text:
    E. L. LONG v. STATE.
    No. A-3377.
    Opinion Filed Oct. 2, 1920.
    (192 Pac. 427.)
    (Syllabus.) •
    CRIMINAL LAW — Second Offense — Evidence of Former Conviction. In a trial for a second violation of the prohibitory liquor laws, where the only evidence of the former violation charged was the conviction of the defendant, from which an appeal to this court was taken, the judgment and conviction suspended, and the appeal undetermined, the evidence is insufficient to sustain a conviction, and it is reversible error to overrule a motion for a new trial.

      Appeal from District Court, Tulsa County’, N. E. McNeill, Judge.

    E. L. Long was convicted of a second violation of the prohibitory liquor law, and he appeals.
    Reversed.

      F. F. Nelson, John S. Hale, D. M. Martindale, and R. K. Robertson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, E. L. Long, was convicted of having on-the 20th day of August, 1917, intoxicating liquors in h-is possession with the intent to sell, barter, give away, and otherwise dispose and furnish the same in violation of the prohibitory liquor laws of the state, and alleging ..said offense to be the second offense, said defendant having been convicted of said offense in the county court of Tulsa county on the 11th day of May, 1917. From the judgment rendered on the verdict he appeals.

The record shows that at the close of the case for the state, and again at the lose of the whole case, counsel for the defendant requested the court to advise and instruct the jury to return a verdict of acquittal on the ground and for the reason that the evidence fails to show that the defendant was ever convicted of a violation of the prohibitory liquor laws of the state of Oklahoma. After the verdict, the counsel moved for a new trial on the same ground and offered to prove that the former conviction, as alleged in the information, has not resulted in a final conviction; that said case is now pending on appeal from the judgment therein rendered.

The errors assigned are based upon the exceptions taken to the rulings of the court on this question.

The Attorney General has filed the following confession of error:

“This was á trial and conviction under the Enhanced Penalty Act of section 2 of chapter 26, Session Laws 1913. As a predicate to this prosecution, under this provision of the statutes, the county attorney, over the objection of the defendant, was permitted to introduce in evidence the previous conviction of the defendant upon which this prosecution was, in part, based. In the course of the trial, and in the examination of the witness Seamen, the deputy court clerk by whom the prior conviction was established, .the following proceedings occurred:
“ ‘Q. What does your record show happened after the sentence there—
“ ‘The Court: That is not material.
“‘Q. (continuing) — as to an appeal?
“ ‘The Court: Wait a minute; that is not material.
“‘Mr. Williams: Objected to as incompetent, irrelevant, and immaterial.
“ ‘The Court: . Yes; it is not material; all the court can go upon is a conviction.
“ ‘Q. I will ask you whether or not this case that you referred to was appealed to the Criminal Court of Appeals?
“ ‘Mr. Williams: I object as irrelevant and immaterial.
“ ‘The Court: Sustained.
“ ‘Mr. Weldon: Exception.’
“Under the rule announced by this court in the case of McAlester v. State, 16 Okla. Cr. 70, 180 Pac. 718, which opinion was rendered subsequent to the trial of this case, the question of whether or not the appeal was pending from the judgment in the prior conviction was one for the court to determine and to determine in the negative, before the evidence of the prior conviction was admissible. Without this evidence, of course no conviction under this statute could be obtained.
“The rule announced in the McAlester Case, supra, is as follows:
“ ‘Pending an appeal to this court from a conviction, where judgment of conviction is suspended, such conviction, until affirmed by this court, is not legal evidence, upon a trial for a second violation of the prohibitory liquor law.
“ ‘Upon a trial for a second violation of the prohibitory laws, it is prejudicial error to admit in evidence proof of a prior conviction when judgment of such conviction has been appealed to this court, and the execution of the judgment of the conviction legally suspended, and the said appeal is undetermined.’
“Therefore the judgment in this case must necessarily have to be reversed.” •

The records of this court show that the judgment of conviction rendered on the 15th day of May, 1917, against the plaintiff in error was affirmed by this court on April 3, 1919; that said appeal was taken by filing in this court on September 15, 1917, a petition in error with case-made.

Upon the authority of the case of McAlester v. State, 16 Okla. Cr. 70, 180 Pac. 718, the conviction of error is well founded and ,should be sustained.

The judgment of the lower court is therefore reversed.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ED REED et al. v. STATE.
    No. A-3417.
    Opinion Filed Oct. 5, 1920.
    (192 Pac. 426.)
    On supplemental petition for rehearing on behalf of defendant Tom Ford.
    Former judgment of conviction as to defendant Tom Ford reversed, with directions.
    For farmer opinion, see 17 Okla. 662, 191 Pac. 1041.
   DOYLE, P. J.

Upon motion for leave to file a supplemental petition for rehearing, in behalf of the defendant Tom Ford, upon due consideration of the court, leave was granted to file the' same.

It is insisted that the evidence is wholly insufficient to sustain the verdict as against the defendant Ford. Carefully reconsidering the whole testimony in the case, we are satisfied that the contention is well taken. The only evidence to support the verdict as against the defendant Ford, is that he was standing in the second door as the officers passed in; he made no' effort to obstruct the officers, nor .was any statement made to him by the officers or by him to the officers at the time the officers passed through the door. The only other evidence which tends inferentiall.v in any way to connect the defendant Ford with the commission of the offense is the implied admission of guilt in the testimony of Deputy Sheriff Brooks, as follows:

“Q. Say you didn’t have a conversation with Tom Ford at that time? A. No. sir; I — after we got them all up they asked us to let them down on that as light as we could.
“Q. He said to let them down as light as we could? A. Yes, sir.”

It does not appear from the record where such alleged conversation took place, or in what connection the same was made. There is no direct evidence tending to connect Ford with the opening or conducting of the game in question. In the absence of such evidence, after a careful consideration of the record’, the court concludes that the implied admission in the form above set out is not sufficient to sustain the verdict as to the defendant Ford, and that the trial court erred in not sustaining the motion of the defendant Ford to direct a verdict of not guilty as to him.

It is therefore ordered and adjudged that the judgment of conviction as to the defendant Tom Ford be reversed, and the district court of Carter county is directed to immediately spread of record this judgment rendered on the subsequent petition for rehearing, and if any commitment has been heretofore issued upon the former judgment of this court, modifying and affirming the sentence as to the defendant Tom Ford, the district court or judge thereof is directed to recall the same and discharge the defendant Tom Ford.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    JAMES N. STOVALL v. STATE.
    No. A-2191.
    Opinion Filed March 3, 1920.
    (187 Pac. 815.)

      Appeal from County Court, Ottaiva County; Vern E. Thompson, Judge.

    James N. Stovall was convicted of a misdemeanor, and he appeals.
    Reversed, and cause remanded with direction to dismiss.

      A. C. Towne, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Thé conviction was for buying a pretended title to real estate. The sentence was a fine of $25 and costs. The charging part of the information reads as follows:

“That James N. Stovall did in Ottawa county and in the state of Oklahoma, on or about the first day of February, in the year of our Lord one thousand nine hundred and thirteen and anterior to the presentment hereof, coyn-mit the crime of buying and taking a covenant and deed conveying a pretended title and right to land, the grantor not. having been in possession thereof, nor having taken the rents and profits thereof for the space of one year before the buying and taking of said pretended right and title to certain lands in the manner and form as follows, to wit:
“That on the said date and in the said county and state, the said James N. Stovall then and there being, did then and there buy and take a warranty deed from Frank T. Lamar and Florence E. Lamar, his wife, to himself thereby buying and taking a pretended right and title to the following described land,*, situated in Ottawa county, to wit: The southwest quarter of the northwest quarter of the northeast quarter of section sixteen (16), and the east half of the southwest quarter of the northwest quarter of the northeast quarter of section sixteen (16), and the east half of the southwest quarter of the northwest quarter and the northwest quarter of the northeast quarter of the southwest quarter and the south half of the northeast quarter of the southwest quarter of section one (1), and all in township twenty-six (26), range twenty-three (23), east of the Indian base and meridian, containing sixty (60) acres of land.
“That the said Frank T. Lamar and Florence E. Lamar, his wife, grantors as aforesaid, or those through whom they claimed, had not been in possession of said lands or of the reversion or remainder thereof, nor had the said Frank T. Lamar and Florence E. Lamar, his wife, or those through whom they claimed, taken the rents and profits from said lands for the space of one year before the buying and taking of the pretended right and title to said lands by the said James N. Stovall, contrary to,” etc.

The evidence, in substance, is as follows:

Lon Lambkin, register of deeds, testified that a certain deed is of record in his office, being dated January 25, 1913, said deed being made by F. T. Lamar and Florence E. Lamar, grantors, to J. N. Stovall, grantee, for the land described in the information.

W. I. Angel testified that he had been in possession under a deed from Priscilla Breedlove since February, 1909, of the south one-half northeast quarter of southwest quarter of northwest quarter,' and the northeast quarter of southwest quarter of section 1, township 26, range 23, and that he had paid no rent to any one during that time; that Stovall notified him to give up possession of the land; and that Stovall came and cut timber there, and tried to persuade him to rent the land to him. Witness did not know whether Mr. Stovall knew that the witness was in possession of the land when he took the deed from Lamar or not.

E. E. Price testified that he holds a deed to 20 acres •of land that was a part of the Frank Lamar allotment, and that he sold it to A. A. Wyford in 1911, and that Mr. Wy-ford was to pay for it in one year the sum of $300; that Wyford failed to pay and no deed was ever made to him; Wyford is in possession of it, but does not claim any title; that he did not pay any rent to Lamar or any one else, as he did not know whether he was owner of the land or not, as the title is in controversy between Mrs. Breedlove am* Mr. Stovall; that he had understood that the deed which the Breedloves made to him was no good, because the grantor, F. T. Lamar, was a minor under guardianship and was 14 months under age when he made the Breedlove deed; that witness tried to get a new deed from Frank Lamar when he sold the place to A. A. Wyford; that Lamar was in prison at McAlester, and he went there and tried to get a deed from him; Lamar wanted $200, and he would not give what Lamar wanted for it.

A. A. Wyford testified that he was in possession of the land known as a part of the Lamar allotment, and that he got possession from Mr. Price. Witness did not know whether Stovall knew, at the time he bought the land from Lamar, that witness was in possession of the land or not; and Stovall did not know anything about the contract with Price for the purchase of the land.

O. E. Fisher testified that he was in the employ of Mr. Stovall to look up some business for him; that witness was present when the deed to Mr. Stovall was ,signed and made, and that he had the deed in his pocket at that time; that at the time the deed 'was made it was to be sent to the Citizens’ State Bank at Fairland, Okla., and witness did not know whether Mr. Stovall paid the money or not; that witness had the deed recorded, and that witness got two deeds from Frank Lamar and wife, and he did not know which one they had reference to. Witness was asked to explain about both of them, but upon objection of the state he was not permitted to do so; the objection to the witness explaining -how he got two deeds of the two different tracts was not allowed by the court.

Burchas Blackburn testified that he was in possession of about 10 acres of the Lamar allotment under a deed from Cal. James.

Mrs. Priscilla Breedlove testified that she bought the Frank T. Lamar allotment in 1909 and received the deed from the State Bank of Miami, consideration $350; that she sold 10 acres to Cal. James; 30 acres to W. I. Angel, and 20 acres to E. E. Price; that a man by the name of Tom Taylor, of Collinsville, Okla., procured the deed from Frank T. Lamar and Florence E. Lamar to her; that her husband acted as her agent, and Mr. Taylor as agent for the Lamars, in the transaction.

Pierce Howard testified that he received a collection from the prison at McAlester, Okla., upon J. M. Stovall from E. M. Fry, and that Mr. Stovall paid the collection and he delivered no paper to Stovall.

The state rested, and the defendant moved to strike out the testimony of the state on the ground that it fails to .show that the defendant ever received the deed in question.

The testimony for the defense, in substance,' is as follows:

As a witness in'his own behalf, James N. Stovall testified: That he is a man with a family and is 55 years of age; that he is a farmer and recently moved to Oklahoma from Oregon; that he had contracted to buy ten acres of the Lamar allotment from the Breedloves, but, finding that Breedloves could make no title to the land, he employed Mr. Fisher to go to the prison at McAlester and procure a deed from Lamar for the 10 acres which he was living on; he had then been in the county about 40 days; that Lamar informed Fisher while negotiating that he had 60 acres more that he wanted to sell because he needed the money, and that 10 acres of the 60 was close to Fairland and the other was close to the 10 acres he had bought, and he offered to sell it for $10 an acre.

Lamar stated he had never made a deed to the land to any one, and he was in possession of it, and Fisher when he returned from the first trip to McAlester, told Stovall what Lamar had said to him about having the 60 acres and that he had never deeded it to anyone, and that he was in possession of it; and Fisher stated to Stovall that he told Lamar that he would take the land if Stovall did not, but finally prevailed on Stovall to buy it without seeing it; that he did not know that Mr. Price was in possession of any of the land or had a deed to any-part of it, and that he did not know where the land was located only that it was near Fairland; that Price, after he had bought the land, came to him and told him he understood he had bought the Lamar land, and that if Lamar and his wife had signed the deed it was all right; that he and Wyford had a deed but that it was no good, but that he and Wyford would like to fix it so they could get the land; that he had tried to get a deed from Lamar, but Lamar would not sign it for him; that witness knew nothing about any one being in possession of any of the land, and that he had bought it on the representation that Lamar had possession and had never made a deed to any one, and that he was the original allottee, and after he had bought it that in a conversation with Blackburn, who stated to witness that, “If you bought the land, you are ahead of me; I found out a year ago that I had no deed for it. I have been trying to get Cal. James to straighten it up, but he would not do it,” and he (Blackburn) wanted to rent it for this year, and witness told him he could have it, and he said he would pay witness the customary rent, and wanted me to give him the first chance to buy it if I took a notion to sell it; that Mr. Angel, after being informed that Stovall had bought the land, agreed to rent the land for that year, but upon objection this testimony was stricken out. Witness testified that he paid $600 for 60 acres of land and he was a stranger in the country, and that he relied on Fisher’s statement in buying the land; that Fisher had indicated on the plat where the land was located and that no one was in possession of any of it; that he did not get any abstract or examine the record, but relied solely on Fisher’s statement as to what Lamar had told him.

O. E. Fisher testified that Lamar told him about having the 60 acres, and that he had possession of it and had. never made a deed to it except to his stepfather, J. E. Birdsong, and Birdsong had delivered up this deed, and he made affidavit to that effect; that after getting the 10-acre deed, and after coming from McAlester, he told Stovall that Lamar had 60 acres more land that he wanted to sell which was close to the 10 acres, that he had. a clear title to it, and had possession of it, and that no one had a deed against it; that Walter Breedlove had been his guardian, and that he was now of age and had got into the prison, and that the land was doing him no good, and he wanted to sell it, and, if I would buy it, it would be the means of getting him out of prison; so I advised Stovall to buy it, as it was a bargain, and I told him all this and showed him the affidavit I had from Lamar; and upon my statements as to what Lamar had told me, and as to where the land was located, as stated by Lamar, I went back to Mc-Alester and procured the deed from Lamar, and also a sworn statement from both Lamar and his wife, and I had deed sent to Stovall on the payment of $600 to Lamar, and I went back to McAlester on some other business, and Lamar told me he had not received his money, which statement was struck out by the court.

A. A. Wyford testified that he heard a conversation between Blackburn and Stovall in which Blackburn told Stovall that he was glad Stovall had bought the land, 'that his title was bad and they might now get it fixed up, and that he would lease the land from Mr. Stovall.

It is said that the evidence is insufficient to support the verdict, and for this reason the court erred in not directing a verdict for the defendant at the conclusion of the state’s testimony.

Section 2260, Eev. Laws 1910, defining the crime of champerty, does not apply to restricted Indian Lands. The Congress has reserved the exclusive right to control the sales and prescribe the conditions to which title to these lands may pass. Murrow Indian Orphans’ Home v. Mc- Clendon, 64 Okla. 205, 166 Pac. 1101; Miller et al. v. Grayson et al., 64 Okla. 122, 166 Pac. 1077.

In the case of Pitt v. State, 16 Okla. Cr. 15, 180 Pac. 383, it is said that, where there is an entire absence of evidence to show whether the party, in possession of such lands claims title under a void or valid deed to the same, the prosecution must fail for lack of necessary evidence to sustain the same, and a motion -by the defendant to direct a verdict in his favor should have been sustained.

For the reason stated in the opinon of Pitt v. State, supra, the judgment of the lower court i.s reversed, and the cause remanded, with direction to' dismiss.


text:
    BOB WRIGHT v. STATE.
    No. A-3366.
    Opinion Filed April 7, 1920.
    (188 Pac. 685.)
    (Syllabus..)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evi--. dence. In a prosecution for the. unlawful possession of intoxicating liquor,’the evidence considered, and held sufficient to sustain the conviction. ,. ■ •••

      Appeal from Superior Court, Muskogee County, Guy F. Nelson, Judge.

    Bob Wright was convicted of violating the prohibitory law,' and he appeals..
    Affirmed.

      Harry F. Eagan, for plaintiff in error.

      £. P. Freeling, Atty. Gen., and W. C: Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bob Wright, and George Frederick were jointly charged with the offense of having in their possession certain spirituous and intoxicating liquors. After arraignment and before the case was called for trial, the defendant Frederick withdrew his plea of not guilty and entered a plea of guilty. Upon his trial the plaintiff in error was convicted, and his punishment fixed at confinement for 90 days in the county jail and a fine of $250. From the judgment rendered on the verdict, he appeals.

Without going into a detailed statement of the testimony, it shows that B. C. Hughes and E. L. Trimble, deputy sheriffs, raided plaintiff in error’s place of business on East Main street in the town of Haskell. Hughes testified that he was acquainted with Bob Wright and his place of business, and on the date alleged he found a quart bottle partly full of alcohol and two coffee pots containing alcohol; that when they entered the place the defendant Frederick was standing, behind the bar with his coat off, and he emptied all of the alcohol from the coffee pots except about one-half gallon ; Frederick stated to the officers that he was staying there for Mr. Wright, and that Mr. Wright was in the adjoining room asleep on a cot; that he found about two sacks of whisky bottles in the rear room, and there were whisky glasses and cork screws that were being used at the place; that the general reputation of the place in the community was that of being a place where intoxicating liquor was bought.

E. L. Trimble testified that as they entered the place the defendant Frederick grabbed a coffee pot and emptied it; that the one they took from him contained whisky, and the other coffee pot was about a third full of alcohol, and they were standing on a .shelf with the solf drinks; that the whisky glasses were underneath the bar; that the defendant Wright came in from an adjoining room and told the officers that the place did not belong to Frederick, but that it was his place; that the reputation of the place was that of being a place where intoxicating liquor was .sold.

George M. Swanson testified that he was acquainted with the defendant Wright and his place of business, and that the reputation of the place was that of being a place where intoxicating liquors were sold.

For the defense the defendant Frederick testified that his understanding was that Mr. Sartain owned the building, and that he had been working there for the defendant Wright - but when the raid was made Mr. Lonegan had a lease on the place; that he did not know exactly when the defendant Wright got out of the business, but thought it was about three weeks before that Wright made the deal with Lonegan.

The errors assigned question the sufficiency of the evidence to support the verdict.

We are of the opinion that the evidence is amply suf- . ficient to support the verdict and we find no error affecting the merits of the case.

We, accordingly, affirm the judgment.


text:
    W. E. SHIPLEY v. STATE.
    No. A-3452.
    Opinion Filed April 28, 1920.
    (189 Pac. 197.)
    (Syllabus.)
    APPEAL AND ERROR — Abatement of Prosecution — Death of Defendant. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

      Appeal from County 'Court, Rogers County; Edward Jordan, Judge.

      W. E. Shipley was convicted of violating the prohibition laws, and he appeals.
    Remanded, with directions to abate.

      H. Jennings, W. M. Hall, and H. Tom Knight, for plaintiff in error.

      S. P. Freeling, Atty Gen., for the State.
   PER CURIAM.

The plaintiff in error, W. E. Shipley, was convicted on an information charging the unlawful conveyance of 108 quarts of whisky from one certain point to another in Rogers county, and was sentenced to be confined in the county jail for 60 days and pay a fine of $100 and the costs. From the judgment an appeal by case-made was perfected by filing in this court August 31, 1918, petition in error with case-made.

Since the appeal was taken, and before the final sub-emission of the cause, suggestion of the death of the plaintiff in error has been made, and his counsel of record have for this reason filed a motion to abate, and stating that plaintiff in error died on the 22d day of December, 1919, near Claremore, Okla.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in the above entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause remanded to the county court of Rogers county, with direction to enter its appropriate order to that effect.


text:
    WARD JANES v. STATE.
    No. A-3223.
    Opinion Filed April 28, 1920.
    (188 Pac. 201.)
    (Syllabus.)
    LARCENY — Sufficiency of Evidence. In a prosecution for the theft of an- automobile, the evidence considered, and held sufficient to sustain conviction, and that no reversible error was committed on the trial.

      Appeal from District Court, Garfield County;J. C. Robberts, Judge.

    Ward Jones was convicted of stealing an automobile, and he appeals.
    Affirmed.

      L. C. McLean, for plaintiff in error.
    .The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Ward Janes, was tried and convicted and was sentenced to serve a term of three years’ imprisonment in the penitentiary upon an information charging the theft of one Ford autmobile 1917 model of the value of $400, from the owner, A. H. Warnaca. From the judgment an appeal was taken by filing in this court on April 22, 1918, a petition in error with case-made. No briefs have been filed.

Upon an examination of the record we find no errors of law raised by exceptions taken during the course of the trial and assigned for review in this court. The only question presented for our consideration on the record in this case is the alleged insufficiency of the evidence to support the conviction. The evidence shows that A. H. War-naca, owner of the automobile, missed the same from his home in Enid on the 6th day of June, 1917, and a few days after the car was found in the possession of the defendant at Drumright. The body of the car had been changed; the owner and others positively identified the car; the engine number of the car was defaced and a new number put on; and the defendant had in his possession an irregular automobile license.

The testimony on the part of the defense tended to prove an alibi, and that defendant had owned the car in question for two or three week*3 before the time the War-naca car was stolen.

As a witness in his own behalf the defendant testified that he lived at Drumright, was by occupation a chauffeur,, and that he bought the car in question on the 19th day of May, 1917, in Oklahoma City from a fellow by the name of Wilson, paying him therefor $275 in currency, and that the car taken by the officers from him was the identical car.

There is a direct conflict in the testimony for the state and that for the defense. On the testimony for the state this conviction should be affirmedif the testimony for the defendant be true, he should have been acquitted. The jury had the witnesses before them and heard them testify, and they decided that the defendant was guilty. It was for the jury to judge of the weight of the evidence and the credibility of the witnesses, and we believe that under the evidence in the case the car was sufficiently identified as that of the alleged owner.

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


text:
    E. A. EWING v. STATE.
    No. A-3457.
    Opinion Filed June 14, 1920.
    (190 Pac. 274.)
    (Syllabus.)
    1. APPEAL AND ERROR — Prejudicial Error — Evidence and Argument. Where incompetent, irrelevant, and immaterial evidence is admitted over proper objection and exception of defendant’s counsel, and improper remarks are made by the county attorney clearly outside the record, and are properly excepted to, and it is apparent to this court upon an examination of .(he entire record that such errors probably resulted in a miscarriage of justice, and were prejudicial to the substantial rights of the defendant, the judgment of conviction will be reversed.
    2. TRIAL — Record of Argument. When timely request is made, the trial court should order the court reporter to take down in shorthand the argument of counsel.

      Appeal from County Court, Lincoln County; . Ira E. Billingslea, Judge.

    E. A. Ewing was convicted of the crime of assault and battery, and he appeals.
    Reversed and remanded.

      Jarrett & Speakman and Erwin & Erwin, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Lincoln bounty, wherein the defendant was convicted of the crime of assault and battery, and his punishment fixed at a fine of $75.

The defendant was charged with an assault and battery upon one Marie Evans, a girl 13 years of age, whose parents were tenants upon the defendant’s farm, and lived close to the home of the defendant. The prosecuting witness and her 11 year old brother testified that the defendant put his arm around the prosecuting witness and pinched her on the breast.

The defendant denied having in any way willfully touched the prosecuting witness, but stated that he had attempted to grab a letter out of her hand, and the prosecuting witness jumped away from him, and that he had never treated her in a rude or insolent manner. The defendant had six or seven witnesses who testified to his good reputation for peace and as a law-abiding citizen. This evidence was controverted by two witnesses, one of whom had had some controversy with the defendant, and the other the grandfather of the prosecuting witness.

During the progress of the trial, the court, over the objection and exception by the defendant, permitted a witness to testify that the defendant on one occasion had attempted to persuade such witness to have .sexual intercourse with the prosecuting witness. This alleged conversation occurred some time after the alleged commission of this offense, and was in no way connected with it, and nothing said in such conversation in any way tended to explain the offense for which the defendant was upon trial, or nothing detailed by said witness amounted to an admission of guilt by the defendant of the alleged offense, and was clearly incompetent,' irrelevant, and immaterial evidence, and in the opinion of this court was prejudicial to the substantial rights of the defendant, and the objection of counsel for the defendant to the admission of such evidence should have been promptly .sustained, and the evidence excluded.

It also appears from the record that the county attorney, in his opening statement and during the-examination of the witnesses, and in the closing argument to the jury, made certain remarks that this alleged offense was one of a series of offenses that had “continued down there for two years, and that this defendant has during this time persisted in-his attempts'to ruin this girl.” There was no theory in the trial of this case upon which evidence of other similar offenses was admissible, and the court excluded such evidence upon the trial, and the statement in the closing argument of the county attorney was clearly outside the record, and was improper argument, and the court should have instructed the jury not to consider the same, when the objection was made thereto by counsel for the -defendant. The action of the trial court in refusing go to instruct the jury was also, in the opinion of this court, prejudicial to the defendant.

It also appears in the record that after the county attorney, in his closing argument to the jury made certain remarks which counsel for the defendant considered to be improper and prejudicial, request was made by counsel for the defendant to have the court reporter take down in shorthand the further argument of the county attorney. This request was denied by the trial court, and an exception taken thereto. This action by the trial court was erroneous.

This court has held that upon request counsel for either side have the right to have the stenographer take down in shorthand the argument of opposing counsel, and the refusal of the court to comply with such request constitutes ground for reversal of the judgment without regard fo the merits of the case. Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088; Walker v. State, 6 Okla.Cr.370, 118 Pac. 1005; Lamm et al. v. State, 4 Okla. Cr. 641, 111 Pac. 1002.

This is a closely contested case upon the facts, but there is evidence in the record which would amply support the verdict. An examination of this record, however, convinces the court that the remarks and insinuations made during the progress of the trial of this cause tended in no small degree to arouse the prejudices and passions of the trial jurors, in view of the fact that the defendant was charged with having assaulted a child of tender -years. ,

The prosecution was not commenced until three months after the commission of the alleged offense, although the parents of the prosecuting witness admitted to have obtained information of its alleged commission upon the very next day after it was supposed to have been committed. During the interim between the alleged commission of the offense and the institution of this prosecution, the families of the prosecuting witness and the defendant maintained friendly relations. The mother of the prosecuting witness testified that “neighborhood gossip” was the instigating cause of the prosecution. Before such gossip became current, the matter never assumed serious consequences so far as the parents of the prosecuting witness were concerned.

The defendant was a man who evidently bore a good reputation for peace and as a law-abiding citizen in his neighborhood, and had lived in that community for upwards of 20 years. He had never before been charged with crime, and in view of the errors heretofore pointed out, it is the opinion of this court that the defendant did .not receive that fair and impartial trial accorded to him under the laws of this state.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the county court oí Lincoln county for further proceedings in accordance with law.

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


text:
    CHARLEY HAMILTON v. STATE.
    No. A-3209.
    Opinion Filed April 12, 1919.
    (178 Pac. 892.)
    Appeal 1'rom Conjity Conrt, Pittsburg County; tí. P. Brown, Judge.
    Cliarley Hamilton was convicted of the crime of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail, and appeals.
    Affirmed.
   PER CURIAM.

This cause was submitted on the 5th clay of April, 1919, on motion by the Attorney General to affirm same for failure ,to diligently prosecute the appeal. The petition in error and case-made were filed' in this court on the 261h day of November, Í917.. No brief has been filed in behalf of plaintiff in error, and it is apparent that the appeal lias been abandoned and was taken for the purpose of delay only. Tlie motion of the Attorney General to affirm the judgment for failure to diligently prosecute the appeal lis sustained, and ilio judgment is affirmed.


text:
    OSCAR MORRIS v. STATE.
    No. A-3139.
    Opinion Filed April 21, 1919.
    (179 Pac. 623.)
    Appeal from County Court, Tulsa County; H. B. Standeven, Judge.
    Oscar Morris, convicted for a violation of the prohibitory liquor law, appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    IV. O. Hall, Asst. Atty. Gen,., for the Stale,
   PER CURIAM.

The information in this case jointly charged that in Tulsa comity, on the 13th day of January. 1917, A. B. Morris, Oscar Morris and Pat Malone, did have in their possession 48 half pints of whisky with tlie intent then and there on tlie part of the said defendants to sell, barter, give away land otherwise furnish the same in violation of the prohibitory liquor laws. They were jointly tried and' the jury rendered a verdict finding Oscar Morris guilty as charged in the information and fixing his penalty at confinement In the county jail for 30 days and a fine of $50. Prom the judgment rendered on the verdict. Oscar Morris appealed by filing in this court on September 18, 1917, a petition in error with ease-made. No brief has been filed. When the ease was called for final submission the Attorney General moved to affirm (he judgment for failure to prosecute the appeal. An examination of 'the record discloses that the appeal in this case is destitute of merit. The judgment appealed from is therefore affirmed. Mandate forthwith.


text:
    Ex parte CHARLEY WHITE.
    No. A-3525.
    Opinion Filed April 29, 1919.
    (179 Pac. 356.)
    Application of Charley White for writ of habeas corpus.
    M. G. Bailey, for petitioner.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

On motion qf counsel for petitioner the above entitled and numbered cause 'is dismissed and counsel -for petitioner permitted to withdraw the petition filed therein..


text:
    LON PEEVY v. STATE.
    No. A-3112.
    Opinion Filed April 29, 1919.
    (179 Pac. 355.)

    Appeal from District Court, Garter County; W. F. Freeman, Judge.
    Lon Peevy, convicted of manslaughter in the. first degree, appeals.
    Dismissed.
    J. B. Champion and James H. Mathers, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. G. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lon Peevy, was convicted of manslaughter 'in the first degree on an information charging him with the murder of Albert Finley, in Carter county, on the 20th day of January, 3917. On the 17th day of February, 1917, judgment was rendered’ and in accordance' with tho verdict of the jury he was sentenced to he imprisoned in the penitentiary for the term of five years. From the judgment an appeal was perfected by filing' in this court on August 15, 3937, a petition in error with case-made. The plaintiff in error has filed a motion to dismiss his appeal-. It is therefore considered and ordered that said appeal be and- the same is hereby dismissed and the cause remanded to the district court of Carter county with direction to cause its judgment and sentence t.o be carried into execution.


text:
    Ex parte J. E. ANDERSON.
    No. A-3517.
    Opinion Filed April 29, 1919.
    (179 Pac. 793.)
    Application for writ of habeas corpus by J. E. Anderson to be - admitted to bail.
    Writ granted and bail allowed.
    George Trice, for petitioner.
    S. 1’. Freeling, Atty. Gen., and W. C. Hall. Asst. Atty. Gen., for tho State.
   PER CURIAM.

This is an application on the part of J. E. Anderson to he admitted to bail in a case now ponding against the said Anderson in the district court of Coal county, charging him with the crime of having murdered one John Hunlavy in said county, and in which it is alleged that petitioner is unlawfully confined and restrained of his liberty by one Jesse Phillips, sheriff of Coal county. Petitioner heretofore applied to the district judge to he admitted to bail in this case, and upon hearing said petition, the district judge denied bail. The application here was heard on the, 14th day of March, 3SI3Í). and upon consideration of the evidence, it was adjudged by the court that defendant should be admitted to bail in the sum of' $15.-000. Hail is. therefore, fixed in this case in the sum of fifteen thousand dollars ($15,000.00) for the appearance of the said .1. E. Anderson in tin1 dis.rict court of Coal county, under the terms and conditions provided by law. said bond to be approved by the court cleric of said county, and upon approval of said bond, the said defendant (petitioner) to be discharged from custody by the aforesaid sheriff of said 'Coal county.


author: DIOR CURIAM.

text:
    LESTER KEETER v. STATE.
    No. A-3382.
    Opinion Filed Jan. 19, 1920.
    (186 Pac. 245.)
    Appeal from County Court, Cotton County; J. 'O. Norman, Judge.
    Lester Keeter was convicted of - violation of the prohibitory law, and appeals.
    Affirmed.
    Morris & Wells, for plaintiff in error.
    AY. C. Hall, Asst. Atty. Gen., for the State.
   DIOR CURIAM.

Plaintiff in error, Lester Keeter, was convicted on ¡i charge that lie did in Cotton county sell to George Davis one pint of whisky on the 5th day of February, 1918, and in accordance with tlu> verdict of the jury lie was sentenced to be confined in the county jail for 60 days and pay a fine of $50. From the judgment an appeal was perfected by filing in this court on June. 5, 1918, a petition in error with case-made. No brief lias been filed, and when the ease was called for final submission the Attorney General moved to affirm the judgment for failure to prosecute t]he appeal.

For the reasons stated, the motion is sustained, and the judgment of the lower court is «ffirmed. Mandate forthwith.


text:
    JOHN HENRY WARD v. STATE.
    No. A-3385.
    Opinion Filed Jan. 19, 1920.
    (186 Pac. 489.)
    Appeal from Superior Court, ('reek County; G. R. AVileox, Judge.
    John Henry AA’nnl was convicted of violation of the prohibitory liquor law. and appeals.
    Affirmed.
    Wallace & AA'allace, for plaintiff in error.
    AY. C. Hall. Asst-. Atty. Geu.. for the State.
   PER CURIAM.

Plaintiff 'in error. AYard. was tried' and convicted on an information charging that in ('reek county, -on or about the 20th day of November. 1917, he did have in his possession, at his place of business in the town of Shamrock, five quarts of whisky with intent to sell the same, and 'in accordance with tlie verdict of the jury lie'was sentenced to lie confined for 90 days in the county jail and pay ¡i fine of $100. From the judgment an appeal was perfected by filing in this court, on June 7, 3918, a petition in error with case-made.

No brief lias been filed. When the ease was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reason stated therein the motion is sustained, and the judgment of the lower court affirmed. Mandate forthwith.


author: PER OURIAM.

text:
    Ex parte FLOYD HEYTZ.
    No. A-3827.
    Opinion Filed Oct. 16, 1920.
    (192 Pac. 698.)
    Petition of Floyd Heytz, an 'insane person, for writ of habeas corpus.
    Writ denied.
    J. H. Stelper, for petitioner.
   PER OURIAM.

The petition filed 'in behalf of Floyd Heytz alleges, in substance, that lie is unlawfully restrained of his liberty by R. L. McAfee, chief of police -of the city of Muskogee, in the city jail of said city by virtue of an alleged judgment of Fred S. Zick, judge of the city court of Muskogee, on a charge of vagrancy, and sentenced to pay a fine of $19. It is further alleged that he is ‘insane, and that he wias adjudged insane on January 16, 1920, as evidenced by the certificate of the court clerk of Muskogee county hereto attached. Upon the hearing the. writ was denied on the ground that the facts alleged are not sufficient to warrant the issuance of t-ie writ.


text:
    J. W. JENNINGS v. STATE.
    No. A-3631.
    Opinion Filed Jan. 20, 1920.
    Appeal from District Court, Alfalfa County; J. C. Robberts, Judge
    J. W. Jennings was convicted of bigamy, and appeals.
    Reversed and remanded.
    Titus & Talbot, for plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. W. Jennings, was convicted of the crime of bigamy and sentenced to serve a term of two year’s’ imprisonment in the state penitentiary. The information charges:

“That the said J. W. Jennings, on tire 26th daj of March, A D. 1918, instituted in the district court of the county of Garfield, state of Oklahoma, which court then and there had jurisdiction in the premises, an action against Quintilla Jennings, who was then and there the lawful wife of the said J. W. Jennings, by which action the said J. W. Jennings then and there sought to procure a decree of divorce, dissolving and setting aside the bonds of matrimony then existing bet.wcen the said J. W. Jennings and Quintilla Jennings, and did on said 26t?) day of March, 1918, procure a decree of divorcement duly rendered in said action by said district court of Garfield county. Oklahoma, so instituted as aforesaid by said J. W. Jennings against Quintilla Jennings, which said decree was dated on the 26th day of March, 1918 by which said decree of divorcement the bonds of matrimony theretofore existing between said J. W. Jennings and Quintilla Jennings, was set aside and annulled, but it is expressly provided that said decree of divorce shall not become operative and take effect until six months from date thereof; and (hat thereafterwards to wit. on or about the 30th day of March. A. D. 1918. in tihc county of Jackson, and the state of Missouri, and' wilhin six months from (lie date of the decree of divorcement thereof, the said J. W. Jennings, did then and there unlawfully, wilfully and feloniously, marry and take to wife, one Oar-tie Hinds, n person other than the said wife of J. W. Jennings, and to her, the said Carrie Hinds, a person other than the wife of J. W Jennings, was married, within six months from the date of 'divorcement, as aforesaid, and that thereafterwards, to wit, on or about the J7-th day of May, A. D. 1918, in the said county of Alfalfa ahcl state of Oklahoma, the said J. W. Jennings and Carrie Hinds, a person other than his wife, and within six months from the-date of divorcement, did cohabit and live together as man and wife; contrary to,” etc.

Upon arraignment a demurrer to the information was inteiposed on the ground:

"That the facts stated do not constitute a public offense; that the information contains facts, which if true would constitute a legal justification and excuse of the offense charged.”

The overruling of the demurrer is assigned as error.

The prosecution in this case was based on section 4971, Rev. Laws. 1910, which inovides in part as follows:

“It shall be unlawful in any event for either party in such divorce case to marry any other person within six months from the date of the decree of divorcement. * * * Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”

The precise question here presented was passed on in the case of Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603, wherein it is held:

“The jurisdiction of a prosecution- under such statute is in the county where the second marriage takes place; and held, further, where one of the parties to such decree, within the prohibited period of six months, mamáes another person without the state, and subsequently returns and cohabits- with such person- in this State, the subsequent cohabitation not being of the gist of the offense defined by said statute, there is no jurisdiction to prosecute thereunder in this state.”

For the reason stated in the opinion in the AVilson case, the judgment is- reversed and the cause remanded, with direction that the prosecution be dismissed.


text:
    W. H. MARTIN v. STATE.
    No. A-3100.
    Opinion Filed Jan. 24, 1920.
    (185 Pac. 483.)
    Appeal from District Court, Caddo County; Will Linn, Judge.
    AAA H. Martin was convicted of the crime of unlawful!/ selling mortg.- ged property, and airpeals.
    Affirmed.
    James S. Gladish, for plaintiff in error.
    S. P- Freeling, Atty. Gen., and AV. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Caddo county, wherein the defendant was convicted of the crime of unlawfully selling mortgaged property, and his punishment fixed at a fine of $250. But two questions are involved: (1) It is contended that the evidence is insufficient because the record discloses that the sale occurred in Carter county, Okla., instead of Caddo county, and for this reason the district court of Caddo county ’had- no jurisdiction of the offense. This contention is not supported by the record. The evidence shows that the negotiations fo¡r the sale of the mortgaged property between the defendant and the purchasers thereof were com-meneod, and tlie sale finally consummated, in Caddo oounly, Okla. It is also contended tlial the proof is entirely lacking to show any criminal intent by (lie defendant to defraud (he holder of tlie mortgage, but this .contention is equally without merit, for there are facts and circumstances disclosed by the' evidence which would authorize the jury to conclude that the purpose of the defendant was to defraud the'holder of tlie mortgage against the property which he sold without the written consent, of the mortgagee. The -question of defendant’s intent to defraud was submitted to the jury in the instructions given by the court in a way very favorable to tlie .defendant, and the jury decided the issue adversely to the defendant’s contention. A fair aud impartial trial was afforded to (lie defendant, and no error prejudicial to his substantial rights appears. The judgment of the trial court is. therefore affirmed, with instructions to carry tlie same into effect.


text:
    Ex parte FRANK SAWYERS.
    No. A-3690.
    Opinion Filed Jan. 26, 1920.
    Petition by Frank .Sawyers for writ of habeas corpus to lie admitted to bail.
    Bail Denied.
    Charles E. McPherren. for petitioner-.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, Frank Sawyers, applies for a writ of habeas corpus to lie admitted to hail, and stales that he is unlawfully restrained of his liberty by Dave Wright, sheriff of Bryan county, Oklahoma, -and detained in the county jail of said county to appear in tlie district court of said county to answer for the crime of murder in having killed one Lorene Bleeker in said' Bryan county; that a complaint charging petitioner with tlie said offense has been heretofore filed before W. S. Archibald, justice of the peace for Durant township, Bryan county. Oklahoma, and an examining trial had therein, and that said justice held the petitioner without bail to await the action of the district court of said Bryan county on said charge; that thereafter, petitioner presented to the district judge of Bryan county his petition for habeas corpus herein to be admitted to hail, and upon a hearing in said court upon the record of the evidence adduced at the preliminary examination the said district judge refused to admit petitioner to bail. Further, petitioner alleges that he is not guilty of the crime of murdering said Lorene Bleeker, in that he actecl in his own necessary self-defense in firing the shot that resulted in the death of-said Bleeker. as is shown by the transcript of the evidence taken at the examining- trial, and by the affidavit of petitioner attached to and made a part of this petition. For the reasons staled petitioner contends that he is wrongfully confined in the said county jail of Bryan eonuty, and should -be admitted to bail in a reasonable amount to await the action- of the district court of said county on said charge. This cause came on- to be heard before the court on January 23, 1920, at which time petitioner was represented by counsel who made an able presentation of the merits of the petitioner’s application-to be admitted to bail. The Assistant Attorney General also appeared, -and strenuously opposed admitting petitioner to bail under the facts as adduced by the-record in this case. After due consideration of the evidence adduced and the reasons given in oral argument; by counsel, it is the opinion of the court that the writ should be refused and bail denied, and it is so ordered.


author: l’ER (VRIAM.

text:
    LAFE LEWELLEN v. STATE.
    No. A-3404.
    Opinion Filed Jan. 26, 1920.
    Appeal from County Court. Tulsa County; IT. L. Standeven, Judge.
    Lafe Lewellen was convicted of a violation of the prohibitory liquor law. and he appeals.
    Affirmed.
    I>. M. Martindale. for iilaintiff in error.
    W. C. Hall, Asst. Att.v. (Jen., for the Slice.
   l’ER (VRIAM.

Plaintiff in error. Lafe Lewellen, was convicted in tlie county court of Tulsa county on a charge that in said county on the (>,li day of January. 1917, lie did have in his possession 334 half pints of whisky with intent then and there to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $00 and the costs. From the judgment rendered on the verdict, he appeals. No brief has been filed. When the ease was called for final submission, the Attorney General moved to affirm tlie judgment for failure to prosecute the' appeal: For tlie reason s ated. the motion is sustained, and the judgment of the trial court is affirmed.


text:
    DAN WARD v. STATE.
    No. A-3403.
    Opinion Filed Jan. 26, 1920.
    Appeal from County Court, Tulsa County; H. D. Standeven, Judge.
    Dan Ward was convicted of a violation of the prohibitory liquor law, and lie appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    W.C. Ilall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Dan Ward, was convicted on a charge that in Tulsa county on the 28th day of September, 1917, he did have in his ppossession 22 half pints of whisky with intent to sell the same, and in accordance with the verdict of the jury he was on the 2Stli day of February. 1918, -sentenced to be confined in the county jail for a period, of 60 clays and pay a fine of $100 and ithe costs. From tlie judgment an appeal was taken by filing in this court on June, 191S. a petition in error with case-made. No brief has been filed. W-lien the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reason stated, the motion is sustained; and the judgment of the trial court is affirmed.


text:
    BILL HUCKS v. STATE.
    No. A-3394.
    Opinion Filed Jan. 26, 1920
    (186 Pac. 489.)
    Appeal from Counl.v Court, Garvin County; J. I). Mitchell, Judge.
    Bill Hacks was con-victed of a violation of tlie prohibitory liquor Jaw, and -lie appeals.
    Affirmed.
    Carr & Henderson, for iilaintiff in error.

      W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bill Hucks, was by indictment duly returned in the district court of Garvin county charged with selling intoxicating liquor to one R. W. Eennings, which indictment was duly transferred to the county court, where upon his trial plaintiff in error was found gu'ilty and his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail. From the judgment rendered on the verdict an appeal was perfected by filing in this court on June 13, 1918, a petition in error with case-made. No brief has been filed. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reason stated, the motion is sustained, and the judgment of the trial court is affirmed.


author: PER C-URIAM.

text:
    R. A. TROPP et al. v. STATE.
    No. A-3396.
    Opinion Filed Jan. 31, 1920.
    (186 Pac. 737.)
    Apixeal from County Court, Payne County; Wilberforce Jones, Judge.
    R. A. Tropp and Will Andrews were convicted of a violation of the prohibitory liquor laws, and they appeal.
    Appeal dismissed.
    Robt. A. Lowry, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty.. Gen., and C. C. Suman, Co. Atty., for the State.
   PER C-URIAM.

This is a joint appeal by the defendants from a judgment of conviction, against each for a violation of the prohibitory liquor laws. The Attorney General, shortly after the appeal was lodged in this court, filed a motion to dismiss the same on the ground that said appeal was not perfected within the time allowed by statute for appeals in misdemeanor cases. There has been no response to said motion by either of the defendants.

Further, the record discloses that the trial court, after the time allowed by statute for filing the appeal in this court had expired, issued commitments for each of these defendants, and that they were confined in the county jail of Payne county thereunder at the time the pretended appeal was lodged herMn. The appeal is dismissed for two reasons: First, because the record shows that it was not perfected within the time required by the. statutes governing appeals in misdemeanor cases. Second, for the reason that, each defendant having been committed to jail under said judgment, they have long since served their respective terms of imprisonment, and any legal question involved in this pretended appeal is moot. Mandate forthwith.


text:
    JOE DORSER v. STATE.
    No. A-3369.
    Opinion Filed Feb. 7, 1920.
    (186 Pac. 1098.)
    Appeal from County Court, Pittsburg County; S. F. Brown. Judge.
    Joe Dorset was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Wilkinson & Scott, for xjlaintiff in error.
    W. C. Hall, Asst Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Joe Dorser, was convicted on an information charging that he did unlawfully have in his possession 14 quarts of whisky with the intention of selling the same, and his punishment fixed at confinement in the county jail for four months and a fine of $300. Prom the judgment he appealed by filing in this court on May 22. 1918 a petition in error with case-made. No brief has been filed. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. It appearing that the appeal herein is destitute of merit, and has apparently been abandoned, the motion to affirm will be sustained. The judgment of the trial court is therefore affirmed.


text:
    BUD CAMPBELL v. STATE.
    No. A-3375.
    Opinion Filed Feb. 7, 1920.
    (186 Pac. 1099.)
    Appeal from County Court. Love County; J. H. Hays, Judge.
    Bud Campbell was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Cameron & AValdon, for plaintiff in error.
    The Attorney General and AAr. <1. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bud Campbell, was convicted in the county court of Love County on a charge of unlawfully com veying intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. Prom the judgment rendered on the verdict an appeal was perfected by filing in this' court on May 28. 191S. it petition in error with case-made. The proof aa the part of the state to support the charge is conclusive and un-eontroverted. No brief has been filed. AVhen the case was called for final submission the Attorney General moved to affirm the judgment for failure to prosecute the appeal. .The motion to affirm for the reason stated is sustained. Judgment affirmed.


text:
    B. H. MANN v. STATE.
    No. A-3239.
    Opinion Filed Feb. 9, 1920.
    (186 Pac. 1098.)
    Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge.
    B. H. Mann was convicted of the crime of unlawfully receiving stolen property, and -he appeals.
    Appeal dismissed.
    E. M. Carter and J. G. Evans, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is nn attempted appeal from a judgment of conviction against the defendant, B. H. Mann, for the crime of unlawfully receiving stolon property, rendered in the district court of Okmulgee county on the 16th day of October. 1917; the defendant being sentenced to serve two years' 'imprisonment in the state penitentiary at McAlesler. Okla. Petition in error and case-made were filed in this court on January 10. 1918. On October 3. 1919, the Attorney General filed a motion to dismiss this appeal for the reason and upon the ground that no notices of appeal wore ever served upon the clerk of the court where the judgment sought to be appealed front was entered nor upon the county attorney of such county, stating that the defendant appealed from said judgment of conviction. No response has been made by the defendant to said motion. The record lilt'd in this court fails to disclose that the plaintiff in error, within the time allowed for taking the appeal, served any notices of appeal upon the clerk of the court or county attorney, as provided in section 5992. Revised Laws 1910; nor docs it appear that any summons in error was ever issued in behalf of defendant and served upo» the Attorney General, or that any waiver -of the issuance and service of same’was ever made by such officer and a general appearance in behalf of the state has ever been entered in this court in this cause by the Attorney General. See section 5997. Revised Laws 1910. Either the method provided in section 5992, supra, must be followed, or else summons in error must lie served niton the Attorney General, or its issuance and service waived by said officer, as provided in section 5997, supra, before tliis court can acquire jurisdiction of an appeal in a criminal cause. State v. McDonald, 10 Okla. Cr. 413, 137 Pao. 362. As neither of such methods were pursued in this case, the court is without jurisdiction to entertain the appeal and 'decide the cause on its merits. The attempted appeal heroin by the defendant 'is therefore dismissed.


text:
    GEO. WHITEHEAD v. STATE.
    No. A-3371.
    Opinion Filed Feb. 9, 1920.
    (186 Pac. 970.)
    Appeal from County Court, Ottawa County; N. C. Barry, Judge.
    Geo. Whitehead was convicted of a violation of the prohibitory liquor law and he appeals.
    Affirmed.
    Mason & Jones, for plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atlv Gen-., for the State.
   PER CURIAM.

Plaintiff 'in error, Geo. Whitehead, was convicted in the county court of Ottawa county on a charge of unlawfully conveying intoxicating- liquor from one place in said county to another place therein, and by the judgment of the court was sentenced to be confined in the county jail for 30 days, and pay a fine of $50. From the judgment he appealed by filing in this court on May 27, 1918, a petition in error with case-made. No brief -has been filed. When the case was called for- final submission the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reasons stated, the motion to affirm is sustained. The judgment is therefore affirmed.


author: PER CURIAM

text:
    ARTHUR COBBS v. STATE.
    No. A-3380.
    Opinion Filed Feb. 9, 1920.
    (186 Pac. 1099.)
    Appeal from County Court, Okmulgee County; Dudley C. Monk, Judge.
    Arthur Cobbs was convicted of a violation of tlie. prohibitory liquor law, and he appeals.
    Reversed.

      J. O. Evans, for plaintiff in error.
    S. P. Freeling. Atty. (Jen., and W. C. Hall, Asst. Atty. Gen., for tlie State.
   PER CURIAM

. Plaintiff in error was convicted on a charge of unlawfully conveying intoxicating liquor, and his punishment fixed at 90 days' confinement in the county jail and a fine of $250. From the judgment rendered on the verdict, he appealed by filing in this court on May 27, 1918, a petition in error with ease-made. The Attorney General has filed the following confession of error:

"This defendant was convicted of transporting intoxicating liquors from a certain house in the city of Okmulgee, Okla., to an unknown place a short distance away from said house. The judgment is assailed on tli(> sufficiency of the evidence. The inculpating facts are as follows: A police officer and a man by the name of Lung saw defendant leave the house, go some distance, and upon observing them, these officers, he threw something over into a garden. The police officer went away leaving the other officer, Lung, near the scene. After a lapse of several minutes, Lung came up to the police officer and had in his custody “skates” and a quart bottle of whisky. The police officer asked Lung how he had gotten the defendant; to which he replied that he ‘outstayed him.’ This statment was made in the presence of the defendant and he made no reply to it. This witness Lung did not appear at the trial, and his absence was excused on the grounds that he was out rabbit hunting. The state, to make out its case, relied upon tlie testi■mony of the police officer who saw defendant throw something away, and who heard Lung make the aforesaid statement, in the presence of the defendant, about ‘liis outstaying him.’ Under the rule that ‘a party's failure to reply to a statement made in his presence is significant in proportion to the extent to which a reply would be natural,’ the officer's statement was clearly too remote to charge this negro with the duty of denying it. Therefore the motion for a directed verdict should have been sustained; and the judgment, of course, is erroneous.”

IV e are clearly of opinion that the confession of error is well founded and should be sustained. The judgment is therefore reversed.


text:
    BILLY WAGNER v. STATE.
    No. A-3401.
    Opinion Filed Feb. 16, 1920.
    (187 Pac. 252.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    Billy Wagner was convicted of a violation of the, prohibitory liquor law. and lie appeals.
    Affirmed’.

      D. M. Martindall, for plaintiff in error.
    W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Billy Wagner, and Billy Miles, were jointly charged with the possession of one pint of whisky with intent to sell same. Before tlie trial the case was dismissed as to Billy Miles. Upon liis trial paintiff in error was convicted and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. He lias appealed from the judgment rendered on tlie verdict hut there has been no appearance in his behalf on his appeal.

rTlie evidence shows that two peace officers in the city of Tulsa phoned to the defendants an order for a pint of whisky, with direc-tiou to bring it to the “Grand.” In 'response to the order, plaintiff in error appeared, and they arrested him and1 found a i>int of whisky on his person. On those undisputed facts it will suffice to say that the verdict was as favorable to the defendant as the law and the evidence warranted. Discovering no prejudicial error in the record, the judgment is affirmed.


text:
    FRANCISCO LUCINO v. STATE.
    No. A-3723.
    Opinion Filed March 13, 1920.
    (187 Pac. 251.)
    Appeal from County Court. Washington County ; Robert D. Wad-dill, Judge.
    Francisco Lucino, convicted of ti violation of the prohibitory liquor law, appeals.
    Dismissed.
    Arthur Fitzpatrick, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Francisco Lucino, was convicted on an information charging that in AVasliington county on or about the 25th day of October, 1919, he did have possession of certain intoxicating liquors, to wit, 50 gallons of Choctaw beer, containing more than one-lialf of one per cent, of alcohol, measured by volumn, and capable of being used as a beverage, with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined for (it) days in the county jail and to pay a fine of $50.

From the judgment an appeal was perfected by filing in this court on March 20, 1920, a, petition in error with case-made. Plaintiff in error by his counsel of record has filed a motion to dismiss said appeal, which motion is sustained. It is therefore ordered that said appeal be and ihe same is hereby dismissed and the cause remanded to the tidal court with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.


text:
    A. FORD v. STATE.
    No. A-3381.
    Opinion Filed April 3, 1920.
    (187 Pac. 251.)
    Appeal from County Court. Okmulgee County; Dudley C. Monk, J udge.
    A. Ford, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.
    J. C. Evans, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, A. Ford, was convicted on an information charging that he did unlawfully have possession of one quart of whisky wi-tli the intention of selling, bartering, giving away and otherwise furnishing the same, and in accordance with the verdict of the jury he was sentenced to be confined for 90 days in (lie county jail and to pay a fine of $300 and the cost. The sufficiency of the testimony to support the conviction is the only question raised.

The'testimony on the part of the state, if credited, as it was by the jury, was amply sufficient to sustain the verdict. Finging no reversible error in the record, the judgment is affirmed.


text:
    J. RAGLAND v. STATE.
    No. A-3386.
    Opinion Filed April 3, 1920.
    (187 Pac. 251.)
    Appeal from County Court, Oklahoma County; William H. Zwick. Judge.
    J. Q. A. Harrod, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, J. Ragland, was convicted on a charge of selling to one J. E. Oates one-half pint of whisky for the sum of $2.50, and in conformity with the verdict was sentenced to be confined for 90 days 'in the county jail and pay a fine of $50, and the costs. He appealed from the judgment by filing in this court on June 10, 1918, petition in error with case-made. No brief has been filed and no appearance made in this court on his behalf. For this reason, the Attorney General has moved to affirm the judgment. An examination of the record discloses that the errors assigned are without merit. The judgment is therefore affirmed. Mandate forthwith.


text:
    BOB MORRIS v. STATE.
    No. A-3140.
    Opinion Filed April 6, 1920.
    (188 Pac. 684.)
    Appeal from County Court, Comanche County; R. J. Ray, Judge. Bob Morris was convicted of unlawfully possessing intoxicating liquors with intent to sell them, and he appeals.
    Dismissed and remanded with direction to execute judgment.
    J-. A. Diffendaffer, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Bob Morris, was convicted on a charge that he did have in his possession certain intoxicating liquors with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in the county jail and to pay a fine of $100. From the judgment rendered June 2, 1917, he appealed by filing in this court September 19, 1917, a petition in error with case-made. No brief had been filed and no appearance made on behalf of the plaintiff in error when the ease was called for final submission, whereupon the Attorney General moved that the judgment be affirmed or the appeal dismissed for failure to prosecute the appeal. It appearing that the appeal in this case has been abandoned, the motion to dismiss is sustained, and the cause remanded to the trial court, with direction to cause its judgment to be carried into execution.


author: PER. CURIAM.

text:
    TATE JONES v. STATE.
    No. A-2781.
    Opinion Filed April 8, 1920.
    (188 Pac. 693.)
    Appeal from County Court, Oklahoma County; William H. Zwick. Judge.
    Tate Jones was convicted of unlawfully transporting liquor, and he appeals.
    Reversed.
    O. L. Price an'd H. S. Hurst, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gnu., for the State.
   PER. CURIAM.

Tlie plaintiff in error was convicted and was sentenced to he confined for 60 days in the county jail and to pay a fine of $100 on an information which in substance charges that on the 16th day of .January, 1916, Tate Jones did unlawfully transport one quart of whisky from a point in Oklahoma Oity unknown to a point 'in Oklahoma City unknown. The evidence shows that the defendant was riding a bicycle on Broadway, and a chain came off his bicycle. A police officer stepped up to him and said, “Have you got any whisky on you?” and the defendant said, “Yes; I have got some,” and look a botlle out of his overcoat pocket. As a witness in liis own behalf defendant testified:

“1 will be 80 years old in April; have lived in Oklahoma City 16 years. 1 live with my wife and two children at 614 West Frisco. I conduel a restaurant at 221 South Robinson street. My mother resides on West First street, in a home I and my brother bought for her. She is a member of my family and I take care of her. She is an invalid, and that, morning she said she wanted some whisky for medicine and I went down to my home and got a quart of whisky for her and si aided with it, and on the way the chain on my bicycle came off, and the. officer arrested me. Abont four months before that time I obtained that liquor at Ft. Worth, Texas.”

We deem 'it unnecessary to consider the various errors assigned. It is sufficient to say after a careful examination and consideration of the testimony we are of the opinion the conviction is not sustained by the evidence; wherefore the judgment is reversed.


text:
    TOM RICHARDS et al. v. STATE.
    No. A-3449.
    Opinion Filed April 10, 1920.
    (188 Pac. 692.)
    Appeal from County Oourt. Stex>hens County; J. W. Marshall, Judge.
    Tom Richards and Rose Rogers were convicted of .u violation of the prohibitory liquor law. and they appeal.
    Affirmed.
    AVomaek & Brown, for plaintiffs in error.
    W. O. Hall, Asst Atty. Gen., for the State.
   PER CURIAM.

On information charging that they unlawfully conveyed 15 cases of intoxicating liquor from a place in Stephens county, unknown to a place in the public road about a mile southeast of the city of Duncan, the plaintiffs in error, Tom Richards and Rose Sogers, were tried and found guilty, and in accordance with the verdict they were each sentenced to lie confined 180 days in the county jail and to pay a fine, of $500. From the judgment rendered on the verdict they appealed by filing in this court on August 26, 1918, a petition in error with case-made. No brief has been filed and no appearance made for oral argument. The Attorney General has moved tef affirm the judgment, for failure to prosecute the appeal. The evidence tends to show that at the time charged Richards was working in a gambling house, and Rose Rogers was running a sporting house at a .place called “Rag Town,” ail'd there Richards hired the car to haul this whisky, and Rose Rogers paid for the use of .it. They wore apprehended by the officers in the car, and therein were found six sacks of whisky ancl nine sacks of beer. The instructions of the court fully cover the law. After an examination of the record our conclusion is that the appeal in this case is 'wholly destitute of merit. The judgment of the lower court is therefore affirmed. Mandate forthwith.


text:
    FRANCES FULLER v. STATE.
    No. A-3298.
    Opinion Filed April 10, 1920.
    (188 Pac. 694.)
    Appeal from Superior Court. Okmulgee County; R. E. Simpson, Judge.
    Frances Fuller was convicted of a violation of the prohibitory liquor laws, and appeals.
    Appeal dismissed.
   PER CURIAM

The Attorney General has filed the following motion (o dismiss the appeal in this case:

“Conies now the defendant in error, and moves the court for an order dismissing the appeal, for the reason that the offense for which the plaintiff in error was convicted was a* misdemeanor, and the appeal in said case was not taken Within sixty days from the date of the. rendition of the judgment, the record disclosing that the judgment of conviction was rendered on November 2S, 1917, and that Hie record was not filed in this court untlil the 23rd day of March, 1918, which is more than sixty days from the date of said judgment and the record does not. disclose that the trial court at any time entered any order extending the time in which the appeal should be taken.”

No response has been filed to such motion. An examination of the record discloses that the judgment of conviction was rendered on November 28. 1917. and that the petition in error and case-made were not fill'd in this court until the 23rd day of March, 191S, as sot out in the motion to dismiss, and that the trial court made no order extending tin1 time within which to file this appeal in this court beyond the sixty day period as required by section 5991. Revised Laws 1910. This being an attempted appeal from a judgment of conviction in a misdemeanor case, this court acquires no jurisdiction to consider the same unless the appeal is lodged in this court wiiliin 60 days after the rendition of judgment, or unless a further extension of time, not exceeding 60 days, is obtained from the trial court to file the same in this court. As no extension was obtained beyond the 60 days within which the appeal must otherwise he taken and perfected, and as the same was not filed in this court until 114 days after judgment, this court is without jurisdiction except to dismiss the appeal. For the reason .stated, the appeal is dismissed.


text:
    G. W. SERVER v. STATE.
    No. A-2995.
    Opinion Filed April 10, 1920.
    (188 Pac. 693.)
    Appeal from District Court. Woodward County; James B. Oulliison, Judge.
    G. W. Server was convicted of keeping a gambling nuisance and sentenced to serve a term of two years in the state, penitentiary, and he appeals.
    Modified and affirmed.

      W. A. Briggs,' for plaintiff in error.
    The Attorney General, for' the State.
   PER CURIAM.

This is an appeal from the district court of Woodward county, wherein the defendant, G. W. Server, was convicted of the crime of keeping a gambling nuisance as defined by chapter 26, Session Laws 1916, and sentenced to serve a term of two years' imprisonment in the state penitenitary. The nuisance was alleged to have been kept by (he defendant in the Delia Hotel in the city of Woodward, Woodward county, Okla., from the 15th of July, 1916, until August 14, 1916. The court has carefully examined the record in connection with the various grounds of error relied upon by counsel representing the defendant as grounds for reversal' of this judgment, and the conclusion is reached that none of the errors assigned, considered separately or together, form sufficient ¡reasons for reversing the judgment. The court is convinced, however; that certain irrelevant evidence was admitted for tile jury's consideration, in view of which, and in justice to the defendant, it is the opinion of the court that under the authority conferred upon this court by section 6003, Revised Laws 1910, the judgment of conviction should lie modified to provide a fine of $500, the minimum imposed by the law, as the punishment to be inflicted upon the defendant in lieu of the two years’ imprisonment imposed. The judgment as so modified is hereby affirmed.


author: MATSON, J.

text:
    Ex parte GEORGE FOX.
    No. A-3731.
    Opinion Filed April 15, 1920.
    (188 Pac. 889.)
    Petition by George Fox for writ of babeas corpus lo lie admitted to bail.
    Wilt granted and bail allowed.
    Pruiett, Sniggs, Patterson & Morris, for petitioner.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Petitioner, George Fox, alleges that he is unlawfully restrained of his liberty by the sheriff of Noble county, Okla., on the charge of rape in the* first degree, alleged to have been committed-in said county upon one May Perdue during the month of July, 1919, and 'that at a preliminary examination the petitioner was held without bail and committed lo the comity jail of said county to await the action of the district court, and that thereafter petitioner prayed that bail be fixed by tlie district judge of Noble county, and that bail was refused by said district judge 'in said cause; and petitioner further alleges that he is not guilty of the crime of rape in the first degree, and that the proof of his guilt of said crime is not evident nor .the presumption grea!, as shown- by the testimony taken at the preliminary examination in said cause, a copy of which is attached to the petition. For which reasons, petitioner says he is entitled to be admitted to bail in a reasonable amount, pending the further prosecution of said cause. The court has carefully examined the transcript of the testimony of the witnesses taken at the preliminary examination in this cause and the conclusión D reached that the petitioner is entitled to be-admitted to bail, for the reason that the proof is not evident nor the presumption great that tlie petitioner is guilty of rape in the first degrec-by force, as charged in the preliminary complaint. For such reason. it is the opinion of tlie court that petitioner is entitled to be admitted to bail, and it is ordered and adjudged that the petitioner, George Fox, be admitted to bail in the sum of $8,000 for his appearance in t.lie district court of Noble county, to answer to the charge of rape alleged to have been committed by him on one May Perdue in said county in the month of July, 1919; said bond to be conditioned as provided by law, and to be approved by the court clerk of Noble county, Okla.

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


text:
    C. S. DENEGRE v. STATE.
    No. A-3479.
    Opinion Filed April 15, 1920.
    (188 Pac. 888.)
    Appeal from County Court, Tulsa County; W. B. Williams, Judge.
    C.' S. Denegre was convicted of possessing whisky with intent to sell it, and: he appeals.
    Affirmed.
    D. M. Marfindale, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, O. S. Denegre, was convicted on a charge that he did have in his possession 48 half pints of whisky with intent to sell (he same, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in’ the county jail and pay a fine of $50 and the costs. No brief has been filed and no appearance in this court has been made on behalf of the plaintiff in error. An examination of the record shows that the uncontradicted evidence for the state fully supports the verdict. The judgment is therefore affirmed. Mandate forthwith.


text:
    BUZZ WRIGHT v. STATE.
    No. A-3390.
    Opinion Filed April 15, 1920.
    (188 Pac. 1091.)
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, .Judge.
    Buzz Wright was convicted of a violation of the prohibition liquor ¡aws, and lie appeals.
    Modified and affirmed
    Harry F. Eagan, for plaintiff in error.
    S. P. Eroding, Atty Gen., and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Buzz Wright was convicted in the superior court of Muskogee county of selling a half pint of whisky to one Dixie Woodward in the town of Boynton in said county in the month of May, 1917, and sentenced to pay a fine of $500 and to serve six month’s imprisonment in the county jail. In asking a reversal of this cause, counsel for defendant rely exclusively upon the alleged prejudicial error of the trial court in refusing to grant a new trial upon the ground of newly discovered evidence. We have carefully examined the affidavits attached to the motion for a new trial, setting out the alleged newly 'discovered evidence, and have considered the same in connection with the evidence of guilt introduced upon the trial of this cause, and find no manifest abuse of the trial court’s discretion in overrulling said motion. This conviction is based on the unsupported evidence of the prosecuting witness and the defendant, as a witness in his own behalf, positively denied making ihe sale of any whisky to the prosecuting witness. There is no showing that the defendant is a confirmed bootlegger,-and'the punishment • imposed is such as is ordinarily imposed upon those who are shown to be habitual offenders of 'the prohibitory liquor laws. Under the circumstances, it is the opinion of this court that the defendant is not entitled to a new trial upon the allowing made, but that Jdie ends of justice will be best subserved by modifying the judgment to provide an imprisonment for a term of 80 days in the county jail -and a fine of $50 and costs of the prosecution, and it is ordered that the judgment lie thus modified, and as modified, be affirmed.


text:
    IRA SPENCER et al. v. STATE.
    No. A-3395.
    Opinion Filed April 15, 1920.
    (188 Pac. 894.)

    Appeal from County Court, Dewey County; \Y.’A. Carlton, Judge.
    Ira Spencer and lioy Spencer were jointly tried and convicted of a violation of the prohibitory liquor laws, and they appeal.
    Judgments mouiiied and atrirmeu as to each.
    C. IC Cary ami Mlltón Clark, for plaintiffs in error.
    S. I’. Eroding. Atiy. (jen., and W. C. Hal). Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Dewey county, wherein (he defendants, lra Spencer and Roy Spencer, were convicted' of the crime of unlawful possession of intoxicating liquor, and eacli sentenced to pay a fine of $300 and to serve a term of 90 days’ imprisonment in the county jail, and to pay the costs of the prosecution. From these judgments of conviction, each Inis appealed to this court, and assign several errors as grounds for reversal. We ltave carefully examined the record and find the evidence on the part of the state amply sufficient to sustain the judgment as to each defendant. Neither defendant introduced any evidence in defense. We find, however, that certain irrelevant evidence was admitted, and had a meritorious defense been interposed to the charge, the admission of such evidence would have been prejudicial to the substantial rights of the defendants. But under section 0005, Revised Laws 1910, this court is not permitted to reverse a judgment of conviction on the ground of the improper admission of evidence, unless it appears that the error complained of has probably resulted in a miscarriage of justice,*or constitutes a substantial violation of a constitutional or statutory right. This court is convinced that no miscarriage of justice resulted by the conviction of the defendants under the evidence in this case, nor were they deprived of any constitutional or statutory right to their prejudice, and that the admission of such evidence docs not warrant a reversal of the judgments, in file absence of any denial of guilt on file part of either defendant. It is the conclusion of the court, however, under power conferred by section 6003, Revised laws 1910, that substantial justice warrants the modification of the judgments to provide a tine of $800 against each defendant, and imprisonment in the county. jail for a period of 30 days against each defendant, and the payment of the costs of the prosecution, and that the judgments as so modified he affirmed. Tt is so-ordered.


text:
    WILL WARD v. STATE.
    No. A-3254.
    Opinion Filed April 15, 1920.
    (188 Pac. 894.)
    Appeal from County Court, Pontotoc County; Orel Busby, Judge.
    Will Ward was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    Robt. Wimbish and W. C. Duncan, for plaintiff in error.
    S. P. Freeling Atly. Gen., and R. E. Wood, Asst. Atty. Gen., for (he State.
   PER CURIAM.

Plaintiff in error was convicted on a charge of unlawfully selling- one gallon of Choctaw beer to one Will Underwood, and his punishment fixed at confinment for 30 days in the county j iii and a fine of $50. From the judgment rendered in accordance with the verdict he appeals. The record shows that the information as originally filed charged (he sale to have been made tp Ben Courtney. Over the defendant’s objection the court permitted the information to be amended by interlineal ion. substituting the name of Will Underwood for that of Ben Courtney. The information as amended was not sworn to. The evidence shows that four Indians, Will Underwood. Gabriel Underwood, Ben Courtney, and Charley Perry, in a car stopped at the defendant’s place, three or four miles west of Ada. Will Underwood testified that he bought a gallon of “Chock” for 50 cents from the defendant, and on the same day bought another gallon from the. same fellow, and in driving- from the defendant’s place to town the car turned over, and they were arrested. Gabriel Underwood testified that he furnished the money and Will Underwood went and bought the “Chock”; that the only time lie remembers seeing the defendant was the next morning; -that they had all been drinking before they went to the defendant’s place. Charley Perry testified that Gabriel Underwood furnished the money to buy tlie “Chock”, but he did not see Gabriel give the money to Bill; that he was sober -when they went there. Deputy Sheriff Whitson, the complaining witness, testified that he arrested these Indians and the next morning went with them to the defendant’s place; that when these Indians told him that tliej got Choctaw beer from the defendant they pointed him out; that he did not know whether or not the defendant heard what they said; that when he verified the information it charged that the sale was made to Ben Courtney. For the defense (Tara Davis testified that Will Ward is her father: that she was at Home when these Indians drove there in a car: that they were .drunk and wanted to come into the house, hut her father would not let them; that this was about 3 o’clock; that about (i o’clock they came back; that they did not get any Choctaw beer from her father. Mrs. Will Ward testified that she was at home when these drunken Indians stopped at tlie gate; that her husband told them they could not come in, and they went up the road; they returned that evening and stopped again; that her husband did not let these Indians or any one of them have any Choctaw beer. The defendant testified that he was 56 years old and had lived 27 years in Pontotoc county; was -a farmer; was never before charged with a crime; did not sell any Choctaw beer to these Indians or to any body else; that when the Indians drove up he asked them where they were going; they said down in the pasture; they were all pretty full; that they returned, and said they wanted to put one of the paiuy in the pasture to sober up. Hon. W. H. Ebey, representative from Pontotoc county, qualified as a character witness, and stated that the defendant’s reputation in that community as an honest, truthful, and law-abiding citizen was good. The chief ground of reversal relied on here is the admission of incompetent testimony. It was error to admit the testimony of Gabriel Underwood and Charley Perry as to What was said and done by these Indians in the absence of the defendant, and the testimony of Whitson as to what the Indians said to him was also incompetent and inadmissible. All of this hearsay testimony was admitted over the defendant’s objections, and was excepted to at the time. It was highly prejudicial and constitutes reyersible error. The other errors assigned will not be passed upon. Por the errors indicated, the judgment is reversed.


text:
    BUD McLAUGHLIN v. STATE.
    No. A-3264.
    Opinion Filed April 16, 1920.
    Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge.
    Bud McLaughlin was convicted of the crime of unlawful destruction of public property, and appeals.
    Reversed.
    Beckett & Roland, for plaintiff in error.
    S. P. Preeling, Aity. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Under an information filed in the district court of Okmulgee county, by the county attorney, charging that the defendant, Bud McLaughlin, Mike Broshears, Bill Barnes, and Charley Baker, did in said county on or about the' 2nd day of June, 1917, commit the crime of injuring and destroying public improvements, the plaintiff in error upon his separate trial was convicted, and he was by the court sentenced to serve a term of seven years in the penitentiary. Prom the judgment he appeals. The question presented in this ease is .identical with the question raised 'in the companion case of Brosh-ears v. State, reversed at th.e last term. Upon (he authority of that case and for reasons stated in the opinion therein, the judgment herein is reversed.


text:
    ELI REED v. STATE.
    No. A-3425.
    Opinion Filed April 29, 1920.
    (189 Pac. 1102.)
    Appeal from Superior Court. Okmulgee County; R. E. Simpson, Judge
    Eli Reed was convicted of keeping a place with the intent to sell intoxicating liquors, and from his sentence to a fine and imprisonment he appeals.
    Reversed.
    J. C. Evans, for plaintiff in error..
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Eli Reed, was convicted in the superior court of Okmulgee county on an information charging that he did keep a place on dot 4, block 43, city of Okmulgee, with the intent and purpose of selling intoxicating liquors. Upon liis trial the jury returned a verdict, finding him guilty and assessing his punishment at 5 years’ imprisonment in the state penitentiary, and a fine of $1,250. To reverse the judgment an appeal was prefeeted by filing in this court on August 9, 19i8, a petition in error with ease-made. This was a prosecution under section 4, chapter 26, Session Laws 1913, which provision in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, was held unconstitutional and void. Por the reasons stated in the opinion in the Proctor Case, the judgment is reversed.


text:
    JOHN WILLIAMSON and ANNA WILLIAMSON v. STATE.
    No. A-3373.
    Opinion Filed May 6, 1920.
    (188 Pac. 693.)
    Appeal from the Superior Count, Okmulgee County; R. E. Simpson, J udge.
    Plaintiffs in error were convicted of the crime of keeping a house of ill fame, and appeal.
    Affirmed.
    A. L. Emery and J. C. Evans, for plaintiffs in error.
    S. P. Preeling, Atty. Gen., and E. L. Pulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the superior court of Okmulgee county, wherein the defendants were each, upon a joint trial, convicted of the crime of keeping a house of ill fame, and each sentenced to pay a fine of $250. Prom the judgments of conviction against them, the defendants have appealed to this court, and assign several alleged errors as grounds for reversal. The court has given careful consideration to each of the grounds relied upon for reversal of this judgment, and while it is apparent that the trial court erred in admitting certain irrelevant evidence, we are convinced that the competent evidence introduced on behalf, of the state is amply sufficient to sustain the judgments of conviction, and that the admission of the incompetent evidence was not of such a prejudicial nature as should result in a reversal of the judgments. While other alleged errors are relied upon, they are either technical and without substantial merit, or else are such as have heretofore been decided adversely to the contentions of defendant’s counsel. It is the opinion of the court that the judgment of conviction against each defendant should he affirmed, and it is so ordered. . .


text:
    D. O. NICHOLS v. STATE.
    No. A-3521.
    Opinion Filed May 6, 1920.
    (189 Pac. 1102.)
    Appeal from County Court. Cuslcv County; E.'J. Lindley. Judge.
    IX O. Nichols was convicted of abandoning 'his family, and lie appeals.
    Anpeal dismissed, and cause remanded.
    R. J.. Sliive, for plaintiff in error.
    W. C. Hall, Asst. AHy. Gen., for the State.
   PER CURIAM.

Plaintiff in error, D. O. Nichols, was convicted in ihe count.v court of Cosier county 'on a charge that' lie did willfully and unlawfully abandon his .wife and child, and in accordance with the verdict’ of the jury he was sentenced to pay a fine of $500 and the costs. From the judgment, he appealed by filing in this-court on March 25, 1919, a petition in error with case-made. Ills counsel of record on May 4, 1920, filed a motion to dismiss the appeal. The motion 'to dismiss 'is sustained, and the appeal herein is dismissed, and the cause remanded to the trial court.