text:
    W. H. T. MILLER v. STATE.
    No. A-707.
    Opinion Filed September 5, 1911.
    Appeal from Comanche County Court; James II. Wolverton, Judge.
   PEE CUEIAM.

Judgment was pronounced against appellant on the 16th day of December, 1909, in the county court of Comanche county, and he was sentenced to pay a fine of $50 and 30 days imprisonment in the county jail for a violation of the prohibitory liquor law. Appellant was allowed by the court 60 days from date of the judgment within which to perfect his appeal to this court, but appellant did not perfect his appeal to this court until the 31st day of March, 1910. As this was long after the time allowed by law for which to perfect the appeal, this court acquired no jurisdiction of the case and the appeal is therefore dismissed.


source: Caselaw Access Project

author: PEE CUEIAM.

license: Public Domain

text:
    LEVI BRANHAM v. STATE.
    No. A-709.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Eeasor, Judge.
   PEE CUEIAM.

On the 11th day of October, 1909, judgment was rendered against appellant in the county court of Pottawatomie county, sentencing appellant to pay a fine of $100 and to serve 30 days' imprisonment in the county jail for a violation of the prohibitory liquor law. Appellant, however, did not perfect his appeal until the 11th day of April, 1910, which was long after the expiration of time allowed by law for perfecting such appeal. This court therefore has not acquired jurisdiction of this case and the appeal is dismissed.


author: PER CURIAM.

text:
    PAUL PARIS v. STATE.
    No. A-720.
    Opinion Filed September 5, 1911.
    Appeal from Goal County Court; E. H. Wells, Judge.
   PER CURIAM.

What purports to be” a' transcript of the record and case-made in this case is not signed and certified to either by the judge of the county court of Coal county or the clerk of said court. This cannot be supplied by a stipulation of the attorneys. We therefore cannot consider this pretended appeal and it is dismissed.


text:
    FRANK HOWELL v. STATE.
    No. A-721.
    Opinion Filed September 5, 1911.
    Appeal from Woodward County Court.
   PER CURIAM.

On the 16th day of December, 1909, judgment was rendered in the county court of Woodward county against the appellant, and he was sentenced to pay a fine of $500 and to be confined for six months in the county jail of said county. At the time of the sentence, the court fixed the time within which the appellant should prepare and serve a case-made at 60 days, and entered an order requiring the appellant to perfect his appeal in 90 days. This case was tried before a judge pro tempore. Subsequent to this time said judge pro tempore had granted a number of extensions of time within which the ease-made should be prepared and served. A judge pro tempore has no power to extend the time for making and serving the case-made, after he has vacated the bench. See Rasberry v. State, 4 Okla. Cr. 631; James W. Dobbs v. State, 5 Okla. Cr. 475. These orders were therefore void. Appellant did not perfect his appeal to this court until the 15th day of April, 1910, which was more than the time originally allowed by the court within which to perfect the appeal. We therefore did not acquire jurisdiction of this appeal and it is dismissed.


text:
    OSCAR SEARS v. STATE.
    No. A-728.
    Opinion Filed September 5, 1911.
    Appeal from Osage County Court; C. T. Bennett, Judge.
   PER CURIAM.

On the 21st day of January, 1910, judgment was rendered against appellant, sentencing him to pay a line of $50 and 30 days confinement' in the county jail for a violation of the prohibitory liquor law. ' At the time of the rendition of the judgment the court did not extend the statutory time within which the appeal must be perfected. Appellant did not perfect his appeal until the 20th day of April, 1910, which was long after the time allowed by law for perfecting the appeal had expired. This court did not, therefore, acquire jurisdiction of the appeal and it is dismissed.


text:
    CHARLES TRIONE v. STATE.
    No. A-754.
    Opinion Filed September 5, 1911.
    Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.
   PER CURIAM.

On the 4th day of March, 1910, judgment was rendered against appellant in the superior court of Pittsburg county, sentencing him to confinement in the county jail for a period of 30 days and to pay a fine of $50. At said time appellant was granted 30 days by the trial court in which to prepare and serve a case-made. On t*he 4th day of April, 1910, the trial court attempted to grant an extension of 10 days time within which appellant might prepare and serve his ease-made. The time originally granted for preparing and serving said case-made having expired before the second order was made, the court was without power to make such second order; and as the case-made was filed after such time had expired, it must be stricken from the record. At the time of the. rendition of the judgment in this case the court entered an order allowing appellant to file an appeal in the Criminal Court of Appeals within 60 days from said date, but appellant did not file his case in this court until the 5th day of May, 1910. This being after the time allowed by the court for perfecting his appeal, this court has not acquired jurisdiction of this case and the appeal is therefore dismissed.


text:
    THEODORE BARKER v. STATE.
    No. A-765.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
   PER CURIAM.

On the 10th day of June, 1909, judgment was rendered against appellant in the county court of Pottawatomie county for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $100 and 60 days’ confinement in the county jail. The court made a number of orders extending the time within which-the case-made might be prepared and served by appellant, and an examination of the record will disclose the fact that a number of these orders-were made after the time for serving the ease-made had expired. They were therefore void, and as the case-made was not served until after the time which had been originally granted by the trial court for serving the same had expired, the case-made must be stricken from the record. We find no error in the transcript of the record. The judgment of the lower court is therefore affirmed.


text:
    E. R. SPIGNER v. STATE.
    No. A-776.
    Opinion Filed September 5, 1911.
    Appeal from Carter County Court; I. B. Mason, Judge.
   PER CURIAM.

Judgment was rendered against appellant in the county court of Carter county on the 20th day of January, 1910, for a violation of the prohibitory liquor law, and he was sentenced to.pay a fine of $50 and 60 days’ confinement in the county jail. Appellant did not perfect his appeal in this case until the 25th day of May, 1910, As the time for perfecting the appeal had expired before the appeal was perfected, this court is without jurisdiction to consider the case, and the appeal is therefore dismissed.


text:
    JENNIE M. FOSSETT v. STATE.
    No. A-929.
    Opinion Filed September 5, 1911.
    Appeal from Custer County Court;- A. H. Latimer, Judge.
   PER CURIAM.

Appellant was convicted for a violation of the prohibitory liquor law and her punishment was assessed at a finé of $50 and 30 days’ confinement in the county jail. She prosecuted an appeal to this court. It having been made to appear to the satisfaction of this court that a parole was granted to appellant by the Governor of this state on the 20th day of February, 1911, said parole operated as an abandonment of the appeal and the appeal is therefore dismissed.


text:
    R. E. JAMES v. STATE.
    No. A-941.
    Opinion Filed September 5, 1911.
    Appeal from District Court, MeCurtain County; D. A. Eichardson, Judge.
   PER CURIAM.

Appellant was convicted of murder in the district court of MeCurtain county and sentenced to imprisonment in the state penitentiary for the period of his natural life. Since perfecting his appeal in this case appellant applied to and received from the Governor of this state a parole. This operated as an abandonment of his appeal. The appeal is therefore dismissed.


text:
    SAM LESLIE v. STATE.
    No. A-991.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; B. D. Eeasor, Judge.
   PER CURIAM.

On the 15th day of September, 1910, judgment was rendered in the county court of Pottawatomie county against appellant for a violation of the prohibitory liquor law and he was sentenced to pay-a fine of $50 and 30 days’ imprisonment in the county jail. Appellant was allowed 60 days from said date within which to perfect his appeal in said cause. On the 15th day of November, 1910, the court entered a second order attempting to extend the time within which the appeal could be filed in the Criminal Court of Appeals until the 15th day of January, 1911. There being thirty-one days in the month of October, the 60 days originally granted within which appellant should perfect his appeal expired on the 15th day. of November, 1910. The second order made by the court ■ attempting to extend the time having been made on November 15th, 1910, and after the time originally granted had expired, was illegal and void. The transcript of the record was not filed until January 15th, 1911, which was long after the time legally granted the appellant within which to perfect his appeal. This court therefore did not acquire jurisdiction of this cause and the appeal is dismissed.


text:
    LEE CALDWELL v. STATE.
    No. A-1006.
    Opinion Filed September 5, 1911.
    Appeal from Greer County Court; Jarrett Todd, Judge.
   PER CURIAM.

On the 23rd day of May, 1910, judgment was rendered in the county court of Greer county against appellant for a violation of the prohibitory liquor law of the state. He was sentenced to pay a fine of $50 and serve 30 days in the county jail. Appellant did not perfect his appeal in this case until the 30th day of January, 1911, which was after the time allowed by law for perfecting appeals had expired. This court therefore has never acquired jurisdiction of this ease and the appeal is dismissed.


text:
    L. H. DINSMORE v. STATE.
    No. A-1133.
    Opinion Filed September 5, 1911.
    Appeal from Kiowa .County Court; J. W. Mansell, Judge.
   PER CURIAM.

On the 6th day of March, 1911, judgment was

rendered against appellant in the county court of Kiowa county for a violation of the prohibitory liquor law and his punishment was assessed' at a fine of $500 and six months confinement in the county jail. From this judgment the appellant has prosecuted an appeal to this court. The Attorney General moves that this appeal be dismissed because the appellant is a fugitive from justice and is not subject to the jurisdiction of this court. These facts being made to appear to the satisfaction of this court, the motion to dismiss the appeal is sustained and the appeal is therefore dismissed.


text:
    FRANK MOORE v. STATE.
    No. A-1125.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
   PER CURIAM.

On the 2nd day of March, 1911, judgment was rendered against appellant in the county court of Pottawatomie county and he was sentenced to pay a fine of $100 and 30 days imprisonment in the county jail for a violation of the prohibitory liquor law. The time granted by statute for perfecting appeals was not extended by the trial court. Appellant did not perfect his appeal in this court until the 2nd day of May, 1911. The 60 days allowed by statute for perfecting appeals expired on the 1st day of May, 1911. As the appeal was not perfected within the time required by law, this court did not acquire jurisdiction of this cause and the appeal is therefore dismissed.


text:
    LON SALING v. STATE.
    No. A-914.
    Opinion Filed September 5, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
   PER CURIAM.

The appellant in this case was sentenced to the state penitentiary for a period of three years for the offense of selling whisky to a minor, and prosecuted an appeal to this court. The appellant applied to and received from the Governor of this state a parole. This operates as an abandonment of his appeal. The appeal is therefore dismissed.


text:
    J. SIGAN v. STATE.
    No. A-1123.
    Opinion Filed September 5, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
   PER CURIAM.

On the 3rd day of March, 1911, judgment was rendered in the county court of Tulsa county against appellant for a violation of the prohibitory liquor law, and he was sentenced to pay a fine of $500 and to serve 90 days in the county jail. Appellant was granted by the court 30 days time within which to prepare and serve a case-made. The record shows that the case-made was not served on the county attorney until the 3rd day of April, 1911, which was the 31st day after the rendition of the judgment. The case-made must therefore be stricken from the record. The ease-made is not certified in such a manner as would constitute it a transcript of the record. We therefore cannot consider anything presented in said case-made, and the appeal is dismissed.


text:
    FRANK N. GIPSON v. STATE.
    No. A-1129.
    Opinion Filed September 5, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
   PER CURIAM.

On the 3rd day of March, 1911, judgment was rendered against apipellant in the county court of Tulsa county for a violation of the prohibitory liquor law and he was sentenced to piay a fine of $250 and 90 days imprisonment in the county jail. Appiellant was allowed 60 days from the date of judgment within which to file his appeal to the Criminal Court, of Appeals. On the 1st day of April, 1911, appellant was granted an extension of 20 days within which to perfect Ms appeal, but appellant did not perfect Ms appeal to tMs court until the 4th day of May, 1911. The time granted by the court for perfecting the appeal having expired before the appeal was perfected, this court has never acquired jurisdiction of the case and the appeal is therefore dismissed.


author: FURMAN, P. J. DOYLE, J.,

text:
    TOM ALEXANDER v. STATE.
    No. A-1119.
    Opinion Filed September 5, 1911.
    Appeal from District Court, McCurtain County; J. R. Armstrong, Judge.
   FURMAN, P. J.

On the 27th day of September, 1910, judgment

was rendered against appellant in the district court of McCurtain county for larceny of horses, and he was sentenced to imprisonment in the state penitentiary for a period of ten years. Appellant attempted to prosecute an appeal from this judgment but he did not file a transcript of the record in this court until the 28th day of April, 1911, which was more than six months after the rendition of the judgment and after the statutory time within which an appeal should be taken had expired. This court therefore did not acquire jurisdiction of this case and the appeal is dismissed.

DOYLE, J.,

concurs. Judge Armstrong, who presided at the trial of this ease in the court below was thereby disqualified and did not participate in the consideration of the case in this court.


text:
    JOHN R. REEVES v. STATE.
    No. 1021.
    Opinion Filed September 5, 1911.
    Appeal from District Court, Carter County; Stilwell H. Russell, Judge.
   PER CURIAM.

Appellant was convicted in the district court of Carter county for the offense of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary for a period of four years. Judgment was pronounced against the appellant on the 23rd day of February, 1910. The law in force at that time required the appellant to perfect his appeal within six months from the date of judgment against him. The appeal in this ease, however, was not filed in this court until the 23rd day of February, 1911, six months after the time required by law had elapsed within which the appeal should have been perfected. TMs court, therefore, never acquired jurisdiction of this case and the appeal is dismissed.


text:
    CLARENCE CANNADY v. STATE.
    No. A-1139.
    Opinion Filed September 5, 1911.
    Appeal from Harmon County Court; C. W. King, Judge.
   PER CURIAM.

On the 30th day of January, 1911, judgment was pronounced against appellant in the county court of Harmon county for a violation of the prohibitory liquor law. He was sentenced to pay a fine of $50 and 30 days imprisonment in the county jail. At this time appellant was given by the court 90 days within which to perfect his appeal, but appellant did not perfect His appeal to this court until the 17th day of May, 1911, which was after the expiration of the 90 days allowed by the court in which said appeal should have been perfected. Counsel for appellant attempt to excuse their failure to perfect said appeal within the time prescribed by law by showing that this delay was caused through some miscarriage of the postoffice department of the United States. The law makes no provision for such delays as this. Counsel at their peril take the chances of sending matter through the mail at the last day. It is their duty to take such steps as will insure the filing of their appeals in this court within the time prescribed by law. Motion to dismiss this appeal is therefore sustained and it is dismissed. .


author: FER CURIAM.

text:
    THOMAS W. HENSALL v. STATE.
    No. A-740.
    Opinion Filed September 5, 1911.
    Appeal from Rogers County Court.
   FER CURIAM.

On the 29th day of October, 1909, judgment was rendered against appellant for a violation of the prohibitory liquor law, but appellant did not perfect his appeal until the 26th day of April, 1910, which was long after the time allowed by law for this purpose. This court therefore did not acquire jurisdiction of this case and the appeal is dismissed.


text:
    DANIEL TYNER v. STATE.
    No. A-1146.
    Opinion Filed September 5, 1911.
    Appeal from Rogers County Court.
   PER CURIAM.

On the 21st day of January, 1911, judgment was pronounced against appellant in the county court of Rogers county for a violation of tlie prohibitory liquor law, and he was sentenced to pay a fine of $500 and to serve six months in the county jail. The trial court did not extend the 60 days allowed by law within which appellant must perfect his apeal to this court, and appellant did not perfect his appeal to .this court until the 11th day of May, 1911, which was after the expiration of the 60 days allowed by law within which the appeal should have been perfected. This court therefore has never acquired jurisdiction of this cause and the appeal is dismissed.


text:
    A. P. GIFFORD et al. v. STATE.
    No. A-1237.
    Opinion Filed September 5, 1911.
    Appeal from Washita County Court.
   PER CURIAM.

On the 3rd day of May, 1911, judgment was pronounced against appellant in the county court of Washita county for a violation of the prohibitory liquor law. Appellant was sentenced to pay a fine of $50 and to imprisonment in the county jail for a period of 30 days. At the same time, in the same ease, judgment was pronounced against A. H. Sheppard for the same offense. Both parties prosecuted an appeal to this court. After the appeal was perfected, appellant A. P. Gifford moved the court to be permitted to withdraw his appeal, which motion is by the court sustained, and the appeal of the said A. P. Gifford is therefore dismissed, but said ease is continued in this court as to the appeal of A. II .Sheppard.


text:
    R. H. EVERETT v. STATE.
    No. A-737.
    Opinion Filed September 5, 1911.
    Appeal from Marshall County Court.
   PER CURIAM.

On the 26th day of October, 1909, judgment was rendered against appellant in the county court of Marshall county for a violation of the prohibitory liquor law and he was sentenced to pay a fine of $50 and 30 days imprisonment in the county jail. Appellant, however, did not perfect- his appeal until the 25th day of .April, 1910, which was long after the time allowed by law for this purpose. This court, therefore, did not acquire jurisdiction of the ease and the appeal is dismissed.


text:
    W. B. McAFEE v. STATE.
    No. A-783.
    Opinion Filed September 5, 1911.
    Appeal from Alfalfa County Court.
   PER CURIAM.

Judgment was pronounced against appellant on the 18th day of January, 1910, for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and imprisonment in the county jail for a perior of 30 days. Appellant did not perfect his appeal until the 28th day of May, 1910, which was long after the expiration of the time allowed by law for perfecting said appeal This court therefore did not acquire jurisdiction of this case and the appeal is dismissed.


text:
    A. B. SHIPLEY v. STATE.
    No. A-997.
    Opinion Filed September 5, 1911.
    Appeal from Love County Court.
   PER CURIAM.

On the 29th day of August, 1910, judgment was rendered against the appellant in the county court of Love county for a violation of the prohibitory liquor law, and he was sentenced to pay a fine of $50 and serve 30 days in the county jail. What purports to be the ease-made filed with the petition in error has never been certified to by the trial judge and filed in the office of the county court of Love county as to by the trial judge and filed in the office of the county court as the law directs. Neither has it been certified to in such a manner as will make it a transcript of the record. Neither is their any showing that said case-made had ever been served upon the county attorney of Love county. Said pretended case-made and transcript of the record was not filed in this court until January 18th, 1911, which was long after the time allowed by law for perfecting said appeal. Por these reasons this court has never acquired jurisdiction of this case, and the appeal is dismissed.


text:
    HENRY DUVALL v. STATE.
    No. A-669.
    Opinion Filed September 19, 1911.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Henry Duvall was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    O. P. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Sen., for defendant in error.
   PEE CUEIAM.

An examination of tlie record of this case discloses no errors prejudicial to the substantial rights of the plaintiff in error. The judgment of the lower court is therefore affirmed.


text:
    FRANK BORNHEIM v. STATE.
    No. A-656.
    Opinion Filed September 19, 1911.
    Appeal from Pittsburg Courty Court; E. AY. Higgins, Judge.
    Frank Bornheim was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Andrews & Day, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PEE CUEIAM.

Plaintiff in error was convicted on the 21st day of January, 1910, on a charge of selling intoxicating liquor and his punishment fixed at a fine of $150 and imprisonment in the county jail for 30 days. A careful examination of the record discloses no error prejudicial to the right of the plaintiff in error. The judgment of the lower court is therefore affirmed.


text:
    DAVE RAY v. STATE.
    No. A-652.
    Opinion Filed September 19, 1911.
    Appeal from Jackson County Court; AY. J. McConnell, Judge.
    Dave Eay was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Johnson, Merrill & Eeigal, for plaintiff in error.
    Chas. AYest, Atty. Gen., E. G. Spilman, Asst. Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted in the county court of Jackson county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and on the 15th day of November, 1909, was sentenced to pay a fine of five hundred dollars and be confined in the county jail for a period of six months. AYe have carefully examined the record and briefs of both parties in this cause, and find no error sufficient to entile the plaintiff in error to a new trial. The judgment of the lower court is therefore affirmd.


text:
    W. H. STACK v. STATE.
    No. A-679.
    Opinion Filed September 19, 1911.
    Appeal from Comanche County Court; James IT. Wolverton, Judge.
    W. H. Stack was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    Ray & Cunningham, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county on the 10th day of June, 1909, and after repeated continuances for the purpose of passing sentence, was on the 5th day of February, 1910, sentenced to serve sixty days in the county jail and to pay a fine of two hundred fifty dollars. The appeal was perfected in this court on the 25th day of March, 1910. On the 7th day of December, 1910, counsel for plaintiff in error filed a motion to dismiss the appeal. The motion is sustained, and the appeal dismissed with directions to the trial court to enforce the judgment and sentence.


text:
    A. S. JONES v. STATE.
    No. A-691.
    Opinion Filed September 19, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge:
    A. S. Jones was convicted of violating the • prohibitory law, and
    appeals.
    Dismissed.
    E. G. McAdams, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county, and on the 7th day of March, 1910, was sentenced to pay a fine of five hundred dollars and be confined in the county jail for a period of ninety days. On the 6th day of September, 1911, this case was set for oral argument. Counsel for plaintiff in error in open court moved to dismiss the appeal on the ground that the plaintiff in error had been paroled. The motion is allowed and the appeal accordingly dismissed.


text:
    IRA B. SHARP v. STATE.
    No. A-825.
    Opinion Filed September 19, 1911.
    Appeal from Major County Court; O. M. Evans, Judge.

      Ira B. Sharp was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    J. Y. Bobérts, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Major county on the 13th day of April, 1910, on a charge of having possession of intoxicating liquor for the unlawful purpose of selling same, and on the 14th day of April, thereafter, was senteeed by the court to pay a fine of three hundred dollars and serve one hundred twenty days in the county jail. An appeal was duly perfected in this court on the 7th day of July, 1910. In January, 1911, plaintiff in error abandoned his appeal and by his counsel filed a motion on the 7th day of said month to dismiss the same. The appeal is accordingly dismissed, and the clerk directed to issue the mandate forthwith.


author: PEE CUBIAM.

text:
    M. E. KELLER v. STATE.
    No. A-697.
    Opinion Filed September 23, 1911.
    Appeal from Coal County Court; E. H. Wells, Judge.
    J. G. Balls, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

Plaintiff in error was convicted on an information which charged that he did have possession of intoxicating liquors with the unlawful intent then and there to barter, sell or otherwise furnish the same, and was sentenced to be confined in the county jail for sixty days and pay a fine of two hundred and fifty dollars. Judgment and sentence was entered on February 7th, 1910. An appeal was taken by petition in error and case-made filed in this court April 4th, 1910. The only evidence on the part of the state was that of one Cumimngs, a deputy sheriff, who testified that in executing a search warrant he searched the defendant’s place of business which was a restaurant in Coalgate. The defendant had his family and several other persons working there. That witness found a pint beer-bottle half full of whisky. There was no evidence tending to show that the defendant had ever violated the prohibition law or had offered for sale intoxicating liquor. On behalf of the defendant, Charles Turner testified that the half pint if whisky belonged to him and two other boys who were working in the defendant’s restaurant. There is no proof on the part of the state that the whisky belonged to the defendant other than the fact that it was found at his place of business. The verdict and judgment of conviction being contrary to the evidence in the ease and. unsupported by any evidence, the judgment of conviction is reversed.


author: PEB CUBIAM.

text:
    W. F. SIMS v. STATE.
    No. A-676.
    Opinion Filed September 23, 1911.
    Appeal from District Court, Pottawatomie County. J. B. A, Bobertson, Judge.
    W. F. Sims was convicted of a felony, and appeals.
    Dismissed.
    F. H. Biely, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for defendant in error.
   PEB CUBIAM.

The petition in error, with excerpts from the record, which are very incomplete, and do not even show with what crime plaintiff in error was charged or convicted, was filed in this court on the 22nd day of March, 1910. On August 25, 1911, the Attorney General filed the following motion to dismiss the appeal:

"First. That on the 22nd day of March, 1910, there was filed in this court a petition in error in the above entitled cause, with a pretended ease-made thereto attached which was marked Case-made. That the same is not a case-made nor is it a transcript of the record of the court below. Second. That from said pretended case-made, or pretended transcript, it appears that on -the 1st day of October, 1909, the plaintiff in error was sentenced to three years in the state penitentiary at hard labor for the offense for which he was convicted. Third. That on said date in said cause the defendant was given ninety days to make and serve a casé-made; that on the 29th day of December, 1909, the court ordered that the defendant be given ninety days from the 29th day of December, 1909, to prepare and serve a case-made, and that the time for filing the appeal in this court be extended for a period of ninety days from the 15th day of February, 1910. Fourth. That although the time granted in said pretended orders has long since expired, the plaintiff in error has not filed in this court a case-made. Fifth. That although the judgment from which plaintiff in error attempts to appeal was rendered almost two years ago, no ease-made or transcript has been filed in this court. Sixth. That there is not filed in this court in said pretended appeal, notices of appeal showing service upon the clerk of the district court and the county attorney of Pottawatomie county as required by law. Seventh. That as shown above the pretended appeal was lodged in the office of the clerk of this court on the 22nd day of March, 1910, and no brief as required by the rules of this court has been served upon the Attorney General, or filed with the clerk of said court.”

The papers filed are so incomplete as to be absolutely unintelligible. The motion of the Attorney General to dismiss the appeal is sustained. The appeal is dismissed with directions to the trial court to enforce whatever judgment and sentence may have been rendered.


text:
    E. ROBERTSON AND JAMES POTEET v. STATE.
    No. A-768.
    Opinion Filed September 23, 1911.
    Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.
    E. Robertson and James Poteet were convicted of a violation of the prohibition law and appeal.
    Reversed and remanded.
    John Adams and A. R. Howes, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were informed against, tried and convicted in the superior court of Logan county for a violation of the prohibition law. A trial was had before a jury composed of only six men. The record does not show that the defendants waived their right to a trial by a jury of twelve men. It is assigned as error that the court erred in refusing the defendants' demand for a trial by a jury of twelve men. Under the authority of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291; Schafer v. State, 5 Okla. Cr. 598, 115 Pac. 379, and Dalton v. State, 6 Okla. Cr. infra, 116 Pac. 594, the judgments pronounced and entered are hereby reversed and said cause remanded to the superior court of Logan county with direction to grant a new trial.


text:
    W. DALTON v. STATE.
    No. A-767.
    Opinion Filed September 23, 1911.
    Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.
    W. Dalton was .convicted of a violation of the prohibition
    and appeals.
    Reversed and remanded.
    John A. Remy, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the superior court of Logan county for a violation of the prohibition law. A trial was had before a jury of six men over the objection of the defendant. To which ruling of the court the defendant excepted. Eor this reason the judgment is reversed and the cause remanded to the superior court of Logan county with direction to grant a new trial.


text:
    BURT WHITE v. STATE.
    No. A-684.
    Opinion Filed September 23, 1911.
    Appeal from Pottawatomie County. Court; E. D. Reasor, Judge.

      Burt White was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      11. P. Preeling and E. A. Hood, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on the 23rd day of March, 1909, on a charge of selling whisky, and on the 30th day of March, thereafter, was sentenced by the court to pay a fine of seventy-five dollars, and be confined in the county jail for thirty days. The appeal was filed in this court on March 30th, 1910. No brief has been filed on behalf of plaintiff in error, and no appearance made for oral argument. The judgment of the trial court is affirmed under rule 4 of this court.


text:
    ED P. RYAN v. STATE.
    No. A-675.
    Opinion Filed September 23, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Ed P. Ryan was convicted of violating the irrohibitory law, and appeals.
    Reversed and remanded.
    Guthrie & Cardwell, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county on the 23rd day of February, 1909, on a charge of selling intoxicating liquor, and was on the 9th day of March, thereafter, adjudged by the court to pay a fine of one hundred dollars and be confined in the county jail for a period of thirty days. Prom this judgment an appeal was taken to this court. On the date the ease was called for trial, a motion for continuance was filed setting up the fact the plaintiff in error was sick in bed, and a certificate from his physician was attached as an exhibit. Plaintiff in error was not in attendance on the court during the day and late in the afternoon an order was made requiring his presence at 7:30 p. m. He appeared and was sworn as a witness to testify on his motion for continuance. His testimony in addition to the certificate of his physician showed that he was sufferig from la grippe; that he had fever at the time; and that he had gotten out of bed to appear in court in order to protect his bondsmen from the expense of a forfeiture. No showing upon the motion was offered by the state. We think that the motion should have been allowed and the cause continued until such time as the plaintiff in error could prepare and appear for trial. The arrest in this ease was made on the 26th day of December, 1908. Prom the record it does not apepar that the state would have been prejudiced in any manner by a continuance. The judgment is reversed and the cause remanded with directions to grant a new trial.


text:
    ED. MESHEW v. STATE.
    No. A-687.
    Opinion Filed September 23, 1911.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
    Ed. Meshaw was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    L. G. Pitman and E. E. Hood, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on the 23rd day of March, 1909, on a charge of selling intoxicating liquor and his punishment fixed by the jury at a fine of seventy-five dollars and imprisonment in the county jail for a period of thirty days. On the 30th day of March, thereafter, judgment was pronounced in accordance with the verdict. The appeal was filed in this court on .the 30th day of March, 1910. No brief has been filed on behalf of plaintiff in error and no appearance made for oral argument. The judgment of the trial court is affirmed under rule 4 of this court.


text:
    CHARLEY TRIONE v. STATE.
    No. A-708.
    Opinion Filed September 23, 1911.
    Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.
    Charley Trione was convicted of violating the prohibitory law, and appeals.
    remanded.
    J. E. Whitehead, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the superior county for the crime of selling intoxicating liquor, and was sentenced to pay a fine of fifty dollars and serve sixty days in the county jail. A trial was had before a jury composed of only six men. The record does not show that the plaintiff in error waived his right to a trial by a jury of twelve men. Under the authority of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291; Schafer v. State, 5 Okla. Cr. 598, Dalton v. State, infra, 116 Pac. 954, the judgment will be reversed and the cause remanded to the superior court of Pittsburg county with directions to grant a new trial.


text:
    ED LINDLEY v. STATE.
    No. A-727.
    Opinion Filed September 23, 1911.
    Appeal from Okfuskee County Court; T. T. Doyle, Judge.
    Ed Lindley was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    W. A. Huser, for plaintiff in error.
    Smith C. Matson, Asslj. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted of violating the prohibitory law in the county court of Okfuskee county on the 18th day of January, 1910, and was thereafter, during the same' month, sentenced by the court to pay a fine of one hundred dollars and be imprisoned in the county jail one hundred twenty days. The appeal was filed in this court on the 20th day of April, 1910. No brief has been filed on behalf of plaintiff in error and no appearance made for oral argument. The judgment of the lower court is affirmed for want of prosecution under rule 4.


text:
    ROY GOODPASTER v. STATE.
    No. A-729.
    Opinion Filed September 23, 1911.
    Appeal from Craig County Court; Theo. D. B. Frear, Judge.
    Roy Goodpaster was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    James S. Davenport, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Craig county on a charge of unlawfully selling intoxicating liquor, and on the 21st day of February, 1910, was sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for thirty days. The appeal was filed in this court on the 21st day of April, 1910. No brief has been filed by the plaintiff in error, and no appearance made for oral argument. The judgment of the trial court is affirmed for want of prosecution under rule 4.


text:
    CURT REVARD v. STATE.
    No. A-734.
    Opinion Filed September 23, 1911.
    Appeal from Osage County Court; C. T. Bennett, Judge.
    Curt Revard was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Harris, Sams & Hargis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and L. P. Roberts, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Osage county on a charge of drunkenness, and on the 23rd day of October, 1909, sentenced to pay a fine of twenty-five dollars. The appeal was filed in this court on the 23rd day of April, 1910. No brief has been filed on behalf of plaintiff in error, and no appearance made for oral argument. The judgment of the lower court is affirmed for want of prosecution under rule 4.


text:
    TOM RATLIFF v. STATE.
    No. A-744.
    Opinion Filed September 23, 1911.
    /Appeal from Ellis County Court; A. E. Williams, Judge.
    Tom Ratliff was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Petty J. Morris, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in Tom Ratliff, was convicted in the county court of Ellis county on the 11th day of January, 1911, on a charge of selling whisky, and on the 13th day of January, 1910, sentenced by the court to pay a fine of four hundred dollars and be confined in the county jail for a period of sixty days. No brief has been filed on behalf of plaintiff in error, and no appearance made for oral argument in his behalf. The judgment of the triál court is affirmed for want of prosecution under rule 4 of this court.


text:
    TOM RATLIFF v. STATE.
    No. A-745.
    Opinion Filed September 23, 1911.
    Appeal from Ellis County Court; A. E. Williams, Judge.
    Tom Ratliff was convicted of violating the and appeals.
    Affirmed.
    Petty J. Morris, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Tom Ratliff, was convicted in the county court of Ellis county on the 12th day of January, 1911, on-a charge of selling whisky, and on the 14th day of January, 1911, sentenced by the court to pay a fine of four hundred dollars and be confined in the county jail for a period of thirty days. No brief has been filed on behalf of plaintiff in error, and no apeparanee made for oral argument in his behalf. The judgment of the trial court is affirmed for want of prosecution, under rule 4 of this court.


text:
    J. J. MERRILL v. STATE.
    No. A-766.
    Opinion Filed September 23, 1911.
    Appeal from District Court, Okmulgee County; W. L. Barnum, Judge.
    J. J. Merrill was convicted of manslaughter, and appeals.
    Dismissed.
    Stanford & Cochran, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried for murder, and convicted of manslaughter in the first degree in the district court of Okmulgee county on the 20th day of November, 1909, and his punishment fixed at five years in the state penitentiary. Ilis appeal was filed in this court on the 14th day of May, 1910. It appears that plaintiff in error was paroled on the 10th day of June, 1910. Counsel for plaintiff in error, Stanford & Cochran, have filed the following motion to dismiss: "Now comes the plaintiff in error in the above entitled cause, and moves the court to dismiss the appeal heretofore filed in his behalf." The motion is sustained, and the appeal, is dismissed.


text:
    J. D. WEAVER v. STATE.
    No. A-778.
    Opinion Filed September 23, 1911.
    Appeal from Superior Court, Muskogee County; Parrar L. McCain, Judge.
    J. D. Weaver was convicted of violating the prohibitory law, and ajipeals.
    Reversed and remanded.
    Williams & Williams, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the superior court of Muskogee county for the crime of selling intoxicating liquor, and was sentenced to serve sixty days in the county jail and pay a fine of two hundred dollars. A trial was had before a jury composed of only six men. The record does not show that the defendant waived his right to a trial by a jury of twelve men. Under the authority of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291; Schafer v. State, 5 Okla. Cr. 598, 115 Pac. 379; Dalton v. State, infra, 116 Pac. 954, the judgment will be reversed, and the cause remanded to the superior court of Muskogee county, with direction to grant a new trial.


text:
    J. W. GILLESPIE v. STATE.
    No. A-791.
    Opinion Filed September 23, 1911.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    J. W. Gillespie was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    II. J. Sturgis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

J. W. Gillespie, plaintiff in error, was convicted on the 19th day of Eebruary, 1910, on a charge of selling whisky, and on the 26th day of Eebruary, thereafter, was sentenced by the court to pay a fine of three hundred dollars and be imprisoned in the county jail for a period of sixty days. No brief- has been filed on behalf of plaintiff in error in this court, and no apeparanee made for oral argument. The transcript has been carefully examined and the judgment of the trial court is affirmed under rule 4 of this court.


text:
    BERT ALEXANDER v. STATE.
    No. A-792.
    Opinion Filed September 23, 1911.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    Bert Alexander was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    II. J. Sturgis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garfield county on the 18th day of Eebruary, 1910, on a charge of selling intoxicating liquor, and on the 26th day of Eebruary, thereafter, was sentenced by the court to pay a fine of one hundred dollars and be confined in the county jail thirty days. No brief has been filed in this court on behalf of the plaintiff in error, and no apeparanee made for oral argument. The transcript has been carefully examined, and the judgment is affirmed under rule 4 of this court.


text:
    J. R. NICHOLS v. STATE.

      No. A-793.
    Opinion Filed September 23, 1911.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    J. B. Nichols was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    H. J. Sturgis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garfield county on a charge of selling intoxicating liquors on the 17th day of February, 1910, and on the 26th day of February, thereafter, was sentenced by the court to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. No brief has been filed on behalf of plaintiff in error, and no apeparance made for oral argument. The judgment of the trial court is affirmed under rule 4 of this court.


text:
    ED ROBINSON v. STATE.
    No. A-799.
    Opinion Filed September 23, 1911.
    Appeal from Kiowa County Court; J. W. Mansell, Judge.
    Ed Robinson was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Ed Robinson was convicted in the county court of Kiowa county on the 21st day of February, 1910, on a charge of sellingwhisky, and his punishment fixed by the jury at a fine of four hundred dollars and imprisonment in the county jail for a period of one hundred twenty days. Judgment was pronounced by the court on the same date in accordance with the verdict. The appeal was filed in this court on the 11th day of June, 1910. No brief has been filed on behalf of the plaintiff in error, and no apeparance made for oral argument. The judgment of the trial court is affirmed, under rule 4 of this court.


text:
    HARVEY JOHNSON v. STATE.
    No. A-804.
    Opinion Filed September 23, 1911.
    Appeal from Ellis County Court; A. E. Williams, Judge.

      Harvey Johnson was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    W. H. Springfield, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

Plaintiff in error was convicted in the county court of Ellis county on the 9th day of April, 1910, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and on the same date was adjudged by the court to pay a fine of fifty dollars and be imprisoned for a term of thirty days. An order was made granting plaintiff in error forty-five days within which to make and serve a ease-made on the 9th day of April, 1910. No order was asked for, and none made, granting an extension of time within which to file the appeal in this court. Under the statutes, the appeal must be perfected in this ourt within sixty days from the date of judgment. The appeal was filed in this court on the 21st day of June, 1910, more than sixty days from the date of judgment. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not perfected within the time allowed by law. The motion is well taken and ie sustained. The appeal is dismissed.


text:
    J. C. COLLINS v. STATE.
    No. A-785.
    Opinion Filed September 23, 1911.
    Appeal from Superior Court, Muskogee County; Parrar L. McCain, Judge.
    J. C. Collins was convicted of a violation of the prohibition law and appeals.
    Beversed and remanded.
    W. J. Sullivan, for plaintiff in error.
    Smith C. Matson, Asst. Atty Gen., for the State. ■
   PEB CUBIAM.

Plaintiff in error was convicted in the superior court of Muskogee county for a violation of uhe prohibition law and was sentenced to a term of thirty” days in the county jail and pay a fine of two hundred dollars. A trial was had before a jury composed of six men. The record does not show that the defendant waived his right to a trial by a jury of twelve men. Under the authority of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291; Schafer v. State, 5 Okla. Cr. 598, 115 Pac. 379; Dalton v. State, infra., 116 Pac. 954, and Antonelli v. State, infra, the judgment will be reversed and the cause remanded to the superior court of Muskogee county with direction to grant a new trial.


text:
    JULIA A. THURSTON v. STATE.
    No. A-657.
    Opinion Filed September 23, 1911.
    Appeal from Superior Oourt, Logan County; J. M. Sandlin, Judge.
    Julia A. Thurston was eonvieted of a violation of the prohibition law, and appeals.
    Reversed and remanded.
    H. C. Olds, for plaintiff in error.
    Smith C. Matson, Asst, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the superior court of Logan county for the crime of selling intoxicating liquor and was sentenced to serve a term of thirty days in the county jail and pay a fine of fifty dollars. A trial was had before a jury composed of only six men. The record does not show that the defendant waived her right to a trial by jury of twelve men. Under the authority of Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291; Schafer v. State, 5 Okla. Cr. 598, 115 Pac. 379, and Dalton v. State, infra, 116 Pac. 954, the judgment will be reversed and the cause remanded to the superior court of Logan county with direction to grant a new trial.


text:
    GEORGE HODSON v. STATE .
    No. 1002.
    Opinion Filed September 23, 1911.
    Appeal from District Court, Canadian County; John J. Carney, Judge.
    George Hodson was convicted of larceny of live stock, and appeals.
    Appeal dismissed.
    Eorrest & Sansom, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was eonvieted of the crime of larceny of live stock, and was sentenced to imprisonment for a period of two years in the state penitentiary. The judgment and sentence was entered on December 27th, 1910. An appeal was taken by filing in this court on January 20th, 1911, a petition in error with case-made. Plaintiff in error by his counsel of record has filed a motion to dismiss his appeal, which motion is sustained, and the appeal is dismissed, with direction to the district court of Canadian county to cause its judgment and sentence to be carried into execution.


text:
    La FAYETTE WATERS AND SHAGG FOSTER v. STATE.
    No. A-173.
    Opinion Filed September 30, 1911.

      ON Motion for REHEARING.
    For former opinion see 4 Okla. Cr. 4.
    Affirmed as to La Fayette Waters, and Reversed as to Shagg Foster.
    Andrews & Lay, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

An -examination of the evidence in the case discloses the fact that the certified copy of a record in the internal revenue collector's office, showing the payment of the special tax required of retail liquor dealers offered in evidence was paid for, and issued, to the defendant Waters alone and this is the principal criminating circumstance in the case. The defendant Waters testified that the intoxicating liquor, to wit, a barrel of beer, was his individual property. Under these uncontradieted facts the evidence is insufficient to sustain the verdict as to the defendant Shagg Foster and for this reason we find that the verdict of guilty as to the defendant Foster is contrary to the evidence and the judgment is therefore reversed in so far as it relates to the defendant Shagg Foster. As to the defendant La Fayette Waters our conclusion is that the jury made no mistake in returning their verdict of guilty. The petition for rehearing as to the defendant La Fayette Waters is denied and the judgment against said- defendant is affirmed and remanded with direction to the county court of Pittsburg county to enforce the judgment as to this defendant.


text:
    LEONARD HATHAWAY v. STATE.
    No. A-978.
    Opinion Filed October 9, 1911.
    Appeal from District Court, Johnston County; A. T. West, Judge.
    Leonard Hathaway was convicted of the crime of murder, and appeals.
    Appeal dismissed.
    Cornelius Hardy, Newman & Lawrenee, and Cruce & Cruce, for plaintiff in error.
    Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the June, 1910, term of the district court of Johnston county of the crime of murder, and sentenced on the 29th day of June, 1910, to life imprisonment in the state penitentiary. Counsel have perfected their appeal and filed their brief as provided by the statute and the rules of this court. It appears that on the 14th day of September, 1911, plaintiff in error was pardoned by Acting-Governor McAlester. This court has repeatedly held that securing a pardon or parole while an appeal is pending in this court amounts to an abandonment of the appeal, and following the case of Gilmore v. State, 3 Okla. Cr. 639, 108 Pac. 416, the appeal in this ease is dismissed.


text:
    JOSEPH HERCHEK v. STATE.

      No. A-808.
    Opinion Filed October 9, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Joseph ITerehek was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Leer F. Wilson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Joseph Herehek was convicted in the county court of Oklahoma county on a charge of having the unlawful possession of intoxicating liquor for the. purpose of illegal sale, and on the 26th day of February, 1910, was adjudged by the court to pay a fine of two hundred fifty dollars and be confined in the county jail for ninety days.' On the date of judgment the court allowed, by order, sixty days to make and serve ease-made, ten days for suggesting amendments, and five days within which to sign and settle. Ho order was made extending the time within which to perfect the appeal in this court, and under repeated holdings it would have been necessary for the appeal to have been filed within sixty days from the date of judgment. The aj>peal was filed in this court on the 25th day of June, 1910. Ho order having been made extending the time within which the appeal could be taken, this court is without jurisdiction to review the same, and upon motion of the Attorney General it is hereby dismissed.


text:
    RUSSELL JACOBY v. STATE.
    No. A-806.
    Opinion Filed October 9, 1911.
    Appeal from Ellis County Court; A. E. Williams, Judge.
    Russell Jacoby was convicted on a charge of disturbing a public meeting, and appeals.
    Appeal dismissed.
    W. H. Springfield, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Russell Jacoby was convicted in the county court of Ellis county on the 9th day of April, 1910, on a charge of disturbing a public meeting, and on the same date was adjudged by the court to pay a fine of ten dollars and costs taxed at one hundred twenty-four dollars. He prayed an appeal and was allowed forty-five days by the court within which to make and serve case-made, ten days to suggest amendments, and five days to sign and settle. Ho order was made within which to perfect the appeal in this court. Under the statutes the appeal must be taken to this court within sixty days from the date of rendition of judgment unless the time is extended for good cause. The appeal was filed in this court on the 23rd day of June, 1910, more than sixty days after the rendition of the judgment, and under rejoeated holdings of this court' we are without jurisdiction to review the same. On motion of the Attorney General the appeal is dismissed.


author: Per Curiam.

text:
    ABE GREEN v. STATE.
    No. A-748.
    Opinion Filed October 14, 1911.
    Appeal from Custer County Court; A. H. Latimer, Judge.
    Abe Green was convicted'of violating' the prohibitory law, and appeals.
    Affirmed.
    Leroy Jones and Chas. D. Peck, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   Per Curiam.

Plaintiff in error was convicted in the county court of Custer county on the 31st day January, 1910, on a charge of selling intoxicating liquor, and on the 7th day of March, thereafter, was sentenced to pay a fine of three hundred dollars and serve thirty days in the county jail. A careful examination of the record discloses no error prejudicial to the rights of the plaintiff in error and the judgment the trial court is therefore affirmed.


author: CURIAM.

text:
    W. H. FERGUSON v. STATE.
    No. A-1135.
    Opinion Filed October 14, 1911.
    Appeal from Caddo County Court; C. Ross Hume, Judge.
    Bristow & McEayden, for plaintiff in error.
   CURIAM.

~W. H. Ferguson, plaintiff in error, was convicted intoxicating liquor with the intent to violate the provisions of the prohibition law, and was, on March 30th, 1911, sentenced to be confined in the county jail of Caddo county for a period of sixty days and pay a fine of three hundred dollars, and that on the failure to pay such fine that he be further so confined until the same is satisfied according to law. Erom which judgment an appeal -was taken by filing in this court on May 6th, 1911, a petition in error with ease-made. Plaintiff in error, on October 5th, by his attorneys of record, filed a motion to dismiss said appeal, which motion is sustained and said appeal is accordingly dismissed and the cause remanded to the county court of Caddo county with direction to enforce the judgment and sentence.


text:
    JIM BERRY v. STATE.
    No. A-690.
    Opinion Filed October 14, 1911.
    Appeal from Carter County Court; I. E. Mason, Judge.
    Jim Berry was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Sam H. Butler, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Carter county on the 29th day of January, 1910, on a charge of selling intoxicating liquor and his punishment fixed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. On a careful examination of the record we find no error sufficient to justify a reversal of this cause. The judgment of the trial court is therefore affirmed.


text:
    BOB POWELL v. STATE.
    No. A-977.
    Opinion Filed October 14, 1911.
    Appeal from Grady County Court; N. M. Williams, Judge.
   PEE CUEIAM.

Bob Powell, plaintiff in error, was convicted of the crime of having unlawful x>ossession of intoxicating liquor with intent to sell the same contrary to law, and was, on the 9th day of September, 1910, sentenced to be confined in the county jail for ninety days and pay a fine of two hundred and fifty dollars and costs, and on failure to pay such fine, that he be further so confined until the same is satisfied according to law. From which judgment an appeal was taken' by filing in this court on December 19th, 1910, a petition in error with case-made. Plaintiff in error on Oetober 6, 1911, filed a motion to dismiss his appeal, which motion is sustained and said appeal is accordingly dismissed and the cause remanded to the county court of Grady county with direction to enforce ■ the judgment and sentence.


author: DOYLE, J.

text:
    G. A. JOHNSTON v. STATE.
    Nos. A-703, A-725, A-726.
    Opinion Filed October 31, 1911.
    Appeals from Coal County Court; E. H. Wells, Judge.
    J. G. Rails, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was tried and convicted of the crime of having possession of intoxicating liquors, with the intention of violating the provisions of the prohibition law in each of three cases. In case No. A-703, he was on February 2, 1910, sentenced to be confined for thirty days in the county jail and pay a fine of one hundred and fifty dollars. From which judgment he appealed by filing in this court on April 1, 1910, petition in error with ease-made. In case No. A-726 he was, on February 17, 1910, sentenced to be confined in the county jail for ninety days and pay a fine of two hundred and fifty dollars. An appeal was taken by filing in this court on April 16, a petition in error with case-made. In case No. A-725, he was, on March 9, 1910, sentenced to be confined in the county jail for thirty days and pay a fine of two hundred dollars. An appeal was taken by filing in this court on April 16, petition in error with ease-made. The assignments of error are similar in each ease. It is insisted that the court erred in refusing to grant a change of judge in each case. The record shows the filing of the statutory affidavits for a change of judge conformable to sec. 1984 Snyder’s Stat. This section was repealed by sec. 2012 Snyder’s Stat. The application for change of judge was properly overruled in each case. We have carefully examined the record in each ease. The evidence is conclusive as to the guilt of the defendant. The assignments of error are without merit. We are clearly of opinion that plaintiff in error had a fair and impartial trial in each case. Wherefore the judgment of the county court of Coal county in each of the foregoing causes is hereby affirmed and the same are remanded with directions to said county court to enforce its judgments therein.

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


text:
    J. H. COOK v. STATE.
    No. A-956.
    Opinion Filed October 31, 1911.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    Roseman & Buckner, for plaintiff in error.
   PER CURIAM.

J. H. Cook, plaintiff in error, was convicted for a violation of the prohibition law in three cases and was, on September 21, 1910, sentenced to be confined in the county jail for a period of six months and pay a fine of five hundred dollars in each ease. From these judgments an appeal was attempted to be taken by consolidating said causes under one petition in error, which was filed in this court on November 22, 1910. Neither transcript nor ease-made has been attached to said petition. Plaintiff in error, on October 24, 1911, filed a motion to dismiss said appeal, which motion is attached, and said attempted appeal is accordingly dismissed, and the cause remanded to the county court of Garfield county with direction to enforce its judgment and sentence in each cause. •


text:
    In re C. L. PLATT.
    No. A-848.
    Opinion Filed October 31, 1911.
    Application for writ of habeas corpus.
   PER CURIAM.

This case is dismissed for want of prosecution.


author: FURMAN, P. J.

text:
    JOHN HALE v. STATE.
    No. A-1059.
    Opinion Filed October 31, 1911.
    Appeal from Greer County Court.
   FURMAN, P. J.

The Assistant Attorney General, Smith C. Mat-son, on the 24th day of May, 1911, filed the following motion to dismiss the appeal in this case:

“Now comes the Attorney General and appearing specially and for the purpose of this motion only, moves the court to dismiss the appeal in the above entitled case for the following reason: Because the record shows (page 60) that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Greer county on November 25, 1910, and the petition in error and case-made were not filed in this counrt until the 31st day of March, 1911, more than 120 days thereafter and after the extreme statutory time for perfecting the appeal as provided in see. 6948, Snyder’s Comp. Laws Okla. 1909, had expired. Wherefore, the Attorney General says that this court is without jurisdiction except to dismiss the appeal.”

This motion has just been called to our attention. Upon an examination of the record we find that the facts stated in the motion are true. The motion to -dismiss is therefore sustained.

ARMSTRONG and DOYLE, JJ., concur.


author: PEE CXJBIAM.

text:
    FRANK LACY v. STATE.
    No. A-864.
    Opinion Filed November 4, 1911.
    Appeal from Caddo County Court; B. P. Holding, Judge.
    Bristow & McPayden, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.

      On the 30th day of April, 1910, judgment was rendered against appellant for a violation of the prohibitory liquor law and his punishment was assessed at a fine of $250 and 75 days imprisonment in the county jail. Defendant attempted to appeal.
    Appeal dismissed.
   PEE CXJBIAM.

On the 16th day of September, 1911, the Assistant Attorney General filed the following motion to dismiss the appeal in this case:

"Comes now Charles West, Attorney General, and appearing specially and for the purpose of this motion alone, moves to dismiss the appeal in the above entitled ease for the following reasons: Because the record in this case shows that this is an attempted appeal from a judgment of conviction rendered in the county court of Caddo county on the 30th day of April, 1910, for a misdemeanor, at which time the court granted 50 days to make and serve the case-made on the county attorney and 90 days to file petition in error and ease-made in this court, and that thereafter, to wit, on June 2, 1910, the trial court granted the defendant 40 days from said June 20, 1910, to make and serve his case-made, and 60 days from June 18, 1910, to file his petition in error and case-made in this court. That thereafter, to wit, on July 11, 1910, the trial court made another order granting the defendant 10 days from that date, July 11, 1910 to make and serve case-made, and 37 days from such date to file petition in error and case-made in this court. That the time originally allowed, to wit, 90 days from April 30, 1910, to file petition in error and ease-made, expired on and with the 29th day of July, 1910. That the time granted on the 2nd day of June, 1910, to wit, 60 days from June 18, 1910, to file petition in error and case-made in this court, expired on and with the 17th day of August, 1910; that the time granted on July 11, 1910, to wit, 37 days from that date, within which to file petition in error and case-made in the Criminal Court of Appeals, expired on and with the 17th day of August, 1910. That said petition in error and case-made were not filed in this court until the 22nd day of August, 1910, and after the time originally allowed by said trial court within which to file the same had expired, and after the time allowed in any subsequent order of the court within which to file the same in this court had expired. Wherefore, the Attorney General says that this court is without jurisdiction in this case, except to dismiss the appeal, and respectfully moyos the court to make such order.”

On the 31st day of October, 1911, counsel for appellant filed the following motion to dismiss this appeal: "Comes now the plaintiff in error in the above entitled cause and dismisses the appeal in the above entitled cause, and asks that mandate issue at once.” Both of said motions are sustained and the appeal is dismissed, with directions to the county court of Caddo county to proceed with the execution of the judgment; and it is ordered that the mandate of this court issue without delay.


text:
    JOE PARKS v. STATE.
    No. A-689.
    Opinion Filed November 4, 1911.
    Appeal from Harmon County Court; C. W. King, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 5th day of February, 1910, appellant was convicted in the county court of Harmon county for violating the prohibitory liquor law and his punishment was assessed at a fine of $50 and 30 days imprisonment in the county jail. Under the law appellant had 30 days from.the date of judgment in which to prepare and serve his ease-made, but appellant did not serve his case-made until the 16th day of March, 1910. The case-made was therefore filed too late and must be stricken from the record. We must therefore consider the case upon the transcript of the record alone. The appeal was filed in this court on the 31st day of March, 1910, since which time no brief has been filed in behalf of appellant. We find no fundamental error in the record. We must therefore affirm the conviction. See Price v. State, 5 Okla. Cr. 147. The judgment is therefore in all things affirmed, with directions to the trial court to proceed with the execution of its judgment.


text:
    CLARENCE CANADY v. STATE.
    No. A-1139.
    Opinion Filed November 4, 1911.
    Appeal from Harmon County Court; C. W. King, Judge.
    D. T. Moore, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
    Appellant was prosecuted for a violation of the prohibitory liquor law and his punishment was assessed at a fine of $50 and 30 days imprisonment in the county jail. Appealed.
    Affirmed.
   PER CURIAM.

The state has filed a motion to dismiss this appeal because not perfected within the time required by law. Upon an examation of the record we do not think that this motion should be sustained. It is true that the testimony could be clearer and more convincing, but the issues were clearly submitted by the court to the jury, and we cannot say that the verdict of the jury is contrary to the evidence. Where there is any testimony in a reeord from which the jury could legitimately reach the conclusion of guilt, this court will not reverse a conviction. The appellant offered no testimony in his own behalf. Appellant reserved only a general exception to the charge of the court and does not attempt, in the brief filed by his counsel, to point out any material error in the record. The judgment of the lower court is therefore affirmed.


text:
    JOE LEWIS AND VIE LEWIS v. STATE.
    No. A-736.
    Opinion Filed November 4, 1911.
    Appeal from Pontotoc County Court; Joe Terrell, Judge.
    Crawford & Bolen, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, Joe Lewis and Vie Lewis, were convicted on an information wherein they were jointly charged with the crime of unlawfully keeping and maintaining a place where intoxicating liquors were sold. On December 31, 1909, Joe Lewis was sentenced to be confined for sixty days in the county jail and pay a fine of two hundred dollars. And Vie Lewis was sentenced to be confined for thirty days in the county jail and pay a fine of fifty dollars. From which judgment they appealed by filing in this court on April 25, 1910, a petition in erorr with case-made. It is insisted that the court erred in overruling a motion to dismiss, for the reason that the court was without jurisdiction, inasmuch as the warrants of arrest issued on the information were not signed by the county judge. The record does not sustain this contention. It apepars that the first warrant issued on the 6th day of November, 1909, was signed only by the clerk of the county court. The record shows that other warrants issued on November 22, by the county judge. For this reason the motion to dismiss was properly overruled. From a careful examination of the record we are convinced that a fair and impartial trial was had and that the appeal in this case is without merit. The judgments are therefore affirmed and the cause remanded to the county court of Pontotoc county with direction to enforce its judgments therein.


text:
    T. T. NOWAKOSKI v. STATE.
    No. A-899.
    Opinion Filed November 4, 1911.
    Appeal from Pottawatomie County Court; E. D. Beasor, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, T. T. Nowakoski, was convicted of a violation of the prohibition law and sentenced to be confined for a period of six months in the county jail and pay a fine of five hundred dollars. Judgment and sentence were entered on April 23, 1910. An appeal was attempted to be taken by filing in this court on August 23, a petition in error with case-made. The Attorney General has filed a motion to dismiss, because the petition in error and ease-made were not filed in this court within one hundred and twenty days from the date of the rendition of judgment, and because said ease-made was nor served upon the county attorney within the time fixed by the trial judge. In response to the Attorney General’s motion, plaintiff in error filed his motion to dismiss said appeal. The Attorney General’s motion to dismiss is hereby sustained and the cause remanded with direction to the county court of Pottawatomie county to enforce its judgment therein.


text:
    BEN FORD AND OTTO DISHON v. STATE.
    No. A-1169.
    Opinion Filed November 4, 1911.
    Appeal from Caddo County Court; C. Ross Hume, Judge.
    Bristow & McFadyen, for appellants.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the 30th day of March, 1911, appellants were convicted for violating the prohibitory liquor law and their punishment was assessed at a fine of $75 each and 30 days confinement each in the county jail of Caddo county. Appellants have appealed. The Assistant Attorney General has filed the following motion to dismiss the appeal:

"Comes now Charles West, Attorney General, and appearing specially and for the purposes of this motion alone, moves the court to dismiss the pretended appeal in this case for the following reasons: Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Caddo county on March 30, 1911, and the petition in error and case-made were not filed in this court until June 1, 1911, more than 60 days after the rendition of such judgment, no order extending the time within which the petition in error and case-made should be filed in this court having been made. Wherefore, the Attorney General says that this court is without jurisdiction except to dismiss the appeal.”

Counsel for appellant, Ben Ford, has also filed the following motion to dismiss his appeal: "Comes now Ben Ford, one of the plaintiffs in error in the above entitled cause, and for and on behalf of himself and himself alone, dismisses the appeal in the above entitled cause as to himself, and asks that mandate issue at once. ’'

We find that the motion of the Attorney General is well taken. This appeal not having been perfected within.the time prescribed by law, we are without jurisdiction to make any order in this case except to dismiss the appeal. The appeal is therefore dismissed, with directions to the lower court to proceed with the execution of its judgment against both of the appellants.


text:
    In re GEO. W. SMITH.
    No. A-837.
    Opinion Filed November 9, 1911.
    Application for writ of habeas corpus.
    Writ denied.
    Fred S. Caldwell, for petitioner.
   PER CURIAM.

The petitioner, Geo. W. Smith, on July 19, 1910, filed in this court a petition signed and verified by his oath, wherein he avers that he is illegally restrained of his liberty by Harvey D. Garrison, sheriff of Oklahoma county, and alleging the facts constituting said illegal restraint. For the reasons therein stated petitioner prays that a writ of habeas corpus be allowed and that he be discharged. Upon filing the application the write issued returnable August 4th, 1910, and respondent was directed to release petitioner pending the hearing and determination of his application upon the giving of a bond fixed in the sum of two hundred and fifty dollars, to be filed with and approved by the clerk of the superior court of Oklahoma county. The return of the respondent states that:

“The petitioner, George W. Smith, has not been, nor is he now, in the custody of, nor has he been held or restrained of his liberty in any manner by your respondent or any of his deputies.”

And further states:

“The said petitioner appeared at the county jail of Oklahoma county on the 19th day of July, 1910, with the order of this court to have the body of said Smith before it on August 4th, 1910, and releasing said Smith from your respondent’s custody upon the execution of a bond in the sum of two hundred and fifty dollars, and at the same time producing said bond approved by the clerk of the superior court of Oklahoma county as required by the order of the court.”

It thus appears that at the time the petitioner applied for the writ he was not in the custody of the respondent. This court has uniformly held that a writ of habeas corpus will not lie to release a person who is not in actual custody. Ex parte Messall, 2 Okla. Cr. 687; 103 Pac. 1040; Ex parte Baldwin infra, 115 Pac. 473. The petitioner not having been in actual custody at the time the writ herein issued as shown by the return of the respondent the writ is discharged and the proceeding dismissed.


text:
    MRS. VIVIAN BOWMAN v. STATE.
    No. A-826.
    Opinion Filed November 9, 1911.
    Appeal from Choctaw County Court; W. T. Glenn, Judge.
    Mrs. Vivian Bowman was convicted of a violation of the prohibition law and appeals.
    Affirmed.
    Smith G. Matson, Asst. Atty. Gen., for the state.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Choctaw county for the offense of unlawfully conveying intoxicating liquors, and sentenced to be confined for a period of thirty days in the county jail and to pay a fine of fifty dollars. The judgment and sentence was entered on April 25, 1910. No brief has been filed and no appearance made in this court on behalf of the plaintiff in error. The Attorney General has moved to affirm for want of prosecution. We have examined the information, the instructions of the court, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment. The judgment is therefore affirmed and the cause remanded to the county court of Choctaw county with direction to enforce its judgment therein.


author: PEE CTJKIAM.

text:
    JOHN W. BARTON v. STATE.
    No. A-839.
    Opinion Filed November 9, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Judge.
    B. B. Forrest, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., 'for the State.
   PEE CTJKIAM.

The plaintiff in error, John W. Barton, was convicted in the county court of Canadian county of the crime of conducting a public gambling hoqse and on April 23, 1910, was sentenced to serve a term of five months in the county jail and to pay a fine of five hundred dollars. No brief has been filed. We have examined the record proper and no prejudicial error is apparent. The judgment is therefore affirmed and the cause remanded to .’the county court of Canadian county with direction to enforce its judgment therein.


text:
    JACK HUGHES v. STATE.
    No. A-841.
    Opinion Filed November 9, 1911.
    Appeal from Osage County Court; C. T. Bennett, Judge.
    Hargis, Sams & Hargis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error, Jack Hughes, was convicted in the county court of Osage county of a violation of the prohibition law. On January 14, 1910, he was sentenced to serve a term of thirty days in the county jail and to pay a fine of one hundred and fifty dollars. An appeal was attempted to be taken by filing in this court on July 28, 1910, a petition in error with ease-made. The Attorney General calls our attention to the fact that this appeal was not taken in time. The statute provides (see. 6948 Snyder's) that appeals in misdemeanor cases mast be taken within sixty days after the judgment is rendered, provided, that for good cause shown, the trial court or judge may extend such time not exceeding sixty days. It is well settled that where an apepal in- a criminal case is not taken in the limit of time prescribed by the statute this court does not acquire jurisdiction of the cause. It is therefore ordered that the purported appeal be, and the same is, hereby dismissed, and the cause remanded to the county court of Osage county with direction to enforce its judgment therein.


text:
    W. C. BERKLEY v. STATE. C. R. SCHAFER v. STATE. D. MATER AND FRANK BURGESS v. STATE.
    No. A-830.
    No. A-831.
    No. A-832.
    Opinion Filed November 9, 1911.
    Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.
    F. H. McGuire, for plaintiffs in error.
   PER CURIAM.

The plaintiff in error, W. C. Berkley, was convicted in the superior court of Logan county of a violation of the prohibition law, and was on March 17, 1910, sentenced to serve a term of ninety days in the county jail and to pay a fine of one hundred and fifty dollars. The plaintiff in error, C. R. Schafer, was convicted in the superior court of Logan county of a violation of the prohibition law and was, on March 17, 1910, sentenced to serve a term of sixty days in the county jail and to pay a fine of two hundred and fifty dollars. The plaintiffs in error, D. 'Mater and Frank Burgess, were jointly convicted in the superior court of Logan county of a violation of the prohibition law. On March 17, 1910, the said Mater was sentenced to serve a term of sixty days in the county jail and to pay a fine of one hundred and fifty dollars, and the said Burgess was sentenced to serve a term of thirty days in the county jail and to pay a fine of fifty dollars. In each of the foregoing causes the trial was had before a jury composed of six men over the objection of the defendants. For the reasons stated in the opinion of the court in-the ease of Dalton v. The State, infra, 116 Pac. 954, the aforesaid judgments are reversed and the causes remanded to the superior court of Logan county with directions to grant new trials therein.


text:
    DAVE THOMPSON v. STATE.
    No. A-815.
    Opinion Filed November 11, 1911.
    Appeal from Superior Court, Muskogee County; F. L. McCain, Judge.
   PEE CUBIAM.

On the 5tk day of March, 1910, judgment was rendered against the appellant in the superior court of Muskogee county for a violation of the prohibitory liquor law, and his punishment assessed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. The amended case-made shows that appelland was given 90 days from said date in which to file petition in error- and case-made in this court. But the case-made was not filed in this court until the 23rd day of June, 1910, which was nineteen days after the expiration of the time allowed by the trial court. Therefore this court did not acquire jurisdiction of the appeal. Errors appear in the record for which the judgment of the lower court would have been reversed if the appeal had been filed in time to give this court jurisdiction, but as it is we are without discretion to do otherwise than to dismiss the appeal. The appeal is, therefore, dismissed.


text:
    JOE CUNEO v. STATE.
    No. A-904.
    Opinion Filed November 11, 1911.
    Appeal from Comanche County Court; James H. Volverton, Judge.
    Joe Cuneo was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
   PER CURIAM.

Joe Cuneo was convicted of a violation of the prohibition law and was sentenced to serve a term of sixty days in the county'jail, and to pay a fine of one hundred dollars. The judgment and sentence was entered on April 21, 1910. An appeal was attempted to be taken by filing in this court on September 21, 1910, petition in error with case-made, the same being more than one hundred and twenty days after the rendition of such judgment. For this reason the Attorney General has filed a motion to dismiss for want of jurisdiction. The motion is well taken. It is therefore ordered that the appeal be and the same is hereby dismissed and the cause remanded to the county court of Comanche county with direction to enforce its judgment therein.


text:
    JIM OVERALL v. STATE.
    No. A-902.
    Opinion Filed November 11, 1911.
    Appeal from Jackson County Court; W. T. McDonnell, Judge.

      Jim Overall was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
   PEE CUEIAM.

Plaintiff in error, W. C. Allen, was convicted the county court of Jackson county of a violation of the prohibition law, and was, on May 18th, 1910, sentenced to serve a term of thirty days in the county jail and pay a fine of fifty dollars. An appeal was attempted to be taken by filing in this court on September 19, 1910, petition in error and case-made, this being one hundred twenty-four days after the judgment was rendered. The Attorney General has filed a motion to dismiss the apepal for the reason that the petition in error and ease-made were filed in this court more than one hundred twenty days after the rendition of the judgment. The motion is well taken and the appeal dismissed. It is therefore ordered that the appeal be dismissed and the cause remanded to the county court of Jaekson county with directions to enforce its judgment and sentence therein.


text:
    W. C. ALLEN v. STATE.
    No. A-901.
    Opinion Filed November 11, 1911.
    Appeal from Pottawatomie County Court; E. D. Eeasor, Judge.
    W. C. Allen was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
   PEE CUEIAM.

Plaintiff in error, W. C. Allen, was convicted of a violation of the prohibition law at the May, 1910, term of the county court of Pottawatomie county. The attempted appeal does not contain a copy of the judgment entered. The Attorney General has filed a motion to dismiss the appeal because the record or ease-made does not contain the judgment rendered against the plaintiff in error as alleged in his petition in error. Sec. 6951, Snyder’s Stat., provides:

“The plaintiff in error shall file with his petition in erorr a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original ease-made, as hereinafter provided, or a copy thereof. The plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court. ’ ’
“It is seen from this that the statute in plain and mandatory language requires that the .judgment from which the appeal is prosecuted shall be presented to us by the transcript of the proceedings or embodied in the case-made. In either event the record so presented must be certified to as the law directs; if not so certified to, this court would have no means of judging of its authenticity. ’ ’ Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535, and cases therein quoted. Por this reason, under the statute, this court is without authority to consider this appeal. The appeal is therefore dismissed, and the cause remanded to the county court of Pottawatomie county, with directions to enforce its judgment therein.


text:
    LAWRENCE MORGAN v. STATE.
    No. A-885.
    Opinion Filed November 11, 1911.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Lawrence Morgan was convicted of a violation of the prohibition law and appeals.
    Appeal dismissed.
    O. F. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Lawrence Morgan, was convicted in the eouncy court of Ottawa county for a violation of the prohibition law and was, on July 11th, 1910, sentenced to serve a term of six months in the county jail and to pay a fine of ■ five hundred dollars. The Attorney General has filed a motion to dismiss the appeal for the following reason: "Because notice of appeal was not served on the county attorney as required by sec. 6949, Snyder’s Stat. Wherefore the Attorney General says that this court is without jurisdiction in this case, except to dismiss the appeal.’’ There is nothing in the record which shows that notice of appeal in this ease was served upon the prosecuting attorney. The statute is mandatory and jurisdictional. In the absence of such notice this court acquires no jurisdiction to entertain the appeal. The appeal is therefore dismissed.


text:
    FRANK AND ANNA MABERRY v. STATE.
    No. A-871.
    Opinion Filed November 11, 1911.
    Appeal from District Court, Custer County; James R."Tolbert, Judge.
    W. J. Lackey, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the srtite.
   PER CURIAM.

The Attorney General has filed a motion to dismiss the appeal for the reason that the Criminal Court of Appeals has no jurisdiction of the subject-matter of the action, neither of the plaintiffs was arrested in the case, and only seek'to have their goods restored or receive pay for the same with costs, etc. The case being a civil action. For this reason the motion to dismiss is sustained.


text:
    BUD TURNER v. STATE.
    No. A-878.
    Opinion Filed November 11, 1911.
    Appeal from Jaekson County Court; W. T. McConnell, Judge.
    Bud Turner was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    Castleman & Lawson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Bud Turner, was convicted in the county court of Jaekson county for a violation of the prohibition law and was, on June 6, 1910, sentenced to serve a term of ninety days in the county jail and to pay a fine of three hundred dollars. An appeal was attempted to be taken by filing in this court on August 81, 1910, a petition in error with ease-made. The Attorney General has filed a motion to dismiss the appeal for the reasons: “1. Because there is no certificate of the trial judge to the pretended case-made filed in this ease, this being an attempt to appeal by case-made alone. 2. Because the judgment in this ease was rendered on the 6th day of June, 1910, and said pretended appeal was not filed in this court until the 31st day of August, 1910', more than 60 days after the rendition of such judgment, the trial court not, having extended the time beyond the 60 days allowed by law.” We have examined the record and find the motion to dismiss is well taken. It is therefore ordered that the appeal be, and the same is, hereby dismissed, and the cause remanded to the county court of Jaekson county with direction to enforce its judgment therein.


text:
    WESLEY NELSON v. STATE.
    No. A-884.
    Opinion Filed November 11, 1911.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Wesley Nelson was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    O. P. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Wesley Nelson, was convicted in the county court of Ottawa county for a violation of the prohibition law and was, on July’ 11, 1910, sentenced ttf serve a term of six months in the county jail, and to pay a fine of five hundred dollars. The Attorney General has filed a motion to dismiss the appeal for the following reason: “Because notice of appeal was not served on the county attorney as required by sec. 6949, Snyder's Stat. Wherefore the Attorney General says that this court is without jurisdiction in this case, except to dismiss the appeal.” There is nothing in the record which shows that notice of appeal in this case was served upon the prosecuting attorney. The statute is mandatory and jurisdictional. In the absence of such notice this court acquires no jurisdiction to entertain the appeal. The appeal is therefore dismissed.


text:
    L. D. McNEILL v. STATE.
    No. A-883.
    Opinion Filed November 11, 1911.
    Appeal from Canadian County Court; H. L. Pogg, Judge.
    L. D. McNeill was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    Frame & Calloway, for plaintiff in error.
    Smith C. Matson, Asst. Atty Gen., for the State.
   PER CURIAM.

The plaintiff in error, L. D. McNeill, was convicted in the county court of Canadian county of a violation of the prohibition law, and was, on May 25, 1910, sentenced to serve a term of thirty days in the county jail and to pay a fine of fifty dollars. An appeal was attempted to be taken by filing in this court on September 8, 1910, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal for the following reasons: "1. Because the record "discloses that this is an attempted appeal by transcript of the record from a judgment of conviction for a misdemeanor rendered in the county court of Canadian county on the 25th day of May, 1910, at which time the court granted 90 days to file petition in error and case-made in the Criminal Court of Appeals; that thereafter, to wit, on the 23rd day of August, 1910, the court allowed 10 days additional to file petition in error in this court; that thereafter, to wit, September 2, 1910, the trial court allowed 5 days additional to file petition in error in this court, making in all 105 days from the 25th day of May, 1910, in which the petition in error should have been filed in this court. The Attorney General would respectfully show to this court that the petition in error and case-made were not filed in this court until the 8th day of September, 1910, which was 106 days after the rendition of such judgment and beyond the time allowed by the trial court. Wherefore, the Attorney General says that this court is without jurisdiction, except to dismiss this appeal." An examination of the record discloses that the motion to dismiss is well taken. It is therefore ordered that said appeal be, and the same is, hereby dismissed, and the cause remanded to the county court of Canadian county with direction to enforce its judgment therein.


text:
    PHILLIP PARIS v. STATE.
    No. A-747.
    Opinion Filed November 11, 1911.
    Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.
    Arnote & Monk, for iDlaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
    Phillip Paris was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
   PEE CUEIAM.

Phillip Paris was convicted in the superior court of Pittsburg county at the January, 1910, term of violating the prohibitory law, and on the 1st day of March thereafter was sentenced by the court to pay a fine 'of fifty dollars and be imprisoned in the county jail for a period of thirty days. A number of assignments of error are argued in the briefs, none of which we thinlr are sufficient to justify a reversal of the judgment. The record, however, discloses the fact that this case was tried before a jury of six persons instead of twelve. This court has recently held in a number of similar eases that this being a fundamental error appearing from the record the judgment based upon conviction had before such a jury would be reversed and a new trial ordered. Following the rule laid down in the case of Dalton v. State, infra, 116 Pac. 954, this cause is reversed and remanded to the superior court of Pittsburg county with directions to grant plaintiff in error a new trial.


text:
    BERT AUSTIN v. STATE. DOC DAULTON v. STATE. G. C. SMITH v. STATE. M. A. TURNER v. STATE. J. F. SHERRELL v. STATE.
    No. A-811.
    No. A-812.
    No. A-813.
    No. A-816.
    No. A-820.
    Opinion Filed November 11, 1911.
    Each of the above appellants were convicted of violating the prohibitory liquor law, and appeals.
    Smith C. Matson, Asst. Atty. Q-en., for the State.
   PEE CUEIAM.

The records in each of the above numbered cases have been filed in this court for more than a year, and no brief has been filed in either of said cases in behalf of the appellants. Said cases being reached for submission on the regular call of the docket and no one appearing on behalf of the appellants in each of said eases, the Assistant Attorney General, therefore, has filed a motion in each ease to affirm the judgment of the lower court because the appeal in each case has not been prosecuted. See Joe Price v. State, 5 Okla. Cr. 147. The clerk of this court is, therefore, directed to enter a judgment of affirmance in each of said eases, and without delay send the mandate out in each ease directing the trial court in each case to enforce its judgment.


text:
    FRED EDWARDS v. STATE.
    No. A-903.
    Opinion Filed November 14, 1911.
    Appeal from Blaine County Court; Geo. W. Ferguson, Judge.
    Fred Edwards was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
    Seymour Foose, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

The plaintiff in error was convicted in the county court of Blaine county of a violation of the prohibition law, and on May 29th, 1910, was sentenced to serve a term of thirty days in the county jail, and to pay a fine of one hundred dollars. No brief has been filed, and no appearance made on behalf of the defendant in error in this court at the time the cause was assigned for oral argument and final submission. The Attorney General has filed his motion to dismiss for failure to prosecute the appeal, under rule 4. We • have examined the pleadings, instructions of the court, and exceptions taken thereto, and the judgment and sentence, and we have discovered no error which will warrant a reversal of the judgment. The judgment is therefore affirmed, and the cause remanded to the county court of Blaine county with direction to enforce its judgment therein.