text:
    GEO. SMITH v. STATE.
    Nos. A-1190 and 1191.
    Opinion Filed January 16, 1912.
    Appeals from Sogers County Court; H. Tom Eight, Judge.
    Geo. Smith-was convicted of a violation of the prohibition law, two cases, and appeals.
    Appeals dismissed.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error in the first case was convicted on an information which charged the unlawful sale of one-half pint of whisky. The jury returned a verdict of guilty. April 11, 1911, he was sentenced to serve a term of six months in the county jail and to pay a fine of five hundred dollars. To reverse this judgment an appeal was attempted to be taken by filing in this court on June 13, 1911, a purported transcript which fails to show a copy of the judgment appealed from. The Attorney General has filed a motion to dismiss the appeal for the reason that the same was not filed in this court within sixty days after the rendition of the judgment. The motion is well taken and is sustained. The attempted appeal is therefore dismissed. In the second case he was convicted on an information which charged the unlawful sale of one-half pint of whisky. The jury returned a verdict of guilty. April 11, 1911, he was sentenced to serve a term of six .months in the county jail and to pay a fine of five hundred dollars. To reverse this judgment an appeal was attempted to be taken by filing in this court on June 13, 1911, a purported transcript without petition in error. The Attorney General has filed a motion to dismiss the appeal for the reason that the same was not filed in this court within sixty days from the rendition of the judgment. The motion is well taken and is sustained. The attempted appeal is therefore dismissed, and both cases are remanded to the county court of Eogers county.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    G. W. PATTON v. STATE.
    No. A-1151.
    Opinion Filed January 16, 1912.
    Appeal from Bryan County Court; J. L. Eappolee, Judge.
    G. W. Patton was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    J. Q. A. Harrod, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The judgment is affirmed.


text:
    BEN TUCKER v. STATE.
    No. A-990.
    Opinion Filed January 16, 1912.
    Appeal from Oklahoma County Court; Sam I-Iooker, Judge.
    Ben Tucker was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Guthrie & Cardwell, for pilaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county on the 6th day of September, 1910, on a charge of violating the prohibitory law, and his punishment fixed at a fine of one hundred dollars and thirty days in the county jail. The proof in this ease clearly establishes possession, but there is an entire lack of proof on the question of intent. This court has held in a number of eases that possession alone is insufficient to sustain a conviction. The trial court, over the objection of pdaintiff in. error, permitted the state to prove by hearsay that the plaintiff in error paid the special tax to the government. Every line of proof in the record on this point is incompetent and should not have been admitted. The judgment is reversed and the cause remanded with directions to grant a new trial in accordance with law.


text:
    P. M. HITT v. STATE.
    No. A-1050.
    Opinion Filed January 16, 1912.
    Appeal from Oklahoma County Court; John W. Ilayson, Judge.
    P. M. Hitt was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Charles Watkins, Joe Jaynes, and Taylor, Pruiett & Sniggs, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted at the October, 1910, term of the county court of Oklahoma county on a charge of having the unlawful possession of whisky with intent to sell the same, and. on the 26th day. of November, thereafter, his punishment was fixed at a fine of one hundred and fifty dollars and imprisonment in the county jail sixty days. The testimony up>on which this conviction is based tends to show that the plaintiff in error had possession of a certain restaurant in Edmond about the time alleged in the information, but there is no proof that any sale was ever made, or any offer to make a sale, and no other circumstances of an incriminating nature sufficient to sustain this judgment. The transaction out of which the conviction grew shows that less than a bottle of whisky was found in the place at the, time the charge is laid. Let the judgment be reversed, and a new trial awarded.


text:
    JOE WELLS v. STATE.
    No. A-1144.
    Opinion Filed January 16, 1912.
    Appeal from Marshall County Court; J. W. Falkner, Judge.
    Joe Wells was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Kennamer & Coakley, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court ■of Marshall county, at the January, 1911, term, of selling intoxicating liquor, and on the 18th day of February, thereafter, was adjudged to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. The proof upon which the conviction is based is very unsatisfactory. There are other irregularities complained of, and upon the whole record we think this judgment should be reversed and the cause remanded for a new trial. It is so ordered.


text:
    JOHN KNIGHT v. STATE.
    No. A-1150.
    Opinion Filed January 16, 1912.
    Appeal from Hughes County Court; P. W. Gardner, Judge.
    John Knight was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    B. N. Hicks, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1911, term of the county court of Hughes county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. The transcript before us is certified as complete. There is no case-made. It appears that the plaintiff in error was tried in the court below without counsel, and that the testimony taken upon the trial was not preserved by reporter. A motion for a new trial was filed which sets up facts tending to show that the rights of the accused were not properly preserved, and as an affirmative' defense to the charge. In view of the fact that the testimony was not taken by the court stenographer, and that the record does not show that the court preserved the rights of the plaintiff in error, we think a new trial should be awarded. The judgment is reversed and the cause remanded for a new trial.


text:
    C. E. BURNS v. STATE.
    No. A-1163.
    Opinion Filed January 16, 1912.
    Appeal from Kiowa County Court; J. W. Mansell, Judge.
    C. E. Burns was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Zink & Cline, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Kiowa county at the January, 1911, term, on a charge of violating the prohibitory law, and his punishment fixed by the jury at a fine of three hundred dollars and imprisonment in the county jail for a period of six months. No briefs have been filed and no appearance made for oral argument on behalf of plaintiff in error. For this reason the Attorney General has moved to affirm for want of prosecution. The motion is well taken and is sustained. The judgment of the trial court is affirmed.


text:
    ED. ELMS v. STATE.
    No. A-1170.
    Opinion Filed January 16, 1912.
    Appeal from Caddo County Court; C. Ross Hume, Judge.
    Ed. Elms was convicted of violating the prohibitory law,, and appeals.
    Appeal dismissed.
    Bristow & McFadyen, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State..
   PER CURIAM.

Plaintiff in error was convicted in the county court of Caddo county at the January, 1911, term, on a charge of having the possession of intoxicating liquor with the unlawful intent to sell the same, and his punishment fixed at a fine of two hundred fifty dollars and imprisonment in the county jail for a period of ninety days. Following the rule laid down in the Stumpf case, the Attorney General has filed a motion to dismiss the appeal. The motion is well taken and is sustained. The appeal is accordingly dismissed.


text:
    ART. GOODNIGHT v. CITY OF PAWNEE.
    Appeal from Pawnee County Court; N. E. McNeil, Judge.
    No. A-1023.
    Opinion Filed January 17, 1912.

      Art. Goodnight was convicted of violating the prohibitory law, and
    appeals.
    Affirmed.
    L. V. Orton, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

After a careful examination of the record in this case, we think the judgment of the trial court should be affirmed. It is so ordered.


text:
    HENRY CARPENTER v. STATE.
    No. A-1209.
    Opinion Filed January 17, 1912.
    Appeal from Love County Court.
   PER CURIAM.

Appellant was convicted for violating the prohibitory liquor law and his punishment was assessed at a fine of fifty dollars and thirty days’ imprisonment in the county jail. What purports to be the record in this case does not show that the case-made was ever served upon the county attorney. The judgment was rendered on the 6th day of April, 1911. The transcript of the record was not filed in this court until the 19th day of June, 1911. This-being more than sixty days after the rendition of the judgment, and as the time .for filing the appeal in this court was not extended by the trial court beyond the sixty days allowed by law, this court has never acquired jurisdiction of the appeal. The appeal is therefore dismissed, with directions to the county court of Love county to proceed with the execution of its judgment.


text:
    WILL O’NEAL v. CITY OF McALESTER.
    No. A-1201.
    Opinion Filed January 17, 1912.
    Appeal from Pittsburg County Court; B. P. Hammond, Judge.
   PER CURIAM.

This case originated by complaint filed in the police .court of the city of MeAlester, J. Read Moore, police judge, wherein plaintiff in error was charged with selling a half pint of whisky. Prom a conviction there had an appeal was taken to the county court of Pitts-burg county. Upon a trial there had the jury returned a verdict of guilty and assessed the punishment at a fine of one hundred dollars and confinement in the city jail at MeAlester for thirty days. Judgment was entered in accordance with the verdict and an appeal was perfected by filing in this court on June 15, 1911, a petition in error with case-made. No briefs have been filed and when the case was this day called on the regular assignment of the term no appearance was made on behalf of the plaintiff in error. It is evident that the appeal has been abandoned. The appeal is therefore dismissed and the cause remanded to the county court of Pittsburg county.


text:
    W. H. PENNER v. STATE.
    No. A-1203.
    Opinion Filed January 17, 1912.
    Appeal from Beeldiam County Court; Jno. C. Hendrix, Judge.
    W. H. Penner was convicted of a violation of the prohibition law, and appeals.
    Reversed.
    John B. Harrison, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information which charged the unlawful conveyance of intoxicating liquor, and was, on April 12, 1911, sentenced in accordance with the verdict of the jury to serve a term of thirty days in the county jail and to pay a fine of fifty dollars. To reverse this judgment an appeal was perfected by filing in this court on June 15, 1911, a petition in error with case-made attached. Prom the record it appears that on April 5th; the ease was called for trial and a jury selected and sworn to try the case. The county attorney made the opening statement. The first witness for the state was duly sworn and called as a witness for the state. Thereupon the defendant interposed an objection to the introduction of testimony for the reason that said information had been amended after the defended had entered his plea thereto. Whereupon the court discharged the jury and the defendant was arraigned and entered a plea of not guilty to the amended information, and another jury was sworn to try the case. The defendant then entered a plea of former jeopardy, which was overruled by the court. Prom an examination of the record we think the plea of former jeopardy, as a matter of law, was well taken. It further appears that there was not sufficient testimony to show the commission of the offense charged, or any other offense against the laws of Oklahoma. Por the reasons stated the judgment is reversed and the cause remanded with direction to dismiss.


text:
    J. M. CRAWFORD and GEORGE DEXTER v. STATE.
    No. A-1036.
    Opinion Filed January 17, 1912.
    Appeal from Okfuskee County Court; W. A. Huser, Judge.
    J. M. Crawford and George Dexter were convicted of violating the prohibitory law, and appeal.
    Reversed and remanded.
    Huddleston & Hackensmith, for plaintiffs in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

The Attorney General has filed a confession of error based upon the following instruction given by the trial court: “You are instructed that, when the state has proved beyond a reasonable doubt, as charged in the information, that the defendant had the designated liquors in his possession, it is incumbent upon the defendant to show such liquors were a lawful purchase, and if you believe from all the evidence beyond a reasonable doubt that he was in the possestion of the liquors, and the same were not a lawful purchase, you should convict the defendant.” The instruction, supra, does not state any rule of law applicable to the trial of the issues raised in this case. Let the judgment be reversed and the cause remanded for a new trial.


text:
    LEON WILSON et al. v. STATE.
    No. A-1071.
    Opinion Filed January 17, 1912.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Leon Wilson, Walt Steen, Ola McDaniels, and A. Moore, were convicted of violating the prohibitory law, and appeal.
    Appeal dismissed.
    Schaeffer & Herrigan, for plaintiffs in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellants were convicted in the county court of Tulsa county on a charge of violating the prohibitory law, and on the 30th day of December, 1910, adjudged to pay a fine of one hundred dollars and be imprisoned in the county jail for a period of thirty days each, at which time the court allowed thirty days to make and serve ease-made, ten days for amendments, five days for settlement, and fifteen days after settlement in which to file the appeal in this court. The Attorney General has filed a motion to dismiss the appeal on the following grounds: “Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Tulsa county on the 30th day of December, 1910, and the petition in error and case-made were not filed in this court until the 10th day of April, 1911, more than 60 days after the rendition of such judgment, no order having been made extending the time within which to file petition in error and case-made in this court beyond the time allowed by law.” The motion is well taken and the appeal must be dismissed because this court is without jurisdiction to review it. Dismissed.


text:
    WALTER FAUCETT and ROBERT GILLIAM v. STATE.
    No. A-1166.
    Opinion Filed January 17, 1912.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Walter Faucett and Robert Gilliam were convicted of violating the prohibitory law, and appeal.
    Beversed and remanded.
    Davidson & Williams, for plaintiffs in error.
    Smith C. Matson and E, G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Tulsa county, at the January, 1911, term, of violating the prohibitory law, and Walter Faueett’s punishment fixed at a fine of three hundred dollars and thirty days’ imprisonment in the county' jail, and Bobert Gilliam’s punishment fixed at a fine of fifty dollars and thirty days’ confinement in the county jail. Following the doctrine laid down by this court in the cases of Barr v. State, infra, 115 Pac. 1009; Harper v. State, infra, 115 Pac. 1009, and McDaniel v. State, infra, 115 Pac. 1010, we think the judgment of the trial court should be reversed and the cause remanded with directions to cause the county attorney to file a proper information, and try the ease anew. It is so ordered.


text:
    D. S. THOMPSON v. STATE.
    No. A-1167.
    Opinion Filed January 17, 1912.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    D. S. Thompson was convicted of violating the prohibitory law, and appeals.
    Beversed and remanded.
    Davidson & Williams, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen.,.for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Tulsa county at the January, 1911, term, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of three hundred dollars and thirty days’ imprisonment in the county jail. Following the doctrine laid down by this court in the cases of Barr v. State, infra, 115 Pac. 1009; Harper v. State, infra, 115 Pac. 1009, and McDaniel v. State, infra, 115 Pac. 1010, we think the judgment of the trial court should be reversed and the cause remanded with directions to cause the county attorney to file a proper information, and try the case anew. It is so ordered.


text:
    ART MATHIS v. STATE. W. A. KELLY v. STATE.
    No. A-931.
    No. A-932.
    Opinion Filed January 17, 1912.
    Opinion Filed January 17, 1912.
    Appeals from McClain County Court; E. E. Glaseo, Judge.
    J. F. Sharp and A. W. Wadlington, for plaintiffs in error.
   PER CURIAM.

The plaintiffs in error were convicted upon in-formations which charged the unlawful possession of intoxicating liquor with the unlawful intent to sell the same. The same witnesses testified and their testimony was the same in these cases. The only proof of defendants’ possession of intoxicating liquor attempted to be made by the state was a number of freight delivery receipts and orders to deliver shipments, indorsed on the back of bills of lading which were by the agent and cashier of the Santa Ee system at Purcell identified. They testified that said receipts were delivered to the person paying the charges against any shipment; that they had nothing to do with the actual delivery of the freight themselves, which was made by the warehouseman in a different depot from the one in which their offices were. That they had no jjersonal knowledge or independent recollection of the shipments or the delivery of the same. We believe this testimony is insufficient to show possession. There was no evidence introduced tending to prove the payment of the special tax required of liquor dealers by the United States, neither was any evidence offered that tended to prove unlawful intention to sell. The testimony being insufficient to support the verdict and judgment, it is unnecessary to notice other assignments of error. The judgments in these cases are therefore reversed.


text:
    BERT PEYTON v. STATE.
    No. A-1197.
    Opinion Filed January 17, 1912.
    Appeal from Delaware County Court; W. C. Hall, Judge. '
    Bert Peyton was convicted of a violation of the prohibition law, and appeals.
    Eeversed.
    G. W. Goad, O. L. Eider, and H. L. Marshall, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State. ■
   PER CURIAM.

The plaintiff in error was convicted on an indictment returned in the district court and duly transferred to the county court of Delaware county,' wherein he was charged with the unlawful sale of one quart of whisky. The jury returned a verdict of guilty. April 21, 1911, the court sentenced him to serve a term of thirty days in the county jail and to pay a fine of two hundred and fifiy dollars. From an order, overruling a motion for a new trial an appeal was perfected. The material testimony on the part of the prosecution is substantially as follows: Jim Meredith testified that he was acquainted with the defendant, and met him on the street and told him that he wanted some whisky for Lon Smith, his brother-in-law, who was down sick with the measles and that the doctor said that he needed it; that the defendant told him that he did not have any, but said to wait a minute and he would see if he could not find some; that he went up the street and was gone a little while and came back and told him to look in an old tub in the back of Dr. Holland’s building; that he asked him what it was worth and he said about one dollar and a half; that he went to Dr. Holland’s building and found a flat quart bottle of whisky, and that he left one dollar and a half on an old counter that was there. That he did not pay the defendant any money or tell him that he had left any money there. Over the objection of the defendant the Frisco railway agent at Grove was permitted to testify that he had in his custody the records of that station and among them was a delivery sheet showing the delivery of a shipment of two boxes of whisky; that he would hesitate to say the name on the delivery receipt; that he thought it was the name of the defendant; that he had no personal knowledge as to what the shipment contained or as to whether or not the signature was that of the defendant. Defendant testified on his own behalf in substance the same as the prosecuting witness, except that he stated that he told him that Dr. Holland had some whisky in the back end of his building; that he was in there and saw it. That he never sold any whisky or never received any money from the prosecuting witness and did not know whether or not he found the whisky there. Dr. J. E. Holland testified that he was acquainted with the defendant; that in April, 1910, he owned a building which had been used as a meat market. That his office had been burned, and the building being vacant, he had placed his desk in the front part of this building and was having some repairs made. That at the time in question he had a quart of whisky in a box or tub in the back end of the room and somebody stole it; that he had given the defendant a drink out of this bottle the dajr before he missed it. The foregoing is all the testimony offered on the trial. The first assignment -is that the court erred in permitting the state to introduce the freight delivery receipts without any identification of the defendant’s signature. We cannot conceive of any principle of the law of evidence that would justify the admission of the freight delivery record of the Frisco station at Grove against the-defendant with no pretense of proof whatever that the signatures thereon were that of the defendant. We think that this document was clearly inadmissible and when we consider the doubtful character of the testimony of the prosecuting witness as tending to show the commission of the offense charged, we are of the opinion that it cannot be held that this error was not prejudicial to the substantial rights of the defendant and should therefore be disregarded. It is therefor further insisted that the evidence is insufficient to sustain the verdict. The jury must have concluded that the defendant placed the bottle of whisky in Dr. Holland’s building, and that the prosecuting witness left the money there when he took the whisky, and that the defendant subsequently returned there and secured the money. This inference, we believe, is not warranted from a fair consideration of the evidence. However, the judgment of the trial court must be reversed for the error already pointed out. The judgment is therefore reversed and the cause remandd.


text:
    CHAS. ELY v. STATE.
    No. A-1412.
    January 20, 1912.
   Appeal dismissed, orally,


text:
    W. T. CRABTREE v. STATE.
    No. A-1438.
    January 20, 1912.
   Appeal dismissed, orally,


text:
    J. P. SIMMONS v. STATE.
    No. A-1448.
    January 20, 1912.
   Appeal dismissed, orally,


text:
    W. W. LINTON v. STATE.
    No. A-1113.
    Opinion Filed January 23, 1912.
    Appeal from Stephens County Court; W. H. Admire, Judge.
    Womack & Brown, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

We find no material error in the record and the verdict is amply sustained by the testimony. The judgment of the lower court is therefore affirmed.


text:
    BEN SINDERSON v. STATE.
    No. A-976.
    Opinion Filed January 23, 1912.
    Appeal from Garfield County Court; James B. Cullison, Judge.
    Ben Sinderson was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Geo. L. Eush, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Ben Sinderson, was convicted in the county court of Garfield county on the 19th day of September, 1910, on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and on the 23rd day thereafter was adjudged by the court in accordance with the verdict of the jury to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. The proof in this case shows possession, but there is no proof of intent to sell as contemplated by the statute. There is no proof of payment of the special revenue tax as provided by law, or of any other competent fact upon which to base the conviction. The judgment is reversed and the cause remanded for a new trial.


text:
    JOSEPH BROOKS v. STATE.
    No. A-1062.
    Opinion Filed January 23, 1912.
    Appeal from Greek County Court; Josiali G. Davis, Judge.
    Joseph Brooks was convicted of violating the prohibitory law, alid appeals.
    Affirmed.
    Rutherford, Fairchild & Davis, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Creek county on the 6th day of December, 1910, on a charge of violating the prohibitory law, and on the 10 th day of said month was sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for a period of sixty days. The appeal was perfected in this court on April 3, 1911. Upon a careful examination of the record we find no errors sufficient to justify a reversal of this cause. The judgment of the trial court is affirmed.


text:
    TOM DYER v. STATE.
    No. A-1069.
    Opinion Filed January 23, 1912.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Tom Dyer was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    J. H. Beatty, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1910, term of the county court of Oklahoma county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and was on the 9th day of January adjudged to pay a fine of two hundred dollars and be confined in the county jail for a period of sixty days. At this time the court was not asked to, and did not fix the time within which to make and serve ease-made, nor extended the time provided by statute for filing the appeal in this court. On March 4th, however, the court extended the time to make and serve ease-made in the following language: “The time for making and serving a case: made in the above entitled action is hereby extended thirty days from this date. March 4 ,1911. ’ ’ The thirty days allowed by statute within which to make and serve a ease-made had already expired when this order was made, and the court was therefore without jurisdiction to make it. This order does not attempt to extend the time within which the appeal should be filed in this court. No other orders having been made for that purpose, the time for filing such appeal as provided by statute lapsed sixty days from the 9th day of January, 1911. This appeal was filed on April 7, 1911, nearly ninety days after the rendition of the judgment. For the reason that the ease-made was not served within the time allowed by statute, and the appeal not perfected in this court within the time provided by law, this court is without jurisdiction to review the cause on the merits, and has jurisdiction only to dismiss the appeal. Let the appeal be dismissed'.


text:
    BEN WALLACE v. STATE.
    No. A-1077.
    Opinion Filed January 23, 1912.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Ben Wallace was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    John H. Beatty, and Taylor, Pruiett & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1910, term of the county court of Oklahoma county on a charge of unlawfully transporting intoxicating liquor, and on the 2nd day of January, 1911, was adjudged to pay a fine of one hundred dollars and be confined in the county jail for a period of thirty days. The ,appeal was not lodged in this court until the 11th day of April, 1911. No order-extending the time in which to perfect this appeal was made by the trial court. This case stands squarely on the doctrine laid down in the ease of Julius Stumpf v. State, infra, 117 Pac. 648. Following the rule there announced this court has no alternative except to dismiss this appeal. Appeal dismissed.


text:
    W. J. WILSON and JOHN STUMP v. STATE.
    No. A-1084.
    Opinion Filed January 23, 1912.
    Appeal from Carter County Court; M. F. Winfrey, Judge.
    W. J. Wilson and John Stump were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    I. R. Mason, for plaintiffs in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted at the January, 1911, term of the county court of Carter county on a charge of unlawfully keeping a place for the sale of intoxicating liquors, and were each sentenced to pay a fine of two hundred fifty dollars and be imprisoned in the county jail'for a period of ninety days. The appeal was properly perfected in this court on the 14th day of April, 1911. Upon a careful examination of the record we find no errors prejudicial to the substantial rights of plaintiffs in error, and the judgment of the trial court is therefore affirmed.


text:
    JOHN LUCKY and BOB RENEGAR v. STATE.
    No. A-1085.
    Opinion Filed January 23, 1912.
    Appeal from Carter County Court; M. P. Winfrey, Judge.
    John Lueky and Bob Renegar were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    I. R. Mason, for plaintiffs in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted at the January, 1911, term of the county court of Carter county on a charge of unlawfully keeping a place for the sale of intoxicating liquors, and were each sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for a period of thirty days. The appeal was properly perfected in this court on the 14th day of April, 1911. Upon a careful examination of the record we find no errors prejudicial to the substantial rights of plaintiffs in error, and the judgment of the trial court is, therefore, affirmed.


text:
    HENRY HAMPTON v. STATE.
    No. A-1086.
    Opinion Filed January 23, 1912.
    Appeal from Hughes County Court; P. W. Gardner, Judge.
    Henry Hampton was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Crump, Skinner & Bailey, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Hughes county, at the January, 1911, term thereof, on a charge of selling intoxicating liquors, and his punishment fixed at a fine of one hundred dollars and confinement in the county jail for a period of one hundred days. Upon a careful examination of the record we find no errors sufficient to justify a reversal of this cause. The judgment of the trial court is affirmed.


text:
    OSCAR HYBARGER v. STATE.
    No. A-1104.
    Opinion Filed January 23, 1912.
    Appeal from Garvin County Court; W. B. MeMitchell, Judge.
    Oscar Hybarger was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Thompson & Patterson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted in the county court of Garvin county at the January, 1911, term, on a charge of unlawfully transporting intoxicating liquors, and on the 26th day of February, was adjudged to pay a fine of fifty dollars and be confined in the county jail for thirty days. The only logical conclusion that can be arrived at from the testimony in this case is that the liquor plaintiff in error is charged with having transported was an interstate shipment, and was not intended for any unlawful purpose. Under the doctrine of the Maynes case, recently announced by this court, and not yet officially reported, this judgment is reversed and the cause remanded with directions to be proceeded with according to law.


text:
    WALTER STEEN v. STATE.
    No. A-1109.
    Opinion Filed January 23, 1912.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Walter Steen was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Schaeffer & Kerrigan, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Walter Steen, was convicted in the county court of Tulsa county at the March, 1911, term, on a charge of selling intoxicating liquor, and on the 3rd day of said month adjudged by the court in accordance with the verdict of the jury to pay a fine of five hundred dollars and be confined in the county jail for a period of ninety days. We have carefully examined the record and errors complained of, and find no errors sufficient to justify a reversal of this cause. The judgment of the trial court is therefore affirmed!”


text:
    CHARLIE McKNIGHT v. STATE.
    No. A-1142.
    Opinion Filed January 23, 1912.
    Appeal from Pottawatomie County Court; Ross F. Lockridge, Judge.
    Charlie MeKniglit was convicted of violating the. prohibitory law, and appeals.
    Affirmed.
    Mark Goode and A. M. Baldwin, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1911, of having the unlawful possession of intoxicating liquor with intent to sell the same, and on the 17th day of March, thereafter, was sentenced by the court, in accordance with the verdict of the jury, to pay a fine of two hundred fifty dollars and be imprisoned in the county jail for a period of sixty days. The appeal was perfected in this court on the 10th day of May, 1911. A careful examination of the record discloses no errors prejudicial to the substantial rights of the plaintiff in error. The judgment is affirmed.


text:
    CHARLEY OLIVER and E. NICHOLSON v. STATE.
    No. A-1205.
    Opinion Filed January 23, 1912.
    Appeal from Seminole County Court; T. S. Cobb, Judge.
    Charley Oliver and E. Nicholson were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    Crump, Fowler & Skinner, for plaintiffs in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of having the possession of intoxicating liquor for the unlawful purpose of sale. Thereafter, on the 13th day of March, Charley Oliver was sentenced to pay a fine of two hundred dollars, and be imprisoned in the county jail for sixty days, and E. Nicholson to pay a fine of one hundred fifty dollars, and be confined in the county jail for a period of thirty days. No briefs have been filed on behalf of plaintiffs in error, and no appearance made for oral argument. The Attorney General has filed a motion to affirm for want of prosecution under rule 4 of this court. The motion is well taken and is sustained. The judgment of the trial court is affirmed.


text:
    CHARLEY OLIVER v. STATE.
    No. A-1206.
    Opinion Filed January 23, 1912.
    Appeal from Seminole County Court; T. S. Cobb,. Judge.
    Charley Oliver was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Crump, Fowler & Skinner, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Seminole county, at the January, 1911, term, on a charge of unlawfully selling intoxiacting liquors, and on the 13th day of March, thereafter. was sentenced by the court in accordance with the verdict of the jury, to pay a fine of one hundred dollars and be confined in the county jail for a period of sixty days. No briefs have been filed on behalf of plaintiff in error, and no appearance made for oral argument. The Attorney General has filed a motion to affirm for want of prosecution, under rule 4 of this court. The motion is well taken and is sustained. The judgment of the trial court is affirmed.


text:
    JAMES SHELTON v. STATE.
    No. A-1208.
    Opinion Filed January 23, 1912.
    Appeal from Johnston County Court; Nick Wolfe, Judge.
    James Shelton was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    J. B. O’Bryan, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Johnston county, at the January, 1911, term, on a charge of unlawfully conveying liquors, and was sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Under the statute plaintiff in error had 60 days from the date judgment was •rendered to file his appeal in this court, no order having been made extending the time. The appeal was filed in this court on the 20th day of June, many days after time had expired within which the appeal could be filed under the law. This court is without jurisdiction to review the errors complained of, and can only dismiss the appeal. Counsel should see that their appeals are perfected in this court in order that the rights of their clients may be properly preserved. Let the appeal be dismissed, on motion of the Attorney General.


text:
    THAD OLIVER v. STATE.
    No. A-1228.
    Opinion Filed January 23, 1912.
    Appeal from Seminole County Court; T. S. Cobb, Judge.
    Thad Oliver was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Davis & Davis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days, in accordance with the verdict of the jury. No briefs have been filed on. behalf of plaintiff in error, and no appearance made for oral argument. The Attorney General has filed a motion to affirm for want of prosecution under rule 4 of this court. The motion is sustained. Let the judgment be affirmed.


text:
    ROY PEEL v. STATE.
    No. A-1323.
    Opinion Filed January 23, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Pruiett & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Roy Peel, plaintiff in error, was convicted in the upon an information charging the unlawful possession of intoxicating liquors with the intention to violate provisions of the prohibition law. Upon a trial had the jury returned a verdict of guilty and assessed his punishment at a term of one hundred and twenty days in the county jail and to pay a fine of four hundred dollars. May 11, 1911, the court sentenced the defendant in accordance with the verdict of the jury. Numerous errors are assigned in the petition, but from a careful examination of the record our conclusion is that the errors alleged are destitute of merit. The information sufficiently charges the offense. The exceptions to the rulings of the court on the taking of testimony are not well taken, and the law of the case was fairly presented in the instructions given. We cannot see that any mistake has been made or injustice done. The judgment of trial court is therefore affirmed. Mandate to issue forthwith.


text:
    GEORGE STRICKLIN v. STATE.
    No. A-1045.
    Opinion Filed January 23, 1912.
    Appeal from Blaine County Court; George W. Ferguson, Judge.
    George Stricklin was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    E. T. Barbour, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the November, 1911, term of the county court of Blaine county on a charge of having the unlawful possession of intoxicating liquors with intent to sell the same, and was sentenced, in accordance with the verdict of the jury, to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. The proof in the record- clearly established possession, but there is nothing whatever from which intent could be legitimately inferred under the law. Two essential elements enter into and constitute the offense charged against the accused. One of them is possession of intoxicating liquor, and the other is the intent to sell the same. It is just as essential to prove the one as it is the other, and proof of possession without proof of intent in addition to the possession has been repeatedly held by this court to be insufficient to sustain a conviction in this class of eases. There is no proof that the special revenue tax had been paid, and no proof that accused had ever sold or offered for sale this or any other liquor. As we have said in opinions heretofore, the statute does not make possession .of an unusual quantity of intoxicating liquor presumptive evidence of an intent to violate the law, and courts cannot by any reasonable rule of interpretation read such provisions into the prohibitory law. The proof shows that accused had three barrels of beer in his possession at the time of his arrest. The record indicates that an important witness for the state had been served with process, but did not appear and give his testimony. It may be that the state can on re-trial strengthen its testimony sufficiently to uphold a judgment of conviction, but the proof in this record is entirely insufficient. The judgment is reversed and the cause remanded with directions to the lower court to grant a new trial.


text:
    HENRY STEILS v. STATE.
    No. A-1444.
    Opinion Filed January 23, 1912.
    Appeal from Blaine County Court; Geo. W. Ferguson, Judge.
    I. H. Lookabaugli, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Henry .Steils, plaintiff in error, was convicted in the county court of Blaine county of the offense of maintaining a place where intoxicating liquors were received and kept for the purpose of selling, bartering-, giving away or otherwise furnishing said liquors. Upon a trial the jury returned a verdict of guilty and assessed his punishment at a term of six months in the county jail and to j>ay a fine of five hundred dollars. July 20, 1911, judgment and sentence was entered in accordance with the verdict of the jury. An examination of the record convinces us that the various assignments of error are without merit. The information sufficiently charges the offense, and there seem to be no reasonable doubt that the verdict of the jury was entirely in harmony with the interests of justice. The judgment of the lower court is therefore affirmed. Mandate to issue forthwith.


text:
    J. R. RIVES v. STATE.
    No. A-1092.
    Opinion Filed January 23, 1912.
    Appeal from Pontotoc County Court; Conway O. Barton, Judge.
    J. R. Rives was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Date Crawford and Crawford & Bolen, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1911 term of the county court of Pontotoc county on a charge of having the unlawful possession of intoxicating liquors for the purpose' of sale, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of six months. The Attorney General has filed the following motion to dismiss the appeal in this case:

“Petition in error was filed in this court April 13, 1911. Judgment was given January 9, 1911 (p. 36 of case-made). Order of court giving plaintiff in error thirty days to serve ease-made January 9, 1911, (p. 33 of case-made). February 8, 1911, order of court giving thirty days additional time to serve case-made and file appeal in Criminal Court of Appeals (p. 33% of case-made). February 28, 1911, order giving defendant thirty days additional time to serve ease-made and to file appeal in Criminal Court of Appeals (p. 34 of ease-made). The last extension of time given to file appeal and serve case-made expired March 81, 1911. Appeal was not filed in this court until April 13, 1911, thirteen days after the time given "by the trial court had expired. There is an unsigned order in the record (p. 35 of case-made) which conflicts with and is inconsistent with the orders made February 8th and 28th. Wherefore, the state of Oklahoma moves the court to dismiss the appeal filed herein by J. R. Rives, plaintiff in error, for the reason that the same was not filed as provided by law.” Counsel for plaintiff in error have filed no reply to this motion to dismiss. Our examination of the record supports the position taken by the Attorney General. The motion to dismiss is sustained, and the appeal accordingly dismissed.


text:
    SELMA PORTER v. STATE.
    No. A-1140.
    Opinion Filed January 27, 1912.
    Appeal from Canadian County Court; W. A. Maurer, Judge.
    Selma Porter was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Forrest & Sansom, and Lucius Babcock, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1911, term of the county court of Canadian county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of three hundred dollars and imprisonment in the county jail for a period of 'sixty days. The proof upon the part of the state is from one witness, who was employed for the purpose of securing evidence upon which to base prosecutions for violations of the prohibitory law. In his testimony he admits that he did not know the, accused prior to the date of the alleged offense; that he met him in the basement of the Southern hotel, in the city of El Reno, and there purchased the whisky; that to the best of his knowledge accused is the man who sold it to him. A number of witnesses testified that the accused was not at the hotel upon the morning the offense is alleged to have been committed; that he worked on the third floor of the hotel from twelve o’clock noon until twelve- o’clock night. One witness testified that he went down into the basement with the state’s witness and told him that he might get whisky from a negro named Carter, and that Carter is the man with whom witness dealt. The proof also shows that there was a strong resemblance between Carter and the accused. Both were negro boys working at the hotel. In our judgment the proof is entirely insufficient to sustain the judgment, and unless the state’s case can be made stronger, the prosecution should.be dismissed. The judgment is reversed and the cause remanded with directions to grant a new trial.


text:
    N. G. SCUDDER v. STATE.
    No. A-1185.
    Opinion Filed January 27, 1912.
    Appeal from Rogers County Court; H. Tom Eight, Judge.
    N. G. Scudder was convieted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Archibald Bonds and J. I. Howard, for plaintiff! in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State
   PER CURIAM.

Plaintiff in error was convicted at the March, county on a charge of violating the prohibitory law, and his jmnishment fixed at a fine of two hundred dollars and imprisonment in the county jail for a period of ninety days. The Attorney General, in open court, entered a confession of error in this case. Upon this confession, the judgment is reversed and a new trial awarded.


text:
    DICK MORRISON v. STATE.
    No. A-1186.
    Opinion Filed January 27, 1912.
    Appeal from Rogers County Court; H. Tom Eight, Judge.
    Dick Morrison was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Archibald Bonds and J. I. Howard, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convieted at the March, Rogers county on a charge of violating the prohibitory law, and his punishment fixed at a fine of two hundred fifty dollars and imprisonment in the county ¡jail for a period of ninety days. The Attorney General, in open court, entered a confession of error in this ease. Upon this confession, the judgment is reversed and a new trial awarded.


text:
    SEYMOUR DODSON v. STATE.
    No. A-1187.
    Opinion Filed January 27, 1912.
    Appeal from Rogers County Court; H. Tom Eight, Judge.
    Seymour Dodson was epnvicted of violating the
    Reversed and remanded.

      Archibald Bonds and J. I. Howard, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Bogers county at the March, 1911, term, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of forty-five days. The proof shows that the prosecuting witness told the accused to get.some beer, and charge it to his account; that he did not know whether accused charged him with the cost of the beer or not; and did not testify that accused agreed to charge it to his account. The proof on behalf of accused shows that he did not agree to charge prosecuting witness with the amount, and did not so charge him; that he bought the beer from another party and paid for it himself. The judgment of the trial court is reversed and a new trial awarded.


text:
    TOM HERNDON v. CITY OF McALESTER.
    No. A-1199.
    Opinion Filed January 27, 1912.
    Appeal from Pittsburg County Court; B. P. Hammond, Judge.
    Tom Herndon was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    J. G. Harley and Jas. B. Miller, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is a companion ease to No. A-1200, W. E. Abbott v. City of McAlester, infra. Por the reasons given in that case the judgment is reversed and the cause remanded with directions to the trial court to grant a new trial.


text:
    JOHN MARRS v. STATE.
    No. A-1230.
    Opinion Filed January 27, 1912.
    Appeal from Murray County Court; Harry W. Pielding, Judge.
    John Marrs was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    C. B. Emanuel and W. N. Lewis, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Murray county on the 4th day of May, 1911, on a charge of selling intoxicating liquor, and on the 8th day of said month was sentenced to pay a fine of one hundred fifty dollars and serve sixty days in the county jail. Binding no errors sufficient to justify a reversal of the judgment, the same is affirmed.


text:
    LOSS ROBINSON v. STATE.
    No. A-1181.
    Opinion Filed January 27, 1912.
    Appeal from Atoka County Court; Baxter Taylor, Judge.
    Loss Robinson was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    J.' G. Ralls and J. II. Gernert, for plaintiff .in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the March, 1911, term of the county court of Atoka county on a charge of having possession of intoxicating liquor with intent to sell the same, and on the 5th day of April, thereafter, was adjudged to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. The proof shows that the intoxicating liquor found in the possession of the accused was brought in from Texas, and had not reached its destination at the time it was seized. There is a total want of proof upon the question of intent. Possession alone being insufficient to sustain a judgment, and the liquor having come by interstate shipment, the judgment of the trial court is reversed and the cause remanded for a new trial.


text:
    E. E. STREATER v. STATE.
    No. A-1241.
    Opinion Filed January 27, 1912.
    Appeal from Seminole County Court; T. S. Cobb, Judge.
    E. E. Streater was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    H. M. Tate, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the March, 1911, term of the county court of Seminole county on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of fifty dollars and confinement in the county, jail for a period of thirty days. We have, carefully examined the record and find that -the accused had a fair and impartial trial In every particular. The instructions of the court were as favorable as the law justifies. Binding no error in the record to prejudice the substantial rights of the plaintiff in error the judgment of the trial court is affirmed.


text:
    JOHN MARRS v. STATE.
    No. A-1244.
    Opinion Filed January 27, 1912.
    Appeal from Murray County Court; Harry W. Fielding, Judge.
    John Marrs was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    C. B. Emanuel and W. N. Lewis, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Murray county on the 4th day of May, 1911, on a charge of selling intoxicating liquor, and on the 8th day of said month was sentenced to pay a fine of one hundred fifty dollars and serve ninety days in the county jail. Finding no errors sufficient to justify a reversal of this cause, the judgment of the trial court is affirmed.


text:
    L. HEINIMAN v. STATE.
    No. A-1267.
    Opinion Filed January 27, 1912.
    Appeal from Comanche County Court; James II. Wolverton, Judge.
    L. Heiniman was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Ham on & Ellis, for plaintiff in error.
    E. G. Spillman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Camanche county on the 1st day of March, 1911, on a charge of having the unlawful possession of intoxicating liquor for the purpose of sale, and thereafter on the 17th day of said month was sentenced to pay a fine of one hundred seventy-five dollars and be imprisoned in the county jail for a period of thirty days. No errors appearing front the record sufficient to justify a reversal of this cause, the judgment of the trial court is affirmed.


text:
    CHAS. STEUDLE v. STATE.
    Nos. A-1248, A-1249.
    Opinion Filed January 27, 1912.
    Appeals from Custer County Court; J. C. McKnight, Judge. .
    Chas; Steudle was convicted of violations of the prohibitory law, and appeals. Two eases.
    Eeversed and remanded.
    Jones & Bashore, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted at the June, 1911, term of the county court of Custer county on two charges of selling intoxicating liquor, and in case No. A-1248 was sentenced to pay a fine of one hundred fifty dollars, and be confined in the county jail for a period of thirty days; and in case No. A-1249 was sentenced to pay a fine of two hundred dollars and be confined in the county jail for a period of thirty days. When these cases were called for trial, plaintiff in error filed' the following motion in each to dismiss the prosecutions;

“Comes now the defendant, and moves the court to dismiss the above entitled and numbered cases for the reason that on or about the--day of January, 1910, the above named defendant was being held in the county jail of Custer county to answer the cases herein, and defendant entered into an agreement with F. A. Snodgrass, then county attorney of Custer county, wherein the defendant was to pay into court the sum of $400 filie and costs in the cases, and a 30 days1 sentence in the county jail of Custer county, all of which contract the defendant promptly did and filled, in return of said fine and sentence the agreement was that the county attorney would dismiss all of these cases pending against this defendant. That defendant believed that said cases had been properly dismissed, and had not been placed on the trial calendar since said date of said contract and agreement until said term of county court. The records of this court show that this defendant paid into court said sum of $400, and defendant avers that said sum of $400 was paid pursuant to such agreement and for no other purpose than as a compromise and settlement based upon the agreement had with the county attorney aforesaid. This motion will be supported by oral testimony which defendant desires to introduce hereof.”

The trial court in passing on said motion overruled the same for the reason that there was nothing in the record to show that there was ever an agreement made, and refused the offer of the defendant to prove the allegations of the motion. If this settlement as made in good faith by the county attorney with this accused, it was the duty of the court to see that the agreement was carried out. We have no way of determining whether or not the agreement was entered into. The court refused to permit proof. The record indicates that these informations were filed in 1909, and these eases were tried nearly two years later. It appears that the fine assessed against accused was paid, and the term of imprisonment served. The trial court should have heard the proof and determined the motion on its merits. The judgment is reversed and the cause remanded with directions to th a iteocrturlA,_-HEeHllhio and the cause remanded with directions to the trial court to grant a new trial on all the issues raised.


text:
    L. HEINIMAN v. STATE.
    No. A-1268.
    Opinion Filed January 27, 1912.
    Appeal from Comanehe County Court; James H. Wolverton, Judge.
    L. Heiniman was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Hamon & Ellis, _f or plaintff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the January, 1911, term of thé county court of Comanehe county, on a charge of unlawfully selling intoxicating liquors, and on the 17th day of March thereafter, was sentenced to pay a fine of one hundred dollars and be confined in the county jail for a period of sixty days. No errors appearing from the record sufficient to justify a reversal of this cause, the judgment of the trial court is affirmed.


text:
    L. HEINIMAN v. STATE.
    No. A-1269.
    Opinion Filed January 27, 1912.
    Appeal from Comanche County Court; James H. Wolverton, Judge.
    L. Heiniman was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Hamon & Ellis, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at 'the January, 1911, term of the county court of Comanehe county, on a charge of unlawfully selling intoxicating liquor, and on the 17th day of March, thereafter, was sentenced to pay a fine of one hundred fifty dollars and be confined in the county jail for a period of ninety days. No errors appearing from the record sufficient to justify a reversal of this cause, the judgment of the trial court is affirmed..


text:
    CHAS. W. NORTON v. STATE.
    No. A-935.
    Opinion Filed January 27, 1912.
    Appeal from Stephens County Court; W. H. Admire, Judge.
    Olías. W. Norton was convicted of tlie crime of libel, and appeals.
    Affirmed.
    P. S. Nagle, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen. (R. E. Gish, of counsel), for the-State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Stephens county on the 8th day of July, 1910, on a charge of libel, and on the 9th day of said month was sentenced by the court, in accordance with the verdict of the jury, to pay a fine of one hundred twenty-live. dollars. A careful examination of the record discloses no errors sufficiently prejudicial to the substantial rights of plaintiff in error to justify a reversal of this cause. Let the judgment of the trial court be affirmed.


author: RICHARDSON, Special Judge.

text:
    EDD EVANS v. STATE.
    No. A-716.
    Opinion Filed July 3, 1911.
    Appeal from District Court, Greer County; G. A. Brown, Judge.
    Edd Evans was convicted , of selling intoxicating'liquor to a minor, and he appeals.
    Reversed and remanded.
    C. C. Wells and C. G. Hornor, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   RICHARDSON, Special Judge.

Plaintiff in error was convicted in the district court of Greer county upon an information charging him with selling liquor to a minor, and was sentenced to imprisonment in the penitentiary for a term of five years. The act declaring this offense a felony and fixing the punishment therefor is unconstitutional and void, and the district court therefore had no jurisdiction of the cause. John Nowakowski v. State, ante, 116 Pac. 351, just decided.

This prosecution having been instituted by information and not by indictment, the cause is not transferable to the county court, but must be dismissed. Fred Wychoff v. State, ante, 116 Pac. 355, just decided.

The judgment of the district court is therefore reversed, and the cause remanded, with directions to dismiss the same.

FURMAN, P. J., and DOYLE, J., concur; ARMSTRONG, J., disqualified and not sitting.


text:
    GROVER KESTER v. STATE.
    No. A-715.
    Opinion Filed July 3, 1911.
    Appeal from District Court, Greer County; G. A. Brown, Judge.
    Grover Kester was convicted of selling liquor to a minor, and appeals.
    Reversed.
    C. C. Wells and C. G. Hornor, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   RICHARDSON, Special Judge.

This appeal is from a conviction upon an information filed in the district court of Greer county, charging the sale of liquor to a minor. Upon the authority of Nowakowski v. State, ante, 116 Pac. 351, just decided, the trial court was without jurisdiction of the cause; and the information is not transferable to the county court. Fred Wychoff v. State, ante, 116 Pac. 355, just decided.

The judgment of the lower court is therefore reversed, and the cause remanded, with directions to dismiss the same.

FURMAN, P. J., and DOYLE, J., concur; ARMSTRONG, J., disqualified and not sitting.


text:
    PORTER MEEK v. STATE.
    No. A-915.
    Opinion Filed July 3, 1911.
    Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge.
    Porter Meek was convicted of selling liquor to a minor, and appeals.
    Reversed and remanded.
    Cutlip & Maben, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   RICHARDSON, Special Judge.

Trial of this cause was had in the district court of Pattawatomie county upon an indictment charging plaintiff in error with the crime of selling intoxicating liquor to a minor, and resulted in a verdict of guilty and a sentence imposing upon plaintiff in error a term of imprisonment in the penitentiary. This appeal challenges the constitutionality of the act (Sess. Laws 1909, p. 164) under which this prosecution was instituted and carried on. The same question has just been passed upon by this court in the case of John Nowakowski v. State, ante, 116 Pac. 351, in which it was held that the act in question remits the fine which the Constitution has imposed for the illegal sale of liquor, and that it places the minimum term of imprisonment for the offense higher than the Constitution has placed, it, and that the act is therefore unconstitutional and void. That case is decisive of this.

The judgment of the lower court will therefore be reversed, and the cause remanded, with directions to transfer the same to the county court or superior court for trial.

FURMAN, P. J., and DOYLE, J., concur; ARMSTRONG, J., disqualified and not sitting


author: DOYLE, J.

text:
    HENRY METHVIN v. STATE.
    No. A-9060.
    Sept. 18, 1936.
    (60 Pac. [2d] 1062.)

      Frank Nesbitt, J. J. Smith, and J. G-. Austin, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). Appellant, Henry Methvin, was convicted in the district court of Ottawa county of the crime of murder, and in pursuance of the verdict of the jury was sentenced to suffer death by electrocution.

The errors assigned and argued will be considered in the order presented in appellant’s brief. The first assignment is that: “The evidence is insufficient to sustain a conviction.”

It was the theory of the state that the defendant, Methvin, is guilty of murder for the reason that he either actually shot and killed Cal Campbell, or aided and abetted Clyde Barrow in the shooting.

The defendant’s theory was that while he was present when the murder of which he was convicted was committed, he was there in the company of Clyde Barrow by compulsion; that he did not fire a shot during the affray which resulted in the murder of Cal Campbell; and that he in no wise aided, abetted, or assisted in the shooting.

It was admitted that the defendants Clyde Barrow, Bonnie Parker, and Henry Methvin were outlaws and fugitives from justice, having escaped from a Texas state prison, and that Cal Campbell, the deceased, was murdered in the manner charged while attempting with another officer to apprehend the aforesaid outlaws and fugitives from justice.

The evidence shows that the fatal shot was fired either by the defendant or by his codefendant, Barrow. The defendant testified that Barrow did the shooting; that he did not fire a shot. One witness for the state, whose attention was attracted by the noise of the first shots fired and saw the shots afterwards fired, stated that both men near the car in the ditch were shooting. However, assuming that the fatal shot was fired by Barrow, then there is still ample testimony from which the jury could find that the defendant, Methvin, was present aiding and assisting in the commission of the murder. If he were present as an aider and abettor in the commission of the crime, he would be a principal, although the other did the killing.

Our Penal Code, section 1808, St. 1931, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

It is urged that the defendant was present at the time under compulsion and that he acted under the impulse of fear that he would himself be killed by his co-defendant, Barrow, if he did not obey his orders.

In People v. Repke, 103 Mich. 459, 61 N. W. 861, a threat made three days before a murder, that the respondent would himself be killed if he did not go and assist, was held to be no defense.

In Leach v. State, 99 Tenn. 584, 42 S. W. 195, 197, a request to charge that if the defendant was forced by fear of coconspirators to commit the murder in order to save his own life, he would not be guilty of murder, was held to be properly refused. The court said:

“He could not with any degree of legal palliation elect a course absolutely safe to himself, and slay an innocent man, rather than take some risk to himself in an equal combat with a relentless companion.”

In State v. Nargashian, 26 R. I. 299, 58 A. 953, 106 Am. St. Rep. 715, 3 Ann. Cas. 1026, the Rhode Island Supreme Court held:

“The fact that the accused, in assisting in the killing of another, acted under a fear of death imposed by the threats of the person he assisted, does not necessarily eliminate the elements of malice and premeditation so as to reduce the crime to manslaughter.”

In the opinion it is said:

“It would be a most dangerous rule if a defendant could shield himself from crime by merely setting up a fear from a threat of a third person.”

When the accused is present, aiding and abetting another in the commission of crime, he may be considered as expressly assenting thereto, so where he has entered into a conspiracy with others to commit a felony or other crime under such circumstances as will, when tested by experience, probably result in an unlawful taking of human life, he must be presumed to have understood the consequences which might reasonably be expected to flow from carrying into effect such unlawful combination, and also to have assented to the aiding of whatever should reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life.

From a careful review of the evidence, our conclusion is that in view of the undisputed facts and circumstances in the case the sainé does not show any foundation for the defense by reason of fear, even if it could have availed.

In the case of Hargus v. State, 58 Okla. Cr. 301, 54 Pac. (2d) 211, 212, this court held:

“For the purpose of preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed.”

In the case of Davis v. State, 59 Okla. Cr. 26, 57 Pac. (2d) 634, this court held that:

“A peace officer has the right without a warrant to arrest a fugitive from justice. The officer being in the right and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder if he knew that the person attempting to make the arrest was an officer.”

The credibility of the witnesses and the weight to be given their testimony was for the determination of the jury, and in weighing the evidence the jurors must be satisfied beyond a reasonable doubt that it establishes the guilt of the defendant. Evidently the defendant’s account of the tragedy did not raise in the minds of the jurors a reasonable doubt of his guilt.

It is a rule of the law that, where the parties act in concert with a common design, they are both alike guilty as principals, and we see no reason to doubt that this conviction was justified and sustained by the evidence.

The second assignment of error is that:

“The court erred in permitting the direct examination of the witness, Percy Boyd, to be read to the jury without reading the testimony of said witness given on cross-examination.”

Procedure Criminal, section 3085, St. 1931, provides:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising1 in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

It does not appear from .the record that the jury were returned into court and asked to have the testimony of the witness Percy Boyd read. There is no recital in the record proper, or in the case-made, showing that this was done. It appears from the testimony of certain jurors that after having retired for deliberation they were brought into the courtroom and the testimony of the witness Boyd was read by the reporter. There is nothing in the record tending to show that the defendant and his counsel were not present when this information was given, and it does not appear that any objection was made or exception taken.

All presumptions are in favor of the regularity of the proceedings. There being nothing in the record in this case to show irregularity, or, if any, that any objection was made or exception taken, it follows that on the complaint made there is nothing before this court to be reviewed.

This brings us to the only remaining proposition presented in appellant’s brief.

It is contended that the defendant did not have a fair and impartial trial, in that the juror John Mayes had formed, and on several occasions expressed, his opinion as to the guilt of the defendant by remarking, that in his opinion Henry Methvin ought to get just what Clyde Barrow and Bonnie Parker did, and that was death, and if ever he sat on a jury trying Henry Methvin on that charge that is what he would give him; that if he were a juror on the trial of said cause that he would give Meth-vin the electric chair; and other similar remarks at other times. This was one of the grounds of the motion for a new trial as follows:

“That on his voir dire examination said juror stated that he had neither formed or expressed an opinion theretofore as to the guilt or innocence of the defendant on the charge of murder herein made, and had no such opinion at that time; that on general inquiry made by the court if any member of said panel knew of any reason whatsoever that would prevent him from sitting as a qualified juror and giving the defendant a fair and impartial trial in said cause the said juror did not make known his disqualification as hereinafter stated, hut proceeded to take the oath as juror in said cause, and participated in the rendition and return of the verdict of ‘guilty’ in said cause and the return of the death penalty. That in truth and in fact said juror, John Mayes, had formed and many times expressed his opinion that the defendant, Henry Methvin, was guilty of murder as charged in the information herein, and further stated in substance that if he ever sat on a jury trying said defendant on said charge he would not only find him guilty but would insist on the ‘death penalty’. And defendant alleges that said juror had said opinion at the time he qualified as said juror and failed to disclose that fact to the court or counsel, and that neither the defendant nor his counsel knew the substance of the statements so made by said John Mayes, nor did they know that he had in fact formed and expressed an opinion as to the guilt or innocence of the defendant and had such opinion at the time the jury was sworn in said cause.
“In support of which allegations on this ground contained the defendant hereto attaches the affidavits of Sam Stewart, Otto Cooper, B. O. White, W. M. Thomason, T. C. Womeldroff, S. L. White, W. ,S. Potts, Noble Anderson, P. E. Cundiff, M. T. Hall, Carl Lindsay, Maudie Potts, Harvey Partían, Henry Methvin, J. J. Smith, J. 0. Austin, and Frank Nesbitt, and makes the same a. part of this motion.”

Upon the hearing on the motion for new trial the juror John D. Mayes testified:

“I am 54 years old. I was one of the jurors qualified and accepted on the trial of Henry Methvin, I was in charge of relief work at the time of the first trial and I did not attend, and was not in the court room during the first trial; I knew nothing about the case of Henry Methvin and never remarked to any person that if I sat on a jury in the trial of the case that I would give him the electric chair, I never formed nor did I express an opinion as to the guilt or innocence of the defendant, Methvin, to any person or persons, I never did make any statements as set forth in the affidavits or any such in substance to any person at any time; that the jury were out deliberating on their verdict about twenty six hours and it was on the last ballot taken that I voted guilty.”

The testimony of the juror Mayes, as to not being present in the courtroom during the first trial, was corroborated by the testimony of the officer acting as doorkeeper during the first trial, and was corroborated by the testimony of five jurors as to being one of the three last jurors voting for a conviction.

The state called and examined the persons who made the corroborating affidavits, and also called witnesses to impeach the testimony of said affiants. The transcript of the testimony taken on the hearing is voluminous, consisting of over 200 pages.

It is a settled rule of this court that the finding of the trial court upon a question of fact arising upon affidavits and evidence adduced on a motion for new trial will not be disturbed where the evidence reasonably tends to support such finding. Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350.

Without going into a detailed analysis of the testimony taken on the hearing, we hold that the trial judge did not abuse his discretion in refusing to grant a new trial.

The instructions given by the court fully covered the law of the case as applicable to the evidence and were more favorable to the defendant than the law requires.

It is also urged that the punishment assessed and sentence of death imposed is excessive and was the result of passion and prejudice on the part of the jury.

Under the following provision of our Penal Code the punishment to be inflicted for the crime of murder is left to the discretion of the jury:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury.” Section 2222, St. 1931.

The verdict of the jury is conclusive upon the trial court, and the court below is without power or authority to render judgment and sentence except in accordance with the verdict. On appeal, however, our Procedure Criminal provides that:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.” Section 3204, ,St. 1931.

In the case of Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613, 620, it is said:

“By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life.”

And see Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Anthony v. State, 12 Okla. Cr. 494, 159 Pac. 934; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714; McConnell v. State, 18 Okla. Cr. 688, 197 Pac. 521; Young v. State, 19 Okla. Cr. 363, 200 Pac. 260; Phillips v. State, 27 Okla. Cr. 108, 225 Pac. 180.

The law regards human life as the most sacred of all interests committed to its protection; and no more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing even when it is taken by the law in the due administration of justice.

In this case it appears that on the defendant’s first trial the jury failed to agree, and while we think the defense by reason of fear entirely failed and was properly discredited by the jury, yet it appears that the defendant had agreed with the authorities in Louisiana to aid and assist federal and state officers to apprehend his co-defendants, Clyde Barrow and Bonnie Parker, and in pursuance of said agreement did give to the authorities in Louisiana information that lead to their justifiable killing by officers of the law.

For the reasons stated, we are of opinion that the punishment imposed is excessive, and that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the penitentiary for life, and as thus modified the judgment is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte OLIVER WASHINGTON.
    No. A-9201.
    Sept. 18, 1936.
    (60 Pac. [2d] 1119.)
    E. D. Reasor, for petitioner.
    Mac Q. Williamson, Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, Oliver Washington, filed his duly verified petition in this court on the 14th day of September, 1936, alleging that he was wrongfully and unlawfully imprisoned by Fred Hunt, warden of the State Reformatory at Granite, Okla. Petitioner alleges his restraint is illegal and unauthorized by law. An alternate writ was issued made returnable on September 17, 1936, at 10 o’clock a. m., at which time the petitioner appeared by his attorney, E. D. Reasor, and the state appeared by the Attorney General.

After hearing the argument of counsel, the case was submitted on the pleadings and argument. After a careful consideration and study of the pleadings and argument, and listening to the respective counsel, the court is of the opinion that the petitioner is not entitled to the relief prayed for.

The writ is denied.


author: DAVENPORT, J.

text:
    SETH STONE v. STATE.
    No. A-9033.
    Sept. 18, 1936.
    (61 Pac. [2d] 41.)

      Glen Morris and Joe Adwon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by information jointly charged with Perry W. Morton, tried separately, convicted, and sentenced to serve a term of two and one-half years in the state penitentiary. Motion for new trial was filed, considered, overruled, and the plaintiff in error has appealed. The plaintiff in error hereinafter in this opinion will he referred to as the defendant.

The charge against the defendant is that he received one $100, per cent. Liberty Loan Bond, No. 552860, of the value of $100, knowing the same to have been stolen from the Farmers National Bank, of Lincoln, Kan., which bond it is alleged was the personal property of Mrs. Sarah E. Hayden.

The testimony on behalf of the state shows that Mrs. Sarah E. Hayden had delivered the $100, 4% per cent. Liberty Loan Bond, No. 552860, to the Farmers National Bank, of Lincoln, Kan., for safekeeping, the bank becoming the custodian for Mrs. Hayden. The testimony further shows that this bond, together with several others, was stolen from the bank.

The state called Berry W. Morton, who testified in substance:

“I am one of the defendants in this case; I am an attorney at law, practicing in Oklahoma City, have been in Oklahoma City about five years; my office is on the eighth floor of the Ramsey Tower. During the month of April, 1933, Seth Stone was introduced to me by a man named Duncan; the defendant Stone stated to me his brother had been convicted in the district court of Shawnee and sentenced to 10 years; defendant Stone said he had some Liberty bonds, but he did not have any money, and I said, ‘All right, I had just as soon have Liberty bonds as money.’ After some discussion he said, ‘But they are hot;’ he said they had been stolen in Kansas, or some place other than Oklahoma. I think it was the next day he came back to my office and brought a $100 bond. State Exhibit 1 is the bond that Seth Stone brought to me at my office.
“After the bond was delivered to me, I let John Adams, and another man by the name of Hooper, I think he was a private detective, and a man by the name of Guy Zingerly, have the bond, which was afterwards returned to me. I saw Seth Stone later in my car in front of the house in which he lived on West Twenty-Fourth Street. I had a conversation with him in the presence of Mr. Zingerly, in which conversation Stone said he could deliver a large number of bonds worth something like 30 some thousand or 50 some thousand. We talked about the sale of these bonds, and the defendant Seth Stone said he would have to get better than 11 cents on the dollar for the bonds; he also said he would have to have some $25 in money; that he would have to wire some man, I think he said in Joplin, Mo., the money to be used to pay the expenses of this man to Oklahoma City; that this fellow had been down a time or two to help him sell the bonds and that he would not return unless we furnished him with expense money. We did not furnish the money, and he said he guessed he would do that. I do not know whether he did or not.
“The next time I saw the defendant was about the 13th of April. Zingerly and I had gone to the room in the hotel and talked with a man who was introduced as a Mr. Wilson, as a booster. This man Wilson said he would buy the bonds and pay 16 cents on the dollar. I called Stone’s residence and told him Wilson wanted to buy the bonds and told him he would pay 16 cents, and he said, ‘you had better drive out.’ I think that was all that was said in the conversation. I went out and talked with him and gave him Wilson’s room number at the hotel; I told him Wilson wanted him to bring all the bonds he had or could get at one trip, he wanted to leave town. Stone said, ‘No, I won’t do that, I will take one of them,’ and, if everything was all right, he would bring the balance of them. ‘You fellows go and wait for me in the lobby of the Skirvin Hotel.’ Stone said he had the bonds.
“I did not see Stone again until after he was arrested and I was in custody. This bond, State Exhibit 1, at the time of my visit to Stone, and all of this conversation, was in the drawer of my desk in my office in the Ramsey Tower. After we were arrested, a federal employee named Cooley took me up to my office and I got it out of the desk and handed it to him. At the time I was talking to Wilson about the bonds in the hotel I did not know he was a federal officer.”

On cross-examination this witness stated, when he talked to John Adams and gave him the bond, he knew Adams was a deputy sheriff.

“I gave Adams the bond before I talked with Wilson; I was helping this man to sell the bonds; I did not know Wilson was an officer; I came from Eldorado, Ark., to Oklahoma City. There were a number of men who had offices in the same suite of rooms in which I was officing. Duncan left immediately after introducing me to Mr. Stone. Before leaving, Duncan said, ‘Stone, this is the man I was talking with you about,’ and told me who he was. I did not go into his brother’s case; I talked to him as an individual, and he told me he could not pay me except in hot Liberty bonds. He had not submitted any bond to me at that time; he gave me the bond on his second visit to the office. State Exhibit 1 is the bond he delivered to me in my office. I never gave Seth Stone any money. I learned Mr. Zingerly was dead through a friend of mine. I never heard of a man by the name of Wagner until I saw in the paper a few months after this where he had been arrested in California when alighting from an aeroplane.
“I received this bond, which is State Exhibit 1, from Stone about the 5th or 6th of April, 1983. I called the defendant from the Sldrvin Hotel and had a conversation with him on the 13th day of April, 1933, and then drove out to his house; I asked him if he had the bonds, the defendant wanted to know if we wanted all of them, and said, ‘Yes, I have them,’ and fingered with some papers in his pocket; I don’t know whether they were bonds or not — I would not say they looked like bonds. I was not present at the hotel room when Seth Stone came in; I was only in the room once. Zingerly and I were to meet Seth Stone in the lobby. We were expecting him when the officers arrested us. I did not see Stone at the hotel.”

G. B. Wilson stated:

“I am an Operative U. S. Secret Service man. On the 12th and 13th of April, 1933, I was temporarily assigned to Oklahoma City, for general assignment purposes. I have seen State Exhibit No. 1 before. Guy Zin-gerly brought this bond to our office and submitted it to Operative Cooley and myself. The bond was returned to Zingerly on or about the 9th of April, 1933. On April 13, 1933, I was introduced to Mr. Perry Morton, in room 818, Skirvin Hotel. Morton stated he was in a position to supply me with an unlimited number of those Liberty bonds. We agreed upon a price of 16 cents on the dollar. Mr. Morton made a phone call while in the room. I heard Mr. Morton say, ‘Is that you, Seth?’ and Mr. Morton says, ‘We will be out.’ An hour or so thereafter there was a rap on my door and I answered the rap, and the defendant Seth Stone was standing there; he said, ‘I guess you know who I am,’ and I says, ‘I never saw you before.’ Stone stated a fellow by the name of Mortpn talked with me from here a while ago, and said, ‘I guess you know what it is all about.’ I said, ‘Now let’s get down to business, how about those bonds’; he says, ‘What do you want; how much will you give’; I told him I wanted all he could deliver. We discussed the price, and I asked him if he brought the bonds with him, and he said, ‘Yes,’ and I said, ‘Let’s see them,’ and he said, ‘Let’s wait until Morton gets here,’ and I replied, ‘All right.’
“Before Morton and Zingerly returned to my room, Operative Cooley and some other officers came and placed Seth Stone under arrest. There was nothing further said about the bonds. I was to pay 16 cents on the dollar. I understood that Perry Morton was in on the deal.”

State Exhibit 3 was handed to the witness and 'asked where it came from, and he replied:

“From the inside po.cket of ,Seth Stone, in room 818, Skirvin Hotel, on April 13, 1933. At the time Seth Stone was arrested, Guy Zingerly and Perry Morton, Seth Stone’s brother Fred or Emery, I think, were arrested. In our office after being questioned, Morton and Zingerly made a statement; Seth Stone was asked to make one and refused to make a written statement or any statement.”

On cross-examination witness stated the defendant, Stone, was not present in his room at the time of the alleged telephone conversation by Morton to some one on the outside. Witness further stated that the word “appeal” was not used in the telephone conversation by Morton.

“Mr. Stone was searched in my presence and there was no bond found on his person at any time. This particular bond, State Exhibit 1, was taken from Perry Morton’s office, or surrendered to the officers when they took Morton to his office while he was under arrest. Mr. Zin-gerly is dead; died in December, ’34.”

The state then asked permission to read what it termed State Exhibit 3, Beceipt on Telegraph Money:

“Oklahoma City, Oklahoma. Beceived from S. W. Stone, $15.00, to be paid to E. S. Wagner, at Joplin, Missouri. Dated April 12, 1933. 94c paid.”

The state called Bobert A. Baker as a witness; he stated he was an operative United States secret service man.

“In April I saw the defendant, Seth Stone; this receipt was taken from the defendant, Seth Stone, in our office, and it has been in my possession until it was surrendered to operative Cooley; I saw it initialed.”

Perry Morton was recalled and stated he was in the lobby of the hotel at the time he was arrested.

“I did not leave voluntarily but was taken that day to the city jail. I was taken to my-office the next day where I delivered the bond. I took it out of a drawer of my desk and handed it to the federal officers after they brought me from the city jail to my office. I delivered the bond to them on the 14th day of April, 1933.”

C. B. Wilson was recalled by the state and testified he remembered the apprehension of E. S. Wagner, in Los Angeles, Cal.; lie bad possession of $85,000 in Liberty bonds; they were part of tbe loot taken from, tbe bank in Kansas. He further stated that tbe bond in question in this case could be cashed only by tbe party to whom it was made out, as it had not been assigned or endorsed by Mrs. Hayden. Tbe foregoing is tbe substance of tbe testimony introduced by tbe state.

When tbe state closed its testimony, “tbe defendant rested, and demurred to tbe evidence of tbe state on tbe ground that tbe state bad wholly failed to prove possession , of any stolen property or bond, or that tbe bond introduced in this case was taken from tbe bank in Kansas, and has failed to produce evidence enough to sustain a cause of action as charged in tbe information, and for tbe reason further that all of tbe evidence and testimony introduced is not sufficiently corroborated to go to tbe jury,” which demurrer was overruled and exceptions duly saved. Tbe defendant then moved for a directed verdict, which motion was overruled and exceptions saved.

Tbe information in this case specifically charged tbe defendant and other parties with having possession of one $100, 4% per cent. Liberty Loan bond, No. 552860, of tbe value of $100, knowing this Liberty bond was stolen. Tbe testimony of the state shows that tbe bond described in tbe information and introduced in evidence was stolen from tbe Farmers National Bank, at Lincoln, Kan. Perry W. Morton is tbe only witness testifying in tbe case that tbe defendant bad possession of tbe bonds be is charged with having, knowing tbe same to have been stolen. Tbe defendant in bis argument discusses at length tbe question that Morton was an accomplice, and therefore bis testimony is not corroborated. This argument of tbe defendant is largely upon tbe ground that tbe court in its instruction told tbe jury, as a matter of law, that Perry W. Morton was an accomplice of the defendant, Seth Stone. We think that the evidence fails to show the witness Perry W. Morton to he an accomplice, and the instruction of the court that he was an accomplice was an error in favor of the defendant. The instruction of the court is as favorable to the defendant as the facts in the record justify.

Ballentine, in his Law Dictionary, defines an accomplice as being a person so connected with a crime that at common law he might himself have been convicted either as principal or as an accessory before the fact. An accomplice may be one of the principal actors or an aider or abettor, or an accessory before the fact, and includes all persons who participated whether as principals, aiders and abettors, or accessories before the fact.

The testimony is clear that the defendant in this case was accompanied to the office of Perry W. Morton by a man by the name of Duncan, and was introduced to Morton, had a conversation with Morton as to a case of his brother who was in jail at Shawnee; that he told witness Morton the time he was introduced to him he did not have any money to pay him for looking after his brother’s case, but he had some bonds that were hot, and he returned the next day and brought with him the bond in question in this case. Under this testimony Morton could not be an accomplice in receiving the bond, knowing it to have been stolen, as it had already been received by the defendant and taken to the office of Morton.

The testimony of Morton is not denied by the defendant or by any one testifying for him, and it is therefore undisputed that the bond had been received by the defendant before he met the witness Morton. If Morton could be charged with any crime, he might be charged with accessory after the fact. The testimony further discloses that when Stone was arrested he had in his pocket what purported to he a receipt for $15 to be sent to E. S. Wagner, at Joplin, Mo. The receipt was not signed by any one, and was introduced for the purpose of trying to connect the defendant with E. S. Wagner, who was later arrested as he alighted from an aeroplane, in the state of California, and had in his possession about $35, 000 in Liberty bonds stolen from the bank in Kansas at the time the bond in question in this case was stolen.

The rule repeatedly announced by this court is that it will not reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending, to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury had acted from partiality, passion, or prejudice. Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507.

The punishment imposed clearly indicates that it was not the result of passion or prejudice. Considering all the evidence in the case and circumstances surrounding the action of the defendant, as disclosed by the record, we hold that Perry W. Morton was not an accomplice of Seth Stone; that the defendant Seth Stone was accorded a fair and impartial trial. The evidence is sufficient to sustain the judgment.

No errors appearing in the record, the judgment is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.