text:
      Ex parte ANNA BURLESON.
    No. A-2885.
    Opinion Filed January 9, 1917.
    (161 Pac. 606.)
    Application of Anna Burleson for writ of habeas corpus.

    Writ allowed.

      J. D. Chastain, for petitioner.

      B. D. Shear and Frank Watson, for respondent.
   PER CURIAM.

The petition of Anna Burleson for writ of habeas corpus filed in this court on December 11, 1916, alleges in substance that she is illegally restrained and unlawfully imprisoned in the city jail of Oklahoma City by W. B. Nichols, chief of police, by virtue of a commitment issued on a judgment of the municipal court, wherein the petitioner was sentenced to pay a fine of $99- and costs, and to be confined in said city jail for 30 days, and in default of the payment of said fine be further confined until the same is satisfied as by law provided.

The issue in this case is the same as in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097, and presents. "the same question. For the reasons given in the opinion in that case, the writ is allowed, and the petitioner is discharged from custody.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
      Ex parte JOE KING.
    No. A-2892.
    Opinion Filed January 10, 1917.
    (161 Pac. 1102)
    Application by Joe King for writ of habeas corpus.

    "Writ allowed, and petitioner discharged.

      C. H. Ruth, for petitioner.

      B. D. Shear, Municipal Counselor, and Frank Watson, for respondent.
   PER CURIAM.

This is an application for writ of habeas corpus by Joe King, who alleges that he is illegally restrained of his liberty by the officers of the city of Oklahoma City and is now compelled to work on the highway’s near the city of Luther in .Oklahoma county under some contract arrangement existing between the officers of Oklahoma City and the officers of Oklahoma county* by virtue of a commitment issued on a judgment and sentence of the municipal court of Oklahoma City, wherein he was sentenced to pay a fine of $25 and costs and serve a sentence of ten days in the city jail. On the 18th day of December, 1916, the writ issued, returnable the next day, at which time on the hearing of the case before the court and upon the authority of Ex parte Johnson, ante, p. 30, 161 Pac. 1097, the writ was allowed, and the petitioner was .discharged from custody. .


text:
    STATE ex rel. E. J. LINDLEY, Co. Atty., v. J. C. McKNIGHT, County Judge.

    No. A-2350.
    Opinion Filed January 11, 1917.
    (161 Pac. 1199.)

      Appeal from District Court, Custer County; James R. Tolbert, Judge.

    Action by the State of Oklahoma, on the relation of' E. J. Lindley, County Attorney of Custer County, against.. J. C. McKnight, County Judge. Judgment for defendant, and the State appeals.
    Appeal dismissed.

      E. J. Lindley, A. E. Darnell and R. McMillan, Asst.. Atty. Gen., for plaintiff in error.

      Jas. M. Shackleford, for defendant in error.
   PER CURIAM.

Plaintiff in error and defendant in error have filed in this case their stipulations and joint., motion to dismiss the appeal herein. It is so ordered. Appeal dismissed.


author: DOYLE, P. J.

text:
    GEORGE TOLLIVER v. STATE.
    No. A-2516.
    Opinion Filed May 6, 1916.
    Rehearing Denied January 11, 1917.
    (163 Pac. 130.)
    INTOXICATING LIQUORS — Offenses—Evidence—Sufficiency. In a prosecution for unlawfully conveying intoxicating liquor, the-evidence considered, and held sufficient to sustain the conviction,, and that no reversible error was committed upon the trial.

      Appeal from County Court, Nowata County; F. A. Calvert; Judge.

    George Tolliver was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      H. O. Bland, for plaintiff in error.

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

This appeal is from a judgment of the county court of Nowata county, rendered on the 21st day of April, 1915, upon a verdict convicting George Tolliver, the defendant, of unlawfully transporting -and conveying two quarts and two half pints of whiskey from a designated point in the city of Nowata to another place in said city, and assessing his punishment at imprisonment in the county jail for a period of 90 days and a fine of $225.

The undisputed facts, as testified to by five witnesses, for the state, are that the defendant conveyed the whiskey as charged. There was no testimony offered on the part, of the defense. There are but two assignments of error relied upon for a reversal of the judgment: Insufficiency of the evidence to support the .verdict; and an alleged erroneous instruction. Both are destitute of merit. The evidence is conclusive of the defendant’s guilt, and the record shows that he had a fair and impartial trial, and that no error prejudicial to his rights was committed. It. follows that the judgment should be, and the same is hereby, affirmed.

ARMSTRONG, J., concurs.


author: ARMSTRONG, J.

text:
    GEORGE LEDGERWOOD v. STATE.
    No. A-2577.
    Opinion Filed September 29, 1916.
    Rehearing Denied January 11, 1917.
    (163 Pac. 135.)
    1. APPEAL AND ERROR — Right to Appeal. An appeal to this 'court should not be taken for delay only.

      %. SAME — Affirmance. When a judgment of conviction for misdemeanor is appealed from: a trial court to the Criminal Court of Appeals, the case should be briefed or argued when set. Otherwise the judgment will he affirmed without review.

      Appeal from County Court, Comanche County; R. J. Ray, Judge.

    George Ledgerwood was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      W. C. Henderson and M. T. Perkins, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

George Ledgerwood was convicted at the July, 1915, term in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor with the intent to sell the same, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days. The judgment was pronounced in the trial court on the 31st day of July, 1915. Appeal was filed in this court on the 12th day of November, 1915. No brief has been filed on behalf of the plaintiff in error, and n.o appearance made for oral argument. The Assistant Attorney General filed a motion to affirm' the judgment of the lower court on the ground that the appeal has been abandoned. An appeal should not be taken to the Criminal Court of Appeals for the purpose of delay only. When counsel appeal a case to this court and later conclude to abandon same, a motion to dismiss on behalf of the plaintiff in error should be filed and called to the attention of the court by the person taking the appeal. All appeals should be briefed or argued orally. In misdemeanor cases, unless a brief is filed on behalf of the plaintiff in error, or oral argument made, a judgment of conviction will be affirmed without review.

The motion is sustained. No fundamental error appearing, the judgment is affirmed.

DOYLE, P. J., and BRETT, J., concur.


author: ARMSTRONG, J

text:
    EDWARD B. JUSTUS v. STATE.
    No. A-2447.
    Opinion Filed January 13, 1917.
    (161 Pac. 1177.)
    APPEAL AND ERROR — Escape. Where a defendant has been convicted -and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case. And where a defendant makes his escape from the custody of the law, and 'becomes a fugitive from justice, the appeal will be dismissed.

      Appeal from District Court, Canadian County; John J. Carney, Judge.

    Edward B. Justus was convicted of the larceny of domestic animals, and appeals.
    Appeal dismissed.

      I. H. Lookabaugh and J. N. Roberson, for* plaintiff in error.

      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Geji., and.N. F. Maley, Co. Atty., for the State.
   ARMSTRONG, J

The plaintiif in error was convicted in the district court of Canadian county on an information charging the theft of two mules, the property of one, S. M. Mabry. The judgment and sentence of the court, rendered January 2, 1915, was that he be im- . prisoned in the penitentiary for the term of five years. To reverse the judgment án appeal was perfected by filing in this court, on April 26, 1915, a petition in error with case-made. A motion to dismiss the- appeal has been filed, which, omitting the formal parts, is as follows:

“In this case comes S. P. Freeling, Attorney General, and R. McMillan, Assistant Attorney General, and moves the court to dismiss the appeal herein, for the reason that the plaintiif in error, the said Ed Justus, is not a citizen of the State of Oklahoma, and is out of the jurisdiction of this court, and is at this time an inmate of the penitentiary of the State of Kansas, to which he has been, sent recently on a charge of horse stealing and under a sentence of seven, years’ confinement. As an evidence of these statements concerning the whereabouts of the said Ed. Justus, we file herewith as Exhibit A, making it a part of this motion as much as though the' same had' been copied in the same, a letter from R. H. Hudspeth, record clerk of the Kansas penitentiary, and ask the the court to consider the same. With these facts, which ■ we verily believe to be true, we ask the court to; dismiss this appeal.”

The question presented by the motion to dismiss is the same as that decided in Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515; Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548; Gorrell v. State, 10 Okla. Cr. 697, 143 Pac. 341, and Williams, v. State, 11 Okla. Cr. 33, 141 Pac. 453. In those cases it was held that where a defendant has been convicted and sentenced and perfected an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and where the defendant makes his escape from the' custody of the law, and becomes a fugitive from justice, this court will, on motion, dismiss his appeal.

We are of opinion that plaintiff in error has waived the right to have his appeal in this case, considered and determined. . The appeal is therefore dismissed.

DOYLE, P. J., and BRETT, J., concur.


text:
    JOHN CANNON v. STATE.
    No. A-2555.
    Opinion Filed January 13, 1917.
    (161 Pac. 1178.)
    INTOXICATING LIQUORS — Offenses—Evidence—Sufficiency. In a prosecution for the unlawful selling of intoxicating liquor, the evidence examined, and held sufficient -to sustain the verdict, and that no reversible error was committed upon the trial.

      Appeal from County Court, Blaine County; Ed. Baker. Judge.

    John Cannon was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      I. H. Lookabaugh, for plaintiff in error.

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

On information filed in the county court of Blaine county, charging that he did unlawfully sell one quart of alcohol to one Jess Foutz, the plaintiff in error, John Cannon, was convicted, and, in accordance with the verdict of the jury, was sentenced to be confined in the county jail for 90 days and to pay a fine of $200, and he appeals from the judgment.

As a witness in his own behalf, he testified that the complaining witness- Foutz and the othér two witnesses for the state came to him and asked where they could get something to drink; that they had looked the town over and could not find anything; that he said if they would wait until about 7 o’clock he would see what he could do; that he .went to three different places, and finally got a quart of alcohol and brought it back and gave it to Mr. Foutz, who paid him for it.

Considering the fact that the testimony of the plaintiff in error in his own behalf is conclusive of his guilt, we deem it unnecessary to consider the numerous assignments of error. It is sufficient to say that we fail to see that plaintiff in error suffered any prejudice as to any substantial right or any right whatever by reason of the rulings complained of. So far as appears by the record, he has had a fair and impartial trial.

The judgment appealed from will, therefore, be affirmed.-

ARMSTRONG and BRETT, JJ., concur.'


text:
    T. I. SHARP v. STATE.
    No. A-2561.
    Opinion Filed January 13, 1917.
    (161 Pac. 1178.)
    1. ABATEMENT OF PROSECUTION — Death. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.
    2. FINES — Death—Abatement. Where the defendant,, after having been convicted, appeals from a judgment imposing a fine and imprisonment, and dies pending his appeal from the judgment, the proceedings abate, and the fine cannot be enforced against his estate.

      Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.

    T. I. Sharp was convicted of a violation of the prohibitory law, and he appeals.
    Judgment abated because of death of defendant.

      Redmond S. Cole, for plaintiff in error.

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

The plaintiff in error, T. I. Sharp, was convicted in the county court of Pawnee county of a violation of the prohibitory law, and his punishment fixed at a fine of $50 and costs and confinement for 30 days in the county jail; failing to pay said fine and costs, that he be further so confined until the same are satisfied as by law provided. From the judgment rendered on the verdict he appealed by filing in this court on October 14, 1915, a petition in error with case-made. On September 4, 1916, while his appeal was pending and awaiting decision before this court, he departed this life. His counsel of record have filed a motion to abate the proceedings.

In the case of Boyd v. State, 3 Okla. Cr. 684, 108 Pac. 431, it is said:

“In a criminal action, the sole purpose of the proceedings ■ is to enforce the criminal law and punish the person found guilty of a violation thereof. The personal representative of the deceased is not responsible for the alleged violation of the law by the defendant during his lifetime, and cannot be required to satisfy the judgment rendered against him. It is only the person adjudged guilty who can be punished, and a judgment cannot be ■enforced when the only subject-matter upon which it, can operate has ceased to exist.”

And see United States v. Dunne, 173 Fed. 254, 97 C. C. A. 420, 19 Ann. Cas. 1145.

In a criminal action the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, ,and especially under the judgment therein rendered, have abated, and that the county court of Pawnee county enter its appropriate order to that effect.

ARMSTRONG and BRETT, JJ., concur.


text:
    R. PIAZZI v. STATE.
    No. A-2589.
    Opinion Filed January 13, 1917.
    (161 Pac. 1176.)
    APPEAL AND ERROR — Verdict—Reversal.1 The credibility of witnesses and the weight and value to be given their testimony are questions solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict 'is contrary to law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant -the conviction.

      Appeal from- County Court, Coal County; P. E. Wilhelm, Judge.

    R. Piazzi, was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      West & Threadgill, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

On information filed in the county •court of Coal county, charging that he did unlawfully .sell to one John Russell whiskey, the plaintiff in error was convicted and his punishment fixed at a fine of $75 and 30 days’ confinement in the county jail. Judgment was entered October 14, 1915. It is contended that the evidence is insufficient to support the verdict. The complaining witness, John Russell, testified that he had lived in Coalgate about 18 years and had known the defendant R. Piazzi some ten or twelve years; that he bought whiskey from the defendant two or three times, paying him $1.50 and $1 therefor: Piazzi, as a witness in his own behalf, testified that he had lived in Coalgate 25 years, and that he at no time sold whiskey to the complaining witness John Russell.

After a careful examination of the record we are not prepared to say that the jury was not warranted in finding the verdict returned by them. The credibility of witnesses and the weight and value to be given their testimony are questions solely for the jury’s determination; and to reverse a judgment on the ground that the verdict is contrary to the law and the evidence this court must find as a matter of law that the evidence is insufficient to support a conviction.

. The record fails to show that any objections were made or exceptions taken to the instructions given by the trial court, and we find nothing in the record indicating improper motive or prejudice on the part of the jury.

It follows that the judgment appealed from must be, and the same is hereby, affirmed.

DOYLE, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
      Ex parte T. J. MONROE.
    No. A-2888.
    Opinion Filed January 13, 1917.
    (162 Pac. 233.)
    1. TRIAL — Constitutional Safeguards. .Tbe constitutional rights and legal presumptions and safeguards, thrown around the accused with a view of protecting the innocent are as much a part of the law as the statute which denounces crime and prescribes its punishment. It is only the mob that administers summary vengeance. And if the accused in court could lie stripped of all the constitutional rights and legal safeguards provided by the law to protect the innocent, there would be no difference between such a tribunal and the methods of the mob.
    We must not, therefore, become violators of the law in our zeal to enforce it. For every act of injustice and oppression done under the guise of the law is a blow at the very foundations of the temple of justice.
    2. JURY — Jury Trial — Police Court. Under Bill of Rights, sec.' 20, ithe accused in all 'criminal prosecutions has the right to a trial by “an impartial jury of the county in which the crime shall have been committed.” It is therefore apparent that it was never contemplated by our legal system that police courts should try criminal matters, but only quasi criminal matters, since no provision is made by which a jury “of the county” may be impaneled in such courts. The framers of the Constitution specifically made it possible for justices of the peace to impanel a jury “of the county,” by making their jurisdiction coextensive with the county. They have all the county to draw from, and can draw from all of it, or any part they see fit; but we know of no provision extending the jurisdiction of a police court beyond the corporate limits.

      Tliis, we think, was neither accidental nor an oversight. but was intended by tbe framers -of the Constitution to, as far as possible, insure to the accused the kind of jury designated, namely, “an impartial jury,” and to hedge against the professional juror who would naturally become a “hanger-on” around a police court, to draw his pay and do the behests of the presiding judge of that tribunal, and thus defeat the very purpose for which the jury system was called into existence.
    3. MUNICIPAL CORPORATIONS — Police Courts — Jurisdiction. From every angle and viewpoint it is clear that police counts can only try that class or grade of offenses called petty offenses, which, according to the eqmmon law, may be proceeded against summarily in any tribunal legally constituted for that purpose. And, however convenient it may appear to permit them to try without a jury criminal offenses, in the language of Blackstone, “let it be remembered that these inroads upon the sacred bulwarks of the nation are fundamentally opposite to the spirit of our Constitution, and that, though begun in trifles, Ithe precedent may gradually increase and spread to the utter disuse of'juries in questions of the most momentous concern.”
    4. SAME — Ordinances—Scope Of. A city may pass ordinances against petty offenses that are detrimental to the health, peace, safety, property rights, good morals, or liner sensibilities of its citizens; but the penalties it may impose are limited; hence, if the matter prohibited by a city ordinance is also an offense against the state, the offender may be turned over to the state for prosecution, and cannot plead jeopardy by reason of the penalty imposed by the police court.
    5. SAME — Police Courts — Jurisdiction. The jurisdiction of a court is fixed by what might, under given premises, be done, and not by what actually is done. For instance, if a justice of the peace should itry even a civil case, in which the amount in controversy exceeded his jurisdiction, even if he rendered judgment for -only $5, that fact would not cure the defect or confer jurisdiction; for jurisdiction depends, not on what is done, but on what might be done; and ithe test of the jurisdiction of a police court in any particular case is not what is done, but what, under the ordinance, might be done.
    Application of T. J. Monroe for writ of habeas corpus.

    Writ allowed, and petitioner discharged.

      Albert S. Gilíes, for petitioner.-

      B. D. Shear, Municipal counselor, Frank Watson, Asst. Municipal Counselor, and E. E. Blake, for respondent.
   BRETT, J.

The petitioner, T. • J, Monroe, filed his. petition in this court for a writ of habeas corpus, alleging-that he was unlawfully restrained of his liberty by'W. B„ Nichols, chief of police of Oklahoma City.

The material and admitted facts are that on the 2d day of December, 1916, the petitioner was arrested by a. police-officer of Oklahoma City and charged in the police court of said city with illegally transporting intoxicating liquor; that he was tried and pronounced guilty by the police judge of spid city, without the intervention of a jury; and sentenced under and by virtue of a .city ordinance to 90 days’ imprisonment in the city jail, and to pay a fine of $99. And he insists that under this proceeding he was deprived of his liberty without due process of law, and denied the constitutional right of a trial by jury, and that therefore the judgment and sentence is void.

This presents the identical question passed upon in an opinion by this court in Ex parte Tom J. Johnson, ante, p. 30 (161 Pac. 1097), which fully covers the issue presented by this case. But we write this opinion in response to a request in the brief filed in this case that we make clear the scope and authority of the police court.

We will say first that there is in every community and state three widely divergent sentiments with reference to the enforcement of law: First, there are those who believe" in the enforcement of the law; second, those who do not believe in the enforcement of the law; and, third, those who believe in the enforcement of only a part of the law. The first class believe in the conviction and punishment of the' guilty, but do not lose sight of the fact that the constitutional rights and legal presumptions' and safeguards thrown around the accused, with a view of protecting the innocent, are as much a part of the law as the statute which denounces crime and prescribes its punishment. But the third class, in their zeal to retard crime and punish criminals, overlook this fact, and apparently have no interest in that class of laws, but seek only to invoke the punishment prescribed by statute upon the head of the accused. But this kind of proceeding cannot be called the enforcement of law, for it is only the mob that administers summary vengeance; and if the accused in court could be stripped of all constitutional rights and legal safeguards provided by the law to protect the innocent', what would be the difference between such a tribunal and the methods of the mob? Such a court, instead of being an instrument for the enforcement of the law, would be a means of oppression, and of bringing the law into contempt. We must not, therefore, become violators of the law in our zeal to enforce it. For every act of injustice and oppression done under the guise of the law is a blow at the very foundations of the temple of justice. And under the facts in the case at bar we have no doubt that the petitioner was denied his constitutional rights, and deprived of his liberty without due process of law, and that the judgment and sentence pronounced against him is void.

Section 20 of the Bill of Rights guarantees to every citizen that “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” This is almost the identical language of the Sixth Amendment to the Constitution of the United States; and to disregard this right of the citizen we would also have to override section 7 of the Bill of Rights, which declares that “no person shall be deprived of life, liberty or property without due process of law”; for it is universally held that under the constitutional provisions guaranteeing to the accused the right of trial by jury “a jury is an essential part of every tribunal for the trial of criminal cases,” and therefore essential in such cases to due process of law. This is not a new doctrine, is not an innovation, but has been repeatedly announced and consistently adhered to, not only by many other - courts, but also by the Supreme Court of the United States, the greatest and at the same time one of the most conservative of tribunals. Reynolds v. United States, 98 U. S. 148, 25 L. Ed. 244; Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; American Pub. Co. v. Fisher, 166 U. S. 467, 17 Sup. Ct. 618, 41 L. Ed. 1079; Thompson v. Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; Capital Traction Co. v. Hof, 174 U. S. 5, 19 Sup. Ct. 580, 43 L. Ed. 873; Black v. Jackson, 177 U. S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801; Rassmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 862.

Hence the doctrine announced in Ex parte Tom J. Johnson, supra, which accords to every person accused of crime the constitutional right of a trial by jury, is not, as intimated by counsel, an innovation; but the innovation is that a police court should attempt to assume the jurisdiction of a court of record, and try and convict men of criminal offenses, and sentence them to penal servitude in the chain gangs,'without the intervention of a jury.

•It was ;never contemplated by our judicial system that police courts should have-such jurisdiction;- hence no provision, is made by .which they can impanel a jury. :But we think the very section-.of the Bill.of Rights, (section 20) that-.guarantees- to the. accused -in all criminal. prosecutions a jury precludes the idea of a jury, trial...fn a, police court by specifying that the jury provided for by that section shall be “an impartial jury,” not of the city or jurisdiction in which the case is tried, but “of the county in which the crime shall have been comnjitted.” And this provision, we think, was neither accidental nor an oversight, but was intended by the framers of the Constitution to insure to the accused, as far as possible, the kind of jury designated, namely, “an impartial jury,” and as far as possible .to hedge against the professional juror, who .would naturally become a “hanger-on” around a police court, to draw his pay, and do the behests, of the presiding judge of that tribunal, and thus defeat the' very purpose for which the jury system was called into existence. When the Constitution says in one breath, that in all criminal prosecutions the accused shall have a. right to a trial by jury, and. in the next breath, makes it impossible for a police court to impanel a jury, it is clear that the framers of the Constitution intended to limit the .jurisdiction ■ of .the police court to matters in which a jury was not contemplated. This is not in conflict with the statement in Ex parte Tom J. Johnson, supra, that “* * * • the conclusion necessarily follows that the consti-tütional provisions guaranteeing to the accused the' right-of trial by jury secure the right of. such a trial in the court having original jurisdiction.”.' That statement does not say or mean that the police court has the right to impanel-a jury, but only reduces to an absurdity the claim that it has the right to try criminal offenses; for if in such cases the right to a jury is secured “in the court having" original'jurisdiction,” and the police court has no power to meet the requirements .of that right, then it is clear that it is not the court that the frámers of the Constitution contemplated should have jurisdiction of such offenses.

But counsel insist that chartered cities may by ordinances provide for drawing a jury from the body of the county, but cite no provision of the Constitution or other authority in support of this assertion, and we know of none that will sustain it. The framers of the Constitution specifically made this possible for justices of the peace, by making their jurisdiction coextensive with the county. They have all the county to draw from, and can draw from all of it or any part they see fit, but we know of no provision extending the jurisdiction of a police court beyond the corporate limits.

The framers of our Constitution made such abundant provision for courts in this state to try criminal offenses that they doubtless thought it would never be necessary to call police courts to their assistance; hence they left them to fill the little niche that reason and experience has taught is peculiarly their own. And, however convenient it may appear to permit them to try without a jury criminal offenses, in the language of Blackstone:

“Let it be remembered that these inroads upon the sacred bulwark of the nation are fundamentally opposite to the .spirit of our Constitution, and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.” (4 Blackstone, Commentaries, 349, 350.)

And Mr. Story, that other great exponent of constitutional law, says:

“If the people are enlightened and honest and zealous in defense of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury.” (2 Story, sec. 1785.)

In Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223, Justice Harlan says that no citizen can be put upon trial without a jury—

“except in that class or grade of offenses called petty offenses, which, according to the common law may be pro7 ceeded against summarily in any tribunal legally constituted for that purpose.”

And the Seventh Amendment to the Constitution of the United States provides that:

“In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

Then why and by what higher authority is it that a police judge should be permitted to take more than that from a citizen without a jury, and almost without the semblance of a trial?

It is our opinion, however, that a city may pass ordinances against petty offenses that are detrimental to the health, peace, safety, property rights, good morals, or finer sensibilities of its citizens. But our whole legal system contemplates that the penalties it may impose are limited. Hence it is generally held that, if the offense it has dealt with is also an offense' against the state, the offender may then be turned over to the state, and cannot plead former jeopardy by reason of the penalty imposed by the police court. Why is this? One reason is because it is contemplated that the penalty the city may impose is so small that it is tantamount to no punishment for the offense; that it is so insignificant that it cannot be called jeopardy. . Another reason is that the city and state for certain purposes are regarded as separate jurisdictions, and that the offender has offended against both jurisdictions. But, regardless of the question of separate jurisdiction, if the city could be permitted to assess a penalty commensurate with the gravity of the offense, then no court and no rule of justice would permit the offenders to be punished again for the- same offense. Hence from every angle and every possible viewpoint it seems our whole legal system is constructed around the idea that the police court is the most inferior and the most limited in jurisdiction of all tribunals. And, as has been well said, “all that is required” to solve the problem that has seemed, .to disturb some of our cities since the Tom J. Johnson opinion was announced “is that offenses against, city ordinances be reduced from crimes, to the place' .they formerly occupied, and the place contemplated by our ’ legal system.” ,

Counsel seem to argue that, regardless of the-penalty provided by an ordinance, if the police judge should assess only a small penalty against the accused, that would obviate all objections to the jurisdiction and render the judgment pronounced valid. The answer to this is that jurisdiction is fixed by what might,, under given premises, be done, and not what actually is done.. For instance, if a justice of the peace should try even a ciyil case, in which the amount in controversy exceeded his jurisdiction, even if he- rendered judgment for only $5,.that fact j’syould not cure the defect or confer jurisdiction, for jurisdiction depends not on what is done, but on what might be done. And the test of the jurisdiction of a police court in.any .particular case is not what is done, but what under the ordinance might be done. .

In the case at bar we are of the opinion that under the. proceedings had the petitioner - was deprived of • his liberty .without due process of1 law,-;and that the writ .should, be awarded. .. ■. i.

The petitioner is therefore discharged'.

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


author: DOYLE,’ P. J.

text:
    CHARLES CRUZAN et al. v. STATE.
    No. A-2445.
    Opinion Filed January 15, 1917.
    (161 Pac. 1179.)
    1. TRIAL — Severance. Under Procedure Criminal, section 5878. Rev. Laws 1910, where two or more persons are jointly charged with a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable; but to he reviewed the case-made must show an application for a severance setting out sufficient grounds therefor and supported by affidavits or oral (testimony.
    2. APPEAL AND ERROR — Instructions. Errors assigned upon instructions given by the trial court will not be considered upon appeal, where the record fails to show that any objections were made or exceptions taken to such instructions at the time they were given.
    3. INTOXICATING LIQUORS — Offerees—Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquors with intent to violate provisions of the prohibitory law, the evidence considered,, and held sufficient to sustain the verdict and judgments of conviction.

      Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.

    Charles Cruzan, Sarah Johnston, and W. M. Simon-son were jointly convicted of the unlawful possession of intoxicating liquors, and they appeal.
    Affirmed.

      McNeill, & McNeill, for plaintiffs in. error.
    . - R. McMillan,' Asst. Atty. Gen., for the State.
   DOYLE,’ P. J.

The information in this case jointly charged' Berry'Janes, Charles Cruzan, Sarah Johnston, arid W. M. Simonson, with the crime of having possession of' intoxicating liquors with the unlawful intent to violate provisions of the prohibitory liquor law. When the case was called for trial,, it was shown, that the defendant Berry Janes was unable to be present on account of sickness, and the case was continued as to him. Thereupon defendant Sarah Johnston moved for a separate trial, which motion the court overruled. The case proceeded to trial, and the plaintiffs in error were found guilty. From the judgments rendered in pursuance of the verdict, wherein Charles. Cruzan was sentenced to pay a fine of $50 and be confined in the county jail for a period-of 30 days, and Sarah Johnston was sentenced to pay a; fine of $100 and be confined in the county jail for 30 days, and W. M. Simonson was sentenced to pay a fine of $100 and be confined in the county jail for a period' of 30 days, the-plaintiffs in error appeal.

The ruling of the court in refusing to grant the defendant Johnston a severance is the first error assigned.

Our Criminal Code provides that:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.” (Section 5878, Rev. Laws 1910.)

The exercise of the discretion here given to the trial court in granting or refusing a severance in a misdemeanor case is reviewable; but, to make the same the subject of review, the case-made or bill of exceptions must show an application for a severance setting out some unusual and extraordinary condition or state of facts in connection with the case which -would materially prejudice the rights of the applicant in a joint trial; and this must be supported by affidavits or oral testimony, and may be controverted by the state in the same way. In the absence of such showing on the part of the applicant the trial court cannot know and is not required to anticipate that a situation will arise in the trial justifying a severance. Steen v. State, 4 Okla. Cr. 309, 111 Pac. 1097.

The case-made before us discloses a mere motion for a severance “for the reason that the evidence introduced in the case on behalf of the other defendant is such as to bias and prejudice the interest of the defendant.” The motion was not verified nor- supported by affidavit or oral testimony, and we might add that the record of the trial discloses no reason why a severance should have been granted. In our opinion the court very properly overruled the motion for a severance.

It appears from the evidence that the parties charged were all engaged in running a restaurant at Ralston, commonly called the “Blue Goose”; that the place had been raided in the preceding August and intoxicating liquor had been found in the room of Sarah Johnston; that in September on the date alleged in the information another raid was made, and some 200 bottles of whiskey and beer were found concealed in the walls of the rooms in which the defendants Johnston and Janes were sleeping. That day the defendants Cruzan and Simonson drove from Ralston to Pawnee, the county seat. Returning about midnight, they drove to the rear of the restaurant and unloaded a trunk and a case of whiskey. . On this trip they were followed by Jim Glenn and John Douglas, local detectives, and that night 25 or 30 of the citizens of Ralston waited near the highways and watched for their return from Pawnee, and several of these persons were present when the défendants were arrested. Several witnesses testified that several bottles of whiskey were, found that night near the back dpor of the restaurant. Other witnesses testified that they had bought beer and whiskey in the Blue Goose restaurant from the defendants Johnston and Simonson.

Defendant Simonson, as a witness in his own behalf, testified that he was a waiter and dish washer in the restaurant, working for Berry Janes; that on the day in question he rode with the defendant Cruzan to Pawnee to get Aunt Sarah’s trunk; that they drove back that night with the trunk in the wagon and unloaded it at the rear door of the restaurant, and shortly afterwards they were arrested; that they did hot haul any whiskey in the wagon, and he never did sell any whiskey or beer.

The defendant Sarah Johnston, as a witness in her own behalf, testified that she worked for Berry Janes at the Blue Goose and cooked and waited on the lunch counter, and sold Tempo and pop; that she did not know how the whiskey got into the building, and did not know of any sales of whiskey at the place while she was there; that she sent her codefendants Cruzan and Simonson to Pawnee that day after her trunk, and specifically denied that she sold beer or whiskey to the witnesses who testified against her.

The above and foregoing briefly summarizes the testimony in the case, the transcript of which covers more than 200 pages. However, it is sufficient to show that the errors' assigned on the insufficiency of the evidence to sustain the verdict are without merit. Before this court will reverse a conviction upon the ground that the verdict of the jury is contrary -to the evidence, we must find that there is no testimony in the record from which the jury could rationally conclude that the defendant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. We find nothing in the record before us indicating improper motives or prejudice on the part of the jury.

It is also insisted that the court erred in giving instruction No. 6, defining the term “prima facie” evidence. The record discloses that no specific objection was made or exception taken to said instruction.

We cannot consider questions relating to instructions that were not raised as authorized by the statute or by the practice of the courts, unless fundamental error is apparent, because if there was error it was, in effect, waived.

In the case of Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, it is said:

“Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court.”

Without saying that the instruction complained of is correct, we are content to say that the instructions as a whole fairly cover the law of the case, and no court is justified in reversing a judgment if, on the whole record, it appears that justice has been done and that no prejudice has resulted by reason of error in the instructions given.

Absolute correctness of proceeding cannot be attained, even in our very best courts, and the establishment. of any other rule would render the administration of the criminal laws practically impossible.

After a careful review of the record, our conclusion is that the plaintiffs in error have had a fair trial and were properly convicted.

The judgments appealed from are therefore affirmed..

ARMSTRONG and BRETT, J.J., concur.


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    PERRY WHITE et al. v. STATE.
    No. A-2581.
    Opinion Filed January 16, 1917.
    (162 Pac. 232.)
    1. APPEAL -AND ERROR — Verdict. While it is well settled that this court will not disturb the verdict on account of the insufficiency of evidence when .there is evidence to support it, the converse rule is equally well settled 'that it is not only the province, bu¡t the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discreition and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.
    2. INTOXICATING LIQUORS — Unlawful Conveyance — Evidence— Sufficiency. See opinion for evidence held insufficient to sustain a verdict and judgment of conviction for unlawfully conveying intoxicating liquors.

      Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.

    Perry White and Jack Knapp were jointly convicted of conveying intoxicating liquor, and they appeal.
    Reversed.

      T. G. Cutlip, for plaintiifs in error.

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

The information in this case, after alleging time and venue, charges that:

“Perry White and Jack Knapp did then and there unlawfully, knowingly and willfully ship and in some way carry whiskey from some point and place in.said county, and state to informer unknown to Blakemore’s livery barn in the town of Asher, another place in Pottawatomie county.”

Upon their trial the jury rendered a verdict of guilty as charged, and they were sentenced each to be confined for 30 days in the county jail, and to pay a fine of $50. From the judgment they appealed by filing in this court on November 18, 1915, a petition in error with case-made.

The evidence shows that the Blakemore boys found two pints and a half pint of whiskey near their father’s barn in the town of Asher, and that with their father they consumed said whiskey.

The only testimony tending to connect the defendants with the whiskey in question is that of Mrs. Lila Blakemore, whose husband was the owner of the livery barn. She testified that she was acquainted with the defendants and saw them pass her house about midnight, and that she “looked out the window and saw somebody near Estes’ shop, hiding something under the sidewalk near .our barn, and the children found some whiskey the next day at the back of the bam.”

She was then asked:

“Q. That was these defendants? A. . Yes, sir; I thought they were; I am not certain.”

Cross-examination:

“Q. Did you recognize Perry'White and Jack Knapp as being the men who hid the whiskey at the bam or near the barn? A. Yes, sir; I thought it was them; I am not certain. Q. Will you state that these parties whom you saw were the defendants? ■ A. I cannot state positively. I thought they were; the two men were dressed something like Knapp and White, but I will not positively swear that they were Knapp and White. My husband went that night to the barn and got some whiskey, but these parties were gone and he had no conversation with them. I do not want to swear a lie against anybody and would not do it. I thought these parties were.Knapp and White; I do not know. Q. Do you say that Knapp and White or either of them put that whiskey there? A. I can’t say; somebody put it there, and I thought ■ it was White and Knapp; I may be mistaken; I don’t want to swear a lie.”

Her husband was present, but did not testify.

The defendant White in his own behalf testified that he lived at Asher and worked as a day laborer; that on the night in question he was with Knapp and Mr. Blake-more in front of the Central Hotel and went home about 10 o’clock that evening; did not leave his home that night; that he did- not place or assist in placing the whiskey at the barn or any other place; that this was the first time he had ever been charged with a violation of the prohibitory law.

Defendant Knapp testified that he lived across the alley from the Blakemores, and had worked about two years at the mill; that on the night in question he retired about 10 o’clock, and did not leave his residence that night after that hour; that he did not place any whiskey under the sidewalk, or near Blakemore’s livery barn; that he had never been charged with a violation of the prohibitory, or any other law other than the charge in this case.

The Attorney General has very properly filed a confession of error in this case, which, after reviewing the evidence,' concludes as follows“We cannot insist upon a conviction under this • proof.” We are constrained to say that we do not understand how the jury could be satisfied beyond a reasonable doubt of the guilt of the defendants upon the testimony of a witness who admittedly was very much in doubt as to their identity. While it is well settled that this court will not disturb the verdict on account of the evidence, when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it.

Under our Procedure Criminal (section 5937, Rev. Laws 1910) a new trial shall be granted, “When the verdict is contrary to law or evidence.” Under this provision the responsibility of determining whether or not there has been adduced before the jury a sufficient, amount of legal and competent evidence to render it safe to allow-the verdict to stand is imposed ■ upon the trial court in the first instance, and on appeal upon this court.

The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put upon trial. for an offense. Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271.

We are of the opinion that the.verdict and - judgment in this case are clearly contrary to the evidence, and that the trial court erred in refusing to advise the jury to bring in a verdict of acquittal. It follows that the judgment should be and the same is hereby reversed.

ARMSTRONG and BRETT, JJ., concur.


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      Ex parte BUD NELSON.
    No. A-2765.
    Opinion Filed January 16, 1917.
    (161 Pac. 1176.)
    BAIL — Application—Denial. An application to the Criminal Court of Appeals for admission to bail will be dismissed where the applicant 'has not previously presented his application to the district court or judge.
    Application by Bud Nelson for admission to bail.
    Application denied.

      Pat Malloy and E. F. Scott, for petitioner.

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

The application of Bud Nelson to be let to bail alleges, in substance, that he is unlawfully restrained of his liberty and detained by H. M. Frease, sheriff of Osage county, in the county jail at Pawhuska, and is so held in custody by virtue of a certain commitment issued by the county judge of Osage county upon the charge that he, on April 1, 1916, did kill and murder one'John Kennedy; petitioner having waived a preliminary examination upon said charge, Then follows a recital of the facts and circumstances in connection with the homicide tending to show that petitioner actéd in his. necessary self-defense, and praying that he be admitted to bail and his bond b§ fixed in a reasonable amount. On the day the petition was filed the Attorney General filed a motion to dismiss the application on the ground that the same had not been presented to the district court or judge of Osage county before being filed in this court as required by the rules of this court.

For the reasons therein stated, the motion to dismiss is sustained.


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    GEORGE WARD v. STATE.
    No. A-2576.
    Opinion Filed January 17, 1916.
    (162 Pac. 232.)
    1. VENUE — Proof—Evidence. The better and safer plan is for the state to prove venue by direct and positive evidence,- yet the essential test is whether or not the venue -has in some way been proved, and if it has been proved by circumstances or indirect statements which fix the venue the requirements of the law have bpen met.
    2. APPEAL AND ERROR — Province of Appellate Court. Where there is evidence that reasonably tends to sustain the verdict, this court will not.invade the province of the jury ancl attempt to weigh conflicting evidence.

      Error from County Couri, Pottawatomie Cpunty; Hal Johnson, Judge.

    George Ward was convicted of •■illegally selling intoxicating liquor, and he appeals.
    Affirmed.-

      G. A. Outeelt and McLain Taylor, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

Plaintiff in error in.this case was. convicted in the county court of Pottawatomie county of the offense of illegally selling alcohol to one R.' S. Wright.

He asks a reversal in this court, first, on the ground that the state failed to prove the venue; but we cannot agree with this contention. While the direct question was not asked as to the county and state in which the transaction occurred, yet there are numerous statements which show conclusively that the transaction testified to and of which the plaintiff in error was convicted occurred in Tecumseh, Okla.; ánd courts will take judicial knowledge-of the boundary lines of counties and the location of county seats. Fuller v. Territory, 2 Okla. Cr. 86, 99 Pac. 1098. While it is always a simple matter, and is much the safer plan, for the state to prove venue directly and positively, yet the one essential test is whether or not the venue has in some way been proved, and if it is proved by circumstances or indirect statements which fix the venue, the requirements of the law have been met. Brunson v. State, 4 Okla. Cr. 467, 111 Pac. 988; Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669.

The next assignment of error goes to the sufficiency of the evidence. While the plaintiff in error in this case contradicted the testimony of the prosecuting witness, yet we have the positive statement of the prosecuting witness that he purchased the alcohol of the plaintiff in error, besides several corroborating facts and circumstances. And it was clearly the duty of the jury to determine the weight and value to be given this testimony; And it has been repeatedly announced that where there is any evidence reasonably tending to sustain the verdict, this court will not invade the province of the jury and attempt to weigh the evidence.

Upon an examination of the record we fail to find any prejudicial or reversible error. The judgment is therefore affirmed.

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


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    ED. GUNTER v. STATE.
    No. A-2761.
    Opinion Filed January 17, 1917.
    (162 Pac. 231.)
    APPEAL AND ERROR — Dismissal. Procedure Criminal, section 5991, Rev.'Laws 1910, provides that: “In misdemeanor cases ithe appeal must be taken within sixty days after the judgment is rendered; provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.
    Held, that when an appeal in a misdemeanor case is not taken within the 60 days prescribed' by the statute the .record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time'; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.

      Appeal from County Court, = Okmulgee County; Mark L. Bozarth, Judge.

    Ed. Gunter was convicted of a violation of the prohibitory law, and he appeals.
    Appeal dismissed.

      E. M. Carter and R. B. F. Hummer, for plaintiff in error.

      R. ■McMillan, Asst. Atty Gen., and R. E. Simpson, Co. Atty., for the State.
   DOYLE, P. J.

The plaintiff in error, Ed Gunter, was convicted' in the county court of Okmulgee county on a charge of unlawful possession of intoxicating liquor, and on the 15th day of February, 1916, he was sentenced to be confined in the county jail for 60 days and to. pay a fine of $100, and $55 costs, and, in default of payment of said fine and costs, that he be further confined until the same is satisfied as by law provided. To reverse ihe judgment an appeal was attempted to be taken by filing in this court on June 14, 1916, a petition in error with case-made.

The Attorney General has -filed a motion to dismiss the appeal for the reason that the same was not taken within the time provided by law; that the statutory 60-days expired on the 16th day of April, 1916, and, no order of court extending the time to appeal having been granted, the appeal should be dismissed because this court has not acquired jurisdiction to hear the appeal.

Our Procedure Criminal provides that:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered; provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” (Section 5991, Rev. Laws 1910.)

No answer or response to the motion to dismiss mis been filed, and a careful examination of the case-made fails to disclose that the trial court or judge made any order extending the time in which to perfect the appeal. It is the uniform holding of this court that the appeal must be perfected within the time prescribed by the statute, otherwise this court does not acquire jurisdiction to review the judgment. Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.

It follows that the motion to dismiss must be sustained. The purported appeal is therefore dismissed, and the cause remanded to the trial court, with direction to enforce its judgment therein.

ARMSTRONG and BRETT, JJ.,- concur.


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    H. T. HAMPTON v. STATE.
    No. A-2762.
    Opinion Filed January 17, 1917.
    (162 Pac. 237.)
    APPEAL AND .ERROR — Dismissal. Where the case-made failed to show that the trial court had extended the time within which to perfect: an appeal, the appeal in a misdemeanor case must be dismissed, it not having been taken within the 60 days allowed by statute.

      Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.

    H. T. Hampton, convicted of a violation of the prohibitory law, appeals.
    Appeal dismissed.

      E. M. Carter, for plaintiff, in error.

      R. McMillan, Asst. Atty. Gen., and R. E. Simpson, Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, H. T. Hampton, was convicted in the county court of Okmulgee county on a charge that he did have' possession of six quarts of whisky with the intention of selling the same. On the 17th day of February, he was sentenced to be confined in the county jail for 60 days and to pay a fine of $100, and $56 costs. From the judgment an appeal was attempted to be taken by filing in this court on June 14, 1916, a petition in error with case-made. The state has filed a motion to dismiss the appeal for the reason that the same was not taken within the statutory 60 days, no order of the court extending the time to appeal having been granted.

No answer or responsé to the motion to dismiss has been filed, and a careful examination of the case-made fails to disclose that the trial court or judge' made any order extending the time within which to perfect the appeal. It follows that the motion to dismiss must be sustained.

The purported appeal is therefore dismissed, and the cause remanded to the trial court, with direction to enforce its judgment therein. -


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    GEORGE RHODES v. STATE.
    No. A-2763.
    Opinion Filed January 17, 1917.
    (162 Pac. 230.)
    APPEAL AND ERROR — Time for Perfecting. An appeal from a conviction in a misdemeanor case will be dismissed where noit taken within 60 dasys after judgment, and the" case-made shows no extension of time.

      Appeal from County Court, Okmulgee County.; Mark L. Bozarth, Judge.

    George Rhodes was convicted of violating the prohibitory law,, and he appeals.
    Appeal dismissed.

      R. B. F. Hummer and E. M. Carter, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and R. E. Simpson, Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, George Rhodes, was convicted in the county court of Okmulgee county on a charge of unlawful possession of intoxicating liquors. On the 15th day of February, 1916, he was sentenced to be confined in the county jail for 60 days and to pay a fine of $100 costs. From the judgment an appeal was attempted to be taken' by filing in this court on June 14, 1916, a petition in error with case-made. The state has filed a motion to dismiss the appeal for the reason that the same was not taken within the statutory 60 days. No order of the court or judge extending the time to appeal has been made. No answer or response to the motion to dismiss has been filed, and a careful examination of the case-made fails- to disclose that the trial court or judge made any order extending the time within which to' perfect the appeal.

It follows that the motion to dismiss must be sustained. The purported appeal is therefore dismissed, and the cause remanded to the trial court, with direction to enforce its judgment therein.


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      Ex parte HERBERT ADAMS.
    No. A-2901.
    Opinion Filed January 17, 1917.
    (162 Pac. 231.)
    HABEAS CORPUS — Second Application — Moot Case. Where, on the return day of a rule to show cause why habeas corpus should not be issued by the Criminal Court of Appeals, ilt was shown that upon a similar application in the district court petitioner had been discharged, the application in the Criminal Court of Appeals will be dismissed.
    Application of Herbert Adams for writ of habeas corpus.

    Dismissed.

      Hargis & Griffin, for petitioner.

      E. L. McCain, for respondent.
   PER CURIAM.

This is an application for writ of habeas corpus by Herbert Adams, who alleges that he is illegally restrained and unlawfully imprisoned in the city ¿ail of Pawhuska by O. T. Tackett, chief of police of said city, under a commitment issued on a judgment of the police court of said city wherein the petitioner was sentenced to pay a fine of $25 and costs and to be confined in said city jail for five days, and in default of the payment of said fine and costs to be further confined until the same is satisfied as by law provided.

The petition was presented to this court on January 2, and a rule to show cause was entered, returnable January 4, 1917, at’ which time it was shown that upon a similar application pending in the district court a writ of habeas corpus■ was allowed and petitioner discharged.

This cause is therefore dismissed.


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    STATE v. ED SNELSON et al.

    No. A-2857.
    Opinion Filed January 20, 1917.
    (162 Pac. 444.)
    1. PROSECUTING ATTORNEYS — Comity Attorneys — Duties Of. The statutes of Oklahoma make it the duty of county attorneys to guard the' interests of the state and public, and specifically confer authority upon them to commence criminal actions on behalf of the state.
    2. STATES — Commissioner of Charities and Corrections — Duties of. Held, that the provisions of section .8099, Rev. Laws 1910, making it the duty of the Commissioner of Charities and Cor-reations to prosecute certain offenders, does not confer additional authority upon the Commissioner of Charities and Corrections, tout only imposes a duty upon him to prosecute such offenders through the regular channels existing for the prosecution of criminal, offenses.

      Error from County Court, Oklahoma County; ' Wm.- H. Zwick, Judge.

      Proceeding by the State of Oklahoma against Ed. Snelson and others. The action' was dismissed,' and the State appeals.
    Affirmed.

      S. P. Freeling,-Atty. Gen., R. McMillan, Asst. Atty. Gen., and Jarrett Todd, for the State.

      B. D. Shear, A. T. Boys,-and Frank N. Watson,, for defendants in error.
   BRETT, J.

This appeal is by transcript. It appears that complaint was duly made to William D. Matthews, Commissioner of Charities and Corrections of the State of Oklahoma, against the defendants in error, who were police officers of the city of Oklahoma, charging that said officers committed an unwarranted assault and battery upon one R. E. Watson,, whom they had under arrest, and struck said Watson on the head, with a six-shooter with such force and violence as to render him unconscious. It also appears that the Commissioner of Charities and Corrections insisted that the county attorney of Oklahoma county prosecute said officers, which he declined to do; that the Commissioner of Charities and Corrections then instituted prosecution in the county court, by filing an information indorsed by himself, as Commissioner of Charities and Corrections, relying upon the provisions of section 8099, Rev. Laws 1910, for such authority. This statute provides that:

“On the complaint of one or more responsible citizens, in the form of a sworn affidavit against any county, city, private institution, corporation or organization named in this article, the Commissioner of Charities and Corrections shall make a full investigation, and when the things and conditions complained of are found to be true, the Commissioner of Charities and Corrections shall have the power to order an abatement of the wrongful conditions by the officers of the institutions, corporations or organizations herein mentioned. In event of a refusal to obey such order, it shall be the duty of the Commissioner of Charities and Corrections to prosecute such officers of said public, private institutions, corporations or organizations in some court of competent jurisdiction.”

A motion .was filed to dismiss the action on the ground that the information was not indorsed and approved by the county attorney; and later a demurrer was filed attacking the right of the court to proceed with the action, based upon substantially the same grounds. Both the motion and the demurrer were sustained, and the action was dismissed.

The sole question presented by the .appeal is whether or not section 8099, Rev. Laws 1910, gives the Commissioner of Charities and Corrections the authority to institute a criminal action and prosecute the same, without the indorsement and approval of the county attorney, by himself indorsing the information as Commissioner of Charities and Corrections.

Section 5694, Rev. Laws 1910, provides that:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of ’the witnesses known to him at the time Of filing the same.” '

And it has been 'consistently hel'aby this court that, under this statute,’ “it is essential to the validity of an information charging a'misdemeanor, that'it. be signed by the county .attorney,., as his signature. is .expressly, required by the statute.” McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260 Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042. This is-not an arbitrary" rule,' but the'statute is- based upon experience -and reason.' Every criminal offense committed is an offense against the peace and dignity of the state, and it is the duty of the county attorney to guard the interests of the state, and the public, and as a quasi judicial officer to determine, before an action is filed, whether or not the matters complained of constitute an offense against the state. Hence the authority to commence criminal actions on behalf of the state has, by the Legislature, been intrusted to the county attorneys of the different counties of the state, and certain other officials, as stated in Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80, and Ex parte Kelly, 45 Okla. 577, 146 Pac. 444. And it is, we- think, undoubtedly within the power of the. Legislature ,to also, grant, this authority to the Commissioner of Charities and Corrections if it should see fit to do so. But we think it has not done this by the terms of section 8099, Rev. Laws 1910; but that all this section does is to impose upon the Commissioner of Charities and Corrections the duty to prosecute the classes of offenders specified through the regular channels existing for the prosecution of offenders.

• A “prosecutor” is defined as:'

“* * * One who instigates a prosecution, by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation based.” Words and Phrases, Second Series, vol. 3, p. 1311; 6 Words and Phrases, p. 5739; Eady v. State, 10 Ga. App. 818, 74 S. E. 303.

And section 8099, Rev. Laws 1910, we think, does not even attempt to confer additional authority upon the Commissioner of Charities and Corrections, but only imposes a duty upon him, which is to be performed through the regular and existing' channels for the prosecution of offenders.

Before the Commissioner of Charities and Corrections could legally indorse complaints and informations, and institute criminal actions on behalf of the state, that authority would have to be specifically conferred by statute; and, until that is done, he only has a duty imposed by statute, to be performed in the same way as performed by other “prosecutors”; and, as other “prosecutors,” he must submit to the judgment of the county attorneys of the state as to whether or not the parties com-, plained of are offenders against the penal statutes of the state.

The judgment is therefore affirmed.

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


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    STATE v. P. H. WEATHERS.
    No. A-2435.
    Opinion Filed January 22, 1917.
    (162 Pac. 239.)
    1. APPEAL AND ERROR — Right of State to Appeal. The right of the «tute to appeal from any order or judgment of a trial court jests upon statutory authority, which authority cannot be enlarged by construction.
    2. SAME. In this jurisdiction the state has no right to appeal from an order of' the trial court granting a new trial to a person who has -been convicted of crime.

      Appeal from District Court, Oklahoma County; Geo. W. Clark, Judge.

    P. H. Weathers was convicted in the district court of Oklahoma county on a charge of bribery. From an' order’ granting a new trial, the State appeals.
    Dismissed.

      S. P\ Creeling, ' Atty. Gen., and Smith C. Matson and R. McMillan, Asst. Attys. Gen., for the State.

      W. A. Briggs and James S. Twyford, for defendant in error.
   ARMSTRONG, J.

P. H. Weathers was tried at the March, 1915, term of the district court of Oklahoma county on a charge of bribery. A verdict of guilty was returned by the jury, which verdict was set aside by the trial court and a new trial granted. From the order granting a new trial, the state has undertaken to appeal to this court. The petition in error and case-made were filed on April 6, 1915.

On January 31, 1916, a motion to dismiss the appeal was filed on behalf of the defendant in error. The grounds of the motion are as follows:

“(1) That said appeal should be dismissed for the reason that said appeal is not perfected as required by law.
“(2) That said appeal is not one authorized to be taken by the state under the statutes, in ■ that the only, ruling of the trial court adverse to the state was an order sustaining the motion for new trial filed by the defendant in error.
“(3) That the state has not perfected an appeal from a final order or judgment of the trial court which granted a new trial to defendant in error.
“(4) The petition in error filed herein alleges no error predicated upon the order of the court granting a new trial to the defendant in error.”

It appears that the trial was begun on the 2d day of March, 1915'; that the state introduced its testimony, at the close of which counsel for defendant in error filed a motion with the trial court requesting said court to advise the jury to return a verdict of not guilty upon the ground that the evidence was insufficient to warrant a conviction. The court sustained the motion, and so instructed the jury. The Attorney General requested an opportunity to argue the case to the jury, which the court allowed. The jury later retired, and returned into court with a verdict finding the defendant guilty.

A motion for new trial was filed on behalf of the defendant in error, which motion was sustained by the trial court, and a new trial granted.

The question presented for determination is whether or not the state has the right to appeal from an order of the trial court granting a new trial. Both counsel for the defendant in error and 'for the state, which is plaintiff in error in the instant case, have failed to render material assistance' in the way of-' bringing authorities bearing on this question.

The statute under which' an. appeal may be taken in a criminal case on the part of the state is as •follows:

1. Upon judgment on quashing or' setting aside the information or indictment.

2. Upon order of the court arresting the judgment.

3. Upon a question reserved by the state.

(Section 5990, Rev. Laws 1910.)

The state does not contend that it has any-standing in this court upon paragraphs one and two, but relies upon the general provision of paragraph 3. This provision authorizes an appeal by the state upon a question- reserved by the state at the trial of a criminal case. Without doubt .this, paragraph contemplates an appeal only upon the final disposition of the cause. In many jurisdictions the. state has no right of .appeal at all, and its right to appeal, where the right is granted, is based upon specific statutes, which statutes are not to be enlarged by construction. The right of appeal upon behalf of a person charged with crime is denied except upon final judgment. There is no right of appeal granted a defendant from an order denying a change of venue, a change of judge, or adverse ruling upon.any other relief sought. The state would have no more right to appeal from an order of the trial judge granting a new trial to a person charged with crime than would a person charged with crime to appeal from an order denying him a change of venue. A person charged with crime is not even allowed to appeal from an order of the court overruling a demurrer to an indictment or a motion to set aside the same. The state is allowed to appeal in this class of cases when the court sustains a demurrer to the indictment or a motion to set the same aside, but this is contemplated in cases only wherein the trial court has entered final order disposing of the matter under consideration. . '

Section 5896, Rev. Laws 1910, provides:

“If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant, a conviction, it may advise the jury to acquit the defendant! B.ut the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” , ...

■ This is an important • power vested in the courts of record in this state, and is a power which,;.in duty bound;, every honest judge will exercise with, cautipn, but will not decline to exercise with the sole purpose of shirking responsibility. It is as much the. duty of .a trial, judge to advise the jury to return a verdict of not guilty when, in his judgment, the evidence is insufficient to, support a "conviction, as it is to refrain from so doing when, in his judgment, a verdict of guilty would be warranted.

The briefs filed on behalf of the state fail to point out the law under which this appeal is entitled to be reviewed. Other' incidental questions are discussed, but the briefs, among other things, contain the following:

«* * * The defendant below filed his motion to set aside said verdict. * * *
“This motion was sustained by the court, and from said -action' in sustaining the said motion, the state has-appealed. * * *”

It therefore- is evident that the appeal is attempted from the motion granting a new trial.

The question here raised was determined by this court in -the case of State of Oklahoma v. Walter Curley, ante, p. 25, 161 Pac. 831, decided at the present term. Among other things, in the opinion it is said:

“The state is not allowed to appeal from an order of the trial court granting the defendant in a criminal action a new trial. The granting of a new trial in such cases is largely a matter of sound judicial discretion, and usually involves questions of both law and fact; and when such discretion has been exercised in favor of the defendant it is very much like the verdict of a jury in his favor, and the state should have no right to appeal from it, unless such right is unquestionably given by the' statute.”

We can see no good reason why the excerpt from the Curley opinion should be enlarged upon.-

• It follows that the state has no right to appeal from an order of a trial court granting a new trial.

The motion to dismiss is sustained, and the appeal dismissed.

DOYLE, P. J., and BRETT, J., concur.


text:
    LEO TURNER v. STATE.
    No. A-2578.
    Opinion Filed January 22, 1917.
    (161 Pac. 606,)

      Appeal from County Court, Comanche County; . R. J. Ray, Judge.

    Leo' Turner, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      J. A. Lenertz, for plaintiff in error.

      T. B. Orr, Go. Atty., and S. P. Freeling, Atty. Gen., for the State.
   PER CURIAM.

On information filed in the county court of Comanche county, charging “that at and within said county and state, on the 17th day of April, ■ 1915, Leo Turner, then and there being, did then and there willfully and unlawfully have in his possession intoxicating liquors, to wit, seventy-five one-half pints and ten pints and six quarts of whisky and six quarts of beer, with the purpose and intent of him, the said Leo Turner, to barter, sell, and give away and otherwise furnish the same to other persons contrary to,” etc., the plaintiff in error was convicted, and by the judgment of the court he was sentenced to pay a fine of $500, together with all costs, and that he be imprisoned in the county jail of Comanche county for a period of six months from and after his commitment thereto, and for such further time as shall satisfy said fine and costs, if the same be not paid by the defendant.

The evidence showing possession of the liquors and unlawful intent as alleged is conclusive, and undisputed by any evidence on the part of the defendant. Upon his arraignment, the defendant filed a motion to dismiss, on the ground that the county court was without jurisdiction, because “the defendant herein has heretofore been tried and convicted in this court for violating the liquor laws of the State of Oklahoma, that he was sentenced by this court for said offense, and served said sentence; that, if the facts set forth in the information herein are true, they will constitute a second and subsequent offense on the part of the defendant herein, and this defendant is guilty of a felony, and this court is wholly without power or jurisdiction to try said defendant, or to hear and determine the offense set forth in said information, and if found guilty herein the court will be wholly without power and jurisdiction to pass sentence upon the defendant herein.” Such motion was overruled. The foregoing presents the only question attempted to be raised. The allegations of the information merely charge a misdemeanor, and the court bel»w very properly overruled the motion to dismiss for want of jurisdiction. Upon the whole case we think the defendant had a fair trial, and there is no doubt of his guilt.

The judgment appealed from is therefore affirmed. Mandate forthwith.


author: DOYLE^P. J..

text:
    JOE BAKER et al. v. STATE.
    No. A-2612.
    Opinion Filed January 22, 1917.
    (162 Pac. 236.)
    INTOXICATING LIQUORS — Unlawful Conveyance — Evidence—Sufficiency. In a prosecution for unlawfully conveying intoxicating liquors, the evidence examined, and held sufficient fco sustain the verdict.

      Appeal from County Court, Nowata County; F. A. Calvert, Judge.

    Joe Baker and H. Petty were convicted of unlawfully transporting intoxicating liquors, and they appeal.
    Affirmed.

      D. M. Martindale, for plaintiffs in error.

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

On information jointly charging that Joe Baker and H. Petty did unlawfully transport and convey intoxicating liquors, to wit, 19 cases of whisky, one case of wine, and one barrel of beer, from a place within the State of Oklahoma unknown to informant to a point in the public highway one mile north of the town of Delaware, in Nowata county, the plaintiffs in error were tried and convicted, and their punishment fixed at confinement in the county jail for 90 days and to pay a fine, of $300 each. From the judgments rendered in pursuance of the verdict, they appealed by filing in this .court on December 28, 1915, a petition in error with case-made.

The evidence shows that the defendants were arrested at the point named in the information as they were driving an automobile loaded with intoxicating liquors as alleged. The evidence for the state is undisputed. We deem it unnecessary to review the assignments of error. It is sufficient to say that in our opinion they are wholly destitute of merit.

It follows that the judgments appealed from must be, and the same are hereby, affirmed. Mandate forthwith.

ARMSTRONG and BRETT, JJ., concur.


text:
    GEORGE OLLISON v. STATE.
    No. A-2624.
    Opinion Filed January 22, 1917.
    (162 Pac. 237.)
    INTOXICATING LIQUORS — Unlawful Sale — Evidence—Sufficiency. In a prosecution for unlawfully selling intoxicating liquor, the evidence examined, and held sufficient to sustain the verdict, and that no reversible error was committed on the trial.

      Appeal from County Court, Pottawatomie County; Hal. Johnson, Judge.

    George Ollison was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      Mark Goode, for plaintiff in error.

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

On information filed in the county court of Pottawatomie county charging that he did sell, one-half pint of whisky to one Geo. Hines, the plaintiff in error was tried and convicted, and by the judgment of the court' he was sentenced to be confined for 60 days in the county jail and to pay a finé of $250 and the costs. From the judgment an appeal was taken by filing in this court on January 5, 1916, a petition in error' with case-made. There was but one witness produced by the state.

G. W. Hines testified that he was deputy sheriff of Lincoln county, and on the day alleged he was at the defendant’s place of business in the south part of the city of Shawnee, Pottawatomie county, and there bought from him a half pint of whisky; that by the defendant’s direction he gave the money to pay for it to a fellow behind the counter, and the defendant then gave him the whisky.

As a witness in his own behalf, George Ollison testified that he saw the witness Hines at his place of business with other officers who raided his place on the day alleged; that the officers did not find any intoxicating liquors, and he did not sell the witness Hines any whisky.

Leuie Epperson, for the defendant, testified that he was at the defendant’s place of business that day from 8:30 in the mo„rning until the officers Carson, Cotterall, and witness Hines came there that evening, and that the witness Hines was not there that forenoon; that he did not go after any liquor for Hines, nor did he take any money for it; that he did not leave the place for a minute that day and did not see the witness Hines until he came with the officers.

After a careful examination and consideration of the testimony in the case, we are not prepared to say tnat the jury were not warranted in finding the verdict returned by them. The credibility of the witnesses and the weight and value to be given their testimony was a question solely for the jury’s determination, and to reverse a judgment on the ground that the verdict is contrary to law and the evidence this court must find as a matter of law that the. evidence is insufficient to warrant the conviction. The instructions fully and fairly presented the law of. the case, and we have failed to find any material error in the record. It follows that the judgment, must be, and the same is hereby, affirmed.

ARMSTRONG and BRETT, JJ.; concur.


text:
    JOE MAGNETTI v. STATE.
    No. A-2646.
    Opinion Filed January 22, 1917.
    (162 Pac. 241.)
    1. .APPEAL AND ERROR — Conviction. When the facts disclosed by the record, under any reasonable consideration thereof, support a verdict of guilty, this court will not reverse a conviction, in the absence of errors of law.
    2. INTOXICATING LIQUORS — Sale—Evidence. In a prosecution for unlawful possession of intoxicating liquor with intent to sell the same, the evidence considered, and held sufficient to sustain the verdict.

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

    Joe Magnetti was. convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      I. P. Keith, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Magnetti, and Charles Trione were jointly 'chárged with'the possession of certain intoxicating liquors, to wit, 120 gallons of Choctaw beer, with the unlawful intent to sell the same. Plaintiff in error asked and was granted a severance; and upon his trial was convicted and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. He has appealed from the judgment rendered upon such conviction.

The proof on the part of the state is to the effect that on the 5th day of July, 1915, several officers made a raid on the defendant Trione’s place at Krebs, which they had raided about 100 times before, and from there went to the defendant' Magnetti’s place near Alderson, and when the officers reached Magnetti’s place they found him and Trione carrying a box containing about 100 bottles of Choctaw beer going from the house towards the woods; that, upon being ordered to halt, they dropped the box and ran, but were soon overtaken and brought back to the house, where the officers found about 120 gallons of Choctaw beer. Evidence was introduced to show that the Choctaw beer was intoxicating. The defendant Trione pleaded guilty to the information.

As a witness in his own behalf Magnetti testified that he was an Italian and unable to speak or understand the English language to any extent; that he and one Gallo batched together in one room of his house, and he rented two rooms to a Frenchman named Leo Le Blan, and he rented another room to Charles Trione; that he and the other occupants of the house, except Trione, were coal diggers, and all batched’ at this house; that on the day charged. Trione came to the house and asked the defendant to help him carry a box of beer down to the creek, and shortly afterwards the officers appeared; that the beer in the house was in the room rented by Trione; that defendant and Gallo had about 12 gallons in their room, which they made for their own u'Se; that he never made any to sell, and did not sell any.

The testimony of the other tenants occupying Mag-netti’s house was to the effect that Magnetti had never sold any Choctaw beer.

We are of the opinion that the evidence is sufficient to warrant the jury in finding the plaintiff in error guilty as charged. According to the settled rule adopted and followed by this court for the review of cases where the conviction has been had upon conflicting evidence, it is not within the province of this court to disturb the verdict of the jury. Where there is evidence upon a controverted question of fact, it is the peculiar province of the jury to determine its effect and sufficiency. Barnett v. State, 11 Okla. Cr. 10, 141 Pac. 234.

Several assignment? of error are based upon the instructions given by the court.- Our examination discloses there is nothing substantial in them. The charge given by the court fairly and fully presented the issues in the case to the jury. Failing to find any error in the record, the judgment of the trial court is affirmed.

DOYLE, P. J., and BRETT, J., concur.


text:
    A. P. ROBINSON v. STATE.
    No. A-2626.
    Opinion Filed January 24, 1917.
    (162 Pac. 239.)
    APPEAL AND ERROR — Conviction. Where the briefs and record are examined, and no question of merit is raised by the appeal, tlie case will simply be affirmed.

      Error from Superior Court, Pottawatomie County; Leander G. Pittman, Judge.

      A. P. Robinson was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.

      Mark Goode, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

In this case the plaintiff in error was convicted in the superior court of Pottawatomie county of transporting intoxicating liquor, and sentenced to 30 days in jail, and to pay a fine of $50.

We have examined the briefs and carefully read the entire record, and think there is no merit whatever in-the appeal. The facts are that the plaintiff in error and two others were overtaken on the night of September 3. 1915, on a public highway with 42 sacks of whisky in a spring wagon. A severance was had, and in the record before us the plaintiff in error offered no defense whatever; a clear case was made against him, and he should have extended his thanks to the jury for the verdict returned.

The judgment is affirmed.

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


text:
    JAMES PEASE v. STATE.
    No. A-2641.
    Opinion Filed January 24, 1917.
    (162 Pac. 238.)
    APPEAL AND ERROR — Affirmance. Wliere there is conflicting evidence, it is the duty of the jury to pass upon such issues of fact ; and where .there is any evidence which reasonably 'tends to support the verdict, this court will not disturb it.

      Error■ from County Court, Garvin County; W. R. Wallace, Judge.

    "James Pease was convicted of conveying intoxicating liquors, and he appeals.
    Affirmed.

      YerJcer E. Taylor, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   BRETT, J.

The plaintiff in error in this case was convicted of conveying intoxicating liquors from an unknown place in Garvin county to a certain place in said county, named in the information.

The evidence is very conflicting. The state’s evidence was to the effect that the plaintiff in error and one Bob Taylor were in a box car; that when the train stopped Taylor jumped out of the box car and ran; that the only other person in the box car was the plaintiff in error, who appeared at the door with a sack of whisky in his hand; that there was also another sack of whisky found in the car.

The plaintiff in error and Taylor testified that there wére Several persons in this box car, both white and black. And both' denied knowing anything about the two sacks ' of whisky being in. the car, and denied all knowledge as to who was the owner of the whisky, and testified that they had nothing to do'with it whatever.

The testimony could not be more conflicting, and it was for the jury, and not this court, to pass upon the weight and value to be given ’to this testimony, ’ and they found against the plaintiff in error, and this court will not disturb their verdict.

We have carefully examined the record, and find no reversible error.

The judgment is affirmed.

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


text:
    JAMES STEVENSON v. STATE.
    No. A-2677.
    Opinion Filed January 24, 1917.
    (162 Pac. 443.)
    APPEAL AND ERROR — Determination. Wlien a petition in error and case-made are .filed in this, pourt, it is the duty of counsel to prepare and file briefs or appear and orally argue any assignments of error relied upon for reversal. When this is not done, the appeal is treated as abandoned, and in the absence of fundamental error, the judgment of the lower court will be affirmed for want of prosecution.

      Appeal from Cowfity Court, Garvin County; W. R. Wallace, Judge.

    James Stevenson was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.

      H. M. Carr and Thos. Wallace, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, James Stevenson, was convicted in the county court of Garvin county on a charge that he did have “in his possession spirituous, vinous, malt, and fermented liquors, with the intent tp barter, sell, give away, and otherwise furnish the same to' others,” and his punishment assessed at a fine of $150 and confinement for 30 days in the county jail. From the judgment rendered on the verdict an appeal was perfected in this court on the 15th day of March, 1916. No briefs have been filed by counsel on behalf of the plaintiff in error, and no appearance made for oral argument.

In the case of Smith v. State, 9 Okla. Cr. 15, 130 Pac. 517, it is said:

“When a petition in error and case-made are filed in this court, it is the duty of counsel to prepare and file briefs or appear and orally argue any assignments of error relied upon for reversal. When this is not done, the appeal is treated as abandoned, and in the absence of fundamental error, the judgment of the lower court will be affirmed for want of prosecution.”

We have examined the information and the instructions of the court, and we have discovered no error which will warrant a reversal.

The judgment of the lower court is therefore affirmed.

DOYLE, P. J., and BRETT, J., concur.


text:
    H. B. WARD v. STATE.
    No. A-2688.
    Opinion Filed January 24, 1917.
    (161 Pac. 822.)

      Appeal from County Court, Garvin County; W. R. Wallace, Judge.

    H. B. Ward was convicted of violating the prohibitory law, and he appeals.
    Affirmed.

      H. M. Carr, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, H. B. Ward, was convicted on a charge of unlawfully selling intoxicating liquor to one George Hays, and his punishment fixed at a fine of $350, and confinement in the county jail for 120 days.

No briefs have been filed nor oral argument made in support of the errors assigned. We have examined the record, and find there is testimony tending to support the allegations of the information, and further find that no objection was made or exception taken to the instructions as given by the court. Upon the whole record we have discovered no error which will warrant a reversal of the judgment.

The judgment of the lower court is therefore, affirmed. Mandate forthwith.


text:
    RED WARD v. STATE.
    No. A-2689.
    Opinion Filed January 24, 1917.
    (162 Pac. 238.)
    APPEAL AND ERROR — Briefs. Where ithe defendant appeals from a judgment of conviction, and no briefs are filed, nor arguments . presented, 'this court will .make an 'examination of the record proper, for jurisdictional errors, and if no fundamental error is apparent, will affirm the judgment.

      Appeal from County Court, Garvin County; ' W. R. ¡Wallace. Judge.

    Red Ward was. convicted of violating the .prohibitory-law, and he appeals.
    Affirmed.

      H. M. Carr, for plaintiff in error.

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

Plaintiff in error was convicted in the county court of Garvin county upon an indictment presented by the grand jury in the district court, which was duly transferred to the county court, wherein the defendant Red Ward, was charged with having unlawfully sold to one George Hays intoxicating liquor, and his punishment assessed at confinement in the county jail for 60 days and a fine of $100. From the judgment entered upon the verdict he appealed by filing in this court on March 28, 1916, a petition in error, with case-made.

No briefs have been filed and no oral argument made in support of the errors assigned. In cases of this kind we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in its rulings on the admission or rejection of testimony.

We have examined the record and find there is testimony tending to support the allegations of the indictment, and further find that no objection was made nor exception taken to the instructions as given by the court, and upon the whole record we have discovered no error which will warrant a reversal of the judgment.

The judgment of the lower court is therefore affirmed. Mandate forthwith.

ARMSTRONG and BRETT, JJ., concur.


text:
    HARRY BROWN v. STATE.
    No. A-2541.
    Opinion Filed January 27, 1917.
    (162 Pac. 449.)
    1. LARCENY — Evidence—Sufficiency. In a prosecution for larceny of a domestic animal, circumstantial evidence may be resorted to for the purpose of proving the corpus delicti, in the same way and to the same extent that it may he for the purpose of connecting (the accused with the commission of the offense.
    2. SAME. In a prosecution for the larceny of a domestic animal, the evidence examined, and held sufficient to sustain the verdict.

      Appeal from District Court, Choctaw County; C. E..Dudley, Judge.

    Harry Brown was convicted of the larceny of a; domestic animal, and he appeals.
    Affirmed.

      Gaylord R. Wilcox, for plaintiff in error.

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

The plaintiff in error, Harry Brown,, and Harry Smith were jointly charged by information with the larceny of one hog, the property of W. M. Sanders. A severance was demanded and granted. On his trial, plaintiff in error, Harry Brown, was found guilty, and, in accordance with the verdict of the jury, was sentenced to imprisonment in the penitentiary for the term of two years.

The errors assigned are:

“(1) That the trial court erred in overruling the plaintiff in error’s motion for a new trial.
“(2) That the crime of larceny of a domestic animal was never proven by the state to be committed by any one in this case.”

No briefs have been filed and no appearance made in this court on behalf of the plaintiff in error.. However we have carefully examined the transcript of the testimony in this case, and we are satisfied that the evidence, although circumstantial, was sufficient to support the verdict.

The evidence shows that plaintiff in error lived about a mile from W. M. Sanders, who at the time alleged had a sow and seven shoats; that Sanders, missing his hogs, found and followed one of the shoats to Brown’s dooryard; that it was then about 9 o’clock at night; that the next morning he returned to Brown’s place and asked him if he had seen his hogs, and Brown said, “Yes, they .are over in the cornfield;” that soon after he found where the hogs had been “milling” around in a cotton patch; that he tracked the sow to a place where a hog had been butchered; from there he found a trail of blood on the grass to within a few feet of Brown’s kitchen door, and there picked up an ax that had hog hair and blood on it; that he returned that evening, but they did not find any hog meat at Brown’s place. Several witnesses identified the ax as one belonging to Brown.

In the case of George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052, it is said:

“Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose' of connecting the accused with the commission of the offense. * * * The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.”

Under the well-settled rule, where there is sufficient evidence in the record upon which the verdict may be fairly based, as in this case, this court will not reverse the judgment on the ground of the insufficiency of the evidence. Upon the whole case, we are of opinion that the defendant had a fair trial and was properly convicted.

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

ARMSTRONG and BRETT, JJ., concur.