text:
    WILLIE ARMSTEAD v. STATE.
    No. A-2283.
    Opinion Filed July 20, 1915.
    1. VAGRANCY — Indictment and Information — Necessary Allegations. It is sufficient, as a general rule, to charge a statutory offense in the words of the statute; but when a more particular statement of the facts is necessary to charge all the essential elements of the offense, they must be alleged.
    2. SAME — What Constitutes. An information under the first subdivision of section 2515, Rev. Laws, alleging in words of the statute, that on a certain day, the defendant was “an idle person who lives without any means and who has no visible support and makes no exertion to obtain a livelihood by honest employment,” to be sufficient to charge vagrancy should allege that on a day certain and for some space of time previous thereto, the defendant committed the acts or conduct charged, and should further allege that the defendant is an able bodied person and was able to work.
    3. SAME — Evidence—Sufficiency. See opinion for evidence summarized, which is held insufficient to support a conviction for vagrancy.
    (Syllabus by the Court.)

      Appeal from County Court, Canadian County; W. A. Maurer, Judge.

    Willie Armstead, convicted of vagrancy, appeals.
    Reversed.

      B. T. Barber, for plaintiff in error.
    S’. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the county court of Canadian county which alleges “that one Willie Armstead, late of the county of Canadian, state of Olakhoma, on or about the 19th day of December, Í913, at and within said county and state, did then and there, willfully, unlawfully be an idle person who lives without any means, and who has no visible support and makes no exertion to obtain a livelihood by honest employment, contrary to,” etc., the plaintiff in error was tried and found guilty of vagrancy. Motions for new trial and in arrest of judgment were duly filed and overruled. On'the 1 tin day of April, 1914, the court rendered judgment and he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. To reverse the judgment an appeal was perfected.

The first error assigned is that the court erred in overruling the demurrer which was duly interposed to the information and the motion in arrest of judgment.

Our penal code specifies various acts as constituting vagrancy, as follows:

“The following persons are vagrants within the meaning of this article:
“First. An idle person who lives without any means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment.
“Second. Any person who strolls or loiters idly about the streets of any city or town, having no local habitation and no honest business or employment.
“Third. Any person who strolls about to tell fortunes or to exhibit tricks not licensed by law.
“Fourth. Any common prostitute, any manager or controller of a house of prostitution or ill-fame, or any one employed therein as barkeeper, caller of figures for dances, or habitual frequenters thereof.
“Fifth. Any professional gambler, or gamblers commonly known as tinhorn gamblers, card players or card sharps.
“Sixth. Any person who goes about to beg alms, who is not afflicted or disabled by a physical malady or misfortune.
“Seventh. Any habitual drunkard, who abandons, neglects, or refuses to .aid in the support of his family.” (Section 2515, Rev. Laws 1910.)

The ground of the demurrer is: “That the facts stated do not constitute a public offense.”

The information here, it will be observed, follows the language of the first clause of the section above quoted. The general rule that it is sufficient to charge a statutory offense in the words of the statute is subject to the qualification that it is not sufficient to set forth the offense in the words of the statute, unless those words, of themselves, fully, directly and expressly set forth all the elements necessary to constitute the offense intended to be punished, and under the Constitution an indictment or information which does not substantially allege at least in general terms, all the essential elements of the offense, is insufficient to support a judgment of conviction. In Wharton’s Crim. Pleading and Practice it is said:

“On the general principles of common law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases wheye the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is. But in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant upon trial without specification of the offense, than it would be under a common law charge.” (Section 220.)
“The terms of a statute may be more broad than its intent, in which case the indictment must so differentiate the offense as may effectuate the intention of the Legislature.” (Section 221.)

It is obvious that a person may be guilty of the acts and conduct charged in the information here and still not be a vagrant. At- least the information should further allege that the defendant is an able bodied person and was able to work, and the conduct condemned in the second clause of section 2515 should have been alleged in order to sufficiently charge an offense under the first clause. Vagrancy is a continuing offense and it was essential that the information contain a continuendo, or to be sufficient it should allege that on a day certain and for some space of time previous thereto,, the defendant committed the acts or conduct charged.

For the reasons stated we are clearly of the opinion that the court erred in overruling the demurrer.

The remaining assignment of error is that the verdict is ¿on-trary to law and to the evidence.

The evidence for the state was in substance as follows:

The first witness, George Johnson, testified that he had lived in El Reno some fifteen years and knows the people around him who seek and perform labor; that his neighborhood is peopled mostly by colored people; that he had been noticing Willie Armstead for a year, may be more, does not know where he lives, but noticed him on the street; has not seen him doing anything; don’t know whether he ever worked or not; has not seen him at work and don’t know anything about that; don’t know whether he had any visible means of support or not. That he usually went pretty nice and clean in his dress and looked as if he was not in the habit of doing any work.

A. C. Cowden testified that he was a deputy sheriff: well acquainted with that part of El Reno inhabited by colored people ; that he had known the defendant, Willie Armstead, for about a year; that he had seen him in different places, usually in the part of town inhabited by colored people; that he never saw him doing anything; that he did see him at Roxie Morrison and Jim Hurbert’s place, usually called the “Big 8,” a dance hall; that he would see the defendant around there quite often; that the defendant had no occupation so far as known to witness, and from what he had seen of witness had always supposed him, to be a man that did not work, that he had always went well dressed.

Sheriff Clark testified to having known the defendant by seeing him about the city; that he could not find out that he was doing any work, and found out that he was living off of women of ill repute; that he borrowed some money from these women.

The defendant demurred to the evidence as insufficient to show the commission of the offense charged. The demurrer was overruled and exception reserved.

The defendant as a witness in his own behalf testified that he was raised at Oklahoma City, but had lived in Kansas City with his mother about four years; that his wife was raised in El Reno and he married her there in 1909; that he worked as a Pullman porter for about two years and supported his wife at El Reno; that his wife was sick and he returned to El Reno and shortly after his wife became insane and was sent to the asylum at Norman; that when he returned to El Reno the last time he deposited $170 in the First National Bank; that he put some more money in and drew some more out and had eighty dollars in the First National Bank when he was arrested; that work was scarce in El Reno; that he played ball last summer and earned some money and did some work in a pool hall and made his home with Luke Hotchkins; that the witness George Johnson was city scavenger and he did not ask him for work; that he had been in El Reno the last time about eight or nine months. On cross-examination he was asked if he did not put up a cash bond of $50 when arrested and answered that he did. He was then asked if he did not borrow $40 of the money deposited from Roxie Morrison, who was in jail at the time on a bootlegging charge, and answered, “yes.”

The evidence in our opinion does not support the conviction. The evidence is not sufficient to show that the defendant was an idle person who lives without any means and without visible support. Assuming that the evidence tending to show acts and conduct constituting vagrancy under the second and fourth subdivisions of section 2515, Rev. Laws, already quoted, was competent and admissible to prove the charge made under the first subdivision of this section, we still think the evidence does not support the conviction. In fact, the inculpatory evidence is entirely unsatisfactory and the fact that the defendant had a bank account is undisputed. For the reasons indicated the judgment is reversed.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
       F. E. DAVIS v. STATE.
    No. A-1758.
    Opinion Filed December 2, 1912.
    Appeal from District Court, Cimarron County; E. H. Loofbourrow, Judge.
    E. E. Davis was convicted of crime, and appeals.
    Dismissed.
    O. P. Easterwood and Echols & Merrill, for plaintiff/in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

       Omitted from former volume.

   PER CURIAM.

E. E. Davis, plaintiff in error, was convicted in the district court of Cimarron county of the crime of producing an abortion, and was on the 8th day of December, 1910, duly sentenced to imprisonment in the state penitentiary for two years at hard labor. An appeal was duly perfected. The plaintiff in error has filed a request that his appeal be dismissed. Wherefore the appeal in the above-entitled cause is hereby dismissed, and the cause remanded to the district court of Cimarron county, with directions to enforce the judgment and sentence therein.


text:
    TOM BERRY v. STATE.
    No. A-2064.
    Opinion Filed June 15, 1914.
    Appeal from County Court, Stephens County; J. W. Marshall, Judge.
    Tom Berry was convicted of unlawfully conveying intoxicating liquor, and appeals.
    Affirmed.
    Wilkinson & Morris, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Tom Berry, was convicted at the May, 1913, term of the county court of Stephens county on a charge of unlawfully conveying intoxicating liquor from one place in said county to another place therein, and his punishment fixed at thirty days imprisonment in the county jail and a fine of fifty dollars. A careful examination of the record discloses no error sufficient to justify a reversal of the judgment. It is therefore affirmed.


text:
    In re C. S. CLIFT.
    No. A-2252.
    Opinion filed June 3, 1914.
    Application of C. S. Clift for writ of habeas corpus.
    Writ allowed.
    S. A. Byers and Lee F. Wilson, for petitioner.
    Chas. West, Atty. Gen., for respondent.
   PER CURIAM.

This is a petition for writ of habeas corpus, filed for the purpose of setting at liberty C. S. Clift. Petitioner avers that he is illegally restrained of his liberty, and is unlawfully imprisoned in the county jail of Oklahoma county by M. C. Binion, sheriff of said county, by virtue of an illegal order of the Governor revoking a parole and ordering his re-arrest and imprisonment upon a judgment of conviction in the county court of Oklahoma county, rendered on the 30th day of April, 1910, wherein petitioner was sentenced to serve ninety days in the county jail of Oklahoma county and to pay a fine of fifty dollars and costs, and for the further reason that said judgment has been fully and lawfully executed and satisfied.

It appearing from the record that the fine and costs were paid, and that said parole4was granted and accepted fifty-two days after the judgment was rendered, and that petitioner has been imprisoned an additional, thirty-eight days at the time his amended petition herein was filed, it is our opinion that said judgment and sentence has been fully executed and satisfied, and that petitioner is therefore unlawfully imprisoned, wherefore, the writ of habeas corpus is allowed, and it is ordered that petitioner be forthwith discharged from further imprisonment under said judgment and sentence, and order revoking his said parole.


text:
    M. L. PIERCE v. STATE.
    No. A-1825.
    Opinion Filed June 6, 1914.
    Appeal from County Court, Craig County; S. F. Parks, Judge.
    M. L. Pierce was convicted of a breach of the peace, and appeals.
    Affirmed.
    A. C. Wallace and W. II. Kornegay, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty Gen., C. J. Davenport of counsel, for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Craig county, in which the defendant was found guilty of a breach of the peaee, and was sentenced to pay a fine of fifty dollars The testimony of several witnesses to the effect that plaintiff in error was cursing and swearing and using profane and obscene language is practically undisputed. A careful consideration of the errors assigned and argued in the brief disclose no sufficient reason for reversing the judgment. The motion to set aside, and the demurrer to the amended information were properly overruled. Other errors assigned are purely technical, and would have no bearing upon the conclusion reached by the jury. In the language of the statute, this court "must give judgment without regard to technical errors or defects or to exceptions which do not effect the substantial rights of the parties.” It is our opinion that plaintiff in error had a fair trial. It follows that the judgment should be, and it is hereby, affirmed.


author: PEE CUEIAM.

text:
    DUD HARRIS v. STATE.
    No. A-2021.
    Opinion Filed June 6, 1914.
    Appeal from County Court, Kiowa County; Joseph Beasley, Special Judge.
    Dud Harris was convicted of unlawfully conveying intoxicating liquors, and appeals.
    Affirmed.
    O. B-. Eiegel, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, Dud Harris, was convicted at the February, 1913, term, in the Snyder division of the county court at Kiowa county on a charge of unlawfully conveying intoxicating liquor from one place in Kiowa county to another plaee therein, and his punishment fixed at a fine of $65.00, and imprisonment in the county jail for a period of thirty days. This cause was tried in substantial compliance with the rule laid down by this court in the case of Maynes v. State, 6 Oída. Cr. 478. The case was fairly tried and properly submitted to the jury. The jury having found against the contention of the plaintiff in error, this court will not disturb the verdict. Judgment of the trial court is affirmed.


text:
    WALTER EATON v. STATE.
    No. A-2075.
    Opinion Filed June 13, 1914.
    Appeal from County Court, Pontotoc County; I. M. King, Judge.
    Walter Eaton was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Crawford & Bolen, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error, Walter Eaton, was convicted at the March, 1913, term of the county court of Pontotoc county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. Upon a careful examination of the record, we find no prejudicial error. The judgment is therefore affirmed.


text:
    E. E. DAVIS v. STATE.
    No. A-2071.
    Opinion Filed June 16, 1914.
    Appeal from County Court, Kingfisher County. E. P. Shutler, Judge. *

    E. E. Davis was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.

      D. K. Cunningham, for plaintiff in error.
    Chas. West, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information which charged the unlawful possession of seventy quart bottles of beer, with the intent to sell the same, and on the 15th day of April, 1913, was sentenced in accordance with the verdict of the jury to be confined in the county jail for thirty days and to pay a fine of fifty dollars. Upon a careful examination of the record, we find no error sufficient to justify a reversal of the judgment. The judgment of conviction is therefore affirmed.


text:
    BILL BROWDER, et al. v. STATE.
    No. A-2067, A-2068.
    Opinion Filed June 16, 1914.
    Bill Browder and John Hall were convicted of misdemeanor, and appeal. Two cases.
    Reversed.
    Womack & Brown and J. B. Wilkinson, for plaintiffs in error.
    Chas. West, Atty. Gen, for the State.
   PER CURIAM.

Plaintiffs in error were jointly informed against by the county attorney of Stephens county for the offense of unlawfully conveying intoxicating liquors. The information omitting the formal parts was as follows:

“That Bill Browder and John Hall did in Stephens county on or about the 8th day of March, 1913, commit the crime of conveying intoxicating liquors from one place in the said state of Oklahoma to another place in said state, in the manner and form as follows, to-wit: That the said Bill Browder and John Hall did wilfully and unlawfully convey intoxicating liquors from one place in the city of Duncan to another place in said city of Duncan, contrary to,” etc. A demurrer to the information was interposed by the defendants on the ground that it did not state facts sufficient to constitute an offense. The demurrer was overruled and exception taken. Whereupon the defendants entered pleas of not guilty. Separate trials were demanded and granted. Upon thir separate trials each defendant was found guilty, and from the judgments rendered, appeals were perfected. Of the various errors assigned in the petitions, it is only necessary to notice the question raised by the overruling of the demurrer. It will be noticed that the information contains no allegation as to the places in the city of Duncan from which, and to where the conveyance was made- We think that this omission renders the information insufficient. The statute requires that the information must be direct and certain as to the particular circumstances of the offense charged, when they are necessary to a complete offense. (See. 5739 Rev. Laws 1910.) The Attorney General confesses error on this point. The judgments are reversed, and the causes remanded with instructions to sustain the demurrer to the information.


text:
    J. D. COBBLE v. STATE.
    No. A-2030.
    Opinion Filed June 16, 1914.
    Appeal from County Court, Garvin County; W R. Wallace, Judge.

      J. D. Cobble was convicted of a misdemeanor and appeals.
    Be-versed.
    Carr & Field, for plaintiff in error.
    Cbas. West, Atty. Gen., C. J. Davenport, Asst, Atty. Gen, for the State
   PER CURIAM.

Plaintiff in error was convicted of a violation of the gambling law. On the 1st day of March, 1912, in accordance with the verdict of the jury, the court sentenced the defendant to pay a fine of one hundred dollars and to be confined in the county jail for thirty days. To reverse the judgment, the defendant appealed. The Attorney General has filed herein the following confession of error: ■

‘'Comes now the state of Oklahoma by the Attorney General and respectfully calls the court's attention to the charging part of the information filed in this case, which is in words and figures as follows: That the said J. D. Cobble did then and there unlawfully and wilfully conduct as owner and for hire a certain device, to-wit: a slot machine for money, cheeks and credit and other representative per cent value against the peace and dignity of the state.’
“Under the holdings of this court in the case of Brown v. State, 5 Okla. Cr. 41, and in Morgan et al v. State, 7 Okla. Cr. 45, and Proctor v. State, 9 Okla. Cr. 81, the information must allege that the pfohbited game named in the statute was played at for money or some representative value. For these reasons the Attorney General believes that under the opinion of this court referred to, sufficient error appears of record to authorize a reversal of this judgment and confesses error accordingly. ’ ’

It is our opinion that the confession of error, for the reasons therein stated, should be sustained. The judgment of conviction is therefore reversed.


text:
    G. L. ELLIOTT and CARSIE ELLIOTT v. STATE.
    No. A-2047.
    Opinion Filed June 16, 1914.
    Appeal from County Court, Grady County; N. M. Williams, Judge.
    G. L. Elliott and Carsie Elliott were convicted of a violation' of the prohibitory law and appeal.
    Affirmed.
    J. B. Wilkinson, for plaintiff in error.
    Chas. West, Atty Gen., and C. J. Davenport, Asst, Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were jointly informed against by the county attorney of Grady county for the offense of unlawfully conveying intoxicating liquors in said county. The jury assessed the punishment of G. L. Elliott at sixty days confinement in the county jail, and one hundred dollars fine, and Carsie Elliott at thirty days confinement in the county jail and fifty dollars fine. From judgments entered in accordance with the verdict, the defendants appeal. The Attorney General has filed a motion to strke the case-made, and for grounds of said motion shows::

“That the attempted appeal is from a judgment of conviction for a misdemeanor, to-wit: for violation of the prohibitory law; that the judgment was rendered on the 12th day of April, 1913, at which time the court made an order allowing plaintiff in error sixty days in which to prepare and serve a case-made, and allowed ninety days from said date in which to file a petition in error in this court; that thereafter on the 12th day of June the court purported to make an order extending the time heretofore allowed, but that the court was without jurisdiction to make the said order in that the original sixty days had expired.”

Thus it appears that the order extending the time for serving the ease-made was made on the 61st day after the judgment was rendered. Under the statute the trial court in a misdemeanor case has no authority to extend the time after the expiration of sixty days from the day judgment was rendered. The motion to strike the case-made must therefore be sustained. There is no question of law presented upon the transcript for the determination of this court. The judgments of conviction will, therefore be affirmed.


text:
    JOHN MYERS v. STATE.
    No. A-2017.
    Opinion Filed June 20, 1914.
    Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.
    John Myers was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Orton & McNeill, for plaintiff in error.
    Chas. West, Atty Gen., C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted of having unlawful possession of intoxicating liquor with intent to sell the same. On the 10th day of March, 1913, judgment was entered, and in accordance with the verdict he was sentenced to be confined in the county jail for a term of ninety days, and to pay a fine of five hundred dollars. To reverse the judgment this appeal was taken.

The undisputed evidence shows the payment by the defendant of the special tax required of wholesale liquor dealers by the United States, and that in the twelve days preceding December 4th, 1912, the date alleged in the information, the defendant received between ten and fifteen tons of intoxicating liquor from the Priseo Eailroad at Keystone, Pawnee county. The facts in the case are nearly the same as in the case of Tweedy v. State, ante. 140 Pac. 787, and as said in the opinion in that case:

“There is absolutely no merit in this appeal. If one can go about this state paying a special revenue tax, as required by the United States from liquor dealers, and be-in possession of one car load of liquor at one time without intending to violate the law, then the prohibitory law of the state amounts to nothing.”

The proof overwhelmingly establishes the fact that the defendant was a wholesale liquor dealer, and as such did have possession of intoxicating liquors as charged. Pinding no error in the record, the judgment of the lower court is affirmed. Mandate forthwith.


text:
    W. A. MERRITT v. STATE.
    No. A-2053.
    Opinion Filed June 20, 1914.
    Appeal from District Court, Carter County; Stilwell H. Russell, Judge.
    W. A. Merritt convicted of the larceny of a domestic animal, and appeals.
    Affirmed.
    Sigler & Howard, for plaintiff in error.
    Chas. West, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted, and on the 3rd day of February, 1913, was sentenced in accordance with the verdict of the jury, to be confined in the penitentiary for the term of five years. The charging part of the information is as follows:

“He, the said W. A. Merritt, did then and there unlawfully and fe-loniously, take, steal and carry away, by fraud, from the possession and without the consent of one N. Barrintine, the owner thereof, one cow, with the felonious intent, then and there, on the part of him, the said W. A. Merritt, to appropriate the same to his own use, and to deprive the owner thereof, contrary to,” etc.

The only errors assigned are, that the court erred in overruling a motion for a new trial, and in its instructions to the jury. No brief has been filed, or oral argument made in behalf of plaintiff in error. On his trial he acted as his own attorney. As against overwhelming evidence of guilt, his defense as a witness in his own behalf was that he bought the cow from a man that looked very much like himself. After a careful examination of record, we find nothing which appears to show that any substantial right of plaintiff in error has been prejudiced, and we reach the conclusion that he was justly convicted on a fair and impartial trial. It follows that the judgment of conviction should be and is hereby affirmed.


text:
    JEROME WILSON v. STATE.
    No. A-2054.
    Opinion Filed June 20, 1914.
    Appeal from County Court, Beaver County; Geo. II. Healy, Judge.
    Jerome Wilson was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    J. W. Culwell and Chas. Swindall, for plaintiff in error.
    Chas. West, Atty Gen., C. J. Davenport, Asst Atty Gen, for the State
   PER CURIAM.

Plaintiff in error was convicted in the county court of Beaver county on an information which charged the possession of twenty-two pints of whisky, with the unlawful intent to violate provisions of the prohibitory law. April 12th, 1912, judgment was rendered, and he was sentenced to serve a term of thirty days in the county jail and to pay a fine of fifty dollars. To reverse the judgment an appeal was perfected.

It is contended that the testimony is wholly insufficient to support a conviction, and that the motion to direct a verdict of not guilty should have been sustained. The proof on the part of the state is that M. A. Shuler, a farmer, on the day alleged was in the town of Porgan, and there met the defendant, who asked him to haul a package of whisky from the depot to Beaver City; that on the road they were stopped by Sheriff Johnnie Jones, who said he wanted to search the wagon for booze, and the defendant said "here it is,” and the sheriff took the whisky. The defendant as a witness in his own behalf testified that' he resided in Beaver City, and that his reason for ordering the amount of whisky he did from Kansas City was because it was talked around by a good many people and he understood that within a short time the Webb law would go into effect, and after that he could not get any more liquor; that he ordered pint bottles because it was cheaper than in quarts, and offered in evidence the price list showing that the same was cheaper by getting it in pint bottles.

There was no evidence tending to show the defendant’s unlawful intent to violate any provisions of the prohibitory law. This court has held that the possession of intoxicating liquors is a circumstance that may be considered together with other competent evidence in the trial of a person charged with the offenes of having the unlawful possession of intoxicating liquor, but that the mere possession without any other proof of any kind is not sufficient to sustain a conviction. In McCarthy v. State, 6 Okla. Cr. 483, 119 Pac. 1020, it is said:

"The rule declared by justice and reason requires that the fact of criminal intent be proved and not presumed. Another rule which is approved by all thinking and just men requires that guilt should flow naturally and easily from the facts proved, and be consistent with all the facts. The evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to acquit the defendant. ’ ’

It is our opinion that there is no evidence sufficient to show the unlawful intent. It follows that the judgment should be reversed.


text:
    FRANK BLUMHOFF and HENRY BLUMHOFF v. STATE.
    No. A-1999.
    Opinion Filed June 22, 1914.
    Appeal from County Court, Stephens County; J. W. Marshall, Judge.
    Prank Blumhoff and Henry Blumhoff were convicted of a violation of the prohibitory law, and appeal.
    Reversed.
    Burns & Sandlin, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiffs in error were tried and convicted on an information jointly charging that Prank Blumhoff and Henry Blumhoff did unlawfully have in their possession intoxicating liquors for the purpose of selling the same. Prank Blumhoff’s punishment was fixed at a fine of fifty dollars and confinement in the county jail for thirty days, and Henry Blumhoff’s was fixed at a fine of one hundred dollars and confinement in the county jail for ninety days. They were duly sentenced in accordance with the verdict and from that judgment have appealed to this court. The death of plaintiff in error Frank Blumhoff having been suggested, the proceedings abate as to him.

The evidence shows that Frank Blumhoff and Henry Blumhoff, father and son respectively, lived in the city of Marlow, and Frank Blumhoff conducted) a livery and feed barn in the city; that on the date alleged, the city marshal, the sheriff, and two deputy sheriffs went with T. B. Lilly, who claimed to be a deputy XT. S. marshal, to the home of Frank Blumhoff, and searched the house and found a case of whisky under a bed and a half case in a trunk. They had no search warrant. Brice Emmons, deputy sheriff, testified that they made the raid because several persons informed the officers, "that they thought Mr. Blumhoff was handling whisky.” One witness testified that at one time he gave Frank Blumhoff a dollar and went into his barn and found a pint of whisky in a cart. Another witness testified that the day before Christmas he asked Frank Blumhoff at his barn for some whisky and he said that he would have a man put the whisky in a box; that witness went to the box and got a quart of whisky and left two dollars.

Over the objections of the defendants, witnesses for the state were asked if they knew the reputation of the barn as a place where whisky was kept for the purpose of violating the law. Four or five of the state’s witness answered yes, and that it was generally considered as a place where whisky was used and probably sold. When the state rested, counsel for the defendant, Henry Blumhoff, requested the court to instruct the jury to find said Henry Blumhoff not guilty. The motion was overruled.

Of the various assignments of error it is sufficient for' the determination of this appeal to notice only the one: "That the court erred in permitting the state to prove the reputation of the barn conducted by Frank Blumhoff, and in permitting several witnesses to testify that they had suspicions and information that illegal sales of liquor were being made at the barn of Frank Blumhoff, and in allowing such testimony to go to the jury against the defendant Henry Blumhoff.”

Upon the authority of Thompson v. the State, 9 Okla. Cr. 525, 132 Pac. 695, the evidence of the general reputation of the defendant Frank Blumhoff’s barn was incompetent and not admissable. There was no liquor found at the barn. The liquor seized was found at the -home of Frank Blumhoff. We think the court also erred in permitting evidence of sales made by Frank Blumhoff to be taken and considered as against Henry Blumhoff. There are other errors complained of which are sufficient to justify a reversal of this ease, but no useful purpose would be served in considering the same. For the reasons stated the judgment as to Henry Blumhoff is reversed.


text:
    In re CLAUDE GOODPASTURE and JOHN RUSSELL.
    Nos. A-2308 and A-2309.
    Opinion Filed July 14, 1914.
    Application for writs of habeas corpus.
    Denied.
    Eobt. A. Lowry, for petitioners.
    C. C. Suman, for respondent.
   PEE CUEIAM.

Claude Goodpasture and John Bussell have filed in this court their respective petitions, wherein each avers that he is illegally restrained of his liberty by I. J. I-Toyt, sheriff of Payne county, and that his illegal detention consists in this, to-wit: That petitioner was arrested upon a complaint charging that one Olaude Goodpasture, Chris. S. Blacken, John Bussell, and B. Hoffman, did wilfully, unlawfully and feloniously keep a place, to-wit: a frame building on the southwest corner of the southwest quarter, section 35, township 18 north, range 6 east of I. M., with the intention of, and for the purpose of, selling, bartering, giving away and otherwise furnishing to the patrons of said place, spirituous, vinous, fermented and malt liquors, to-wit: whisky and beer, and on a preliminary examination before the county court of Payne county was held and committed and bail fixed pending the filing of an information in the district court.

That on the evidence introduced upon the preliminary examination tad upon said complaint, petitioner was entitled to be discharged from custody, because said evidence was insufficient to show probable cause to believe petitioner to be guilty of the crime charged or any other felony.

A duly certified transcript of the testimony given before the committing magistrate is annexed to and made a part of each petition. The evidence is conclusive of the fact that intoxicating liquors were kept and sold at the place as charged. The contention of each petitioner is that the evidence does not sufficiently, connect him with the crime. It is sufficient to say without further comment upon the evidence, that there is evidence in the record tending to connect petitioners with the crime charged and shown to have been committed upon the preliminary examination. It is therefore considered and adjudged that the applications for the writs be denied.


author: PEB CURIAM

text:
    FRANK COLE v. STATE.
    No. A-2032.
    Opinion Filed September 5, 1914.
    Appeal from County Court, Pottawatomie County; I-Ial Johnson, Judge.
    Frank Cole was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Pitman & Goode, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State-
   PEB CURIAM

Plaintiff in error, Frank Cole, was convicted at the January, 1913, term of the county court of Pottawatomie county, on a charge of selling intoxicating liquors, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. Upon a careful and deliberate reading of this record and briefs of both parties, we are unable to conclude that this judgment should be reversed. It is, therefore, affirmed.


author: PER, CURIAM.

text:
    JACK FLYNN v. STATE.
    No. A-2020.
    Opinion Filed September 5, 1914.
    Appeal from County Court, Garvin County; W. B. Wallace, Judge.

      Jack Flynn was convicted of selling intoxicating liquor, and appeals.
    Reversed.
    Carr & Fields, and Thompson & Patterson, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State
   PER, CURIAM.

Plaintiff in error, Jack Flynn, was eonvieted at the January, 1913, term of the county court of Garvin county on a charge of selling intoxicating liquors, and his punishment fixed at a fine of two hundred and fifty dollars and imprisonment in the county jail for a period of three months.

The issues in this ease are the same as in case Flynn v. State, heretofore decided by this court and reported in volume 10, page 41 of our reports. For the reasons given in that opinion the judgment of the trial court in this case is reversed and the cause remanded to be disposed of according to law.


text:
    MARTIN MASONER v. STATE.
    No. A-2018.
    Opinion Filed September 5. 1914.
    Appeal from County Court, Coal County; P. E. Wilhelm, Judge.
    Martin Masoner was convicted of selling intoxicating liquors, and appeals.
    Reversed.
    Trice & Moore, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1913, term of the county court of Coal county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of fifty dollars. An indictment was returned by the grand jury of Coal county against the accused at the August term in 1911. On October 7, 1911, the county court of Coal county set aside the indictment and directed the county attorney to file an information against the accused. The information in due form was filed and when the ease came on for trial at the March, 1912, term of said court the accused was tried on the indictment and not the information. When the trial court set aside the indictment the proceedings under the same ended there. The filing of the information would have superseded the indictment if it had not been set aside. This court held in Brown v. State, 5 Okla. Cr. 567, that the last pleading filed by the county attorney as a basis for the prosecution was the one upon which the proceedings had to stand. The accused having been tried on the 'indictment which had been set aside and which had also'been superseded by the information, the judgment is a nullity. If this accused is to be tried he must be tried on the information. There appears to be little merit in the prosecution. The judgment is reversed and the cause remanded to the county court of Goal county.


author: PEE CURIAM.

text:
    W. F. PARKS v. STATE.
    No. A-1969.
    Opinion Filed September 5, 1914.
    Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

      W. E. Parks was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Crump, Crump & Garrett, for the plaintiff in error.
    C..J. Davenport, Asst. Atty. Gen., for the State
   PEE CURIAM.

Plaintiff in error, W. E. Parks, was convicted at the January, 1913, term of the superior court of Muskogee county on a charge of' having unlawful' possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of fifty dollars Upon a careful examination of this record we find no error sufficient to justify a reversal ■of the judgment. It is therefore affirmed.


text:
    GLENN FINLEY v. STATE.
    No. A-1561.
    Opinion Filed September 5, 1914.
    Appeal from County Court, Greer County; Jarret Todd, Judge.
    Glenn Einley was convicted of direct contempt, and appeals.
    Dismissed.
    Eagin & Eagin, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CURIAM.

The plaintiff in error, Glenn Einley, was convicted 'at the July, 1911, term of the county court of Greer county on a charge of direct contempt, and' his punishment fixed at a fine of fifty dollars. Judgment was rendered on the first day of September, 1911. The appeal was filed in this court on December 30th, 1911. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not filed within the time provided by the statute and orders of the trial court. The motion is sustained and the appeal dismissed.


text:
    ROBERT HILDRETH v. STATE.
    No. A-2181.
    Opinion Filed September 5, 1914.
    Appeal from County Court, McCurtain County; E. E. Cochran, Judge.
    Robert Hildreth was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Jef D. McLendon, for plaintiff in error.
    O. J. Davenport, Asst. Atty. Gen, for the State
   PER CURIAM.

Plaintiff in error, Robert Hildreth, was convicted at the July, 1913, term of the county court of McCurtain county on a charge of selling intoxicating liquors, and his punishment fixed at a fine of fifty dollars, and imprisonment in the county jail for a period of thirty days. The judgment was rendered against the plaintiff in error on the 7th day of July, 1933. The appeal was lodged in this court on the 28th day of January, 1914. The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not filed with'in the time provided by law, more than six months having elapsed from the day of judgment before the appeal was lodged in this court. The motion is sustained and the appeal accordingly dismissed. Mandate is ordered forthwith.


author: PEE CUBIAM.

text:
    W. E. BOYCE v. STATE.
    No. A-2319.
    Opinion Filed September 12, 1914.
    Appeal from County Court , Hughes County;
    W. E. Boyce was convicted of a violation of the prohibitory law, and appeals.
    Appeal dismissed.
    Crump, Skinner & Anglin, for plaintiff in error.
   PEE CUBIAM.

The plaintiff in error was tried upon an information for unlawfully selling intoxicating liquor and found guilty by the verdict of the jury. On the 8th day of Juno, 1914, he was sentenced to pay a fine of two hundred and fifty dollars, and to be confined in the county jail for a period of six months. To reverse the judgment, an appeal was perfected 'by filing in this court an August 1st, 1914, a petition in error with ease-made. Plaintiff in error has filed a motion to dismiss his appeal, which motion is hereby sustained, and the appeal herein 'is dismissed, and the cause remanded to the county court of Hughes county, with directions to enforce the judgment and sentence.


text:
    DAN McLEOD v. CITY OF KINGFISHER.
    No. A-1430.
    Opinion Filed September 12, 1914.
    Appeal from County Court, Kingfisher County; John M. Graham, Judge.
    Dan McLeod was convicted of violating a prohibitory ordinance of the city of Kingfisher, and appeals.
    Affirmed.
    D. K. Cunningham and L. B. Weiss, for plaintiff in error.
   PEE CUBIAM.

Plaintiff in error, Dan McLeod, was convicted in the county court of Kingfisher county on appeal from the city court of the city of Kingfisher on a charge of violating a prohibitory ordinance of the city of Kingfisher, and his punishment fixed at a fine of fifty dollars and imprisonment in the city jail of Kingfisher for a period of thirty-five days.' The only error of importance raised by this record is a question of the lapse of term of the county court. That question was settled adversely to the contentions of plaintiff in error by this court in the case of Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998.

There being no error sufficient to justify a reversal, the judgment of the trial court is affirmed.


text:
    C. W. SUTHERLAND v. STATE.
    No. A-1994.
    Opinion Filed September 12, 1914.
    Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.
    C. W. Sutherland was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    D. B. Horsley, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiff in error, C. W. Sutherland, was convieted at the March, 1913, term of the county court of Pawnee county on a charge of having unlawful possession of intoxicating liquor, with intent to sell the same, and his punishment fixed at a fine of five hundred dollars and confinement in the county jail for a period of ninety days. A careful examination of the record discloses the fact that there is no merit in this appeal. There is no error sufficient to justify a reversal. The judgment is therefore affirmed.


text:
    TOM BASSAM v. STATE.
    No. A-2079.
    Opinion Filed September 19, 1914.
    Appeal from County Court, Atoka County; Baxter Taylor, Judge.
    Tom Bassam was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Jones & MeCasland, for plaintiff in error.
    E.G. Spilman, for the State-
   PER CURIAM.

Plaintiff in error, Tom Bassam, was convicted at the May, 1913, term of the county court of Atoka county, sitting at Caney, in said county, on a charge of having unlawful possession of intoxicating liquor in violation of the statute, and his punishment fixed at a fine of fifty dollars and confinement in the county jail for a period of thirty days. A careful examination of the record discloses no error prejudicial to the substantial rights of plaintiff in error. The judgment of the trial court is therefore affirmed.


author: PEE CTJEIAM.

text:
    M. L. BRYANT v. STATE.
    No. A-2031.
    Opinion Filed September 19, 1914.
    Appeal from County Court, Garvin County; W. R. Wallace, Judge.
    M. L. Bryant was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Carr & Fields, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CTJEIAM.

Plaintiff in error, M. L. Bryant, was convicted at the January, 1913, term of the county court of Garvin county on a charge of unlawfully conveying intoxicating liquor from one plaee in Garvin county, Oklahoma, to another plaee therein, and his punishment fixed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. A careful examination of the record discloses no error sufficient to justify a reversal. The judgment of the trial court is, therefore, affirmed.


author: .PEE CTJEIAM.

text:
    TOM BASSAM v. STATE.
    No. A-2080.
    Opinion Filed September 19, 1914.
    Appeal from County Court, Atoka County; Baxter Taylor, Judge.
    Tom Bassam was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Jones & McCasland, for plaintiff in error.
    E. G. Spilman, for the State.
   .PEE CTJEIAM.

Plaintiff in error, Tom Bassam, was convicted at the May, 1913, term of the county court of Atoka county, sitting at Caney, Oklahoma, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. A careful examination of the record discloses no error prejudicial to the substantial rights of plaintiff in error. The judgment of the trial court is, therefore, affirmed.


text:
    WALTER ALEXANDER v. STATE.
    No. A-2092.
    Opinion Filed September 19, 1914.
    Appeal from County Court, McIntosh County; Ben. D. Gross, Judge.
    Walter Alexander was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    E. I. 0;Beilly, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CTJEIAM.

Plaintiff in error, Walter Alexander, was convicted at the July, 1913, term of the county court of McIntosh county on a charge of unlawfully conveying intoxicating liquor from one place in McIntosh county to another place therein, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of sixty days. Judgment was rendered on the 24th day of July, 1913. The appeal was filed in this court on the 23rd day of September, 1913. No briefs have been filed by plaintiff in error and no appearanee made for oral argument. The Attorney General filed -a motion to affirm for failure to prosecute. The motion is sustained and the judgment is in all things affirmed. Mandate ordered forthwith.


text:
    JACK HILL v. STATE.
    No. A-2088.
    Opinion Filed September 19, 1914.
    Appeal from County Court, Love County; J. H. Hays, Judge.
    Jack Hill was convicted of unlawfully conveying intoxicating liquor, and appeals.
    Affirmed.
    Bddleman & Graham, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State
   PEE CUEIAM.

Plaintiff in error, Jack Hill, was convicted at the July, 1913, term of the county court of Love county on a charge of unlawfully conveying intoxicating liquor from one place in Love county to another, place therein, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. The appeal was filed in this court on the 13th day of September, 1913. No briefs have been filed on behalf of plaintiff in error and no appearance made for oral argument. The Attorney General filed a motion to affirm the judgment of the trial court for failure to prosecute. No fundamental error is assigned in the petition in error. The judgment of the trial court is affirmed.


text:
    Ex Parte W. A. HIGH.
    No. A-2709.
    Opinion Filed September 19, 1914.
    Petition for the writ of habeas corpus.
    Petition dismissed.
    Thos. W. Conner, for petitioner.
    H. Y. Thompson, Co. Atty., for respondent.
   PEE CUEIAM.

W. A. High filed a petition 'in this court on October 11, 1913, asking for the writ of habeas corpus. Temporary relief was denied on the date the petition was filed. There has been no further effort to prosecute the petition. It is, therefore, dismissed for failure to prosecute.


text:
    JAMES AMMERMAN v. STATE.
    No. A-2015.
    Opinion Filed October 3, 1914.
    Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.
    James Ammerman was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Otis & McNeil, and Davidson & Williams, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiff in error, James Ammerman, was convicted at the March, 1913, term of the county court of Pawnee county on a charge of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of one hundred and eighty days. There is absolutely no merit in this appeal. The testimony is conclusive as to the guilt of the accused. There are no errors of law justifying a reversal. The judgment of the trial court is, therefore, affirmed. ■


author: PER CURIAM

text:
    MRS. EUGENE GUSSIO v. STATE.
    No. A-2168.
    Opinion Filed October 3, 1914.
    Appeal from County Court, Haskell County; William L. Crittenden, Judge.
    A. L. Beckett, for plaintiff in error.
    Chas. West, Atty. Gen., C J. Davenport, Asst Atty. Gen, for the State
   PER CURIAM

Plaintiff in error was convicted óf a violation of the prohibitory law. Judgment was rendered November 12th, 1913. The petition in error with case-made was filed in this court January 14th, 1914. ’ The Attorney General has moved to dismiss the appeal on the ground that the appeal was not perfected within the time allowed by law/ in that the record shows that the trial court or judge did not extend the statutory time of sixty days within which to perfect said appeal/ This is a companion ease to that of Alexander v. State, ante, decided this day, and the answer to the motion to dismiss presents the same/questions. Por the reasons given in the opinion in that case, the motion to dismiss the appeal is sustained and the cause remanded to the (trial court with direction to proceed with the execution of its judgment.


text:
    JOE SEIBERT v. STATE.
    No. A-2115.
    Opinion Filed October 3, 1914.
    Appeal from County Court, Pittsburg County; B. P. Hammond, Judge.
    Joe Seibert was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    J. R. Miller, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM

Plaintiff in error, Joe Seibert, was tried and convicted in the county court of Pittsburg county, on an information which charged that on or about the 22nd day of June, 1913, he did unlawfully have in his possession intoxicating liquor, to-wit, eighty-three gallons of Clioctaw beer, with the intent to sell said liquor. The court sentenced the defendant to be confined in the county jail for a term of thirty days, and to pay a fine of fifty dollars.

The only contention made is that the evidence is insufficient to support the verdict, in that there is no evidence tending to show that this, brew, called Choetaw beer, was intoxicating. One witness testified that it was intoxicating, and there was evidence tending to show that persons who drank it became intoxicated. If, when the evidence is all carefully considered, it appears that it is wholly wanting in respect to some necessary element of the crime, then we ought to reverse the judgment and grant a new trial, but that is not this case. The contention made, as we view the record, is without merit. The judgment is, therefore, affirmed.


text:
    I. V. ANSON v. STATE.
    No. A-1920.
    Opinion Filed October 3, 1914.
    Appeal from County Court, Custer County; J. C. MeKnight, Judge.
    I. y. Anson was convicted of violating the medical practices act, and appeals.
    Affirmed.
    Carlisle & Edwards, for plaintiff in error.
    W. C. Reeves, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiff in error, I. y. Anson, was convicted at the January, 1913, term of the county court of Custer county on a charge of violating the medical practices act, and his punishment fixe'd at a fine of fifty dollars and costs. Upon motion of counsel for plaintiff in error, this cause was consolidated with case No. A-1770, ex parte Ambler, ante. The opinión in the Ambler case was handed down at the present term of court. Por the reasons given in that opinion the judgment of the trial court in the case at bar is affirmed. Mandate ordered forthwith.


author: Doyle, J.

text:
    In re JOHN CALLAHAN.
    No. A-2322.
    Opinion Filed October 14, 1914.
    Application for writ of habeas corpus.
    Writ denied.
    W. B. Clark and B. C. Weick, for petitioner.
    W. T. McBride, and John S. Burger, Co. Atty., for respondent.
   Doyle, J.

This is an application for writ of habeas corpus by John Callahan, who alleges that he is illegally restrained of his liberty and is unlawfully imprisoned by one Hugh Johnson, sheriff of Kay county. The petition, signed and verified by his oath, avers:

“That the cause of said restraint, according to the best knowledge and belief of your petitioner, is that this petitioner is a fugitive from justice from, the state of Kansas. Your petitioner alleges that he is restrained of his liberty without due process of law and that said restraint is illegal and unlawful, because, at the January, 1910, term of the district court in and for the county of Sumner, state of Kansas, he was convicted of the crime of burglary, and that during said term he was sentenced to the penitentiary of the state of Kansas by said eoui-t for a term of not less than five years, nor more than ten years; that he duly appealed from said conviction and sentence to the supreme court of the state of Kansas, and that said conviction and sentence was on the 5th day of November, 1910, duly affirmed by said supreme court and that its mandate was then issued to said district court of Sumner county, Kansas, on which said mandate a commitment was duly issued to the sheriff of said Sumner county, directing and ordering him to take your petitioner into custody and to convey him to the state penitentiary at Lansing, Kansas, to serve Ms said sentence.
Your petitioner further shows that on or about the------day of September, 1910, and while his said appeal was pending in the supreme court of the state of Kansas, he was indicted in the United States district court of Kansas, for unlawfully and feloniously receiving and retaining on or about the______day of August, 1910, in his possession, with intent to convert to his own use and gain, certain postage stamps, described in said indictment; that a warrant was duly issued for his arrest under said indictment and by virtue of said warrant and in September, 1910, he was placed under arrest and taken into custody by the United States marshal for the district of Kansas, and failing to furnish ■bail, as ordered, was confined in the county jail of Sedgwick county, Kansas, by order of said United States district court, to await his trial on said indictment.
Your petitioner further shows that on or about the------day of March, 1911, he was brought before the United States district court, at Wichita, Kansas, and over his protest and objection, was forced to trial in said court, on the indictment found against him and herein-before mentioned; that your petitioner was on the______day of March, 1911, adjudged guilty of the charge as set out in said indictment, and was on the______day of March, 1911, sentenced to confinement ih the United States penitentiary at Leavenworth, Kansas, and placed in confinement therein and was so'' confined until January 24, 1914, when he was released from said penitentiary, and placed in custody of the'sheriff of said Sumner county, under the commitment hereinabove referred to.
Your petitioner further shows that said commitment has long since spent its force, and is now of no force or effect, and that the said sheriff and all other officers of said Sumner county, Kansas, have forfeited all right, if any they had, to the custody of the person of your petitioner, under and by virtue of said commitment above mentioned.
Your petitioner further shows that when he was so placed in the custody of the sheriff of Sumner county, Kansas, under said commitment, and on the 26th day of January, 1914, he immediately filed his petition on the probate court of Leavenworth county, Kansas, and before the judge thereof, the district judge of said Leavenworth county being then absent from said county, and said probate court being a court of competent jurisdiction to try and determine said cause, praying for a writ of habeas corpus, directed against the said sheriff of Sumner county, Kansas, and that on the said 26th day of January, 1914, a hearing was duly had in said court on said petition and that after a full, fair and impartial hearing, said writ was by the said court duly granted and a judgment rendered, discharging this petitioner from the unlawful restraint and custody of the said sheriff, from which said judgment the state of Kansas duly perfected an appeal to the district court of said county and that said appeal is now pending and has never been disposed of. Your petitioner further shows that until the appeal of the state of Kansas from the judgment of the probate court of Leavenworth county, Kansas, as aforesaid, is disposed of, can your petitioner in any sense be a fugitive from justice.
Wherefore, to be relieved of said unlawful detention and imprisonment, your petitioner prays that a writ of habeas corpus be directed to said Hugh Johnson, sheriff of said Kay county, Oklahoma, may issue in his behalf so that your petitioner may forthwith be brought before this court to do, submit to and receive what the law may direct.”

Attached to said petition as a part thereof is a certified copy of the journal entry of judgment of the probate court of Leavenworth county Kansas, as entered in the habeas corpus proceeding on January 26, 1914. The writ was issued by the presiding judge. The return made thereto by the sheriff of Kay county shows that the petitioner is detained in his custody under and by virtue of the authority of a warrant of requisition duly issued by Lee Cruce, Governor, on the 18th day of August, 1914, the same being issued on a requisition of the Governor of Kansas. Said return is in part as follows:

"Afterwards and on said 26th day of January, 1914, an order was made by said probate court of Leavenworth county, as set out in the application of the petitioner herein, discharging said Callahan from the custody of said sheriff and permitting him to go at large. That at the time of said hearing and discharge of said Callahan said J. M. Lingem-felter, sheriff, was holding said Callahan in custody upon process issued upon a final judgment of the district court of Sumner county, Kansas, and of the supreme court of the state of Kansas, each of which courts were courts of competent jurisdiction in such cases, and that the statutes of the state of Kansas, relating to proceedings in habeas corpus provided as follows: ‘No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody or discharge him when the term of commitment has not expired in either of the following cases: First. Upon process issued by any court or judge of the United States, or where such court or judge has exclusive jurisdiction. Second. Upon any process issued on any final judgment of a court of competent jurisdiction. Third_______ Fourth. Upon any warrant or commitment issued from the district coutr or any other court of competent jurisdiction upon any indictment or information.’ (Gen Stat. Kansas 1909, see 6295.)”

That the application of said John Callahan, petitioner, for a writ of habeas corpus in said proceeding in the probate court of Leavenworth county, and the return to the writ issued on said application, by J. M. Lingemfelter, as sheriff of Sumner county, Kansas, show on their face that the probate court of Leavenworth county, Kansas, had no power, authority or jurisdiction, under the laws of the state of Kansas, to inquire into the legality of the judgment or process whereby the said John Callahan was in the custody of said J. M. Lingenfelter, as sheriff of Sumner county, Kansas, and said pretended habeas corpus proceedings, and the order of the court therein, discharging him from custody of said J. M. Lingemfelter, sheriff, and permitting him to go at large are and wore absolutely null and void and without any legal force or effect, and are and were all in defiance of the district court of Sumner county, Kansas, and the supreme court of the state of Kansas, and due and legal process issued upon said final judgment.

Said respondent hereto attaches as part of this return true and correct copies of the application for writ of habeas corpus of the petitioner John Callahan and of the writ of habeas corpus and the return of said writ of habeas corpus by J. M. Lingenfelter sheriff, and of the journal entry of judgment of the court, in the proceedings in said probate court of Leavenworth county, Kansas, on the 26th day of January, 1914, respectively marked exhibits A, B, C and D.

Respondent further shows that said John Callahan, petitioner, still refused and failed to surrender himself into. the custody of the sheriff of Sumner • county, Kansas, to abide the further orders of the district court of said county concerning him, as required and commanded to do by said mandate of the supreme court, and prevented the sheriff of said Sumner county, Kansas, from taking him into his custody, by concealing himself from said sheriff and by other unwarranted and illegal methods; and on the 30th day of March, 1914, the county attorney of Sumner county, Kansas, filed in the district court of Sumner county, Kansas, in the ease of the state of Kansas v. John Callahan, et al., defendants, being case No. 1077, on the criminal appearance docket of said court, and the case in which said John Callahan was sentenced to the penitentiary of the state of Kansas, as aforesaid, which case was at that time still pending in said district court of Sumner county, Kansas, his verified application to the court for an order directing the clerk of said district court to issue a warrant directed to the sheriff of Sumner county, Kansas, commanding him to arrest and take into his custody said John Callahan and bring him before said court to abide the further order of said court concerning him, in pursuance of said mandate of said supreme court in said ease, and an order and judgment was on the said 30th day of March, 1914, entered in said district court of Sumner county, Kansas, in said ease, directing the clerk to issue a warrant to the sheriff of Sumner county, Kansas, directing him to arrest and bring said John Callahan before said district court for such orders concerning him as might be made by said court in pursuance of said mandate of said Supreme Court. Said warrant was duly issued and on the 14th day of April 1914 the sheriff of Sumner county, Kansas, executed said warrant by arresting said John Callahan and bringing him before the district court of Sumner county, Kansas.

That on said 14th day of April, 1914, said John Callahan in open court made application for a continuance of the hearing of said matter before said court, and it was ordered by the court that the hearing on said matter be and the same was continued to the 20th day of April, 1914, and said John Callahan was remanded to the custody of the sheriff of said Sumner county, Kansas, to be continued in the county jail- of said county until the said 20th day of April, 1914. That on the 20th day of April, 1914, at an adjourned day of the regular January, 1.914, term of said court, said John Callahan was personally brought before said district court of Sumner county, Kansas, by the sheriff of said county in pursuance of said order of the court made on the 14th day of April, 1914, and his attorney, S. A. Buckland, appeared at said time, and thereupon in open court and at the request of said John Callahan it was ordered by the court that the hearing on said matter be and the same was continued to the 24th day of April, 1914, before the court, and it was further ordered that the custody of said John Callahan remain with the sheriff of Sumner county, Kansas, at the county jail of Sumner county until the 24th day of April, 1914.

That said John Callahan remained in the custody of said sheriff of Sumner county under said order of said district court from the 20th day of April, 1914, to the 29th day of April, 1914.

That on the 24th day of April, 1914, and before said sheriff could take said Callahan before said district court in obedience to said ord^r of said court made on the 20th day of April, 1914, said sheriff, J. M. Lingenfelter was served with a writ of habeas corpus from the district court of the United States, district of Kansas, for the first division, directing him to produce said John Callahan before said United States district court at Kansas City, Kansas, on the 28th day of April, 1914.

That on said 28th day of April, 1914, said J. M. Lingemfelter as such sheriff produced said John Callahan personally in said United States district court before I-Ion. John C. Pollock, District Judge, and a hearing was had therein, and said John Callahan still remained in the custody of said J. M. Lingemfelter as such sheriff, and on the 6th day of May, 1914, an order was made in said United States District Court by Hon. John C. Pollock, United States District Judge, that no further proceedings be had in the case, and upon application of said petitioner, John Callahan, it was further ordered that the petition theretofore filed in said proceeding might be withdrawn from the records of said court. A true and correct copy of the order of said eourt duly certified, is hereto attached, marked exhibit E, and made a part of this return.

Eespondent further says that on the 29th day of April, 1914, and while said J. M. Lingenfelter, sheriff, was returning from the said United States District Court at Kansas City, Kansas, with said John Callahan in his custody, to the jail of Sumner county, Kansas, and while passing through the city of Wichita, in Sedgwick county, Kansas, said John Callahan caused a writ of habeas corpus to be issued by the probate court of Sedgwick county, Kansas, commanding said sheriff of Sumner county to bring said John Callahan forthwith before said court.

That in obedience to said order said sheriff took said John Callahan before said probate court of Sedgewick, county Kansas, on said day, and a hearing in said habeas corpus proceeding was by said eourt, by various orders continued in said probate court until the 19th day of May, 1914, and by order of said probate court said John Callahan was released from the custody of the sheriff of said Sumner county upon his giving a bond in the sum of one thousand dollars, and was permitted to go at large.

That afterwards and on the 19th day of May, 1914, an order was made in said habeas corpus proceeding by the probate court of Sedg-wick county, Kansas, dismissing said habeas corpus proceedings and remanding said Callahan to the custody of the sheriff of Sumner county, Kansas. That said John Callahan failed and refused to appear before said probate court of said Sedgewick county, Kansas, on sp,id 19th day of May, 1914, in said habeas corpus proceedings, and thereupon the bon'd of one thousand dollars given by said John Callahan for his appearance before said probate court on said day was duly forfeited.

True and correct copies of the application of said John Callahan for a writ of habeas corpus, and of the writ of habeas corpus and of the judgment of the eourt in said habeas corpus proceedings in the probate court of Sedgwick county, Kansas, each duly certified, are hereto attached marked exhibits E, Gr and H.

That after said 19th day of May, 1914, said John Callahan fled from the state of Kansas, and went to the state of Oklahoma, and he was found by the sheriff of Sumner county, Kansas, in the state of Oklahoma ,at Ponca City, in Kay county, and arrested as a fugitive from justice by the sheriff of said Kay county on the 15th day of August, 1914, and at the time of his arrest and for some time before that date, he had been in Ponca City going under the assumed name of John Wood, as respondent is informed.

Eespondent further shows that said John Callahan, petitioner, has at all times failed and refused to deliver himself to the custody of said sheriff or to go before said district court of Sumner county, Kailas, to abide the further orders of said district court concerning him, as commanded by said mandate of the Supreme Court of the state of Kansas. That said John Callahan has prevented the sheriff of Sumner county, Kansas, from talcing him into custody by concealing himself from said sheriff and. fleeing from the state of Kansas; that said John Callahan has not served any part of the judgment and sentence passed upon him by the district court of Sumner county Kansas and which was affirmed by the Supreme Court of the state of Kansas and said judgment and sentence is still in full force and effect and the term for which said John Callahan was sentenced has not yet expired, and the term of the commitment and process and order of said district court and said Supreme Court in the hands of said sheriff of Sumner county have not yet expired, and no order of the district court or of the Supreme Court of said state of Kansas has been made releasing said John Callahan from said judgment and sentence and no pardon or parole has been granted to said John Callahan by the Governor of the state of Kansas for said offense for which he was sentenced as aforesaid.

Wherefore, said respondent, Hugh Johnson, having fully answered and shown his authority for holding said John Callahan in custody, does hereby request and demand that said John Callahan be not discharged from custody by this court, but that he be by this court remanded to the custody of respondent under the terms of the process in the possession of said respondent, that he may be turned over to J. M. Lingemfelter, the agent of the state of Kansas, named in said warrant of the Governor of the state of Oklahoma, to be taken to the state of Kansas, there to be dealt with in the courts of the state of Kansas, where his ease is still pending and over which said courts have full jurisdiction, and that said writ of habeas corpus be denied.”

It is claimed on the part of the petitioner that he is not a fugitive from justice; that he having been discharged by the probate court of Leavenworth county on proceedings in habeas corpus such judgment must be regarded as final and conclusive, and is not subject to review or reversal by a higher court. Yates v. the People, 6th Johns, 377; In re Jilz, 64 Mo. 205, 21 Cyc. 349.

Counsel for respondent contend that under the statutes of the state of Kansas, sec. 6295 Gen. Stat. 1909, already quoted, that the probate court of Leavenworth county was without jurisdiction, power or authority to discharge the petitioner from the custody of the sheriff. Petitioner had not served any part of the sentence; the time of his imprisonment had not expired, he had not been pardoned or paroled, there was no order of the district court, or the Supreme Court suspending or re-miting the sentence, the sentence was still in full force and effect, that this is shown on the face of the papers. Where the papers on their faee show that the court has not the power under the law to discharge, the order of discharge is a nullity and void. People v. Superior Court, 234 Ill. 186; 84 N. E. 875; 14 Ann. Cases, 753. People v. Zimmer 252 Ill. 9, 96 N. E. 529; In re Petitt, 84 Kan. 637.

1-Ie claims that the district court had the inherent power to issue its warrant to have him brought before the court to show cause why the judgment had not been performed, that it cannot be assumed that the district court of Sumner county, Kansas, will not make such orders in said case, upon the appearance of the defendant before- the court, as are legal, just and right, or that the Supreme Court of the state of Kansas will not in a proper proceeding correct any error that may be made by the district court.

It is our opinion that the questions presented should be passed upon and determined by the courts of the state of Kansas, in which it would appear they are now pending decision. It must be assumed that the petitioner may obtain all the protection to which he may be entitled in the courts of the state. We do not think that this court would be justified in passing upon the questions presented further than to decide whether or not the petitioner is a fugitive from justice. We are of the opinion that the petitioner is a fugitive from justice on the proceedings now pending in the district court of Sumner county, Kansas. This in itself is sufficient to make it the duty of this court to discharge the writ and remand the petitioner, leaving the question of the lawfulness of his detention to be inquired into and determined by the courts of the state of which he is a citizen. The writ will, therefore, be discharged, and the petitioner remanded to the custody of the respondent.

Armstrong, P. J., and Furman, J., concur.


author: PEB CTJBIAM.

text:
    STANLEY BAKER v. STATE.
    No. A-2237.
    Opinion Filed October 17, 1914.
    Appeal from District Court, Wagoner County; B. P. deGraffenried, Judge.
    Stanley Baker was convicted of the larceny of live stock and appeals.
    Appeal dismissed.
    Gustave A. Erixon, for plaintiff in error.
   PEB CTJBIAM.

Plaintiff in error, Stanley Baker, was convicted on an information charging the larceny of domestic animals. On December 6th, 1913, in accordance with the verdict of the jury, he was sentenced to be imprisoned in the penitentiary for the term of four years. From the judgment he appealed by filing in this court on April 18th, 1914, a petition in error, with case-made. On October 2nd, 1914, plaintiff in error filed the following motion: “Comes now Stanley Baker, plaintiff above named, by his attorney, Gustave A. Erixon, and files hereby his dismissal herein and does hereby dismiss his appeal in this eause.” The motion to dismiss the appeal is hereby sustained. The appeal is, therefore, dismissed and the cause remanded to the district court of Wagoner county. Mandate forthwith.


author: PEB CUBIAM.

text:
    C. H. CONNER v. STATE.
    Nos. A-1881, A-1882, A-1883.
    Opinion Filed October 17, 1914.
    Appeal from County Court, Canadian County; W. A. Maurer, Judge.
    C. II. Conner was convicted of violating the prohibitory law in three cases, and appeals.
    Modified and affirmed.
    Lucius Babcock, and Phelps & Cope, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

Plaintiff in error, G. H. Connor, was convicted at the July, 1912, term of the county court of Canadian county in case No. A-1881 on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and Ms punishment fixed at a fine of four hundred dollars and imprisonment in the county jail for a period of five months. The judgment is modified as follows. The fine is reduced to one hundred dollars and costs, and imprisonment to sixty-days. As modified, the judgment is affirmed.

In ease No. A-1882, the plaintiff in error, C. H. Conner, was convicted at the July, 1912, term of the county court of Canadian county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same and his punishment fixed at a fine of two hundred and fifty dollars and imprisonment in the county jail for a period of ninety days. This judgment is modified as follows The fine is reduced to one hundred dollars and costs, and imprisonment to sixty days, and as modified the judgment is affirmed.

In ease No. A-1S83, the plaintiff in error, C. II. Conner, was convicted at the July, 1912, term of the county court of Canadian county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same and his punishment fixed at a fine of three hundred and fifty dollars and imprisonment in the county jail for a period of four months. The judgment is modified as follows The fine is' reduced to one hundred dollars and costs, and the imprisonment to sixty days. As modified, the judgment is affirmed.

This court has recently affirmed a judgment against the plaintiff in error of a fine of $500 and six months in jail. Under all the facts and circumstances disclosed, we feel that these judgments should be modified and affirmed as herein done.


text:
    HAARON HENDERSON v. STATE.
    No. A-2161.
    Opinion Filed October 24, 1914.
    Appeal from Eistrict Court, Okmulgee County; Wade S. Stanfield, Judge.
    Haaron Henderson was convicted of assisting prisoners to escape, and appeals.
    Dismissed.
    H. E. P. Stanford, for plaintiff in error.
    C. J. Davenport, Asst. Aty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, I-Iaaron Henderson, was convicted at the June,-1913, term of the district court of Okmulgee county on a charge of aiding prisoners to break and escape from jail, and his X>unishment fixed at three years in the state penitentiary. The appeal was filed in this court on the 7th day of January, 1914. On the 20th day of October, 1914, counsel for plaintiff in error filed the following motion to dismiss the appeal. "Comes now the plaintiff in error in the above entitled cause, by his attorney, H. E. P. Stanford, to dismiss the said cause of action by reason of the death of the plaintiff in error on or about the 16th day of April, 1914, in the Oklahoma state penitentiary at MeAlester, Oklahoma. ”

The motion is sustained and the appeal dismissed.


text:
    DAVE SEARS v. STATE.
    No. A-2249.
    Opinion Filed October 31, 1914.
    Appeal from County Court, Osage County; Paul B. Mason, Judge.
    Dave Sears was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    Templeton & Tillman, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State
   PEE CURIAM.

Plaintiff in error, Dave Sears, was convicted at the October, 1913, term of the county court of Osage county on a charge of unlawfully conveying liquor from one place in said county to another place therein and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. The Attorney General has filed the following motion to dismiss the appeal. “Comes now the state of Oklahoma by the Attorney General, and appearing specially for this motion, moves the court to advance this cause for early submission and dismissal and for grounds of said motion says that this is an appeal from a judgment of conviction for misdemeanor, to-wit: violating the prohibitory liquor laws; that said judgment was rendered in the county court of Osage county on the 30th day of October, 1913, (record page 48), that the petition in error with ease-made attached was not filed in this court until April 18, 1914, which was long after the expiration of the time allowed by law within which to perfect an appeal in a misdemeanor ease. Wherefore, the Attorney General moves the court to advance this cause for early submission and dismissal.”

A careful examination of the record discloses the fact that the motion is well taken. It is, therefore, sustained and the appeal dismissed.


text:
    JOE COX v. STATE.
    No. A-2268.
    Opinion Filed October 31, 1914.
    Appeal from Superior Court, Custer County; J. W. Lawter, Judge.
    Joe Cox was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    P. S. Hillman, for plaintiff in error.
    C. J. Davenport, Asst. Atty Gen, for the State.
   PEE CUEIAM.

The plaintiff in error, Joe Cox, was convicted at the March, 1914, term of the superior court of Custer county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. The Attorney General has filed the following motion to dismiss the appeal: “Comes now the state of Oklahoma by the Attorney General and moves the court for an order advancing this cause for submission and dismissal and as grounds for said motion, shows: This is an attempted appeal from a judgment of conviction in a misdemeanor court rendered in the superior court of Custer county on March 17, 1914, at which time the plaintiff in error was given thirty days within which to prepare and serve a case-made (p. 66); that thereafter, and on April 15, 1914, the court made an order extending the time within which to prepare and serve said case-made twenty days (p. 68) that the ease-made was not served until May 11, 1914, (page 69) which was after the expiration of the time allowed by the order of the court within which to so serve said case-made. That there is no certificate of the clerk to the transcript included in said purported ease-made; Wherefore the Attorney General moves the court for an order advancing the ease for submission and dismissal.”

An examination of the record discloses the fact that the motion is well taken. It is, therefore, sustained, and the appeal dismissed.


text:
    W. R. SANDERS v. STATE.
    No. A-2281.
    Opinion Filed November 31, 1914.
    Appeal from County Court, Bryan County; J. L. Eappolee, Judge.
    W. E. Sanders was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    Utterback & McDonald, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

The plaintiff in error, W. E. Sanders, was convicted at the February, 1914, term of the county court of Bryan county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of one hundred dollars. The Attorney General has filed the following motion to dismiss the appeal: “Comes now the state of Oklahoma by the Attorney General and moves the court to dismiss the appeal herein and as grounds for said motion shows: That this is an attempted appeal from a judgment for violation of the prohibitory liquor law which said judgment was rendered in the county court of Bryan county on the 17th day of February, 1914 (record, pp. 45, 46, 47), at which time the court gave the defendant sixty days from and after said date in which to make and serve the case-made, but that the statutory time of sixty days within which to perfect an appeal in this court was not extended by an order of the trial court; that the petition in error in said case was not filed in this court until June 1, 1914, which was long after the expiration of the statutory time allowed in which to perfect an appeal in a misdemeanor case. Wherefore, the Attorney General moves the court to dismiss the appeal. ’ ’

An examination of the record discloses the fact that the motion is well founded. It is, therefore, sustained and the appeal accordingly dismissed.


author: PEE CUBIAM

text:
    WILL NORRIS v. STATE.
    No. A-2128.
    Opinion Filed November 6, 1914.
    Appeal from District Court, Sequoyah County; John H. Pitehford, Judge.
    Will Morris was convicted of manslaughter, and appeals.
    Dismissed.
    E. M. Frye and Curtis & Pitehford, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen, for the State
   PEE CUBIAM

The plaintiff in error, Will Morris, was convicted at the May, 1913, term of the district court of Sequoyah county on a charge of manslaughter and his punishment fixed at imprisonment in the state penitentiary for a period of seven years The appeal was filed in this court on the 12th day of November, 1913. On the 6th day of November, 1914, counsel for plaintiff in error filed the following motion to dismiss the appeal: “Comes now Will Morris, the above named plaintiff in error, by his attorneys, Curtis & Pitehford and E. M. Frye, and states to tho court that he desires to withdraw his appeal herein, and requests the court to dismiss the same and enter its order placing the sentence and judgment of the lower court into effect at once, in order that he may immediately begin serving his sentence. Wherefore, premises considered, petitioner prays an order of this court dismissing his appeal herein, and directing that the judgment and sentence of the court below become immediately effective.”

The motion is sustained and the appeal dismissed. The clerk is directed to issue mandate forthwith.


text:
    NICHOLAS BILLY v. STATE.
    No. A-2126.
    Opinion Filed November 7, 1914.
    Appeal from County Court, Stephens County; J. W. Marshal], Judge.
    Nicholas Billy was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Womack & Brown, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen, for -the State
   PEE CUBIAM.

The plaintiff in error, Nicholas Billy, was convicted at the September, 1913, term of the county court of Stephens county on a charge of unlawfully conveying intoxicating liquor from one place in said county to another place therein, and Ms punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days.

An examination of the briefs and record discloses no error sufficient to justify a reversal of the judgment. The judgment of the trial court is, therefore, affirmed.


text:
    S. M. ROGERS v. STATE.
    No. A-2082.
    Opinion Filed November 7, 1914.
    Appeal from County Court, McIntosh County; Ben. D. Gross, Judge.
    S. M. Rogers was convicted of violating the prohibitory law and appeals.
    Affirmed.
    Turner & Turner, for plaintiff: in error.
    E. G. Spilman, for the State.
   PER CURIAM

The plaintiff: in error, S. M. Rogers, was convicted at the July, 1913, term of the county court of McIntosh county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of one hundred dollars. This appeal is without merit. The questions raised have been settled adversely to the contentious of plaintiff in error by former opinions of this court. We find no error in the record. The judgment of the trial court is, therefore, affirmed.


text:
    OSCAR COFER v. STATE.
    No. A-2229.
    Opinion Filed November 21, 1914.
    Appeal from County Court, Pottawatomie County; Hal Johnson, Judge.
    Oscar Cofer was convicted of a violation of the prohibitory law, and a2-'peals.
    Appeal dismissed.
    W. P. Langston, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State
   PER CURIAM.

Plaintiff in error was, in the court below, convicted of the offense of having the unlawful possession of intoxicating liquor with the intent to sell the same. Judgment was entered on the 19th day of August, 1913, and he was sentenced to be confined in the county jail for sixty days and to pay a fine of two hundred and fifty dollars and eosts. He attempted to appeal from the judgment by filing in this court on April 8th, 1914, a petition in error with case-made attached. The Attorney General has filed a motion to dismiss the appeal on the ground that a petition in error was not filed in this court until long after the expiration of the time allowed by law within which to take sueh appeal.

In misdemeanor cases one hundred and twenty days is the maximum time within which to take an appeal. In this case more than six months had elapsed after the judgment was entered before the petition iu error was filed in this court. As the court failed to acquire jurisdiction, the motion to dismiss must be sustained. The purported appeal is dismissed.


text:
    E. E. MERCHANT v. STATE.
    No. A-1658.
    Opinion Filed November 28, 1914.
    Appeal from County Court, Stephens County; W. II. Admire, Judge.
    E. E. Merchant was convicted of violating the prohibitory law, and appeals.
    Reversed.
    Womack & Brown, for plaintiff in error.
    Smith C. Matson and C. J. Davenport, Asst. Atty. Gens., for the State.
   PER CURIAM.

The plaintiff in. error, E. E. Merchant, was convicted at the January, 1912, term of the county court of Stephens county on a charge of unlawfully conveying intoxicating liquors from one place in said county to another place therein, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of fifty dollars. It appears from the evidence that the intoxicating liquor in question was an interstate shipment of beer for individual consumption; it is argued that the court erred in giving the following instructions: “Second: And in this connection I charge you that if you believe from the evidence in this case beyond a reasonable doubt that the defendant conveyed intoxicating liquors as charged against him in the information herein, in Stephens county, Oklahoma, on or about the time alleged in the information, from the place and to the place alleged, in the city of Marlow, as charged, then I charge you that you should find the defendant guilty and so say by your verdict. In such event you may assess his punishment at a fine of not less than fifty dollars nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months as you see proper, but you are not required to assess the punishment.”

In lieu of this instruction counsel requested the following instruction: “Gentlemen, in this ease the state alleges that the defendant conveyed intoxicating liquors from block 114 to block 115 in the city of Marlow, Oklahoma, and in this connection I charge you that it is the duty of the state to prove such conveyance from said block 114 to said block 115 beyond a reasonable doubt, and I further charge you that in the consideration of this case you cannot consider any other place or places from which to which any conveyance might have been made, if any, conveyance has been shown, save and except from the place to the place alleged in the information in this case.”

Without consuming time in the discussion of other assignments, we are of the opinion that the court should have given the instruction requested in lieu of the one he did give. The instruction requested conforms to the charge as laid in the information. The instruction given by the court did not. The judgment is reversed and the cause remanded for a new trial.


author: PER OURIAM.

text:
    C. E. SILLIX v. STATE.
    No. A-2120.
    Opinion Filed November 7, 1914.
    Appeal from County Court, Pittsburg County; B. P. Hammond, Judge.

      G. E. Sillix was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    G. Rosenwinlde and J. E. Miller, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER OURIAM.

Plaintiff in error was, in the court below, eonvieted of the offense of unlawfully selling intoxicating liquor. The jury assessed his punishment at a fine of fifty dollars and thirty days confinement in the county jail. Judgment and sentence was entered on the 3rd day of September, 1913. Prom a careful review of the record it appears that the questions raised have heretofore been by this court decided adversely to the contention of plaintiff in error. It appearing that' the verdiet and judgment is supported by the evidence, and there being no error in the record, the judgment is affirmed.


text:
    FRANK MASOERO v. STATE.
    No. A-2352.
    Opinion Filed November 7, 1914.
    Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.
   PER CURIAM.

Prank Masoero was tried and convicted in the county court of Okmulgee county of the offense of failing, neglecting and refusing to work the road in road district No. 4, Henry township, after being duly notified to work the same, and attempted to appeal from the judgment of conviction by filing in this court on October 116th, 1914, a case-made, to which no petition in error was attached at the time it was filed, and none has been filed since. The Attorney General has filed a motion to dismiss the pretended appeal on the ground that no petition in error has even been filed in said ease. No answer or response to said motion has been made. By numerous decisions of this court it has been held that a ease-made, or transcript of the record, unless accompanied by a petition in error will not present any question for the court to determine.

Roberts v. State, 10 Okla. Cr. 312, 136 Pac. 201; Edwards v. State, 2 Okla. Cr. 715, 103 Pac. 1072; Baker v. State, 2 Okla. Cr. 716. 103 Pac. 1072.

There being no petition in error filed in this case, the motion to dismiss the purported appeal is sustained, and the cause remanded. Mandate forthwith.


text:
    GUS SAHM v. STATE.
    No. A-2341.
    Opinion Filed November 7, 1914.
    Appeal from County Court, Rogers County; Walter W. Shaw, Judge.
    Gus Sahm was convicted of a violation of the prohibitory law.
    Appeal dismissed.
    John M. Goldsberry, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst Atty. Gen, for the State
   PER CURIAM.

Plaintiff in error was, in the court below, convicted of the offense of unlawfully selling intoxicating liquor. The jury assessed his fine at one hundred dollars and thirty days’ confinement in the county jail. Judgment and sentence was entered on the 9th day of July, 1914. An appeal was attempted to be taken by filing in this court on September 22nd, 1914, petition in error with ease-made. The Attorney General has filed a motion to dismiss the appeal on the ground that said appeal was not filed in this count until long after the expiration of the time allowed by law within which to take an appeal and that no order of the court appears in the record extending the statutory time. No response to the motion to dismiss has been filed. The motion to dismiss the purported appeal is, therefore, sustained, and the case remanded.


text:
    PETE PASTORIA v. STATE.
    No. A-2119.
    Opinion Filed November 21 1914.
    Appeal from County Court, Pittsburg County; B. P. Hammond, Judge.
    Pete Pastoría was convicted of violating the prohibitory law, and appeals.
    Reversed.
    J. W. Crow and J. R. Miller, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted on an information which charged that he did unlawfully have in his possession intoxicating liquor, to-wit, about sixteen gallons of Choctaw beer, with the intent to sell the same, and his punishment assessed at a fine ol fifty dollars and thirty days’ confinement in the county jail. The first assignment of error is that the court erred in overruling defendant’s application for continuance. The application was based on the absence and sickness of the wife of the defendant, who had just given birth to a child, and could not attend court; that if present she would testify that the Choctaw beer did not belong to the defendant, but to two other Italians, who were building a blacksmith shop for the defendant, and on the absence of Alphonso Lanzei and Edward Zaccanti, the parties who were working for the defendant building the shop, and who if present would testify that the Choctaw beer found there belonged to them, that they made it for their own use, and that the defendant had no interest therein. The record shows that the defendant had these two witnesses in attendance the day before the case was called for trial; that at that time it was agreed by and between the county attorney and the defendant’s attorneys that the state would not be ready for trial on account'of the absence of the'sheriff who made the seziure; and that the case would be passed, and relying thereon the defendant excused the witnesses, and they left and went home. When the case was called for trial the next day, the court refused to recognize the agreement as made, stating that he would require the state to make a showing in open court why the ease should not be tried. We are inclined to think that the defendant had a right to rely on the agreement and that the court exceeded its discretionary power in overruling the application for continuance.

The next assignment is that the evidence is insufficient to support the verdict. "We think this assignment is well taken. There is no evidence tending to show that the so called Choctaw beer found on the defendant’s premises was intoxicating liquor. On the other hand, the testimony of the witnesses for the state tended, to show that it was non-intoxicating.

For the reasons stated it is ordered that the judgment be, and the same is, hereby reversed.