveying real estate, executed by a grantor at a time when he was hot in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises; and this rule applies where the grantor is an allottee of the Chickasaw and Choctaw Tribes of Indians upon whose power to alienate his allotment the restrictions have been removed prior to the time of the execution of the deed, and where the person in possession originally obtained possession and claims title to the conveyed premises by virtue of a void deed executed by the allottee before the removal of restrictions upon his power to alienate his allotted lands.”

At the time of the trial of this case, the foregoing authorities constituted the prevailing opinion of the Supreme Court of this state concerning the application of section 2260, supra, to deeds made by Indian allottees prior to the removal of restrictions, and justified the holding of the trial court in this case that it was immaterial whether the said Coe was in possession of this land under a void or valid deed executed by the said Annie Fulsom so long • as the said Annie Fulsom had not been in possession of said premises or had not taken the rents and profits of said land for the space of one year before the execution of the deed to Rodney Pitt, and the said F. E. Pitt with knowledge of these facts procured her to execute such deed to Rodney Pitt.

However, the doctrine established by the Supreme Court in the foregoing cases and relied upon by the state in this trial has been expressly renounced by that court, and the cases sustaining the same overruled in the case of Murrow Indian Orphans’ Home v. McClendon, 64 Oklahoma, 166 Pac. 1101, in which it is held:

“Our statute on champerty does not apply to restricted lands. Congress has reserved the exclusive right to control the sales and prescribe the conditions under which title to these lands may pass. And a conveyance of such lands, made in compliance with the acts of Congress and the rules and regulations of the Department of the Interior, carries title to such lands, as against the world.”

The doctrine established in the Murrow Orphans’ Home case was reaffirmed in the case of Miller et al. v. Grayson et al., 64 Oklahoma, 166 Pac. 1077. So that it is apparent that whatever may have been believed to be the application of section 2260, supra, to restricted Indian lands at the time this case was tried, it is well settled at this time that said section has no application to deeds made by restricted Indians, and that, this being a conveyance by Annie Fulsom, a member of the Choctaw Tribe of Indians, and the said Coe being, in possession of said lands by virtue of a conveyance by the said Annie Fulsom, it was necessary for the state to show that said Coe was in possession under a valid conveyance, i. e., one made by Annie Fulsom when under no legal restrictions by federal law to make the same; otherwise, section 2260, under the prevailing opinions of the Supreme Court, would have no application, and the prosecution must fail.

The question of whether the said Coe was in possession of said lands under a valid conveyance by the said Annie Fulsom to Berry Self was a question of law for the determination of the trial court, and, before this prosecution would lie in said court under section 2260, said fact had to be established, and the failure of the state to introduce any evidence to show that the said Coe was in possession under valid conveyances rendered the evidence, wholly insufficient, and the demurrer to the evidence by the defendant or motion to direct a verdict in his favor at the conclusion of the state’s case should have been sustained by the trial court.

As it is not apparent whether the state in another trial will be able to establish whether the deed under which J. C. Coe claimed title to said lands was made after the removal of restrictions upon alienation, and at a time when there was no legislation by Congress in force prohibiting the execution of the same by the said Annie Fulsom, the question of the sufficiency of the information to charge an offense is also referred to; and, without entering into any lengthy discussion of this question, the conclusion is reached that the allegations of the information are sufficient and do allege an offense within the meaning of section 2260, Rev. Laws 1910, supra.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for further proceedings in accordance with this opinion.

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


text:
    JOE PROCTOR et al. v. STATE.
    No. A-2474.
    Opinion Filed April 26, 1919.
    (180 Pac. 251.)
    INTOXICATING LIQUORSb — Violation of Prohibitory Liquor Law— Sufficiency of Evidence. Evidence examined, and held sufficient to sustain the judgment of conviction against each of plaintiffs in error.

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

    Joe Proctor, R. A. Waller, and Will Steamboat were jointly tried and convicted of a violation of the prohibitory liquor laws, and they appeal.
    Affirmed.

      Ledru Guthrie, for plaintiffs in error.

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

There is but one assignment of error. Plaintiffs in error rest their entire 'ground for reversal upon the proposition that, the evidence is insufficient to sustain the conviction.

They were jointly charged with having the unlawful possession of intoxicating liquor in Oklahoma county, on or about the 17th day of January, 1915, with intent to sell the same. Upon a joint trial, each of the defendants was found guilty. The defendant Joe Proctor was sentenced to serve a term of six months’ imprisonment in the county jail and to pay a fine of $500, each of the other defendants being sentenced to three months’ imprisonment and to pay a fine of $250.

The evidence in this case is sufficient to authorize the jury to eonvict each of the defendants upon the theory that the defendant Joe Proctor was the proprietor of a drug store at 205 North Broadway, Oklahoma City, Okla., which he was conducting as a “booze joint,” and in which drug store and “the plant” connected therewith a large quantity of whisky and other liquors were found; the defendant R. A. Waller acting as a clerk and dispenser of the liquors over a soda fountain in said drug store, and the defendant Will Steamboat acting as a negro porter in said drug store. On the day of the raid, the officers found Waller in the act of shaking up a mixed drink of whisky. He was behind the soda water counter, and, when approached, dumped the contents of the shaker in the sink. Bill Steamboat was also behind the counter, and, when the officers approached, rushed to the rear end of the store and behind the prescription case. The officers heard a noise like broken glass, and rushed ‘behind the prescription case, only to find the defendant Will Steamboat there and a broken bottle on the floor, the liquid contents of which smelled like whisky; also behind the prescription case were found about 100 empty whisky bottles with the labels on them. In a plant upstairs, a beaten path to. which, through the dust on the floor, led from the drug store, were found about 4 dozen quart bottles of whisky, some wine, and gin. The brands on these bottles of whisky tallied with that on the empty bottles found behind the prescription case in the drug store.

Immediately after the officers entered the building, the defendant Proctor went upstairs, and in a short time returned to the drug store. At the request of one of the officers, Proctor opened the iron safe 'belonging to the drug store, which was worked by a combination lock.

It is clear from the evidence on the part of the state, standing uncontroverted and uncontradicted, that this alleged drug store at 25 North Broadway, at the time of the raid testified to in this case, was nothing but a “booze joint,” operated by the defendant Proctor, in which whisky and other liquors were possessed by him at the time, and in which the defendants Waller and Will Steamboat aided and abetted him in such possession for the purpose of selling sattne in violation of the laws of this state.

The evidence is clearly sufficient to sustain the separate convictions of each of these defendants, and the judgments as to each are affirmed.

Mandate forthwith.


text:
      D. M. MARTINDALE v. STATE.
    No. A-2726.
    Opinion Filed April 26, 1919.
    (180 Pac. 385.)
    1. INJUNCTION — Temporary Injunction — Violation and Punishment. Section 13. chapter 70. Session Laws 1911, construed, and held to authorize a trial court at the commencement of the action to issue a temporary order of injunction. Where the trial court has jurisdiction of the original subject-matter and obtains jurisdiction of tlie parties to the injunction proceedings, and issues such temporary order of injunction, it has jurisdiction to punish by contempt proceedings those, parties guilty of willful disobedience of the order of injunction.
    *- APPEAL AND ERROR — Review—Ruling on Challenged Juror— Specifying Error. An assignment of error based upon the court’s action in overruling a challenge for cause to an individual juror will he of no avail on appeal unless there is an affirmative showing that the challenge for cause was well founded, and that the defendant was compelled to accent such disqualified juror by reason of having theretofore exhausted all of his peremptory challenges. Also (he acceptance of such, juror by waiving a peremptory chai-lunge as to liim will render sncli an assignment of error unavailing.
    3. EVIDENCE — Judicial Notice — Personnel of Officers of Court of Record. A court of record takes judicial notice of'the personnel of its officers.
    4. CONTEMPT — Punishment—Verdict—Amendment. In a proceeding for a contempt'of court., tlie punishment is left by the Legislature to he inflicted by the trial judge. The words '‘unable to agree on penalty,” appearing in the verdict of the jury (hiding the defendant guilty of contempt, did not constitute a prerequisite to a valid verdict. The action of the trial court in amending said verdict by placing such words ahoye the names of the jurors who signed such verdict by and with the consent of such jurors before the verdict was received and fill'd with the clerk, instead of leaving such words below the names signed to the verdict, did not constitute error.

      6 CONTEMPT — Appeal and Error — Modification of Judgment— Statute. Under the provisions of section 6003, Rev. Laws 1910, this court has power to modify a judgment appealed from by reducing tlie punishment to conform to the statutory pro visions and to best subserve the ends of justice. For reasons stated in body of opinion, the judgment is modified, and, as modified. is affirmed.

      Appeal from District Court, Tulsa County; Conn Linn, Judge.

    D. M.' Martindale was convicted of the crime of indirect contempt of court, and his punishment assessed at a fine of $1,000 and imprisonment in the county jail for a period of six months, and he appeals.
    Modified and affirmed.
    Plaintiff in error, D. M. Martindale, a practicing attorney at-law of the bar of Tulsa county, Okla., was found guilty in the district court of Tulsa county of the crime of indirect contempt, and sentenced to pay a fine of $1,000 and to serve six months in the county jail.
    The said court, on the application of the county attorney of said county asking a temporary injunction against E. E. Chartier and Walter Miller, and against a certain building located in the city of Tulsa, known as the Joplin Drug Store, issued at the commencement of the action said temporary injunction on the allegations of a verified petition that said Chartier and Miller were operating a liquor joint and gambling house on said premises, and asking in connection with the granting of said temporary injunction against the operation of such unlawful enterprise, that said premises be placed in the possession of the sheriff of said county, and securely padlocked to prevent the use of said premises for the purpose of unlawful traffic in intoxicating liquor and to prevent gambling therein.'
    At the time of the issuance of said temporary injunction, summonses were also issued and served on the defendants Chartier and Miller to appear within the -time prescribed by law to answer said petition, which said summonses were served upon the defendants, together with a copy of the temporary writ of injunction, upon the day that said action was commenced, to wit, the 22d of January, 1916, and a rule issued against said defendants to show cause, if any, why upon final hearing, said injunction should not be made permanent.'
    On the 16th day of February, 1916, the defendants Chartier and Miller, through their attorney, Luther James, Esq., filed a motion to modify the order of injunction theretofore issued by setting aside so much thereof as directed the sheriff to take charge of the property and lock the door of the house, because said injunction was issued directing the sheriff to take charge of said property and lock the door without a hearing and upon an ex parte application, and the court had no jurisdiction or authority to enter said order until a hearing was had and determination made that a public nuisance existed, the order to that extent being alleged to be void. On the 23d day of February, 1916, the said defendants Chartier and Miller appeared. and filed a demurrer to the petition for a writ of injunction, alleging that said petition did not state facts sufficient to constitute an action in favor of the plaintiff and against the defendants.
    Thereafter, on the 31st day of March, 1916, the county attorney (without any action having been taken upon the defendants’ motion to modify or upon the demurrer to the petition) filed in said case an application and showing asking that the defendants Chartier, Miller, and John Doe, whose real name was unknown to the informant, 'be cited to show cause, if any, why they should not be held in contempt of court for violating said temporary injunction by removing the locks and notices from said premises and taking charge thereof, and operating same in violation of the temporary order of injunction. In pursuance of said application, an attachment was issued, directed to the sheriff of Tulsa county, to attach the bodies of E. E. Chartier, Walter Miller, and J. W. Appleman, and bring them instanter before the judge of the district court, which attachment was served on the 31st day of March, 1916, by arresting the said Chartier, Miller, and Appleman and bringing them before the court.
    On the 7th day of April, 1916, the said defendants Chartier, Miller, and Appleman, through their attorney, Luther James, Esq., filed a demurrer to the showing and complaint to show cause why they should not be held in contempt of court, which demurrer was based:
    (1) “That the court was without jurisdiction to make that part of the order of injunction which required the sheriff of Tulsa county to lock up the Joplin Drug Store before there was a judgment entered in said cause”; (2) “that said order of injunction upon which these proceedings are predicated is void, and especially that part of it' which required said sheriff to lock said building”; (3) “because there is not sufficient complaint filed herein to put defendants on trial for contempt”; (4) “that the allegations made in the complaint and proceedings filed herein do not contain facts which constitute the offense of contempt.”
    And thereafter, on the 20th day of April, 1916, the defendants Chartier, Miller, and Appleman filed an answer to the citation for contempt in two paragraphs: (1) A general denial of guilt of any of the acts charged in the citation; and (2) an answer in the following language:
    “They further allege that they did not violate said injunction, which was in force against the room at No. 2 North Main street known as the Joplin Drug Store, and that they did not remove the lock from the door of the same; that the defendant W. R. Miller employed D. M. Martindale, an attorney of this bar, to look after the matter of having the said injunction modified so as to permit the owners of the store to enter the same; that the said W. R. Miller was informed by the said D. M. Martindale that he would secure a modification of said injunction so as to enable the said Miller to enter said store, and that the said D. M. Martindale informed the said defendant Miller that his fee for doing the same was $150, $75 of which he demanded at once, and $75 to be paid as soon as said injunction was modified. The said defendant W. R. Miller states that he paid the said D. M. Martindale $75 in cash, and thereupon he believed in good faith that the said D. M. Martindale filed proper proceedings in court to have said order modified so as to enable him to legally open said store; that shortly thereafter the lock was removed from the said door by the said D. M. Martindale, this defendant has since been informed, but this defendant was unaware of the manner in which said lock was removed at the time he entered the said store; that he in good faith believed that the said D. M.' Martindale had secured an order of this court, modifying said injunction so as to enable him and others to enter said store; that upon this belief, he paid the said D. M. Martindale the other $75 which he promised him as his fee for the said services, and files herewith as a part hereof the receipts and checks showing said payments; that neither of these defendants entered said store in willful disobedience of said injunction, but they did so in good faith, believing that-the said injunction had been modified by an order of this court, so as to enable them to legally enter said room, and had they not received the assurance from the said D. M. Martindale that the said lock had been removed from the said door, and that the same was duly and legally opened, this defendant would not have entered said store; that he did this upon the assurance of his said counsel, .D. M. Martindale, that everything was all right, and that the court had'acted in the premises, and that the sheriff had removed the lock from the door, and in good faith paid said attorney’s fee to said D. M. Martindale for said services; that these defendants have at all times had regard for the mandates of this court, and have at no time wished to violate the letter or spirit of any injunction issued by this court, and have at no time willfully done so.
    “Wherefore said defendants ask that said citation be quashed, and they go hence without day.
    “Luther James, Attorney for Defendants.”

    On the 20th day of April, 1916, the county attorney of Tulsa county filed a reply to said defendants’ answer, denying each and every allegation thereof, and on the same day also filed an information and complaint, charging said D. M. Martindale with indirect contempt of court, the substance of the allegation of said information being as follows :
    After setting out in substance the matters of inducement leading up to the filing of the information, such as the comDlaint against Chartier and Miller, the issuance of the temporary order of injunction, the return made to the same by said Chartier and Miller, including the answer to said temporary writ of injunction, in which defendants ■denied any intention to violate said injunction, and blaming said D. M. Martindale as heretofore set out; also alleging that the temporary order of injunction had not at that time been either modified, vacated, or set aside, and that the said Martindale-knew that said injunction had not 'been modified or set aside, and for said reasons the county attorney 'believed that the said Martindale wrongfully, unlawfully, and in contempt of - court did remove and procure to be removed the padlocks and notices on said building, and did wrongfully and unlawfully in contempt of court open up said building while the same was under the order of court 'by reason of said temporary injunction, and, for the reason that the parties were placed back in possession of - said premises by said Martindale informing them that the tem'-porary injunction had been lifted therefrom, asked a citation to issue against said D. M. Martindale to show cause, if any, why he should not be held for contempt of court.
    On said 20th day of April, 1916, an attachment was issued to the sheriff to.'bring the said D. M. Martindale be-’ fore the court to answer for contempt, and such attachment was executed on the 21st day of April, 1916, by bringing said D. M. Martindale before said court.
    On the 22d day of April, 1916, the defendant, Martin-dale, filed his demurrer to the said information for the following reasons:
    “First. That the same was issued by the court without proper and legal showing and upon an ex parte showing under petition verified by the county áttorney of Tulsa county, according to belief, said petition not being supported by the affidavit of any person who pretended or knew any of the material facts alleged in said petition, without which said order should not have been granted 'by the court.

      “Second. That'said order of injunction was rendered and granted by the court without a judgment having first been rendered that the premises conducted by the defendants as alleged in said petition was a nuisance and was being conducted in violation of law, as by law required in such case-made and provided.
    “Third. That said order of injunction was granted in violation of the Constitution of the United States, of the Constitution of the state of Oklahoma, and the express provision of the statutes of the state of Oklahoma under which these proceedings were instituted.
    “Fourth. That said order of injunction as granted was an unlawful invasion of the constitutional property rights of the defendants in said action, and the same did not constitute the due process of law required before said order could issue.
    “Fifth. That said order being void ab initio, this respondent could not be in contempt for a violation thereof.
    “Sixth. That said information against this respondent fails to state a cause of action.”
    After the overruling of the foregoing demurrer, the defendant filed a verified answer as follows:
    “Now comes D. M. Martindale, respondent in the above and foregoing cause, and, for his answer to the information charging him with a violation of the order of injunction heretofore entered herein and praying that he be punished as for a contempt of this honorable court, states that he specifically denies each and every material allegation in said information contained, and requires off the plaintiff strict proof thereof. That upon a hearing hereof the respondent may be discharged and go hence without day.”
    A jury trial was afforded defendant, which resulted in a plurality verdict of guilty, signed by nine members of the jury. The evidence upon the trial shewed that the defendant. had been paid a fee of $75 in advance to appear in court and procure the.dissolution of the temporary injunction against said premises; that after said preliminary fee had been paid him defendant proceeded to said premises and undertook to dissolve the injunction by forcibly removing the padlock and tearing off the notices of said injunction theretofore posted on said building by the- acting sheriff. After having done this, the defendant notified Chartier and Miller that the injunction against said building “had been lifted,” ánd that they were at liberty to occupy same and proceed with their business, which they accordingly did, and which action on their part resulted in this contempt proceeding.
    The defense interposed is not that the defendant did not tear down the notices posted upon said building in pursuance of the court’s temporary injunction, or that he did not remove or procure the removal of the padlock upon the door of said premises, or that he did not advise Miller and Chartier to again take possession of said premises, all in violation of said court’s order, but it is contended that the proceedings upon which said temporary injunction was issued were void ab initio, and therefore it was no contempt on the part of this defendant to proceed to said premises, take a sledge hammer, or use whatever force was necessary to remove the padlock from the door and the notices from the building, and place said former occupants back therein, without applying to the court for a dissolution of said injunction.

      James H. Sykes, E. G. Wilson, and D. M. Martindale, for plaintiff in error.
    N P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). The legal propositions raised by this appeal will be considered in the order presented in the brief of counsel for plaintiff in error.

The first assignment of error attacks the sufficiency oif the information upon which defendant was tried, and goes to the very foundation of the contempt proceeding, in that it is claimed by the defendant that the court is without authority to cite or punish a person for contempt in violating a temporary order of injunction issued under section 13, chapter 70, Session Laws 1911, in that there must have been a judgment finding the place to be a nuisance, in that it was a place where persons congregated and resorted for the purpose of drinking intoxicating liquors, etc., preliminary to the issuance of the temporary injunction, and that the information, failing to allege that such a judgment had been rendered upon notice to the parties affected, was insufficient to charge the crime under the provisions of said section 13 aforesaid. That portion of said section 13, supra, applicable to the questions involved in this case, reads as follows:

“All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any kind or description' whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of' drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of record finding such place to be a nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof. * * * The Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and ho bond shall be required.”

The order of injunction which the defendant was charged with violating was a temporary injunction issued at the commencement of the action, and issued pending an action for a permanent injunction on the grounds that the codefendants, Chartier and Miller, were maintaining a public nuisance on said premises in operating a whisky joint thereon in violation of law.

In the opinion of this court, the information states facts sufficient to constitute grounds for contempt of court against this defendant. Matters of induceiment leading up to the issuance of the order of temporary injunction are clearly and distinctly stated in the information, as well as acts relied upon as being in violation of said order of injunction and contemptuous to the court.

It is provided by section 13, chapter 70, Session Laws 1911, among other things, “The injunction shall be issued, at the commencement of the action,” and without bond,, either on relation of the county attorney or Attorney General. In Smith et al. v. State ex rel. Gallagher, County Attorney, 12 Okla. Cr. 513, 159 Pac. 941, this court held in effect that—

A temporary injunction “embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is either made permanent or discharged altogether.”

Section 10, article 7, of the Constitution gives' the district court authority to issue writs of injunction. Section 4872, Revised Laws 1910, provides as follows:

“Where the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay.”

Section 4881, Id., in part provides as follows:

“‡ * * An injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance. The petition therefor shall be verified -by the county attorney of the proper county, or by the Attorney General, upon information and belief, and no bond shall be required, but the county shall, in all other respects, be liable as other plaintiffs.”

The foregoing sections, being applicable to the procedure generally for obtaining a temporary order of injunction, are applicable in this proceeding. The record' shows that the order of injunction was served upon each party enjoined in the proper manner and return thereof made, as provided in section 4872, supra. The trial court, having authority to issue a temporary order of injunction “at the commencement of the action and without' ■bond,” in a suit on the relation of the county attorney, and having obtained jurisdiction of the persons of the defendants enjoined in said action by service of said order of injunction on them as required in section 4872, supra,, obtained jurisdiction both of the parties to the action and the subject-matter thereof, and, subsequent to such jurisdiction having been obtained, the court had the inherent power to try and punish contemnors for violation of such order. Farmers’ State Bank of Texhoma v. State, 13 Okla. Cr. 283, 164 Pac. 132, L. R. A. 1917E, 551.

The questions, therefore, of the sufficiency ctf the information and of the lack of jurisdiction of the court to. punish defendant for contempt of such order are decided adversely to the contentions of counsel for defendant.

It is next contended that the court erred in excusing the juror H. E. Earne for cause at the instance of the county attorney. The court excused the juror after he had stated that he had at one time employed defendant, Mar-tindale, as an attorney, but that such matter would not affect his verdict. The juror was excused over the objection and exception of the defendant. We think the matter of excusing this juror Was within the discretion of the trial judge. Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124. We see no abuse of discretion in this instance, and the action of the court in exercising his discretion by excusing such juror is not such prejudicial error as would justify a reversal of this conviction.

It is next contended that the court erred in overruling a challenge for cause made by the defendant against the juror Miller. It is contended in this connection that the juror Miller stated on his voir dire examination that he did not believe the court could make a void order, and that one is bound to carry out every order of the court as long as the same stands unreversed. The questions propounded to the juror on his voir dire examination presented for the juror’s consideration a legal test as to his knowledge of the distinction between orders olf a court which are void and those which are voidable only, and the questions were to a large extent involved, and were not questions that pertained to any of the statutory grounds for the disqualification of a petit juror. In view ■of the fact that there is no showing that the defendant exhausted all his peremptory challenges to the trial jurors and was compelled for that reason to accept the juror Miller, we see no merit in this assignment of error.

An assignment of error based upon the court’s action in overruling a challenge for cause to an individual juror will be of no avail unless there is an affirmative showing that the challenge for cause was well founded, and that the defendant was compelled to accept such disqualified juror By reason of having theretofore exhausted all of his peremptory challenges. Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341.

It is next contended that the court erred in refusing to permit the defendant to prove that James Wooley was the duly qualified and acting sheriff of Tulsa county at the time of the service of the temporary injunction, and that the deputy executing the writ was without authority because not appointed or acting under said Wooley.

The record shows that summonses and the temporary writ of injunction were each directed to James Patton, acting sheriff of Tulsa county, and returns on said summonses and writ show service on the defendants by James Patton, sheriff, by Walter Overby, deputy. It is not necessary to enter into a lengthy discussion on the merits •of this assignment. It is sufficient to say that this was not a proceeding to try the title to the office of sheriff of Tulsa county. It will 'be presumed in this case that the trial court knew, at the time off the issuance of the summonses and temporary ■ writ of injunction, who was exercising the functions of the office of sheriff of that county, an officer of the court charged specifically with serving its writs and processes. 15 R. C. L. 1106, sec. 37.

It is next contended that the court erred in amending the verdict of the jury after it was returned into open court, and that the verdict as amended was never signed by the jury. The record relative to this assignment of error shows that the jury returned a verdict in the following form:

“We, the jury, drawn, impaneled and sworn in the above-entitled cause, do on our oaths find the defendant D. M. Martindale guilty as charged on the information herein.

H. B. Hamilton, W. K Shepard,

E. R. Giddings, S. P. McBirney,

Charles E. Graham, E. Uhrig,

Frank Sowers, B. E. Horrigan,

“J. E. Miller.

“Unable to agree on penalty.”

The alleged informality in the foregoing verdict goes simply to the position in which the words, “unable to

agree on penalty,” appeared in said verdict. Such statement in the verdict did not constitute a prerequisite to a valid verdict in a contempt case, because the jury had nothing to do but determine the question of the guilt or innocence of the defendant. The punishment in such cases is left by the Legislature to be inflicted by the trial court. Farmers’ State Bank of Texhoma v. State, 13 Okla. Cr. 283, 164 Pac. 132.

It is contended that the court erred in giving instruction No. 2, wherein the jury were told that in the event of finding the defendant guilty, they might fix his punishment, etc. Any error in the giving of this instruction became harmless, because the punishment was not fixed in the jury’s verdict.

It is also contended that the court erred in refusing to give the following requested instruction, which action was excepted to at the time by the defendant, to-wit:

“The jury are instructed as a matter of law that the order oif injunction heretofore entered in this cause, being granted by the court without the necessary judgment of the court provided by the statute, is a void order, and the respondent herein cannot be in contempt of such order.”

The argument advanced is that the court had no jurisdiction to issue at the commencement of the action an order of injunction, and at the same time take possession of the property; that before such action could be taken there must have been a judgment of a court of record finding such place to be a public nuisance in that it was a whisky joint.

When section 13, ch. 70, Session Laws 1911, is construed in its entirety, there can be no doubt in the opinion of this court, as heretofore indicated in this opinion, that said section authorizes the trial court at the commencement of the action to issue a temporary order of injunction. Perhaps the action of the court in padlocking the building and placing same in the hands of the sheriff before any judgment declaring such place to he a public nuisance had been rendered was improvidently granted and irregularly obtained, but the order of injunction was not void for that reason, and therefore the cases cited by counsel for the defendant are hot applicable to this case; but the trial court, having jurisdiction of the original subject-matter, and having obtained by the issuance and service of summons jurisdiction of the parties to the injunction proceeding, and having a right under the statute to issue a temporary injunction at the commencement of the action without notice and without bond, 'both against the parties and the premises, its action in padlocking the premises and putting same in the hands of the sheriff before judgment did not have the effect of depriving the court of its jurisdiction theretofore obtained to issue the temporary, order of injunction.

The rule applicable in this case is stated in Ruling Case Law, vol. 6, p. 505, sec. 17, as follows:

“While courts may enforce observance of their orders and injunctions generally, by recourse to contempt proceedings where these are violated, it is a general rule that no court can punish as for a contempt the disobedience of an order made without jurisdiction. The respondent may Question the order which he is charged with refusing to obey, only insofar as he can show it to be absolutely void; he cannot be heard to say that it is merely erroneous, however flagrant it may appear to be, since judgments of courts cannot be attacked collaterally for mere irregularities. Hence the mere fact that an injunction was not justified by the facts of the particular case or was erroneous or improvident in any way is no defense, as the party has his remedy by appeal, and until vacated it binds him ; and it is .enough that the case belongs to a particular class, of cases to which jurisdiction attaches.”

We find no error, therefore, in refusing to give the requested instruction heretofore set out, and likewise the alleged error in giving instruction No. 4, involving the jurisdiction of the trial court to issue the temporary order of injunction, is not meritorious.

In assessing the punishment, the trial judge sentenced defendant to pay a fine of $1,000 and to serve six months in the county jail. The punishment for this offense is provided by section 18, chapter 70, Session Laws 1911, as follows:

“Any person violating the terms of an injunction granted in such proceeding, shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment.”

The punishment assessed, therefore, by the trial judge was excessive in that the maximum fine which may be imposed is not more than $500, and the court imposed a fine of $1,000. That portion o'f the sentence providing for confinement in the county jail for a period of six months, however, is the maximum of imprisonment fixed by said statute.

Under the provisions of section 6003, Revised Laws 1910, this court has power to modify the judgment appealed from. A careful examination of all the facts and circumstances surrounding this contempt, and the punishment imposed therefor by the trial judge, convinces this court that the ends of justice would be best subserved by modifying the judgment to provide a fine off $500 and imprisonment in the county jail for a period of 30 days.

For the. reasons stated, the judgment of the, district court of Tulsa county finding the defendant, D. M. Mar-tindale, guilty of indirect contempt of said court is modified by providing a fine of $500 and imprisonment in the county jail for a period of 3 days, and, as thus modified, the judgment is affirmed.

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