text:
    JAKE TINGLEY v. STATE.
    No. A-3102
    Opinion Filed October 25, 1919.
    Rehearing Denied January 12, 1920.
    (184 Pac. 599.)
    1. TRIAL — Evidence in Rebuttal — Discretion of Trial Court. It is discretionary with the trial court, in furtherance of justice, to permit evidence in rebuttal which would have been competent evidence in chief.
    2. APPEAL AND ERROR — Harmless Error — Admission of Evidence. This court will uot reverse a judgment of conviction on the ground of the improper admission of evidence unless it appears, after an examination of the entire record, that in the opinion of the court the error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
    3. WITNESSES — Competency—Husband and Wife. Neither the husband nor wife is a competent witness against the other, except in a criminal prosecution for a crime committed one against the other. In this prosecution, the defendant was not charged with the commission of a crime against his wife; he was therefore incompetent as a witness to disclose communications made by his wife to him.

      Appeal from District Court, Caddo County; Will Linn, Judge.

      Jake Ting-ley was convicted of manslaughter in the first degree, his punishment fixed at seven years’ imprisonment in the state penitentiary, and he appeals. Affirmed.
    This is an appeal from the district court of Caddo county, wherein the defendant, Jake Tingley, was convicted of manslaughter in the first degree, and sentenced to serve a term of seven years’ imprisonment in the state penitentiary for the killing of one W. H. Overholser.
    The killing occurred in the city of Anadarko, Caddo county, on the evening of the 21st day of August, 1916. The defendant had been a resident of Caddo county for a number of years, conducted a pawnshop in the city of Ana-darko, and lived about one-half mile east of the city. At the time of the commission of the homicide, he was a married man, having a wife and several small children.
    The deceased, W. H. Overholser, was a resident of Wichita, Kan., an attorney at law, and at the time of the homicide was visiting the family of Mr. O. W. Milne, who resided near the town of Verden, Okla., some distance east of where the defendant lived.
    The defendant and the deceased had known each other only for a day or two prior to the killing. The.killing was the outgrowth of domestic troubles between the defendant and his wife, and it appears that Mrs. Tingley just prior to the killing had consulted with the deceased, Overholser, with a view to obtaining a divorce from the defendant, the custody of their children, and a division of property. The defendant had accumulated considerable property, some $40,000 or $50,000, at the time of the commission of this alleged crime.
    It is unnecessary to go into a detailed statement of all the facts and circumstances surrounding this offense. The record is voluminous, and it would consume considerable space to state fully all the facts detailed in evidence.
    The defenses interposed were self-defense and insanity. According to the evidence on the part of the state, the defendant was proven guilty of a deliberate, willful, and premeditated murder; while according to his own testimony on the issue of self-defense there is some slight evidence of a doubtful character which tends to show, if believed, that the killing was in defense of his person. The recollection of the defendant, however, of just what occurred immediately preceding and immediately subsequent to the killing is very hazy, necessarily so because of his defense of temporary insanity, which he claims was brought about by misconduct between his wife and the deceased, and also between his wife and one Ed Caesar, immediately preceding the killing as to Overholser, and for some time prior thereto as to the said Ed Caesar.
    The testimony relative to the temporary insanity of the defendant is composed largely of evidence from the defendant as a witness in his own behalf, in which he detailed certain alleged misconduct on the part of his wife with the said Ed Caesar, and also certain reports that were brought to him that his wife was seen in the company of a man in an automobile some two or three hours before the killing, which man the defendant believed to be the deceased, Overholser, and this alleged misconduct, together with the fact that his wife had left his home a night or two before the killing and had not returned thereto, and the constant outcrying of the children for their mother, so dethroned his reason as to render him tem- , porarily insane and ■ not criminally responsible for the commission of the act. This testimony was supplemented by that of an alienist, who expressed his opinion, based upon a long- hypothetical question detailing the defendant’s theory of the case, that the defendant was insane at the time of the commission of the act. There was also some testimony on the question of the defendant’s insanity by laymen. In rebuttal, the state was permitted to prove that the defendant had been consorting with a woman of lewd character in the city of Anadarko; that he had been a frequent visitor to the apartments of such wo nan, and had paid her living expenses, and was frequently seen in her company; and that the defendant had been told a short time before the commission of the homicide that his wife was acquainted with all these facts and was consulting the deceased with reference to obtaining a divorce from him-on that ground, and that she had gone with the deceased to the city of Anadarko a short time before the killing took place.
    The deceased was killed about 8:30 p. m. on one of the -main streets in the city of Anadarko, in front of the -residence of W. F. Milne, where the deceased and his wife were stopping temporarily. The deceased was in an automobile at the time he was shot; defendant firing some seven or eight shots from a pistol or pistols, several from a short distance and the last two after defendant had mounted deceased’s automobile, the fatal shot entering fro n the rear and below the shoulder.

      Bristotu & McFayden and Pruiett, Sniggs & Patterson, for plaintiff in error.

      S. P. Freeling, Atty. -Gen., and R. McMillan, Asst. Atty. Gen. (A. J. Morris, of counsel), for the State.
   MATSON, J.

(after stating the facts as above). It is contended that the defendant was prejudiced by the admission of certain incompetent and irrelevant evidence on the part of the state, over the objection and exception of the defendant, in rebuttal. After the defendant had rested! his case, the state in rebuttal, over objection and exception, introduced witnesses who testified that the defendant, for some time prior to the commission- of the homicide and up until the time of its commission, had been frequently seen in the company of one Nell Martin, an immoral woman; that defendant paid her meat bills’, was seen at her room in the daytime and nighttime, and stated that it was none of anybody’s business what he and the said Nell Martin did.

It is contended that this evidence was incompetent and irrelevant as tending to show that the defendant was guilty of a separate and distinct offense from that charged in the information; that it tended to show that he was a man of immoral character; and that its admission, especially in rebuttal, wras clearly prejudicial to the defendant’s substantial rights, in view of the fact that the defendant did not introduce any evidence whatever as to his general reputation for peace and quietude, and his reputation for any other trait of character was not an issue in the case. Authority is cited in the brief of counsel for defendant tending in some degree to support the contentions made.

The question of the competency of evidence in any particular criminal case, at any particular stage "of the proceedings in that case, depends upon the issues as joined in the trial. In this case, it was the contention of the state that the killing was a deliberate murder, and that the defendant’s motive was to prevent the deceased from assisting defendant’s wife in her proceedings for a divorce and alimony, the custody of their children, and a division of their property, in which proceedings the defendant’s adulterous acts with the said Nell Martin would necessarily he disclosed, thereby leading to and resulting in a criminal prosecution against the defendant for such felony. The truth of the cause that moved the defendant to kill the deceased was clearly an issue in the case, especially if a conviction of the crime of murder was to be had.

Also it is contended on the part of the state that the defendant, having testified that he believed the deceased and his ('defendant’s) wife were intimate with each other, that the deceased had invaded his home, and partly by reason of such conduct his reason was temporarily dethroned, the state had a right to show, to rebut any presumption of insanity arising from such belief, that the real purpose of the defendant in killing the deceased was to prevent deceased from assisting defendant’s wife in making disclosure of defendant’s relations with Nell Martin, a woman of immoral character, and that defendant, by reason of his said relations with the said Nell Martin, had failed to keep his own life pure, and did not have that high regard for the sanctity of the home which would tend to dethrone the reason of a pure man and cause him to commit an act of ¡homicide, otherwise inexplainable except on the ground of temporary insanity.. Authority is cited in the brief on behalf of the state tending to support the contention that under the issues presented in this trial such evidence was competent in rebuttal.

In connection with this evidence, the court gave the following instruction:

“The court further instructs the jury that there has been permitted to be introduced in evidence in this case testimony of certain witnesses with reference to the association, conduct, and relation existing between the defendant and a certain woman prior to the time of the alleged homicide, and in this connection you are instructed that this evidence was admitted for one purpose and one only and should be considered, by you only for such purpose; that is, in determining a probable motive, if any, for the commission of the offense for which the defendant is charged, should you find beyond a reasonable doubt the defendant was sane at the time and was not acting in his necessary self-defense.”

The fourth subdivision of section 5870, Revised Laws 1910, provides:

“The parties may then, respectively, offer rebutting testimony only, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case.”

After having provided that the state must in the first instance offer evidence in support of the indictment or information, and then that the defendant or his counsel may offer evidence jn support of his defense, the Legislature has seen fit to lodge with the trial court a large discretion as to the admission of other evidence than that strictly in rebuttal, providing in the fourth subdivision, above quoted, that the court “for good reason, in the furtherance of justice, or to correct an evident oversight, may permit either party to offer evidence upon their original case.” Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Cochran v. United States, 14 Okla. 109, 76 Pac. 672; Harvey v. Territory, 11 Okla. 156, 65 Pac. 837.

The question here presented then is: Did the trial court abuse its discretion in permitting the state to introduce this evidence in rebuttal? In view of instruction No. 15, above quoted, and in view of the further fact that the defendant was only convicted of the crime of manslaughter, we fail to see wherein there was any prejudicial injury1 done him, even if it Ibe admitted that this evidence was not strictly rebuttal, a question which is not necessary to a proper decision of the controversy.

The evidence was certainly admissible in chief to show motive, and to indicate that the killing was with a premeditated design to effect death, and therefore murder. But the defendant was only convicted of manslaughter, a killing which does not involve the question of premeditation or deliberation. How then, can it be said that the defendant was prejudiced by evidence, although admitted in rebuttal, which tended to establish a premeditated design for the killing? Can it be said that there was an abuse of discretion in the admission of this evidence in rebuttal which resulted to the substantial prejudice of the defendant? Clearly not.

Before this court is authorized to reverse a judgment of conviction on the ground of the improper admission of evidence, “it must appear, after an examination of the entire record, that in the opinion of the court the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Section 6005, Revised Laws 1910. To reverse this judgment of conviction upon the ground here contended for would constitute a clear miscarriage of justice, resulting perhaps in the failure to punish one who, from the evidence in the record, is at least guilty of the crime of which he was convicted.

It is also contended that the court erred in excluding from the consideration of the jury evidence of the defendant as to statements made to him by his wife relative to her relations with the deceased and with one Ed Caesar. It is claimed that this evidence was competent to show the condition of the defendant’s mind at the time he took deceased’s life.

It is not the contention of the state that the evidence offered was incompetent, nor was the same excluded upon the ground that it was incolmpetent. The court excluded the evidence upon the ground that the defendant, -as a witness, was incompetent to testify to communications made to him by his wife. Section 5882, Revised Laws 1910, provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases' are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other -witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to- the other except on a trial of an offense committed by one against the other.”

Construing the above section, this court has held that a husband or wife is a competent witness against the other in cases where one is charged with the commission -of a crime against the other. •

In this case, the defendant was charged with the murder of one W. H. Overholser, clearly not a crime against his wife, or one necessarily involving the marital relation. The wife was not charged with any crime at all, and was nn trial for no offense. She would not have -been a competent witness in this trial against her husband as to any communications made by him concerning his relations with Nell Martin. It is obvious that under the provisions of the foregoing statute he was incompetent also to testify to these alleged communications between him and his wife, and this though the. issue of insanity was presented. The foregoing statute is not open to the construction contended for, even under the liberal interpretation heretofore given same by this court.

We have carefully examined the entire record in this case, and the conclusion is reached that the defendant was exceedingly fortunate in having been found guilty only of the crime of manslaughter, with a punishment of seven years’ imprisonment in the state penitentiary.

Finding no error in the record' that resulted in the deprivation of any substantial right to the defendant, the judgment is affirmed.

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


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    G. V. WINSTON v. STATE.
    No. A-2490
    Opinion Filed July 19, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 832.)
    1. EVIDENCE — Similar Acts — Embezzlement. Where the defendant, the cashier of a railway company, is charged with embezzling a specific sum of money on a certain day, evidence tending to show that he, on numerous dates for about two months immediately preceding the date of the alleged embezzlement upon which a conviction was had, regularly took other similar moneys from the railway company which had come into his hands as cashier, was properly admitted as tending to show a system and regularity of embezzlements by the defendant from day to day, and as also tending to connect defendant with the commission of the offense charged.

      2. SAME — Discrepancies in Defendant’s Books. Evidence admitted showing discrepancies in the books of the railway company kept by the defendant is competent where the proof of the embezzlement charged is so closely linked with the evidence of false entries in the books that proof of one is largely dependent upon proof of the other.
    8. APPEAL AND ERROR — Harmless Error — Instructions. "Where the charge of the court, considered as a whole, sufficiently covers the lavs- of the case and is not misleading, the judgment will not ■be reversed because of misdirection in a particular paragraph of the court’s charge which did not deprive the defendant of any constitutional or statutory right nor result in a miscarriage of justice.

      Appeal from District Court, Caddo County; Will Linn, Judge.

    G. Y. Winston was convicted of the crime of embezzlement, and he appeals.
    Judgment affirmed.

      A. J. Morris, for plaintiff in error.

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

This is an appeal from the district court of Caddo county, in which court , the defendant, G. V. Winston, was convicted in March, 1915, of the crime of embezzlement, and sentenced to serve a term of one year’s imprisonment in the state penitentiary.

For about three years prior to the 6th day of November, 1914, the-defendant had occupied the ' position of cashier in the freight department of the Chicago, Rock Island & Pacific Railway Company at the city of Ana-darko, in said county. As such cashier, it became and was his duty to collect the sums of money due to said railway company for freight collectible at said office, and to remit same daily to the Illinois Trust & Savings Bank at Chicago, in the state of Illinois, which bank was the designated depository for the funds of said railway company.

Winston had been collecting and forwarding these funds daily during his occupancy of the position as cashier at said station. It had been his custom and the record shows that for over two years prior to the 6th day of November, 1914, the defendant had invariably purchased a draft from a bank in the city of Anadarko with the collections made for each particular day, and had forwarded such drafts daily to the aforementioned Illinois Trust & Savings Bank, the drafts being inclosed in an envelope furnished by the railway company for that purpose and forwarded by express, the envelope with its inclosure securely sealed -being handed to the express messenger on the Rock Island train east which passed through Anadarko between 5 and 6 o’clock in the evening.

Without going into an extended detailed statement of the facts and circumstances proved by the state’s evidence, it is sufficient to say that the evidence on the part of the state, if believed by the jury, establishes on the part of the defendant an embezzlement on the 6th day of November, 1914, of the sum of $203.40, the property of the Chicago, Rock Island & Pacific Railway Company, which had come into the possession of the defendant as agent and employe of said company at Anadarko, Okla., which said sum was a part of a total sum of $580 collected by the said defendant on said 6th day of November, 1914, all of which sum, including the said specific sum of $203.40, the defendant embezzled and appropriated to his own use.

The defense interposed was that the defendant had forwarded the entire sum of $580 collected by him on the 6th day of November, 1914, to the home office of the railway company in Chicago, inclosed in the company’s form envelope properly sealed and delivered to the express messenger on the evening train of that date, and that, if said ironey was embezzled, it was taken by some person after it left the hands of the defendant. There is evidence in the record which, if believed, supports the defendant’s. contention and would establish his innocence and authorized his acquittal.

It would serve no good purpose to enter into a discussion of the weight to be given the evidence on the part of the state as against that introduced in behalf of the defendant. The evidence is sharply in conflict. If the state’s evidence is to be believed, the defendant is clearly guilty of the offense charged; on the other hand, if the testimony of the defendant himself, supported by a witness who said he saw him forward the money to the company .at Chicago, is to be believed, he should have been acquitted.

The jury has settled this plain conflict adversely to the contention of the defendant, and as there is ample evidence in the record sufficient to sustain the conviction, this court will only consider alleged errors of law committed during the course of the trial, and urged specifically as grounds for reversal.

It is first contended that the court erred in admitting certain incompetent evidence against the defendant, over his objection and exception. The evidence complained of consists of expense bills showing the amount paid- defendant by the Anadarko Cotton Oil Mill for freight from September 25, 1914, to October 31, 1914, and the cashbook covering the same dates kept by the defendant in his own handwriting, which showed that the defendant received a less amount than that shown by the expense hills. The evidence of Mr. Newman, an officer of the cotton oil mill company, was to the effect that he had paid the defendant the entire amount of freight shown by the expense bills, while the cashbook kept by the defendant during that period of time showed only the payment of a smaller amount. In nearly every instance the cashbook and purported duplicates of the expense 'bills showed that a reduction of 10,000 pounds had been made in the freight shipped, and a corresponding smaller aimount, according to the freight tariff, was placed and entered in the cashbook by the defendant, so that the purported duplicate expense bills and the amount of cash entered by the defendant in the cashbook tallied, and the only way the defalcation could be discovered was by an examination of the expense bills retained by the cotton oil mill company.

While the auditor for the railroad company was in the city of Anadarko from the 28th of October, 1914, until the 6th of November, of said year, and while the defendant left Anadarko on the 7th of November, 1914, and did not return until some time‘about the middle of December, there was no discovery made of the discrepancy between the freight paid by the Anadarko Cotton Oil Mill Company and the freight credited as having been paid by said company on the books of the railroad company by the defendant until after the defendant’s departure and subsequent to the 6th of November, 1914.

It is true the defendant was not charged with having embezzled any amount of money paid for freight by the Anadarko Cotton Oil Mill Company on any date from September 25, 1914, to October 81, 1914, but this evidence tended to show a system and regularity, of embezzlements by the defendant from day to day of freight paid by the Anadarko Cotton Oil Mill Company. The auditor of the railroad company was on and prior to the 6th day of November, 1914, engaged in auditing the accounts of the defendant at the Anadarko station. The defense interposed as against this particular embezzlement charged was that he reimitted the mioney to the home office of the company in Chicago; that he did not owe the company any money and was not short in his accounts. The evidence complained of was clearly admissible under the hold of this court in the case of State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807.

The contention that this evidence, and other evidence admitted showing discrepancies in the books of the company kept by the defendant, tended to prove the defendant guilty of an offense different from that charged in the information, to wit, the offense of making false entries, on the books of the company, and for that reason was inadmissible, is without merit,, because the proof of the embezzlement charged was so closely linked with the evidence of false entries that proof of the one could not properly have been made without some evidence of the defendant having falsely kept his books.

The evidence of similar embezzlements by the defendant covering a period of one month immediately preceding the 6th day of November, 1914, was competent as tending to shed light on the question of whether or not the defendant took the particular amount charged in the indictment on the 6th day of November, 1914, or whether he forwarded the same to the home office of the company in Chicago. Proof that the defendant was short in his accounts with the railroad company, and that the company’s auditor was engaged in an audit of his books, was a circumstance properly to be considered by the jury, which, when taken together with the sudden departure of the defendant from the city of Anadarko, tended strongly to the conclusion that when the defendant left he took with him the entire receipts, of the company collected on ■the 6th day of November, 1914, instead of forwarding the same to the home office, as contended by him. Such circumstantial evidence was properly admissible as corroborating the evidence of state’s witnesses to the effect that no currency was inclosed in the envelope forwarded to the Illinois Trust & Savings Bank on the 6th day of November, 1914.

It is also contended that the court erred in instructing the jury relative to these certain items of alleged misapplication of funds other than that charged in the information. We have carefully examined the instructions given, and considered the same in connection with the argument advanced by defendant’s counsel. One of the instructions complained of, if considered by itself, is incomplete and subject to the criticism advanced that the trial court assumed that there had been other misapplications of funds than that charged in the information, but when considered in connection with the other instructions given —in other words, when the charge of the court is considered as a whole — the contentions are not well founded, and the instructions sufficiently cover the law of the case and are not misleading. In this connection it may be remarked that the defendant requested no instructions other than those given by the trial judge on his own motion.

The Legislature has specifically provided in section 6.005, Revised Laws 1910, that the appellate court shall not reverse any judgment of conviction in a criminal case “on the ground of misdirection of the jury or the improper admission' or rejection of evidence, * * * •unless, in the opinion of the court * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of constitutional or statutory right.” Neither of the alleged errors advanced as grounds for the reversal of this judgment is of such a prejudicial nature as to authorize the court under the statute aforesaid to reverse the judgment.

•On the whole, the case was carefully and fairly tried. The defendant had the advantage of very able counsel, who was untiring in his efforts to protect the rights of the defendant at every stage of the trial, and that a verdict of guilty resulted cannot be chargeable to any lack of diligence or oversight upon the part of defendant’s counsel, but rather the direct and circumstantial evidence of the state’s witnesses, which, if believed, led to no other logical conclusion than that of defendant’s guilt.

The judgment is affirmed.

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


author: ARMSTRONG, J.

text:
    HARRY STUBBLEFIELD v. STATE.
    No. A-3230
    Opinion Filed December 3, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 335.)
    APPEAL AND ERROR — Affirmance. Where a careful examination of the record shows that the evidence sufficiently supports the verdict of the jury, that no fundamental error intervened in the trial, and a motion for a new trial was not filed in the trial court, a judgment of conviction will be affirmed.

      Appeal from District Court, Logan County; John P. Hicham, Judge.

      Harry Stubblefield was convicted of larceny of a domestic animal, and he appeals.
    Affirmed.

      B. F. Garrett, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the Sitate.
   ARMSTRONG, J.

The plaintiff in error, Harry Stubble-field, hereinafter called defendant, was informed against jointly with Lon Younger, for the larceny of a domestic animal, tried separately, found guilty, and his punishment fixed at imprisonment in the state penitentiary at McAlester for a term of two' years. To reverse the judgment rendered upon the verdict, he prosecuted this appeal.

We have carefully read and considered the entire record, and find that while the evidence, which we deem unnecessary to recite at length, is in conflict, we are of the opinion that there is evidence sufficient to reasonably support the verdict, that no fundamental errors occurred in the trial, and that the defendant did not move in the trial court for a new trial. In this state of the record there are no errors for this court to review.

Only those questions can be considered on appeal, unless fundamental error is involved, to which the attention of the trial court is directed by a motion in the trial court for a new trial.' The judgment of the trial court is affirmed.

. DOYLE, P. J., and MATSON, J., concur.


text:
    JINKS McGILL v. STATE.
    No. A-3095
    Opinion Filed December 6, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 530.)
    1. APPEAL AND ERROR — Exceptions—Necessity. Errors to which no exceptions were taken in the court below, and not fundamental in character, will not be considered on appeal.
    2. SAME — Petition in Error. Questions not jurisdictional in character must be piuperly raised in the trial court and decided adversely to the appellant, and then presented in this court by petition in error.
    3. INDICTMENT AND INFORMATION — Sufficiency—Time to Object. Where the defendant goes to trial, and for the first time objects to the information or indictment when the state attempts to introduce evidence thereunder, the objection to the sufficiency of the information or indictment will be overruled, if by any intendment or presumption the information or indictment can be sustained.
    4. APPEAL AND ERROR — Intoxicating Liquors — Modification of Judgment — Erroneous Admission of Evidence. In a prosecution for unlawfully conveying intoxicating liquors, the intention of the defendant to use such liquors either lawfully or unlawfully is immaterial,, and evidence bearing upon such question should not be admitted. In view of the erroneous admission of evidence on the question of defendant’s intent to use the liquors conveyed ■ unlawfully, which probably resulted in the infliction of a penalty more severe than would have otherwise been inflicted, the judgment of the trial court is modified, and affirmed as modified.

      Appeal from County Court, Logan County; John D. Chappelle, Judge.

    Jinks McGill was convicted of unlawfully conveying intoxicating liquor, and he appeals.
    Modified and affirmed.

      William■ J. Armstrong (J. W. Barry, on the brief), for plaintiff in error.

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

It is first contended that the information does not state facts sufficient to constitute an offense under the laws ¡of the state.

The charging part of the information is as follows:

“The said Jinks McGill did then and there unlawfully, willfully, knowingly, and intentionally convey certain spirituous liquor, to wit, 2% pints of whisky, in 'half-pint bottles, from one place within the state of Oklahoma to another place therein, to wit, from a place wiknown to affiant to 420 S. Second street, in the city of Guthrie, Logan county, Oklahoma, by then and there hauling said whisky in an Overland car,” etc.

Counsel for plaintiff in error contend that the information is deficient in that ¡it alleges the place from -which the liquor was conveyed to be absolutely unknown, and hence that' it ■ does not. with sufficient certainty charge whether the liquor was conveyed from a point within the state or from one without the state.

The statute requires the conveyance to be from some place within the state to another place therein, and this court has heretofore held that it is necessary to designate the particular places from which and to which the liquor was conveyed, if known to the informant oir the grand jury, or else, if the places are unknown to either the informant or the • grand jury, ■ that fact must be stated in the information or indictment; but, in either event, the allegations of the information or indictment must be certain and direct as to the fact that the conveyance was from some point within the state to another point therein, although the particular points may have been unknown at the time of the filing of the information or the return of the indictment.

No demurrer' was interposed to' the foregoing information in the trial court. Counsel for defendant interposed an objection to the introduction of evidence on the ground that the information “did not state facts sufficient to constitute a cause of action against the defendant, and for the further reason that it did not charge that the defendant intended to violate the prohibitory law.”

The alleged insufficiency of the information was not set up as a ground for new trial in the lower court; neither is said alleged error incorporated in the petition in error filed in this court.

This court has repeatedly held thav, “errors to which no exceptions were taken below', and net fundamental in character, wall not be considered on appeal.” Stack et al. v. State, 4 Okla. Cr. 1, 109 Pac. 126; Looling et al. v. State, 3 Okla. Cr. 491, 106 Pac. 982.

Also that this court is only authorized to consider and decide such questions as are presented by the petition in error unless they are jurisdictional. Morrison v. State, 7 Okla. Cr. 243, 123 Pac. 169; Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1105.

Further, it has been held by this court that where defendant “goes to trial, abd for the first time objects to the information or indictment When” the state attempts “to introduce testimony thereunder,” or upon appeal, or by habeas corpus, “the objection should be overruled, if by any intendment or presumption the” information or “indictment can be sustained.” Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80; McDaniel et al. v. State, 8 Okla. Cr. 209, 127 Pac. 358; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Edwards v. State, 5, Okla. Cr. 20, 113 Pac. 214.

Applying the rule last above quoted to the charging part of the information in this case, it clearly appears that by intendment of the pleader, from the words employed, that it charges a conveyance from a place unknown within the state to 420 6. Second street, in the city of Guthrie, Logan county, Okla., a place which the courts of this state judicially know to be within the state of Oklahoma.

This alleged assignment of error, therefore, is without merit for each and every one of the reasons above set forth: (1) Because the question was not properly reserved in the lower court; (2) because said- question is not presented by the petition in error filed in this court; (3) even if such question had been reserved and properly presented, the information is sufficient to charge the offense as against an objection merely against the introduction of evidence under it.

It is also contended that the lower ’ court erred in the admission of evidence tending to show the reputation of the defendant's home and premises as a place where liquor was generally sold. The particular part of the testimony complained of, as set out in the brief of counsel for the defendant, is as follows:

“Q. What kind of a place does Jinks run down there in the open? (Referring to defendant.)

“By B. F. Garrett: We object to that as incompetent, irrelevant, and immaterial.

“By the Court: He may answer if he knows.

“A. Well, I couldn’t testify.

“Q. Was it a store? Did you see what kind of a business he was running openly? A. No business at all. It was just a dwelling house; 420 South Second is just a dwelling house.

“Q. Is that where he lives? (Referring to defendant.) A. Yes, sir.

“Q. Do you know whether the public generally resort there at that place?

“By B. F. Garrett: Objected to as incompetent, irrelevant and immaterial.

“By the- Court: Overruled.

“A. Yes, sir.

“Q. Do you know the general reputation of that place as to a place where liquor is sold.? A. Yes, sir.

“Q. Is it good or bad? A. Bad.”

No objection was taken to the court’s action in overruling the objection to the introduction of this evidence. Under the holding of the cases heretofore cited, this court will only consider fundamental errors where no exception to the trial court’s ruling was taken.

In the case of Watkins v. State, 13 Okla. Cr. 507, 165 Pac. 621, this court held:

“It is unlawful for any person to convey from place to place within this state intoxicating liquors which said person has previously purchased within this state, and it is immaterial whether the person so purchasing such liquor and conveying the same intended to use such liquor lawfully or unlawfully. Intent is not a material ingredient of the offense of conveying intoxicating liquors.”

The question of intent to sell or otherwise unlawfully dispose of the liquors conveyed not being a material element or ingredient of the offense of conveying intoxicating liquors, the admission of such evidence in this case, over the objection of defendant’s counsel, was erroneous. But the defendant interposed a defense which was permitted to go to the jury to the effect that, previously to the time of conveying said liquors, he had bought the same from a bootlegger as medicine for his sick wife and children, and had placed the whisky in his overcoat pocket, had taken the same home, but had forgotten to remove the whisky from his overcoat prior to the time he was arrested. In this connection defendant appears to have been running an automobile, carrying passengers for hire, and he claims to have received a call and gone to answer the same, without removing the- whisky from the overcoat, and had no intention to unlawfully convey same. Evidently his family was not in very urgent need of the whisky for medicinal purposes, or else the defendant would not have been so thoughtless. The evidence also shows that the defendant had previously been convicted of bootlegging and of receiving stolen property.

The admission by the defendant that the particular whisky alleged to have 'been conveyed to him had previously been purchased within the state from one Willie Jones showed conclusively that said whisky did not constitute a lawful purchase within the meaning of the statute prohibiting the conveyance of intoxicating liquors from place to place within the state. Watkins v. State, supra.

The particular whisky conveyed by this defendant being the subject of an unlawful purchase, its conveyance from place to place' within the state was unlawful, if willfully done, and the question of defendant’s intent to use it, either lawfully or unlawfully, was immaterial. The defense interposed was that defendant did not know or intend to convey this whisky which he had previously purchased, although he admits having previously put the same in his overcoat pockets, and did not look to see whether it was there before he started out on his trip in the automobile. The trial court submitted this defense fully and fairly to the defendant in instructing the jury, instructing to the effect that they must find beyond a reasonable doubt that the defendant intended to convey this particular whisky. The instructions were exceedingly favorable to the defendant, and it is clear from the entire record that the jury must have found beyond a reasonable doubt that the defendant not only conveyed an unlawful purchase of liquor, but also that he did the act willfully and intentionally.

The penalty imposed is a fine of $200, and imprisonment in the county jail for a term of 90 days. In view of the erroneous admission of evidence on the question of intent, and in view of the infliction of a severe penalty, it is the judgment of this court that the judgment of the ■trial court should be modified to provide a fine in the sum of $50, and imprisonment in the cojunty jail for a period of 30 days, the minimum punishment imposed by the law, and the judgment as thus modified is affirmed.

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


author: DOYLE, P. J.

text:
    TOM McGEE v. STATE.
    No. A-3344
    Opinion Filed January 12, 1920.
    (186 Pac. 214.)
    APPEAL AND ERROR — Failure to File Brief or Argue — Affirm antee. Where the defendant, convicted of a felony, appeals from the judgment and no briefs are filed, nor argument presented, this court will make an examination of the record proper, and, if no error is apparent, will affirm the judgment.

      Appeal from District Court, Wagoner County; Chas. G. Watts, Judge.

    Tom McGee was convicted of cattle theft, and he appeals.
    Affirmed.

      Graves & Dickey and Scothorn & McRill, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, T'om McGee, was tried and convicted in the district court of Wag-oner county on an information charging the theft of one red heifer, the property of Lizzie Hawkins, and in accordance with the verdict of the jury he was sentenced to serve a term of five years in the penitentiary. An appeal by petition in error and transcript was filed in this court on May 6, 1918. No brief has 'been filed, and when the case was called for final submission no appearance was made on behalf of the plaintiff in error. Thereupon the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

We have examined the record, and we have discovered no error which would warrant a reversal of the judgment. The judgment of the district court of Wagoner county is therefore affirmed. Mandate forthwith.

ARMSTRONG' and MATSON, JJ., concur.


author: PER CURIAM.

text:
    Ex parte CHARLES BERRY.
    No. A-3468.
    Opinion Filed April 24, 1919.
    Petition for writ of habeas corpus by Charles Berry.
    Dismissed.
    D. M. Martindale, for petitioner.
    R. McMillan, Asst. Atty. Cíen., for the State.
   PER CURIAM.

Petition of Charles Berry for writ of habeas corpus dismissed.


text:
    A. B. MORRIS v. STATE.
    No. A-3137.
    Opinion Filed May 10, 1919.
    (180 Pac. 561.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    A. B. Morris was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    S. P. Ereeling, Atty. Gen., and W. C. Hall, Ásst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged that A. B. Morris, on the 16th day of November, 1910, in Tulsa county, did have in his possession two quarts of gin, seven quarts of whisky, and 38 pints of beer, with the intent then and there to sell the same, and a trial resulted in a verdict of guilty and punishment fixed at imprisonment in the county jail for 30 days and a fine of $250. He has appealed from the judgment rendered upon the verdict.

The only testimony is that introduced by the state, which shows that two officers with a search warrant went to plaintiff in error’s place at the corner of Rockford and Burnette streets of Tulsa, and there found 32 pints of beer -in an ice box in the residence, seven quarts of whisky, two quarts of gin, and five bottles of beer in a barn.

No brief has been filed. Upon an examination of the record it appears that this appeal is destitute of merit. The judgment of the lower court is therefore affirmed.


text:
    A. B. MORRIS v. STATE.
    No. A-3138.
    Opinion Filed May 10, 1919.
    (180 Pac. 561.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    A. B. Morris was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    I). M. Martindale, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged that on the 34th day of December, 1916, in Tulsa county, A. B. Morris did unlawfully have in his possession 59 half pints of whisky and five quarts of whisky, with the intent then and there to sell the same.

The evidence shows that the chief of police and his assistant went to the defendant’s place on East Third street near the Midland Depot, in the city of Tulsa, with a search warrant, and found in the northeast room, upstairs, 59 half pints of whisky and five quarts of whisky; that there was a hole in the floor, below which was a cold drink stand: that they also found in the room a number of glasses of different sizes and descriptions; also a cash register that registered quarts and pints; that the cash register was owned by A. B. Morris ; that it was formerly seized in his house and claimed by him; that they also found about 10(1 bottles and a great many cartons that had contained liquor; that they had seen A. B. Morris around there frequently. No 'brief has been filed. *

Finding no error in the record, the judgment of the lower court is affirmed.


text:
    Ex parte ALBERT M. CARPENTER.
    No. A-3530.
    Opinion Filed May 14, 1919.
    (179 Pac. 622.)
    Ai>plieation for writ of habeas corpus by Albert M. Carpenter to be admitted to bail.
    Writ granted and bail allowed.
    AV. A. Briggs, for petitioner.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., and John Barry, Co. Atty., for respondent.
   PER CURIAM.

This is an application on the part of Albert M. Carpenter to be admitted to bail in a case now pending against the said Carpenter in the district court of Woods county, charging him with the crime of having murdered one Albert Lemon in said county on or about the 20th day of September, 1918; the alleged homicide occurring on a public street in the town of Dacoma, in said county in the nighttime.

In the month of January, 1919, the petitioner applied- to the district judge of the Nineteenth judicial district, Hon. Arthur G. Sutton, to be admitted to bail in this ease, and upon hearing said petition said district judge denied bail. The application here made is supplemented by additional evidence to that received on the hearing before the district judge; the petitioner having made a sworn statement’ of the circumstances under which he claims that the killing occurred.

The petitioner at the timé of the killing claims to have 'been acting in the capacity of a peace officer, and claims that the killing was in his necessary self-defense. We deem it inadvisable to enter into an extended discussion of the evidence. It is sufficient to say that, after a careful examination of the record, the court is of the opinion that the defendant should he admitted to bail in this case.

Bail is therefore fixed in this case in the sum of $20,000 for the appearance of the said Albert M. Carpenter to answer said charge in the district court of Woods county, under the terms and conditions provided by law; said bond to be approved by the court clerk of said county, and upon approval of said bond the said defendant (petitioner) to be discharged from custody by the sheriff of said'Woods county.


text:
    GEORGE HILL v. STATE.
    No. A-3038.
    Opinion Filed May 14, 1919.
    (180 Pac. 717.)
    Appeal from County Court, Seminole County; I). G. Hart, Judge.
    George Hill was convicted of a violation of the prohibitory liquor-law, and he appeals.
    Reversed.
    G. M. Snider and ECainer, Burns & Toney, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, George Hill, was convicted on an information charging that he did sell “one pint and two quarts of alcohol to the following parties, to wit: Neal Winfield, Ode Cummings, Jobe Hill, and Jess Mathis” — and was sentenced to be confined for 90 days in the county jail and pay a fine of $300. A careful examination of the record discloses that there is no competent evidence to support the verdict.

The only testimony tending to support the verdict is that of Neal Winfeld, who testified that he, Ode Cummings, and Jess Mathis were at Konawa, and they “chipped in” 50 cents each, and he took the money and gave it to Jobe Hill, who went to get some whisky, and Jobe Hill went back behind the defendant’s livery barn and got the alcohol; that the defendant, George Hill, was not there at that time; that Jobe Hill said he got the alcohol from a boy named Gardner.

Ode Cummings and Jess Mathis testified that Neal Winfield took their money and brought some alcohol to them, where they were waiting for him about a mile out of Konawa.

The defendant testified that he did not sell any alcohol to Neal Winfield or any other person at any time; that he had several times put Neal Winfield out of his barn when he came around there intoxicated.

Roy Crogan testified that he worked for the defendant at his livery bam; that no intoxicating liqnor was ever sold there; that he heard George Hill forbid Neal Winfield from coming around the barn.

Moyd Alexander testified that he worked at the livery barn and heard George Hill tell Neal Winfield that he did not want him to come around the barn.

We cannot permit the verdict of the jury to stand on such evidence- The testimony on the part of the state does not show that the defendant Hill had any knowledge of the transaction testified to by witness Neal Winfield. There being no competent or legal evidence to support the verdict, the judgment of the lower court is reversed.


text:
    CHARLIE MAYSE v. STATE.
    No. A-3050.
    Opinion Filed May 19, 1919.
    (179 Pac. 624.)
    Appeal from County Court, Nowata County; P. E. Calvert, Judge.
    Charlie Mayse was convicted of the crime of unlawfully transporting intoxicating liquor, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $100, and he appeals.
    Affirmed.
   PER CURIAM.

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

We have examined the record, and find that there is evidence sufficient to support the judgment, and there being no apparent error warranting a reversal, the judgment is therefore affirmed.


text:
    Ex parte SAM ROBERTS.
    No. A-3148.
    Opinion Filed May 20, 1919.
    (180 Pac. 991.)
    Application for habeas corpus by Sam Roberts to be let to bail.
    Bail denied.
    C. L. Hill, for petitioner.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

A petition filed on behalf of Sam Roberts on September 27, 1917, for a writ of habeas corpus to be let to bail, discloses that he is held in custody by virtue of a certain commitment issued by Ed Warren, a justice of the peace of Tulsa, upon a preliminary examination held upon a complaint wherein petitioner and H B. Bowden were jointly charged with the murder of Lewis Potee in Tulsa county on the 15th day of June, 1917. It further appears that the application for bail in the district court of Tulsa county was denied. It is averred that the proof is not evident, nor the presumption great, that petitioner is guilty of murder. Attached to said petition is a transcript of tlie tes: timony taken upon said preliminary examination and the hearing before the district court. A rule to 'show cause was entered and issued, returnable September 29, 1917, at which time the cause was submitted. Upon the return day, and after an examination "of the record, it was the conclusion of the court that petitioner had not met the burden placed upon him by law, and the application for bail was denied, and the petition dismissed.


text:
    HERMAN RIGGERT v. STATE.
    No. A-3151.
    Opinion Filed May 20, 1919.
    (180 Pac. 991.)
    Appeal from County Court, Oklahoma County; Win. H. Zwick, Judge.
    Herman Riggert was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    W. J. Davidson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Herman Riggert, was convicted on an information charging that he did unlawfully have possession of eight quarts of whisky and 60 half pints of whisky with the intention of selling the same. On the 1st day of June, 1917, judgment was rendered, and he was sentenced to be confined in the county jail for 90 days and to pay a fine of $150 and the costs. From the judgment he appealed, by filing in this court on September 28, 1917, a petition in error with case-made. The proof on the part of the state, showing possession of the intoxicating liquor as charged is conclusive and uncontradicted. No brief has been filed, and for this reason, when the case was called for final submission, the Attorney General moved to affirm the judgment. An examination of the record discloses that the errors assigned are destitute of merit. The judgment of the lower court is therefore affirmed. Mandate forthwith.


text:
    DOC WARD v. STATE.
    No. A-3034.
    Opinion Filed May 20, 1919.
    (180 Pac. 869.)
    Appeal from District Court, Rogers County; W. J. Campbell, Judge.
    Doc Ward was convicted of the crime of burglary in the second degree, and his punishment fixed at confinement in the penitentiary for a period of two years, and he appeals.
    Judgment affirmed.
   PER CURIAM.

Doc Ward was convicted in the district court of Rogers county of the crime of burglary in the second degree, and his punishment fixed as above stated.

This appeal has been pending in this court since the 4th day of June, 1917, the cause having been submitted in November, 1918, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9> of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

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

This appeal has evidently been abandoned. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and in accordance with Rule 9, supra, the judgment is affirmed.


text:
    EARNEST ELLIOTT v. STATE.
    No. A-3505.
    Opinion Filed May 22, 1919.
    (180 Pac. 990.)
    Appeal from District Court, Garfield County; J. O. Robberts, Judge.
    Earnest Elliott, convicted of manslaughter in the first degree, •appeals.
    Appeal dismissed, and cause remanded, with directions.
    • Dan Huett and H. J. Sturgis, for plaintiff in error.
    W. 0. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Earnest A. Elliott, was by information filed in the district court of Garfield county charged with the crime of murder. It is alleged that on or about the 16th. day of June, 1918, in said county, he did kill and murder one Elmer Muir, by shooting him with a pistol. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first ’ degree. Motions for new trial and in arrest of judgment were duly filed and overruled. On December 17, 1918. judgment was rendered, and he was sentenced to serve a term of ten years in the penitentiary. Prom the judgment an appeal was perfected by filing in this court on January 31, 1919, a petition in error with' ease-made. Plaintiff in error, by his 'counsel of record, has filed a motion to dismiss his appeal, and to said motion is attached the affidavit of plaintiff in error that he has requested his attorneys of record' to file said motion to dismiss the appeal. It is therefore considered and ordered that said motion be sustained, the appeal herein dismissed, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution. Mandate forthwith.


text:
    Ex parte CLYDE SALYERS.
    No. A-3330.
    Opinion Filed May 22, 1919.
    (180 Pac. 991.)
    Application of Clyde Salyers for writ of habeas' corpus to be let to bail.
    Bail denied.
    B. M. Carter, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This was an application of bail, and upon the presentation of the same it was considered and adjudged that the writ be denied, and bail refused.


text:
    E. J. HUBBARD v. STATE.
    No. A-2696.
    Opinion Filed May 31, 1919.
    (180 Pac. 192.)
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    E. J. Hubbard was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    J. P. Thomas, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error E. J. Hubbard, and one R. A. Adkisson, were jointly charged with conveying 14 quarts of beer from a point in the town of Lawton, Comanche county, unknown, to 514 Fourth street, city of Lawton. Upon his separate trial plaintiff in error was convicted, and his punishment assessed at 30 days’ confinement in the comity jail and a fine of1 $100. Prom the judgment rendered on the verdict, he appeals.

The errors assigned question the sufficiency of the evidence to support the verdict, and ■ that the court erred in one of the instruction? given. An examination of the record discloses that the evidence abundantly supports the verdict and no material error appears that would in any way tend to prejudice the substantial rights of the plaintiff in error.

The judgment is therefore affirmed.


text:
    Albert McKinstry v. State.
    No. A-3232.
    Opinion Filed May 31, 1919.
    (181 Pac. 155.)
    Appeal from County Court, Jefferson County; E. L. Dillard, Judge.
    Albert McKinstry was convicted of a misdemeanor, and appeals.
    Reversed.
    Sigler & Howard and E. E. Blake, for plaintiff in error.
    ■S. P. Preeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Albert McKinstry, was convicted in the county court of Jefferson county upon an information charging “that he did willfully and unlawfully drive and cause to be driven about 80 head of cattle from Carter county, Okla., across the quarantine line established by the state board of agriculture, in violation of the rules and regulations as established by the board of agriculture.”

In accordance with, the verdict of the jury he was sentenced to pay a fine of $300. Prom the judgment he appealed hy filing in this court, on December 11, 1917, petition in error with case-made.

The Attorney General has filed the following confession of error:

“This prosecution was commenced and carried on under section 3 of chapter 115, Session Laws of Oklahoma 1910-11. That section makes It a crime to violate certain rules of quarantine promulgated by the state board of agriculture — not a rule of an inspector in their employ.

“The most favorable view which we can attach to a statute like this one is that these rules have the force of statutes only when substantially pleaded and proven at the trial. Anyway, anything less than satisfactory proof of such rules of the board in establishing a quarantine would not xoossess color of proof of a violation of a penal statute.

“The record in this case fails to disclose any proof that the quarantine line established had been done in pursuance to the rules of the state board of agriculture. The inspector testified that he and a man by the name of Barnell, a federal inspector, established the quarantine line. The statute itself prescribes how a quarantine is to be established in respect to making it a crime under section 3, chapter 115, Session Laws 1910-11, for its violation.

‘.‘The law is section 28, Revised Laws Okla. 1910, as amended by section 1, chapter 228, Session Laws 1913, and reads as follows: ‘The state board of agriculture shall have the power and authority to establish at any time quarantine lines in this state and make rules and regulations to maintain and enforce the same to prevent the communicating or conveying of any contagious or infectious diseases of live stock within this state as provided by law. When the state board of agriculture shall have determined said quarantine line, or lines, the president of said board shall at once, issue his proclamation setting forth and proclaiming the boundary and location of said quarantine line or lines, the orders, regulations and rules so prescribed by said board, and the said president of said board shall at the earliest practicable date publish once in no less than three newspapers of general circulation within the state a notice of said proclamation and such publication shall be deemed full and sufficient legal notice of the proclamation of said board.’ ^

“In a prosecution for violating quarantine rules, it is elementary that the establishment of the quarantine must be shown before the penal statute can be set in motion. This not having been done, or, at least, the record not disclosing it if it were done, we would not be justified in asking the appellate court to affirm the judgment in this case.”

After a careful examination of the record, our conclusion is that the confession of error is well founded, and should be sustained. For the reasons therein stated, the judgment is reversed.


text:
    Ex parte JACK SLAYDEN.
    No. A-2620.
    Opinion Filed May 31, 1919.
    (180 Pac. 190.)
    Application for writ of habeas corpus by Jack Slayden to be let to bail.
    Bail denied, and petition dismissed.

      Sturgeon & Ownby and Works & Copping, for petitioner.
    Tile Attorney General and R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, Jack Slayden, filed his petition in this court on January 3, 1916, wherein it averred that he is illegally restrained of his liberty and imprisoned by the sheriff of Choctaw county; that he is held in custody by virtue of a certain commitment issued by an examining magistrate upon a preliminary examination held upon a complaint wherein he, petitioner, is charged with the murder of one Moroney. It is further averred that the proof is not evident, nor the presumption great, that he is guilty of said crime, and praying that lie be admitted to bail.

In support of the application for bail is the record of the proceedings had before the district court on a similar application, and this also supplemented by affidavits. Upon a consideration of the proof and the arguments, we conclude that petitioner has not met the burden placed upon him by law, and therefore he is pot entitled to 'be let to bail as prayed.

An order to that effect was duly entered at the time. Bail was denied, and the petition is dismissed.


text:
    RED CLOUD FLEETWOOD et al. v. STATE.
    No. A-3219.
    Opinion Filed May 31, 1919.
    (181 Pac. 157.)
    Appeal from County Court, Sequoyah County; W. B. Wall, Judge.
    Red Cloud Fleetwood and Grethel Priest were convicted of a violation of the prohibitory liquor law, and they appeal.
    Appeal dismissed, and cause remanded with directions.
    McCombs & McCombs, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen-, for the State.
   PER CURIAM.

Plaintiffs in error, Red Cloud Fleetwood and Grethel Priest, were jointly tried and convicted on an information charging that they did unlawfully convey and transport six gallons of intoxicating liquor from a point named to another point in the town of Sallisaw, and were each sentenced to be confined in the county jail for 30 days and to pay a fine of $50. The judgment was rendered oil the 10th day of October, 1917. An appeal was attempted to be taken by filing in this court on December 10, 1917, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal, which is as follows:

“The judgment in this case was rendered October 10, 1917. The appeal was filed in this court on the 10th day of December, 1917, which was 61 days after judgment was rendered. Section 5991, Revised Laws, provides that an appeal must be taken within 60 days from judgment, unless the time is extended by the trial1 court or judge thereof. There was no extension in this ease. Therefore the appeal was filed one day-late.

“The above statute is mandatory, and has received construction by this court in a dozen eases. Among them is State v. Gunter, 13 Okla. Cr. 83 [162 Pac. 231], in which the court said: ‘Procedure Criminal, sec. 5991, Rev. Laws 1910, provides that: “In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered : Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Held, that when an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute the record or Ciise-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise, this court is without jurisdiction to review the judgment, and such appeal will be dismissed.’ ”

An examination of the record discloses that the motion to dismiss is well founded and should be sustained. For the reasons stated therein, the appeal is dismissed, and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution.


text:
    SPENCER v. DENISON, Court Clerk.
    No. A-3085.
    Opinion Filed May 31, 1919.
    (180 Pac. 558.)
    Application by Fred Spencer for writ of mandamus against X E. Denison, Court Clerk of Kiowa County, to compel him to approve a supersedeas bond.
    Cause dismissed.
    John T. Hays, for petitioner.
   PER CURIAM.

Application of Fred Spencer for writ of mandamus, directing J. E. Denison, court clerk of Kiowa county, to approve a supersedeas bond in a case pending in this court wherein the said Fred Spencer was plaintiff in error.

Cause dismissed.


text:
    In re NED McDANIEL.
    No. A-2339.
    Opinion Filed May 31, 1919.
    (180 Pac. 193.)
    Application by Ned McDaniel for a writ of prohibition against the District Court of Jackson County to prevent its trial of petitioner on án information charging embezzlement, on the ground that it was without jurisdiction.
    Demurrer to application sustained, and cause dismissed.
    T. M. Robinson and Fain & Young, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This was an application for the purpose of obtaining a writ of prohibition against the district court of Jackson county to prevent petitioner being tried on an information charging said petitioner with the crime of embezzlement, on the ground that said district court was without jurisdiction.

The information charged the embezzlement of $68.45, alleged to have been received by petitioner as fees while he was clerk of said district court.

On the day it was filed, a demurrer to the application was sustained, and the cause dismissed.


author: PER CURIAM

text:
    M. L. SHOBE v. STATE.
    No. A-3119.
    Opinion Filed May 31, 1919.
    (181 Pac. 157.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    M. D. Shobe was convicted of the crime of malicious trespass upon an inclosed field, and sentenced to pay a fine of $5 and costs! of the-action, and he appeals.
    Appeal dismissed.
    John Y. Roberts and Chas. E. Moore, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. . .
   PER CURIAM

This is a pretended appeal from the county court of Major county wherein the defendant was convicted of the crime of malicious trespass upon an inclosed field after having been expressly forbidden to enter said field, and his punishment fixed at a fine of $5 and the costs of the action.

The judgment of conviction was rendered on the 13th day of March. 1917. The petition in error and case-made were not filed in this court until the 17th day of August, 1917, more than 120 days after the rendition of judgment in the lower court. This being a conviction for a misdemeanor, the longest period of time allowed by the' statute for perfecting an appeal from the judgment is 120 days.

This court has no jurisdiction to entertain an appeal from a judgment of conviction for a misdemeanor filed in this court on a day later than the 120th day after the rendition of judgment. .Therefore the appeal is dismissed in accordance with the opinion of this court in numerous decisions, among which are the following: Eaton v. State, 7 Okla. Cr. 48. 121 Pac. 1089; Welch v. State, 9 Okla. Cr. 33, 130 Pac. 514; Jones v. State, 4 Okla. Cr. 660, 112 Pac. 760; Bates v. State, 5 Okla. Cr. 249, 114 Pac. 271; High v. State, 9 Okla. Cr. 183, 131 Pac. 189.


text:
    Ex parte W. A. RICHARDS
    No A-3506
    Opinion Filed May 31 1919
    Application of W. A. Richards for writ of habeas corpus.
    Writ denied.

      W. W. Pfeiffer, for petitioner.
    S. P. Freeling, Atty. Gen., and Wm. H. Zwick, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Tliis was an original application for writ of habeas corpus, in which petitioner contended that he was unlawfully restrained of his liberty in the county jail of Carter county, Oklahoma, by Buck Garrett, sheriff of said county, by virtue of a commitment issued by the court clerk of said county on the — day of January, 1919, without authority of law. The substance of the petition is to the effect that petitioner was convicted in the district court of Carter county of the crime of opening and conducting a gambling game, and that after the said trial court had overruled a motion for a new trial, and the petitioner had prayed and had been allowed an appeal from said judgment of conviction to this court, at a subsequent term of court,, after the time allowed to make and serve case-made on appeal had expired, the said court granted the petitioner a new trial in said case, and that said commitment had been issued after said new trial had been granted, and was therefore issued without authority of law and petitioner’s imprisonment thereunder was void.

On the date of the filing of the application, February 14, 1919. this court granted a rule to the said respondent, Bnck Garrett, sheriff of Carter county, to show cause why the writ of habeas corpus should not be awarded as prayed for. Said rule to show cause was made returnable on the 24th day of February, 1919, at ten o’clock a. m., in the court room of this court. In response to said rule to show cause, the Attorney General, in behalf of respondent, filed a demurrer to the petition on the ground that there was no certified copy of any order* showing that the said district court had ever granted a new trial as alleged in the petition upon any of the statutory grounds for which a new trial may be granted at a term subsequent to the term at which the original trial was had. The demurrer to the petition was sustained, and petitioner asked and was granted ten days within which to amend his petition by attaching an order that a new trial had been granted.

Upon the expiration of the full period of time allowed, the petitioner having failed to amend his petition in the manner indicated, the demurrer of the Attorney General was sustained, and the writ denied.


text:
    J. K. BURNETT v. STATE.
    No. A-3480.
    Opinion Filed June 2, 1919.
    (180 Pac. 192.)
    Appeal from District Court, Oklahoma County; Edward Ilewes Oldfield, Judge.
    J. K. Burnett was convicted of the theft of an automobile, and he appeals.
    Appeal dismissed on motion of plaintiff in error, and cause remanded to trial court, with directions that judgment and sentence be carried into execution.
    J. Q. A. Harrod and E. W. Stewart, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. K. Burnett, was by information filed in tlie district court of Oklahoma county charged with the theft of a Ford automobile, the personal property of E. O. Parsons, and upon his trial was found guilty and his punishment fixed at five years’ imprisonment in the penitentiary. On the 4th day of May, 1918, judgment was rendered in accordance with the verdict, from which judgment the defendant perfected an appeal by filing in this court on October 30, 1918, a petition in error with case-made.

Plaintiff in error, by his counsel of record has this day fifed a motion to dismiss his -appeal herein, and to said motion is attached the affidavit of said plaintiff in error that he has requested his counsel of record to file said motion to dismiss the appeal. It is therefore considered and ordered that said motion be sustained, the appeal herein dismissed and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution.

Mandate forthwith.


text:
    Ex parte CALVIN McKEE.
    No. A-2585.
    Opinion Filed June 3, 1919.
    (180 Pac. 193.)
    Petition by Calvin McKee for writ of habeas corpus.
    Petition withdrawn, and cause dismissed on petitioner’s motion.
    Robert A. Lowry, for petitioner.
   PER CURIAM.

Petition withdrawn, and cause dismissed, on motion of the petitioner.


text:
    Ex parte W. C. CARDWELL.
    No. A-2423
    Opinion Filed June 3, 1919.
    (181 Pac. 158.)
    Petition by W. C. Cardwell for writ of habeas corpus.
    Demurrer to petition sustained, writ denied, and cause dismissed.
    R. McMillan, Asst. Atty. Gen., for the -State.
   PER CURIAM.

On behalf of W. C. Cardwell,, a duly verified petition for writ of habeas corpus was filed in this -court on March 20, 1915, alleging that petitioner was illegally restrained of his liberty and unlawfully imprisoned in the county jail of Choctaw county, -by Lee Loftin, sheriff of said county; that the cause of said restraint is that he was committed to the county jail by the district judge upon a verdict of the jury returned in cause No. 667, State of Oklahoma v. W. C. Cardwell, wherein the jury returned a verdict of guilty against him in said cause, to await the further action of the court.

It is alleged that said restraint is illegal and unauthorized because a demurrer to the information was sustained and the county attorney was thereupon granted leave to file an amended information, -but the court did not order that a new information be filed in said cause, and that the county attorney thereupon amended said information by inter-lineation; that said information charged this defendant with the crime of burglary, and as amended was never refiled, and for this reason the defendant moved the court to dismiss said cause and abate the same, which motion was by the court overruled, and for this reason said district court was without jurisdiction to try this defendant. The petition was received by mail.

On November 5, 1915, the Attorney General filed a demurrer thereto on the ground that upon the facts stated the petitioner is not entitled to have a writ of habeas corpus issue.

The demurrer was sustained, and it was ordered that the writ he denied and the cause dismissed.


text:
    DICK TAGGERT et al. v. STATE.
    No. A-3250.
    Opinion Filed June 12, 1919.
    (180 Pac. 192.)
    Appeal from County Court, Oklahoma County; William H. Zwick, Judge.
    Dick Taggert and another were convicted of a violation of the prohibitory liquor law, and appeal.
    Affirmed.
    Twyford, Smith & Crow, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, Dick Taggert and A. C. Boswell, were jointly tried and convicted on a charge of unlawfully conveying 12 quarts of whisky on the 1st day of August,. 1917, from a point unknown in Oklahoma county to 329 East G avenue, Oklahoma City.

The jury fixed the punishment of defendant Dick Taggert at confinement in the county jail for six months and a fine of $500. From the judgments rendered on the verdicts, the defendants appealed by filing in this court on January 26, 1918, a petition in error with case-made. The appeal of the defendant Boswell was dismissed, on the ground that he was a fugitive from justice. 14 Okla. Cr. 336, 170 Pac. 1175.

We have examined the record, and find that the proof on the part of the state is conclusive as to the guilt of the defendant Taggert, and the same was uncontroverted, and, finding no error, the conviction of the defendant Dick Taggert is affirmed.


text:
    Ex parte JEROME BROWN.
    No. A-3030.
    Opinion Filed June 17, 1919.
    (180 Pac. 191.)
    Application by Jerome Brown for writ of habeas corpus.
    Writ denied.

      Cornelius Hardy, for petitioner.
    S. P. Freeling, Átty. Gen., and W. C. Hall, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an application of Jerome Brown for writ of habeas corpus alleging that he is unlawfully restrained of his liberty in the state penitentiary at McAlester, by Sam L. Morley, wardeta.; that the cause of said restraint is upon a judgment of conviction pronounced by the district court of Johnston county, Okla.,. on a charge of murder, rendered on the 4th day of October, 1912. Petitioner further alleges that the district court of Johnston county was not authorized by law, or by order of the Supreme Court of the state of Oklahoma, to meet at the time and place it attempted to meet and try this petitioner and pronounce judgment against him; further, in substance, that there was no June term, 1912, of the district court of Johnston county, either fixed by statute or by order of the Supreme Court, and that the convening of said court in regular session on the 3d day of June, 1912, and the subsequent adjournment of said term to the date upon which this trial was had was a nullity; and that the judgment rendered against petitioner was null and void,, for the reason that said court was without jurisdiction to render the same. For which reasons petitioner asks that the writ of habeas corpus issue and that he be discharged from such restraint.

It is unnecessary to enter into a full discussion of all the contentions raised by petitioner. The petitioner was plaintiff in error in cause No. A-1936, Jerome Brown v. State, appealing from this same judgment of conviction, and this court in an opinion filed May 15, 1915, reported in 11 Okla. Cr. 498, 148 Pac. 181, affirmed the judgment. Among the questions raised in that appeal was that of the jurisdiction of the court to pronounce judgment; it being contended at that time that the district court of Johnston county had lost jurisdiction of the cause the June term of court having expired by operation of law upon the convening of court at another place in the same district between the time of the convening of the regular June term in Johnston county and the time at which this petitioner was tried and convicted. There was necessarily involved and determined in the appeal taken, and the same clearly appears from the body of the opinion in that ease, that this court decided that chapter 102, Session Laws Okla. 1910, fixed the time of convening the regular term of district court in Johnston county on the first Monday in June of each year, and that such statute was in force at the time the June,. 1912, term was convened, at which term this petitioner was tried and convicted.

No .new question is raised by this application, not in effect passed upon and decided adversely to the contentions of the petitioner in Brown v. State, supra. The question of jurisdiction is raised in this proceeding in another form, but the substance of the contentions here made and of the contentions made in the appealed -case is fhe same.

Having decided that -chapter 102, Session Laws 1910, fixed the time of convening the regular term of court in Johnston county on the first Monday in June, 1912, and that court convened' and was duly and regularly opened on that date, and that this judgment was rendered at a date to which said June term was regularly and lawfully adjourned, the court had jurisdiction to pronounce judgment and sentence the defendant at that time.

For reasons stated, the writ is denied.


text:
    A. L. TREESE v. STATE.
    No. A-3037.
    Opinion Filed June 17, 1919.
    (180 Pac. 190.)
    Appeal from District Court, Payne County; John P. Hicham, Judge.
    A. L. Treese was /convicted of a felony, and appeals.
    Reversed.
    Walter Mathews, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, A. L. Treese, was convicted of a violation of section 4,. c. 26, Session Laws 1913. From the judgment rendered on the verdict an appeal was duly perfected toy filing in this court on September 4, 1918, a petition in error with case-made.

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


text:
    BEN HUMES v. STATE.
    No. A-3320.
    Opinion Filed June 17, 1919.
    (180 Pac. 193.)
    Appeal from County Court, Garfield County; E. L. Swigert, Judge.
    Ben Humes was convicted of vagrancy and he appeals.
    Appeal dismissed, on motion of counsel for plaintiff in error, and cause remanded.
    L. C. McLean, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in- error, Ben Humes, was convicted on a charge of vagrancy, and in pursuance of the verdict he was sentenced to toe confined in the county jail, for 15 days and to pay a fine of $25. From the judgment he appealed, toy filing in this court on April 18, 1918. a petition in error with case-made.

His counsel of record has filed a motion to dismiss the appeal, which motion is sustained, the appeal dismissed, and the cause remanded to the trial court.


text:
    DONALD DUNCAN v. STATE.
    No. A-2904.
    Opinion Filed June 21, 1919.
    (181 Pac. 739.)
    Appeal from County Court, Ellis County; S. A. Miller, Judge.
    Donald Duncan was convicted of tlie offense of obstructing a public highway, and sentenced to pay a fine of $5 and costs of the action, and he appeals.
    Affirmed.
    C. B. Leedy, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Donald Duncan, was convicted in the county court of Ellis county of the offense of obstructing a public highway, described in the information as follows:

“The section line highway running east and west between sections 5 and 8, in township 18, north of range 22, West Indian meridian,, in Ellis county, state of Oklahoma, at a point at and near the point where the half section line running north and south across said section crosses said section line highway,” etc.

A trial was had before the court, and punishment assessed at a fine of $5 and the costs of the prosecution. From said judgment of conviction an appeal has been taken to this court.

The questions involved are identical with those raised in the appeal of this plaintiff in error in case No. 2884, 16 Okla. Cr. 175, 181 Pac. 736, this day decided adversely to the contentions of plaintiff in error. For the. reasons stated in that opinion, the judgment is affirmed.


text:
    DONALD DUNCAN v. STATE.
    No. A-2905.
    Opinion Filed June 21, 1919.
    (181 Pac. 739.)
    Appeal from County Court, Ellis County; S. A. Miller, Judge.
    Donald Duncan was convicted of the offense of obstructing a public highway, and sentenced to pay a fine of $5 and the costs of the action, and he appeals.
    Affirmed.
    C. B. Leedy, for plaintiff in error.
    .8. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiff in error, Donald Duncan, was convicted in the county court of Ellis county of the offense of obstructing a public highway, described in the information as follows:

“The section lino highway running east and west between sections 4 and 5 on the north and sections 8 and 9 on the south, in township 18, north of range 22, West Indian meridian in Ellis county, Oklahoma, at and near the point common to said sections 4, 5, 8, and 9,” etc.

A trial was had before the court, and punishment assessed at a fine of $5 and the costs of the( prosecution. From said judgment of conviction an appeal has been taken to this court

The questions involved are identical with those raised in the appeal of this plaintiff in error in case No. 2884, 16 Okla. Cr. 175, 181 Pac. 736, this day decided adversely to the contentions of plaintiff in error. For the reasons stated in that opinion, the judgment is affirmed.


text:
    J. H. BRADEN v. STATE.
    No. A-2956.
    Opinion Filed June 27, 1919.
    (181 Pac. 736.)
    Appeal from County Court, Okmulgee County; Mark L. Bozartk, Judge.
    J. H. Braden was convicted of selling intoxicating liquors, and lie appeals.
    Judgment affirmed.
    Joe S. Eaton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

J. H. Braden was convicted in the county court of Okmulgee county of having sold to one Blaine Hill a pint of whisky on the 17th day of May, 1916.

This transaction took place in the defendant’s place of business in the city of Henryetta, and the evidence on the part of the state by the witness Blaine Hill is to the effect that he bought a pint of whisky from the defendant and paid him $1.25 therefor. The witness Hill is corroborated by one Stormont.

The defendant admitted that the prosecuting witness, Hall, was,at lefendant’s place of business on thei data alleged and tried to buy a pint of whisky from him, but defendant contends that he refused to sell Hill «.ny whisky. Mrs. J. H. Braden testified that she was present at the tíme Hill came to their place of business, and that the defendant refused to sell Hill any whisky.

This presents a plain conflict of evidence. The testimony of the witnesses in behalf of the state clearly supports the conviction. No brief has been filed in behalf of the defendant, and no appearance was made to orally argue the cause at the time the same was submitted. An examination of the entire record fails to disclose any error prejudicial to the substantial rights of the defendant.

The judgment is affirmed.


text:
    BERT SMITH v. STATE.
    No. A-3060.
    Opinion Filed June 27, 1919.
    (181 Pac. 942.)
    Appeal from County Court, Garfield County; E. L. Swigert, Judge.
    Bert Smith was convicted of a violation of the prohibitory liquor law, and he Appeals.
    Affirmed.

      L. C. McLean and E. C- Patton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Garfield county, wherein defendant, Bert Smith, whose full name is John B. Smith, was convicted of the crime of unlawfully conveying intoxicating liquor, and his punishment fixed at a fine of $200 and imprisonment in the county jail for 60 days. The evidence discloses that the defendant was caught in the act of conveying three barrels of bottled beer on ttié public streets of the city of Enid very early in the morning in the lattéi-part of the month of March, 1917.

Defendant, being caught with the goods, was compelled to admit that be was conveying beer, but contended that the three barrels belonged to three different individuals of the respective names of Gordon, Thompson, and Allen, and that he (defendant) was merely taking those shipments from the Rock Island depot for said parties as a drayman or transfer man, that said barrels of beer constituted a part of an interstate shipment of intoxicating liquors into that part of the state formerly Oklahoma Territory, and that the consignees had the right to have same conveyed from the depot to their respective residences or places of business, as held by this court in Gastineau v. State, 7 Okla. Cr. 512, 124 Pac. 464, and other cases to the same effect.

The facts testified to by the defendant do not place him within the protection of the opinions of this court in the cases relied upon. The evidence does not disclose or even create a reasonable doubt that defendant was transporting this beer to either the residence or place of business of either of the parties who were alleged to be the consignees.

If said parties were not fictitious, they were at least nonresidents of the city of Enid, and were total strangers to the defendant prior to the time he contends this conveyance was being made for them. They had no residence or place of business to which defendant could convey these barrels of beer in the city of Enid. None of them ever made an appearance, either to claim their beer, which, if defendant is to be believed, it was lawful for them to have conveyed, or as witnesses in behalf of defendant at the trial.

A continuance was asked for on account of the absence of these witnesses, and the application was properly overruled, because no diligence was used to obtain their attendance, and the application shows that there was no likelihood of ever obtaining their attendance or taking their depositions, as the whereabouts of each said party was unknown to the defendant personally. Applications for continuance are addressed to the sound discretion of the trial court. No abuse of discretion is shown in overruling the motion in this case.

The introduction of the certified copy of the United States internal revenue collector’s register of taxpayers for liquor dealers in the city of Enid, showing'that John B. Smith had paid both a retail and wholesale liquor dealer’s tax, was proper. It tended to rebut the testimony of defendant that he was conveying this large amount of beer for other parties.

The contention that there was no evidence to connect the defendant with the payment of these taxes is untenable. The tax was paid in the name of “John B. Smith.” Defendant testified his true name was “John B. Smith.” That was sufficient identity of party paying the tax with the defendant to authorize the evidence to be admitted.

Other alleged errors are without merit. Under defendant’s testimony, he is guilty of unlawfully conveying intoxicating liquors; especially is the evidence convincing of this fact as to the two barrels of beer alleged to have been consigned to Gordon and Thompson, and which defendant only contends he was taking from one depot to another, and intended to leave them on the depot platform at the Frisco depot. There is no contention on his part that these shipments were being conveyed by him to either the residence or place of business of V'-her Gordon or Thompson.

The conviction in this case is just, and the judgment is affirmed.


author: PER CURIAM:.

text:
    J. F. HALE v. STATE.
    No. A-2719.
    Opinion Filed June 27, 1919.
    (181 Pac. 735.)
    Appeal from County Court, Garvin County; W. R. Wallace, Judge.
    J. F. Hale was convicted of a violation of the prohibitory liquor law, and he appeals.
    Modified and affirmed.
    Stanley & Osborn, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM:.

This is an appeal from a conviction rendered ■against the plaintiff in error in the county court of Garvin county for ■unlawfully conveying intoxicating liquors. Plaintiff in error was sentenced to pay a fine of $250 and to serve three months' imprisonment in the county jail'.

J. F. Hale and Ed Hodge were informed against in the county court of Garvin county, jointly charged with conveying four cases of whisky from a place unknown in said county to a point about two miles west of the town of Foster, in said county. Hodge pleaded guilty and was sentenced to pay a fine of $100 and to serve imprisonment for a period of 30 days. Hale pleaded not guilty, and while the evidence on the part of the state showed that' he was riding with Hodge on a farm wagon in which there were being unlawfully conveyed at the time four cases of. whisky, that both of the parties had been to Wichita Falls, Tex., where the whisky was procured, and were returning with the same to their home in Garvin county, Okla., the defendant Hale denied •any ownership in the liquor or any connection with its conveyance, other than being a passenger with Hodge. The evidence against the defendant Hale, while not nearly so strong as that against Hodge, is sufficient to sustain a conviction on appeal, as it cannot be said there is no evidence of incriminating nature against Hale.

The contention made that certain evidence was erroneously admitted, tending to impeach Hodge, who was used as a witness in behalf of Hale, is without merit, for the reason that the court limited the jury In the consideration of this evidence solely to the purpose of impeaching Hodge as a witness, and the impeaching evidence was material to the issues joined on tlie trial. The instructions complained of are not prejudicial and sufficiently cover the law of the case.

The punishment imposed is unusual. Three months' imprisonment and a fine of $250 is the punishment ordinarily imposed upon those who are shown to he more than first offenders. The defendant in this case is a man past (SO years of age, a firmer living in that community for 15 or 20 years, and in view of the evidence against him it is the opinion of the court that the ends of justice will be best subserved by modifying the judgment to provide an imprisonment for a term of 30 days and a fine of $50; and it is ordered that the judgment be thus modified, and, as modified, be affirmed.


text:
    BEN McCULLOCH v. STATE.
    No. A-3164.
    Opinion Filed June 28, 1919.
    (181 Pac. 735.)
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    Ben McCulloch was convicted of a violation of the prohibitory-liquor law, and he appeals.
    Appeal dismissed, with direction to cause the judgment and sentence to be carried into execution.
    J. F. Thomas, for plaintiff in error.
    The Attorney General and ~W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ben McCulloch, was convicted in the county court of Comanche county on a charge of unlawfully conveying intoxicating liquor in said county, and his punishment fixed at confinement in the county jail for 60 days and a fine of $200.

The Attorney General has moved to dismiss the appeal, on the-ground that the appeal was not filed within the time provided by law, and for the reason the appellate court is without jurisdiction.

From the record it appears that judgment was pronounced and entered in accordance with the verdict on the 8th day of June, 1917, and the appeal was not filed in this court until the 8th day of October, 1917, being 122 days from the date the judgment was pronounced and entered. The motion of the Attorney General is well taken. The appeal is therefore dismissed, with directions to the trial court to cause the judgment and sentence to be carried into execution.

Mandate forthwith.


text:
    J. M. HARRIS et al. v. STATE.
    No. A-2904.
    Opinion Filed June 28, 1919.
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    J. M. Harris and Carl Burton were each convicted of the crime of unlawful possession of intoxicating liquor, and appeal.
    Modified and affirmed as to Harris, affirmed as to Burton.
    Ed Crossland, for plaintiffs in error.

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

This is an appeal from the county court of Tulsa county, wherein the defendants, J. M. Harris and Carl Burton, were each convicted upon a joint trial for the crime of unlawful possession ©f intoxicating liquor.

This appeal was filed in this court on the 24th day of November, 1017. No brief has been filed nor appearance made by counsel for plaintiffs in error to orally argue the cause at the date of its submission.

The jury returned two separate verdicts, assessing a penalty of a fine of $'50 and 30 days’ imprisonment in one verdict and a fine of $500 and six months’ imprisonment in the other verdict, but failed to designate in either verdict the name of either defendant. Upon such verdicts the court pronounced the minimum sentence against the defendant Burton and the maximum sentence against the defendant Harris. While it is clear from the verdicts that it was the intention of the jury to> find each defendant guilty as charged, it is impossible to say, however, that it clearly appears from the verdicts that it was the intention of the jury, to give the defendant Harris the maximum punishment.

It is the opinion of the court, therefore, that as to the defendant Harris, the judgment should be modified to provide a punishment of a $50 fine and 30 days’ imprisonment in the county jail, and as thus modified that the same be affirmed; and that the judgment against the defendant Burton be affirmed, and it is so ordered.