text:
    ZACHARIAH SIGNS v. STATE.
    No. A-6210.
    Opinion Filed Nov. 27, 1926.
    (250 Pac. 938.)
    W. L. Houts and Robert L. Hadwiger, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woods county on a charge of incest and sentenced to serve a term of eight years in the state penitentiary.

The record discloses that defendant, a married man, lived at a section house on the branch line of the Santa Fe railroad near Fair Valley, in Woods county, and worked as a section hand. His wife was an inmate of an insane asylum; the prosecuting witness was his daughter who, at the time, was of the age of 13 years. The charge is based on section 1866, Comp. Stat. 1921, which reads:

“Persons who, being within the degrees of consanguinity within which. marriages are by the laws of the state declared incestuous and void, intermarry with each other, or commit adultery or fornication with each other, are punishable by imprisonment in the penitentiary not exceeding ten years.”

The defendant being without means, the court appointed counsel. The case was called for trial on October 23, at which time counsel filed an affidavit setting out that he believed defendant insane and not in a mental condition to make defense. The court, thereupon called a, jury for a trial on the sanity of defendant, under the provisions of sections 2866, 2867, 2868, 2871, and 2872, Comp. Stat. 1921. This jury was unable to reach a verdict and was discharged on October 24. By agreement of counsel, the case was continued until February 8, when the case was again called for trial; no further suggestion of insanity was made; the tria] resulted in verdict and sentence, as stated. After verdict, defendant filed a motion for a new trial on the grounds that the court erred in its decision of questions of law arising at the trial; that the verdict is contrary to the law and is not supported by the evidence.

Several assignments of error are presented in the briefs which are not properly preserved for consideration for the reason that they were not set np in the motion for a new trial. None of these assignments contain any fundamental error and are waived by failure to present to the trial court in the motion for new trial. The prosecuting witness testified to two acts of intercourse accomplished by defendant by persuasion or commands. At the conclusion of the state’s testimony, defendant moved for the court to require the state to elect upon which act it would rely, which was overruled. This was error, but the county attorney, on his own volition, elected one of the acts and so stated in open court, and the instructions of the court were then directed to this particular act. This was sufficient under the rule announced in the cases of Smith v. State, 20 Okla. Cr. 123, 201 P. 663, Pope v. State, 24 Okla. Cr. 213, 217 P. 498, and Cooper v. State, 31 Okla. Cr. 165, 237 P. 867.

Under the contention that the evidence is not sufficient to support the verdict, it is argued that there was no proof of penetration sufficient to constitute incest. It is the contention that there must be a complete act of coition to prove incest. The evidence of two physicians who examined the genital organs of the prosecutrix was that the hymen had not been ruptured, and there had been no laceration, and that, while a rupture of the hymen was not a determining factor, yet, owing to the age and development of prosecutrix, if she had had intercourse it must necessarily have been in the external part of the genital organ. The testimony of the prosecutrix was positive; in addition, there was evidence of two or more persons to whom the defendant admitted his guilt. This evidence was for the jury and, upon this point, is sufficient to sustain the verdict. One purpose of the statute is to promote domestic peace and social purity, so, by the great weight of authority, proof of penetration without proof of emission is sufficient. 14 R. C. L. p. 31, § 2; State v. Judd, 132 Iowa, 296, 109 N. W. 892, 11 Ann. Cas. 91; State v. Hamey, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846; 31 C. J. 375, 376.

Counsel for defendant- contend that, in order to make proof of the statutory crime of incest, the assent of both parties must be proved. That where one of the parties, as here, is incapable by reason of nonage of giving consent, the crime is rape and not incest. There are some authorities that support this view. De Groat v. People, 39 Mich. 124; State v. Jarvis, 20 Or. 437, 26 P. 302, 23 Am. St. Rep. 141; State v. Thomas, 53 Iowa, 214, 4 N. W. 908. The latter case apparently has been overruled by later decisions of that state. The general rule, however, is to the contrary.

14 R. C. L. p. 34, § 5, reads:

“In some jurisdictions, it seems that the crime is constituted of a joint act to which both participants must consent, and that evidence of violence committed on the prosecutrix makes the offense rape and not incest.' But the better view is that every element of the crime of incest may exist as against one party to the act, though he did it by force or fraud, or otherwise, without the consent of the other party.”

See, also, 31 C. J. p. 378, § 15; State v. Chambers, 87 Iowa, 1, 53 N. W. 1090, 43 Am. St. Rep. 349; State v. Hurd, 101 Iowa, 391, 70 N. W. 613; State v. Judd, supra; State v. Nugent, 20 Wash. 522, 56 P. 25, 72 Am. St. Rep. 133; Bishop on Statutory Crimes (3d Ed.) § 660.

Section 1866 of our statute, supra, defines incest under three different conditions: First. Where parties within the prohibited degree of kinship intermarry. Second. Where they commit adultery with each other. Third. Where they commit fornification with each other. The first does not apply, and, since our statute defines fornication as sexual intercourse between two persons, neither of whom is married, the third condition does not apply. The incest charged, if proved, must fall under the second condition; i. e., where the parties commit adultery with each other.

Our statute, section 1852, defines adultery as:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex.

* *

Adultery, under the definition here given, is an act of sexual intercourse by a married person with one of the opposite sex, not intercourse between persons of the opposite sex, one of whom, at least, is married. Adultery, as thus defined, does not require that the act shall be voluntary as to each of the parties. This court, in the case of Woody v. State, 10 Okla. Cr. 322, 136 P. 430, 49 L. R. A. (N. S.) 479, in discussing the crime of adultery, said:

“Again, it is true that to constitute adultery there must be a joint physical act, but it is not necessary that there should be a joint criminal intent. The bodies must concur in the act, but the minds may not; one may be guilty and the other innocent. A few illustrations will demonstrate this conclusively; namely, if A., being a married man, should have sexual intercourse with B., a single woman, who was so drunk or demented as to be unable to give her consent, such woman could not be convicted, but A. may be prosecuted and convicted either for adultery or rape. Or. if A., being a married man, should marry B., a single woman, who had no knowledge of A.’s previous marriage, B. would not be guilty of any offense, but A. might be prosecuted and convicted either for bigamy or adultery. The following cases support the conclusion at which we have arrived: State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; State v. Caldwell, 8 Baxt. (Tenn.) 576; Alonzo v. State, 15 Tex. App., 378, 49 Am. Rep. 207; Watson v. State, 13 Tex. App. 76; State v. Sanders, 30 Iowa, 582; State v. Donovan, 61 Iowa, 278, 16 N. W. 130; Commonwealth v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248; State v. Eggleston, 45 Or. 346, 77 P. 738; State v. Carrol [Carroll], 30 S. C. 85, 8 S. E. 433, 14 Am. Rep. 883; Solomon v. State, 39 Tex. Cr. R. 140, 45 S. W. 706.
“Mr. Wharton says: ‘One defendant may be acquitted without involving the acquittal of the other.’
“Mr. Bishop says: ‘As every offense to be punishable. must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one’s unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not, just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore the same act of penetrating a woman, who, for example, is too drunk to give consent, may be prosecuted either as a rape, or as adultery, at the election of the prosecuting power. There are cases which deny this and hold that adultery, fornication, and incest can be committed only with consenting persons, and what is rape cannot be one of the others’. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly, in principle, they can have no other just foundation.’ Bish. Stat. Crimes, § 660.”

We therefore hold that incest is proved, although the female was incapable of and did not give her consent or voluntarily participate in the act of intercourse, even though the state might have elected to prosecute for rape and the evidence might have been sufficient to prove that crime.

The most serious contention is that the court erred in not determining the sanity of the defendant before proceeding with the tria-l on February 8. Sections 2867, 2868, Comp. Stat. 1921, are as follows:

“2867. When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.
“2868. The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury."

When, under these sections, a question of the sanity of the defendant was brought to the attention of the court and doubt arose, it was the duty of the court to impanel the jury and determine the question of sanity. Reed v. State, 23 Okla. Cr. 56, 212 P. 441.

The court properly impaneled a jury, which failed to agree and was discharged. Then, without determining the question, the court put the defendant on trial, which proceeding, we think, was contrary to the express terms of section 2868, supra. It is true that counsel for defendant anounced ready for trial and did not further request that the question of the present sanity be submitted to the jury. Counsel for defendant could not waive this question.

In the case of Marshall v. Ter., 2 Okla. Cr. 136, 101 P. 139, where, quoting from the case of People v. Ah Ying, 45 Cal. 18, it was said:

“No plea of present insanity is required. If, at any time during the proceedings in a criminal trial, a doubt arises as to the sanity of the defendant, it is the duty of the court of its own motion to suspend further proceedings in the ease until the question of sanity has been determined. * * * Counsel for defendant cannot waive an inquiry as to the question of the sanity of a defendant. * * *”

Doubt once having arisen in the mind of the court, it was necessary that the question of sanity be determined. The failure to so determine this question before proceeding with the trial is reversible error.

The case is reversed and remanded.

The warden of the penitentiary is directed to deliver the defendant into the custody of the sheriff of Woods county, who will hold him in custody subject to further proceedings, according to law.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    ED RAMSEY v. STATE.
    No. A-6144.
    Opinion Filed Nov. 27, 1926.
    (250 Pac. 936.)
    McCollum & McCollum, for plaintiff in - error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, in the district court of Pawnee county, was jointly charged with one Floyd Ratliff with in-cendiarism as defined in section 2236, Comp. Stat. 1921, as amended by chapter 5, Session Laws 1925. The information in substance alleges that defendant and Ratliff set fire to and burned certain baled hay, the property of one Postlewaite. It is shown by the record that the codefendant, Floyd Ratliff, was 14 years of age, and a grandson of defendant. The state did not put Ratliff on trial, but tried defendant separately. The reason does not appear, but probably on the theory that under the provisions of the juvenile law the court did not have jurisdiction to proceed to trial with Ratliff. The jury returned its verdict finding defendant guilty, but failed to assess the punishment, which was by the court assessed at one year in the county jail.

The errors complained of may be summarized as: First. Error in admitting statements of the codefend-ant, Floyd Ratliff, used as a witness for the state, made out of the presence of defendant. Second. The insufficiency of the evidence.

It is the theory of the state that the setting of the fire was done by Floyd Ratliff on request and under the direction of defendant, who was not present. In support of this, the evidence is that defendant had a dispute with Postlewaite, the owner of the hay, over the right to cut it, and at the time declared that Postle-waite should not have the hay. While it was being put up Ratliff rode a horse of defendant’s from his place, set fire to the hay, and immediately returned. The horse rode wore a peculiar racing shoe, and the track it made was identified going from Ramsey’s place to a spot near where the hay was and returning. Ratliff was arrested before defendant was, and made statements out of the presence of defendant practically admitting that he burned the hay at the direction of defendant. Later he came under the tutelage of defendant and repudiated and denied these statements. This was known to the county attorney before he was called as a witness, but the county attorney and court in the presence of the jury examined Ratliff at some length on the statements. A part follows:

“Q. Did you go to Harry Postlewaite’s place where the hay was? A. No, sir.
“Q. Did you burn his hay? A. No, sir.
“Q, You told me that you did, didn’t you, and you told the sheriff that?
“Mr. McCollum: Objected to as incompetent, irrelevant, and immaterial, and not binding on this defendant. even if he did tell him that.
“The Court: Overruled.
“Mr. McCollum: Exception.
“By Mr. Johnson: Q. You told me that you burned it? A. Yes, sir.
“Q. You told the sheriff you burned it. A. Yes, sir.
“Q. Told us the horse you rode — did you tell us about the hox*se you rode? A. Yes, sir.
“The Court: Ask him about whether he rode a horse over there.
“By Mr. Johnson: Q. How did you get over there? A. On horseback.
“Q. On horseback? A. Yes, sir.
“Q. Did you tell the sheriff which horse you rode? A. No, sir.
“Q. Did you tell me which horse you rode? A. No, sir.
“Q. Where did you go after you went over there on horseback? A. I came back home.
“Q. By whose place? A. By Charley Robideaux’s.
“Q. Who, if any one, told you to burn that hay? A. Nobody.
“Q. Who did you tell me told you to do it? A. Nobody.
“Mr. McCollum: Objected to as incompetent, irrelevant and immaterial.
“The Court: Did you have a conversation with the county attorney down here regarding this matter?
“The Witness: Yes, sir.
“The Court: Did you tell him somebody told you to burn that hay?
“The Witness: Yes, sir.
“The Court: How came you to tell him that?
“The Witness: Because I was scared. I never had been arrested before.
“By Mr. Johnson: Q. Who told you to give that answer? A. Nobody.
“Q. In that conversation I had with you, did I make any threats? A. You told me you would prove it.
“Q. I will ask you if you said this: ‘What will they do with me if I tell the truth?’ Did you ask me that question?
“Mr. McCollum: That is objected to for the reason that it is incompetent as against this defendant.
“The Court: How came you to change your testimony?
“The Witness: How came me to change it?
“The Court: Yes; change it. If you told the county attorney that, was it the truth then?
“The Witness: No, sir.
“The Court: Why did you lie to him?
“The Witness: Because I was seared.
“The Court: You lied to him, then?
“The Witness: I never lied. I never burned the hay.
“The Court: Did you tell the county attorney you burned it?
“The Witness: Yes, sir.
“The Court: Did you tell him somebody told you to burn it?
“The Witness: No, sir.
“The Court: Did not tell the county attorney that?
“The Witness: No, sir..
“The Court: You may ask him anything about the circumstances relating to going there on horseback, etc.”
“By Mr. Johnson: Q. Now, that evening, Floyd, after you set fire to the hay, if you did, you went back home? A. Yes, sir.
“Q. And your sister Imo was there? A. Yes, sir.
*“Q. And your grandmother was there? A. Yes, sir.
“Q. Was Ed Ramsey there? A. Yes, sir.
“Q. Did you hear Ed Ramsey say anything about it looked like it might be a fire some place? A. No, sir.
“Q. Did he pat you on the back and say, ‘Floyd won’t tell anything on his old grandad’? A. No, sir.
“Q. Then, your grandfather did not know you were burning the hay? A. I did not burn the hay, and he never told me to.”

At the conclusion of the evidence of this witness the counsel for the defendant moved that it be stricken, which was at the time by the court overruled. But at the conclusion of the state’s evidence the court instructed the jury that the conversation between the witness Ratliff and the county attorney in the county attorney’s office in the absence of the defendant was incompetent, and they should not consider it. It no doubt appeared to the court below, as it does to this court, that the witness Ratliff had disclosed to the sheriff and county attorney when arrested the true circumstances of the burning of the hay. If he had been on trial this evidence would have been competent as to him, but the conspiracy between him and defendant, if it existed, terminated with the incendiarism, and statements thereafter made by Ratliff in the absence of defendant were not binding on defendant. They were not competent, and their admission was error which could not be cured by an instruction to the jury to not consider it.

We perceive fully the difficulty under which the state is placed in not being able to present the testimony of this witness, but' the rules of evidence cannot be broken down to meet the exigencies of any particular case. The ease was extremely close, the circumstantial evidence of doubtful sufficiency, and without this incompetent evidence the verdict might have been different.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: DOlYLE, J.

text:
    HOYT HOWINGTON v. STATE.
    No. A-5830.
    Opinion Filed Nov. 29, 1926.
    (250 Pac. 941.)

      Gustave A. Erixon and E. J. Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOlYLE, J.

Appellant, Hoyt Howington, was convicted of murder, and in accordance with the verdict of the jury was sentenced to imprisonment for life. This is the second appeal in this case. The former conviction of appellant was reversed in this court. Howington v. State, 30 Okla. Cr. 243, 235 P. 931.

The only questions presented on this appeal are, Is the information sufficient; and, was there a fair trial free from prejudice?

The information in substance charges that in Oklahoma county, on the 20th day of 'January, 1924, appellant, in an attempt to perpetrate a robbery, killed and murdered one Jack King by shooting him with a pistol.

The information properly charges the crime of murder committed in perpetration of a robbery. Homicide committed in the perpetration of a robbery is murder, and, in such case, deliberation and premeditated design to effect death are presumed. Fritz v. State, 8 Okla. Cr. 342, 128 P. 170.

The evidence shows that Jack King, proprietor of a restaurant, 400 W. Washington street, Oklahoma City, was shot and killed at his place of business.

Marvin Cox testified that at that time he was employed by Jack King and was with him in the restaurant about half past eleven that night; that Mr. King was sitting on a stool counting up how much he had taken in and paid out that day, when a man entered by the back door and said to King, “Hands up !” that King raised up from the stool, and the man fired four shots, turned, and ran out of the back door; that King fired a shot or two and ran out the front door, fell in the street, and died almost instantly.

The defendant testified that he bought the gun introduced in evidence in Chickasha about two months before the killing and kept it in his room at 304 W. Washington; that he took it with him that night to pawn it for some money. He further testified:

“I went in the front door, and Mb. King was sitting at the counter. I says: ‘Howdy do, sir.’ He says: ‘What do you want?’ I said I would like to pawn a gun for a few dollars, and he said, ‘Get out of here, God damn you, or I will kill you’; and I turned and started out, and he opened fire on me with a pistol. After he fired twice I fired four shots and backed out at the front door, and Mr. King came out by me and went east. I went south on down to the next street, to Noble, and turned and went back to 304 W. Washington. I had drunk right smart that night.”

We deem it unnecessary to further review the facts. It is obvious that the judgment should be affirmed unless some error prejudicial to defendant requires a new trial.

' It is contended that the court erred in admitting in evidence a written confession made by the defendant because the same was not voluntarily made. When this written confession was offered in evidence counsel for defendant objected to it on the ground that it was obtained by duress and promises of leniency. The court then caused the jury to retire, and heard all the evidence pro and con upon the question. After hearing the argument of counsel, the court ruled that the confession was admissible.

In this state it is a settled rule of practice that the admissibility of a confession, where objection is interposed, is primarily a question for the court, and should be determined preliminary to allowing the confession to go to the jury, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 P. 676, 31 L. R. A. (N. S.) 849; Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064.

After a confession has been admitted, the defendant is entitled to have the evidence in regard to the manner in which it was obtaind given anew to the jury; not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence. This was done in the instant case, and the court properly instructed the jury to that effect. We have no doubt that the defendant’s written confession was properly admitted in evidence in connection with all the testimony as to the circumstances under which it was made, and it was for the jury and not for the court to say What, if any, weight should be given to it as evidence

We have carefully examined the instructions given by the court and find them to be correct. We have studiously examined the record and briefs, and find nothing to indicate that the defendant did not obtain a fair trial.

Finding the evidence sufficient and no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    STATE v. E. R. HUGHES.
    No. A-6275.
    Opinion Filed Nov. 30, 1926.
    (250 Pac. 1119.)
    S. P. Freeling, for the State.
    C. B. Stuart and Everest, Vaught & Brewer, for defendant in error.
   PER CURIAM.

This is an appeal by the state, sustaining a demurrer to the indictment. The appeal is dismissed, for the reasons stated in case No. A-6274, 35 Okla. Or. 357, 250 P. 1119, involving the same issues.


author: PEE CUEIAM.

text:
    STATE v. E. R. HUGHES.
    No. A-6276.
    Opinion Filed Nov. 30, 1926.
    (250 Pac. 1119.)
    S. P. Freeling, for the State.
    •C. B. Stuart and Everest, Vaught & Brewer, for defendant in error.
   PEE CUEIAM.

This is an appeal by the state, sustaining a demurrer to the indictment. The appeal is dismissed, for the reasons stated in case No. A-6274, 35 Okla. Cr. 357, 250 P. 1119,. involving the same issues.


author: BES’SEY, P. J.

text:
    STATE v. E. R. HUGHES.
    No. A-6274.
    Opinion Filed Nov. 30, 1926.
    (250 Pac. 1119.)
    S. P. Freeling, for the State.
    C. B. Stuart and Everest, Vaught & Brewer, for defendant in error.
   BES’SEY, P. J.

This is an appeal by the state from a judgment sustaining a demurrer to an indictment charging, or attempting to charge, the defendant in error with a criminal conspiracy to defraud the state, under the provisions of section 1652, Comp. Stat. of 1921. The state now moves to abandon the appeal by filing the motion following: “Comes now S. P. Freeling, and represents and shows to the court that he was heretofore appointed by the Governor to conduct an investigation concerning the Corporation Commission, and to take such action as deemed necessary, and prosecute any matters demanding prosecution. Your movant shows that a grand jury returned an indictment against E. R. Hughes and others, and that the said defendant Hughes filed a demurrer to the indictment, which demurrer was sustained by Tom G. Chambers, district judge of Oklahoma county; that thereafter an appeal was perfected to this court, and is now pending herein. Your movant further says that at another hearing concerning the subject-matter of this action the witnesses upon whose testimony reliance was had by the state, to wit, J. E. Amis and J. J. Gouy, changed their testimony, and said evidence is now without value to the state of Oklahoma, and no conviction could be had under their testimony. He therefore moves the court to dismiss the appeal in this case. S. P. Freeling, Specially Appointed Prosecutor. Upon showing made, the appeal is dismissed.

DOYLE and EDWARDS, JJ., concur.


author: BESSEY, P. J.

text:
    JESS MITCHELL v. STATE.
    No. A-6293.
    Opinion Filed Nov. 30, 1926.
    (250 Pac. 1118.)
    Percy Powers, for plaintiff in error.

      Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error was convicted of operating a motor vehicle under the influence of intoxicating liquor, with his punishment fixed at a fine of $400. An official record has been filed, showing the death of plaintiff in error, along with a motion that the cause be abated. The motion is allowed, the cause abated, and stricken from the docket.

DOYLE and EDWARDS’, JJ., concur.


author: DOYLE, J.

text:
    W. A. PRUETT v. STATE.
    No. A-6143.
    Opinion Filed Dec. 4, 1926.
    (250 Pac. 1029.)

      F. R. Burns and E. G. Avery, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case, filed in the district court of Ottawa county, July 30, 1925, W. A. Pruett was charged with the crime of incest, alleged to have been committed with Stella Pruett, his daughter, in said county, on or about the 27th day of April, 1325. A trial was had thereunder September 23, 1925. This verdict was guilty as charged, leaving the punishment to be fixed by the court. A motion for new trial was duly filed, also an amended motion, which motions were. overruled. The court then rendered judgment and sentenced the defendant to be confined in the state penitentiary for a term of eight years. From the judgment and sentence he appeals to this court.

The errors assigned are based on the admission and exclusion of certain evidence, and it is contended that there was no testimony which tended to corroborate the prosecutrix. Upon the trial, she testified that her age was 18 years; that on Monday, April 27, 1925, she left Zinc-ville. with her father and went to 'Cardin, where he rented rooms in Keener’s rooming house, and that night they had sexual intercourse in her room; that that Was only one of many other such acts by the defendant; that at first he accomplished such acts by force; that on one occasion she was at the home of Mary Pruett, her aunt, and there engaged in sexual intercourse with her father, and a minute or two later her aunt came into the room.

Mary Pruett testified that her husband is a brother of the defendant; that their home is in Hockerville; that Christmas week, 1924, the defendant and his daughter Stella visited at her home a few days; one day her husband went to work and she with her little girl visited her mother’s that forenoon; that on returning to her home about 11 o’clock she looked into her bedroom and saw the defendant standing by the side of the bed, and he walked to the window; that his daughter Stella jumped up and was fixing her clothing around her waist as she ran into the kitchen.

At the close of the evidence for the state, the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

The defendant .testified that he married in 1904 at Farmington, Mo., and three daughters were bom to this marriage, one older and one younger than the complaining witness; that during the year 1916 he went to Illinois, and while he was gone his wife ran away with another man, leaving the children with other families; that when he returned he gathered up the children and they lived in several towns in Missouri, and the oldest girl married; that he lived at Zincville about three years and on Monday, April 27th, he went to Cardin with his daughter Stella and rented three rooms; that they occupied the rooms five days; that she left him Saturday; that night he went to Joplin, returning to Zincville Sunday, and that evening was arrested on this charge; that he had had trouble with his daughter Stella while at Zincville because he objected to her going with a married man. He denied ever having illicit relations at any time with his daughter Stella; that when they visited his brother at Hockerville there were no improper relations; that he remembers that his sister-in-law came into a room there when he was helping his daughter to fasten her brassiere in the back with some lace; that he went with his daughter and Jess Payne to a show the first night they were in Cardin, and when they returned to their rooms his daughter went down stairs with Jess Payne and was gone for about a half hour; that when she returned she told him that she was going to marry Jess Payne; that on Friday they had trouble because he objected to her going to stay with Ossie Kitten, who is a half sister to Jess Payne; that in February, 1925, they got into a little trouble, and she tried to drink some wood alcohol that he had there to light the stove and a crowd gathered around there, and he asked Mr. Nichols, deputy sheriff, to take charge of her.

On predicate laid on cross-examination of prosecutrix, Mr®. R. E. Nichols testified that in the early part of the year 1925 she had a conversation with the prosecutrix in the presence of the defendant, wherein the prosecutrix stated that the reports that she had put out about her father having improper relations with her were untrue. On cross-examination, she stated that later the prosecutrix told her that it was true.

R. E. Nichols testified that, when the defendant was having some trouble with her daughter, he brought her to his house, and at that time the prosecutrix stated that the reports that she had put out about her faher having improper relations with her were not true. On cross-examination, he stated that later on several occasions she stated to him that the charges she brought against her father were true, and that their improper relations had been going on for about three years.

It is contended that the court erred in admitting evidence of acts of intercourse previous to the one charged in the information. It is well settled in this state that the general rule that proof of other offenses is inadmissible, unless a part of the res gestae, does not apply to offenses involving sexual intercourse; but evidence of other acts is admissible to show the relation and familiarity of the parties and tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction. Morris v. State, 9 Okla. Cr. 241, 131 P. 731.

In Ellsworth v. State, 10 Okla. Cr. 452, 137 P. 1189, it is held that:

“In a prosecution for incest, evidence tending to establish acts of incest at times other than and prior to that relied on for the conviction is admissible as indicating continuousness of the illict relation and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction.”

In Williams v. State, 14 Okla. Cr. 195, 169 P. 655, it is held:

“In a prosecution for incest committed with the defendant’s daughter, evidence of previous acts of intercourse upon which the prosecution was barred by limitation is admissible as showing a habitual course of conduct.”

The following is the rule stated in 22 Cyc. p. 53:

"When incest is charged, prior acts of sexual intercourse between the same parties or previous familiarities not amounting to actual intercourse are admissible, not as affording proof of a substantial offense in themselves, but as corroborating other evidence of the act charged and as tending to show the relations existing between the parties as bearing upon the probability of the commission of the crime charged.”

In a case of this character, where the prosecutrix was over the age of consent, such evidence proves a greater probability of the commission of the act charged by showing the woman’s willingness to yield to the man’s embraces, thus removing a chief obstacle to such intercourse, and furnishing a better opportunity, greater temptation or motive for the indulgence of his passion. Especially •is such evidence proper when the act charged, without evidence of the previous facts which led to or brought it about, would appear unnatural or improbable in itself, without reference to the preceding facts, and which, if proved, would render it more natural and probable; and it is competent to prove by such accomplice, as by any other witness, any previous familiarities or intercourse between them, which tend to throw light upon the act in question, and explain and render more natural and probable that which without such explanation would appear unnatural and improbable.

In this case, the jury were properly instructed that such evidence is to be considered only as corroborating other evidence of the commission of the crime charged.

It is also contended that the court erred in refusing to allow the defendant to introduce evidence of certain alleged improper relations between the prosecutrix and one Jess Payne.

It is impossible to determine from the record what evidence was intended to be introduced, because no offer or statement was made as to what the proposed testimony would be. In order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and on objection thereto an offer must be made at' the time showing what evidence would be given if the witness is permitted to answer. Error cannot be predicated upon a ruling excluding testimony, where the testimony desired is not shown in the record, nor a statement made as to what the proposed testimony would be. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726.

Under the assignment that the verdict is not sustained by sufficient evidence, it is urged that the pros-ecutrix was an accomplice, and that her testimony was not sufficiently corroborated to justify a conviction.

It is well settled that the female cannot be an acccompliee to the crime of incest, unless she consents to the act and is in fact guilty of it herself. However, if from infancy or any other cause she is unable to consent, she is not an accomplice. As the prosecutrix in this case was over the age of consent, and it not appearing that the act was accomplished by force overcoming resistance or by threats, she was an accomplice, and the court so instructed the jury. Whether there was any corroborating testimony was a question of law for the court.

There was, we think, sufficient corroboration to justify the submission of the case to the jury. It follows that the defendant’s motion for a directed verdict was properly overruled.

The court submitted the question of the sufficiency of the corroborating evidence to the jury under proper instructions. Complaint is made that the court did not require the state to elect upon one particular act of intercourse and rely upon that for conviction. The court instructed the jury as follows:

“If you find and believe from all of the evidence in the case, beyond a reasonable doubt, that the defendant, W. A. Pruett, did, as alleged in the information, in the county of Ottawa and state of Oklahoma, on or about the 27th day of April, 1925, willfully, unlawfully and feloniously and incestuously have sexual intercourse with one Stella Pruett, the daughter of the said W. A. Pruett, defendant herein, then you should find the defendant guilty of the charge laid against him in the information. If you do not so find and believe, or if you have a reasonable doubt thereof, then you should acquit the defendant.”

This, in connection with other instructions given, limited the jury to the consideration of this one particular act.

We have read the record with care, and examined the court’s instructions, to which no objection was made, to make sure that the defendant had a fair trial. So far as the record discloses, he did, and, while other alleged errors are argued, by counsel for the defendant, we reach the conclusion, that no reversible error is shown.

Finally it is agued on behalf of the defendant that the penalty imposed by the court is excessive and should be reduced by this court. The punishment imposed was imprisonment in the penitentiary for the term of eight years. In view of certain disclosures in the record we are persuaded that the punishment imposed is excessive, and that this is a case where substantial justice requires that the “judgment should be tempered with mercy.”

The sentence pronounced by the court below will therefore be modified, and the term of imprisonment fixed at five years, as thus modified, the’judgment appealed from will be, and is, affirmed, and the clerk of this court is directed to furnish the warden of the penitentiary at MeAlester with a certified copy of this opinion.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. H. PETERS v. STATE.
    No. A-5281.
    Opinion Filed Dec. 4, 1926.
    (250 Pac. 1032.)
    Phillips, Douglass & Duling, and C. T. Huddleston, for plaintiffs in error.

      Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Okfuskee county on a ehárge of manslaughter and each sentenced to serve a term of four years in the state penitentiary.

On the night of August 17, the defendants were concealed near a country schoolhouse to discover who had been stealing and disturbing the school property. Defendant Peters was a deputy sheriff, Carl Whitfield was a director of the school district, and Willie Whit-fied was his brother. One Andrews was also with them, but was discharged on advice of the court. About 10:30 or 11 o’clock they heard a noise and saw some one go into the school building and shortly afterward saw a light in the building. The defendants then went into the building and demanded to know who was there and ordered the parties, who were Gilbert Mullins, the person killed, and Charley Findley, to throw up their hands. Defendants testified that both deceased Mullins and Findley had guns, and that Mullins refused to put up his hands, but started to point his gun at defendant Peters; that Findley then fired and a general fusillade in the darkness followed, after which defendants left the scene not knowing any one had been shot. The state relied principally on the evidence of Findley, which is that he and Mullins had been in the country to get some sheaf oats; their car had become heated and they stopped at the schoolhouse to get water for the radiator and had gone in the house for a bucket, and when defendants came in Mullins was standing on the teacher’s desk with a lighted match and the globe in his hand to light a hanging lamp; that when accosted they informed defendants their purpose and put up their hands and started out in front U: defendants, one of whom punched Mullins with a gun, and then without provocation one shot Mullins, who fell, and another shot Findley; that several shots1 were fired, then everything got still, and he finally found Mullins on his back in a ditch in the road; managed to get him in the car, but he died before reaching Okemah. He testified that neither he nor Mullins had a gun. Apparently defendants, prior to the difficulty, did not know Mullins and Findley, nor they defendants.

Various assignments of error are grouped under the general head that the court erred in overruling the motions for new trial. For the purpose of showing a motive for engaging in a combat with or for resisting the officers, the defendants sought to show that Mullins and Findley were probably engaged in conveying intoxicating liquor. The evidence on this point was largely circumstantial and was closely restricted. The witness Findley was sharply contradicted by several apparently disinterested witnesses on several points. Ho testified he and Mullins got some sheaf oats at Tom Yell’s place and had a talk with Yell. Yell contradicts this. ‘He testified, as set out, thát, at the time defendants came into the school building, Mullins had the globe of the light in his hand. Several witnesses in a position to know testified that this lamp had no globe, and we think this is clearly made to appear. There was evidence that an automatic pistol, presumably belonging to Mullins or Findley, was found in the schoolhouse. R. H. McKinnon, sheriff, testified that on the night after the shooting he had a conversation with Findley, and stated, that the gun had been found there, and Findley replied: “Yes; that is Mullins’ gun.” This was denied by Findley.

After verdict, defendants filed a motion for a new trial and a supplemental and a second supplemental motion. The supplemental and the second supplemental motions set out newly discovered evidence, in effect that, subsequent to the trial, defendants had learned of various statements made by Findley that at the time of the affray Mullins had a pistol which he lost and that he (Findley) had a pistol which he fired and it then hung. Attached to this motion is an affidavit of Conrad Boyd that prior to the trial he heard Findley say that Mullins had a gun and lost it in the fight, and that his (Findley’s) gun jammed after he had begun firing. Also an affidavit of Leonard Boyd, the same in substance. Also an affidavit by E. E. Morse that prior to the trial Findley told him that Mullins had a gun, but was not quick enough, and the other boys beat him to it. There is also a statement of the evidence of the other witnesses, verified by defendants, whose affidavits were not obtained.

A motion for a new trial is directed to the sound discretion of the trial court, and, on the ground of newly 'discovered evidence, should not be granted where it is merely cumulative or for the purpose of impeachment; that due diligence to procure the evidence in the first' instance must be shown and there must be a reasonable probability that, if the evidence had been introduced, a different result would have been reached. If the evL dence was strong, we should not disturb the ruling of the trial court. But it is evident that a less quantum of additional evidence might reasonably change the verdict when lightly supported than would be required where the evidence of guilt is overwhelming. Where the case is close on the facts, depending upon the testimony of one witness, more or less interested, contradicted by several disinterested witnesses, as in the case before us, the evidence tendered as newly discovered may be sufficient to overcome the verdict upon another trial.

The ease is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    DOTY HERNDON v. STATE.
    No. A-5514.
    Opinion Filed Dec. 4, 1926.
    (250 Pac. 942.)
    Sigler & Jackson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of larceny of an automobile, and was sentenced to serve a term of five years in the state penitentiary.

A summary of the record is that about midnight of May 6, 1922, George Lane, in the city of Ardmore, was called by a neighbor and discovered that his automobile, a Reo coupe, had been stolen from his garage. He reported the theft to the authorities, who some time later learned that a car had been deposited in a water-filled asphalt mine, in Carter county. An investigation was made, and the witness A. A. Knight was found, who saw defendant and another person put a car in the mine shortly before daylight on the night of the theft. Knight lived about 150 yards from this mine, heard a noise, went to the place, recognized the parties and talked with them; that they gave him the cushions and light taken from the car. The automobile was recovered from some 40 feet or more of water. It had been stripped of the tires, cushion, and other accessories. The tires taken from the car were found in the possession of Elmer Snider, codefendant, the other person recognized at the scene by Knight. Lane was not positive in his identification of the car, but his ownership was fully confirmed by the witnesses Nelson, an automobile insurance adjuster, and Robinson, an investigator for the insurance company, who fully identified the car. The defense was an alibi.

Only two assignments of error are argued — one that the evidence is insufficient to sustain the verdict, which is wholly untenable and requires no discussion; the other that the court erred in overruling defendant’s application for a continuance. The case was set for trial September 16th, and on that date was postponed, was called again on the 24th, and was tried on the 25th. When called for trial on the 24th, defendant filed an application for a continuance on account of the absence of Charley Decker and J. P. Herndon, a brother of defendant. The application sets out that the witnesses had been subpoenaed and had failed to respond, that their whereabouts was unknown, but he believed Decker was at Wichita Falls, Tex., and Herndon at Oklahoma City, and, in substance, that, if Decker were present, he would testify that on the night the car was stolen, some person unknown to him, not defendant, driving the Lane car ran into him on the highway, that if the witness Herndon was present he would testify that on the night the car was stolen he stayed with defendant and slept with him and knew that defendant did not leave his home on that night.

The application does not have attached a copy of the subpoena, but it appears that these witnesses were subpoenaed to attend September 16th, and, if the witnesses were gone at that time and defendant knew it, he should have procured an attachment in time to obtain their attendance, or have taken their deposition. He did not do this, but waited until the case was finally called on the 24th, before procuring an attachment. It shows that the whereabouts of each of the witnesses was unknown. There was no certainty of obtaining their presence if the case had been postponed. As to the sufficiency of. the showing, the evidence of Herndon is entirely cumulative to the testimony of the witnesses C. P. Herndon, Mattie Herndon, and defendant, who each testified that defendant spent the night at his home, and affords no sufficient basis for a continuance, even if otherwise sufficient. As to the purported testimony of the witness Decker, it does not appear at what hour or place it is claimed the witness would testify that he saw the Lane car. An application for a continuance is to be construed against the pleader, and is addressed to the sound discretion of the trial court, and, unless an abuse of this discretion is shown, a judgment will not be reversed on appeal on account of the overruling of an application for a continuance. In view of the positive evidence of the state, the lack of a showing of any probability that the presence of the witnesses could be had if the continuance had been granted, the fact that the evidence is largely cumulative, the failure of defendant to ascertain if his witnesses were present on September 16th, no abuse of discretion is shown.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    R. J. CONNEWAY v. STATE.
    No. A-5860.
    Opinion Filed Dec. 4, 1926.
    (250 Pac. 1118.)
    W. J. Davidson and W. W. Sutton, for plaintiff in error.
    Geo. F. Short, Atty. Gen., J. T. McIntosh, and Dan Mitchell and A. L. Zinser, for the State.
   BESSEY, P. J.

The information in effect charges that the plaintiff in error, R. J. Conneway, was the president and one of the managing agents of the bank of Lahoma, and as such permitted a certain employee to receive and accept deposis in said bank, known to be insolvent. In the trial court, the plaintiff in error was found guilty as charged, with his punishment fixed at confinement in the penitentiary for a term of two years, and to pay a fine of $2,000. From the judgment so rendered, he appeals. The plaintiff in error has filedmo briefs supporting the appeal, although the time for briefing has long since passed, and various extensions of time have been granted, amounting to more than 200 days. Where no briefs are filed, the court will examine the record proper, and, if no prejudicial error is apparent, the judgment of the trial court will be affirmed. This court finds that the information is sufficient, that the testimony adduced was sufficient to support the verdict, that the instructions fairly stated the law applicable to the case and were fair to the plaintiff in error, and it appears that the plaintiff in error was otherwise accorded a fair trial. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: ARMSTRONG, P. J.

text:
    In re OPINION OF PRESIDING JUDGE. STATE v. LAWRENCE GAINES.
    No. A-2097.
    Opinion Filed Oct. 21, 1913.
    (135 Pac. 1195.)
   ARMSTRONG, P. J.

Lawrence Gaines was tried and convicted at the March, 1913', term of the district court of Love county upon a charge of having murdered one W. A. Anglin, and his punishment fixed by the jury at death. The judge of the district court of Love county furnished the 'Governor of Oklahoma a certified transcript of the testimony and proceedings had at the trial. The Governor, on the 23rd day of September, 1913, transmitted the said record and all exhibits attached thereto to the Presiding Judge of this court, requesting an advisory opinion as provided by the statute, as to whether or not the formalities of the law had been in all things observed and complied with at the trial. To this request the Presiding Judge returns the following reply:

To the Governor of the State of Oklahoma:

The Presiding Judge of the Criminal Court of Appeals of Oklahoma, responding to your official communication of September 23, 1913, which presents for his consideration a certified copy of the record of the conviction of Lawrence Gai'nes, who was on the 25th day of March, 1913, by the judgment of the district court of Love county, sentenced to death in accordance with the verdict of a jury, returned upon his trial finding him guilty of the murder of W. A. Anglin; the trial court having on the 25th day of March, 1913, pronounced judgment and sentence, fixing Friday, May 23', 1913, as the day of execution, and according to information aliunde the record, the execution was stayed to October 24, 1913, says:

From an examination of the-records of this court, I find that no appeal has been taken in said cause. The law has been interpreted by the court to contemplate an advisory opinion by the judges of this court or any one of the judges thereof when an appeal has not been taken from a judgment and sentence of death. In this case there has been no appeal. Therefore, the opinion should be rendered as requested. In re Opinion of the Judges, 8 Okla. Cr. 467, 128 Pac. 734.

Ordinarily the only question I would be called upon to consider is whether or not there has been a compliance with all the formalities of law essential to the taking of human life, or, in other words, if the trial, conviction, and sentence of death upon the accused were in accordance with the law of the land. See Opinion of Judges, 3 Okla. Cr. 315, 105 Pac. 684. Upon a full and careful consideration of the record and testimony, I find that the information sufficiently and clearly charges the crime of murder. The instructions of the court are full and complete and clearly cover the law. There are few errors of any kind disclosed by the record and none of importance. While the record is comparatively free from error, a careful study of the transcript of the evidence and sworn statements attached compels the conclusion that the conviction and punishment inflicted by the jury is absolutely unwarranted. The only testimony which to my mind connects or tends strongly to connect the accused with the murder charged is the testimony given by an admitted accomplice, Boy Gaines. The reading of the record in this case and a companion case submitted by you in the same message with this transcript, together with certain exhibits that were not before the trial court, cannot but lead an impartial mind to the conclusion that Boy Gaines and Walter Willis were the murderers of W. A. Anglin. There is serious doubt about the accused, Lawrence Gaines, or any other person being even remotely connected with the crime. If this case were before the court on appeal, the writer would unhesitatingly Insist on a reversal of the judgment, and the granting of a new trial, and would never consent to an affirmation of the death penalty as to Lawrence Gaines. Since there was no appeal, there is no way to afford relief and avoid mistakes by the infliction of the death penalty in this case, except a safe use and humane exercise of the executive prerogative. It is but fair to the trial court, however, to suggest that these observations are due, to some extent, to facts disclosed by the transcript which were not presented to the trial court.

The matter to be determined in this case goes beyond the questions as to whether the conviction was proper and legal because it is disclosed by the record and exhibits submitted that one of the co-defendants, Walter Willis, has since his conviction and sentence made a confession in which he details the circumstances of the homicide as follows:

“I, Walter Willis,. being first duly sworn upon oath says: Mr. W. A. Anglin on Sunday evening, July 10, 1911, asked Boy Gaines, while we were at Square Hombeak’s store about one mile east of Bayou creek what he done with his whisky, Boy told him he did not have it, and Mr. Anglin called me and asked me if I had it. I told him I did not and I told him ‘if Boy has it I will get it,’ and about that time Boy went down the road towards home, towards where the whisky was lying by the side of the road where he left it, when we got up there he had taken the whisky and got out in the field with it, and we did not see him there, I went out there where he was and told him Mr. Anglin wanted his whisky, and he said he did not have it, I told him he had it and ‘let’s carry it on and give it to him,’ and he said ‘Come, go with me,’ and we went across the field, and did not see Mr. Anglin when we first come into the road, and went on down across until we come in the lane, and there we saw him going down the lane; this was about 9 o’clock that night, and after we left Hornbeak’s store and Mr. Anglin was on the way to the creek, Vinnie was in the buggy with him, we got out in the road and seen him going down the lane, Boy runs and overtakes him and told him to wait. He wanted to give him his whisky, and when he got down to the creek, we got in the buggy with him just before we got to the woods on the east side of the Bayou; I was sitting in the buggy and Boy Gaines was sitting in my lap driving the team, Mr. Anglin and Vinnie was in there also; when we got down to the creek Boy asked Mr. Anglin to get out, he wanted to talk with him, and when he got out, he hits Mr. Anglin up by the side of the neck with his fist and knocked him down jumped on him and went to beating him. Vinnie jumped out and run. I got after her and I hit her with a stick and knocked her down and throwed her in the creek. Boy Gaines rolled Mr. Anglin in the creek. After he put him in the creek I caught hold of the lines and Boy Gaines takes the whip and whipped the horses into the water. The horses jerked me in the creek, I swam out on the west side, goes down to the bridge and met Boy down there. Boy Gaines gave me $15 and told me to keep my mouth about it and don’t tell nobody, and me and him goes on up to his house and goes to bed. I gets up next morning; goes on home. Until that night I never heard a word said about robbing Mr. Anglin or killing him and there was nothing said about it there until after Boy Gaines takes Mr. Anglin out of the buggy. Lawrence Gaines was not with us at all; there was no one there except us two and Vinnie and Mr. Anglin; no one knew we were going to do this; I did not know where Lawrence Gaines was at that time and Susan Gaines did not know anything about it that I know of; I heard nothing about Susan having any connection with it; Susan Gaines made no suggestions about robbing or killing Mr. Anglin. Vin-nie did not know anything about us going to do this that I know of. Boy Gaines told me at Ardmore after the conviction while we were in Ardmore. We had a conversation and I asked him why he put Lawrence Gaines there when he knew he was not there; I said why did you want to put Lawrence Gaines there and he said I was after saving myself. Mr. Anglin was pretty drunk at the time we got in the buggy with him below Square Hornbeak’s store. Myself, Boy Gaines, Mr. Anglin and Vinnie Gaines rode in Mr. Anglin’s buggy to Hornbeak’s store, and we got out just as we got to the store, and he drove up the road a piece and returned, and it was while we were in the buggy coming from Rock creek that this whisky was taken out and was while at the store there we had this little fuss about the whisky; we just pitched it out of the buggy and went back and got it. I never told Geo. Henry or anybody else about this until after I was convicted.
“Realizing that I am now sentenced to be hanged; that the time is now set, and that I make this statement that the truth may be known; that justice may be done; that nobody will be punished that is not guilty. Susan Gaines never knew, so far as I know, but what Vinnie Gaines, her daughter, was drowned in the creek with Mr. Anglin while crossing the creek.”

The affidavit shows that the same was made on the affiant’s own motion and without any conference or arrangement with this accused or any other person.

On a careful examination of all the facts and circumstances as shown by the transcript of the testimony taken in the case, I think that they support and corroborate this confession and not the testimony of Boy Gaines, the other admitted accomplice.

Therefore, it is my opinion that you cannot afford to permit the death penalty to be inflicted on Lawrence Gaines, not on account of any error of law occurring at the trial, but on account of the lack of sufficient corroborating proof of the testimony of Boy Gaines, the accomplice, and the subsequent confession of Walter Willis, another accomplice, which is before you. I cannot conclude this communication without saying, however, that in my judgment it was a miscarriage of justice that Boy Gaines did not receive the death penalty instead of Lawrence Gaines.

It is my recommendation that you carefully investigate the facts and circumstances surrounding this conviction and the facts and circumstances which have developed since the trial, in order that you may be able to arrive at a just and righteous conclusion as to what, if any, clemency should be extended to Lawrence Gaines, for it is only through you, as the Chief Executive, and no one else, that he can secure the relief which in my opinion he is entitled to receive. Respectfully submitted.


text:
    In re OPINION OF PRESIDING JUDGE. STATE v. WALTER WILLIS.
    No. A-2098.
    Opinion Filed Oct. 21, 1913.
    (135 Pac. 1196.).
   ARMSTRONG, P. J.

Walter Willis was tried and convicted at the March, 1913, term of the district court of Love county upon a charge of having murdered oné W. A. Anglin, and his punishment fixed by the jury at death. The judge of the district court of Love county furnished to the Governor of Oklahoma a certified transcript of the testimony and proceedings of the trial. The Governor, on the 23rd day of September, 1913, transmitted the said record to the presiding judge of this court requesting an advisory opinion as provided by the statute. To this request the presiding judge returns the following reply:

To the Governor of Oklahoma:

The presiding judge of the Criminal Court of Appeals of Oklahoma, responding to your official communication of September 23, 1913, which presents for his consideration a certified copy of the record of the conviction of Walter Willis, who was, on the 25th day of March, 1913, by the judgment of the district court of Love county sentenced to death in accordance with the verdict of a jury returned upon his trial finding him guilty of the murder of W. A. Anglin and assessing his punishment at death, which judgment and sentence required that the said Walter Willis be executed on Friday, May 23, 1913; the execution according to information aliunde the record having been stayed by you to Friday, October 24, 1913, hereby submits the following:

From an examination of the records of this court, I find that no appeal has been taken in said cause. The law has been interpreted by the court to contemplate an advisory opinion by the judges of this court or any one of the judges thereof when an appeal has not been taken from a judgment and sentence of death. In this case there has been no appeal. Therefore, the opinion should be rendered as requested.

This is a companion case to the case of State v. Lawrence Gaines, 35 Okla. 375, 135 Pac. 1195, and comes to the presiding judge in the same manner, at the same time, and for the same purpose as the Gaines transcript. The testimony was largely the same as in the Gaines Case. There is before the writer a sworn statement signed by Walter Willis in which he admits that he was one of the murderers of W. A. Anglin and Boy Gaines was the other. I find nothing from the entire record which in my judgment, so far as the law is concerned, would warrant me in advising an interference with the judgment and sentence of the trial court. The accused was fairly and impartially tried, and all the formalities of the law were complied with. There is not a shadow of doubt concerning his guilt. The murder was a most atrocious one, without the slightest provocation or extenuating circumstances. Briefly stated, this accused, by his own admission, killed Vinnie Gaines and threw her body into Bayou creek in Love county, and assisted in killing W. A. Anglin and placing his body in the same stream, the object and purpose of the murder being robbery. It is clear from the proof in the record that Anglin was stupidly drunk, and in a helpless condition at the time of the homicide ; that the woman when protesting against the murder of Anglin Was assaulted and killed in a most heartless manner.

You are respectfully advised that it is my opinion that all the safeguards and provisions of the law necessary to justify the execution of Walter Willis have been observed. Respectfully submitted.


text:
    Ex parte JOHN SIMMONS.
    No. A-.
    Opinion Filed Dec. 3, 1910.
    (112 Pac. 41.)
    W. T. Banks and W. A. Huser, for petitioner.
    Fred S. Caldwell and J. C. Wright, for respondent.
   PER CURIAM.

John Simmons, the petitioner, being imprisoned under a judgment of the county court of Ok-fuskee county for a violation of the prohibition law, has applied to this court for a writ of habeas corpus to the end that he be discharged.

His contention is that the county court was without jurisdiction to try him, and that the judgment of conviction rendered against him is void, for the reason that the information upon which the prosecution was based was not verified. This presents the same question just determined by this court in case No. A-817, Ex parte Tom Talley, 4 Okla. Cr. 398, 112 Pac. 36, and decision in that case is controlling here. The petitioner’s imprisonment, therefore, is not illegal.

The writ of habeas corpus heretofore issued will be discharged, and the petitioner will be remanded to the custody of the sheriff of Okfuskee county, that he may execute the judgment of the county court.


text:
    Ex parte WILL CRAWFORD.
    No. A-.
    Opinion Filed Dec. 3, 1910.
    (112 Pac. 41.)
    W. A. Huser and W. T. Banks, for petitioner.
    Fred S. Caldwell and J. C. Wright, for respondent.
   PER CURIAM.

Will Crawford, the petitioner, being imprisoned under a judgment of the county court of Ok-fuskee county for a violation of the prohibition law, has applied to this court for a writ of habeas corpus to the end that he be discharged.

His contention is that the county court was without jurisdiction to try him, and that the judgment of conviction rendered against him is void, for the reason that the information upon which the prosecution was based was not verified.

This ease presents the same question just determined by this court in case No. A-817, Ex parte Tom Talley, 4 Okla. Cr. 398, 112 Pac. 36, and decision in that case is controlling here.

The writ of habeas corpus heretofore issued herein will therefore be discharged and the petitioner will be remanded to the custody of the sheriff of Okfuskee county, with directions to execute the judgment of the county court.


text:
    SAM ALLEN v. STATE.
    No. A-.
    Opinion Filed Dec. 13, 1910.
    (115 Pac. 1124.)
   PER CURIAM.

On the 27th day of February, 1909, judgment was rendered against the defendant for violating the prohibitory liquor law, and he was sentenced to pay a fine of $100 and 30 days’ confinement in the county jail. Ninety days was allowed by the court within which the defendant could file his transcript of the case in the Criminal Court of Appeals; but the court did not grant any extension of the time prescribed by statute within which the defendant must make and serve case-made. The statute allows thirty days from the day of judgment from which time the defendant may make and serve a case-made. The record in this case shows that the case-made was not served' until the 7th day of May, 1909, which was long after the expiration of the time allowed by statute. The case-made is therefore stricken from the record. Considering the case upon the transcript of the record, the information is in proper form. The judgment of the court is therefore affirmed, with directions to the sheriff of Grady county to proceed with the execution of the judgment.


text:
    BYINGTON WILLIAMS v. STATE.
    No. A-.
    Opinion Filed May 8, 1911.
    (115 Pac. 379.)

      J. E. Whitehead, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of McCurtain county of the crime of assault to do bodily harm, and sentenced to imprisonment in the state penitentiary for two years at hard labor. Judgment and sentence was pronounced and entered on the 6th day of October, 1909. From such judgment an appeal was taken by filing in this court on January 19, 1910, a petition in error with case-made.

Since the appeal was taken, and before the final submission of the cause, to wit, April 23, 1911, plaintiff in error has departed this life. His death having been suggested, the proceedings abate.

“In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.” Pim Boyd v. State, 3 Okla. Cr. 684, 108 Pac. 481.

It is therefore considered that the proceedings in this action do abate; and it is so ordered.


author: ARMSTRONG, J.

text:
    GOLDIE CLEMMONS v. STATE.
    No. A-.
    Opinion Filed May 23, 1911.
    (115 Pac. 610.)

      Percival Adams, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error was tried in the district court of Muskogee county on a charge with assault with intent to kill. A verdict of guilty was returned by the jury on the 13th day of November, 1909, assessing her punishment at a year in the penitentiary. Motion for a new trial was filed and overruled, and on the 16th day of November thereafter, the court sentenced the plaintiff in error to imprisonment in the state penitentiary for one year.

The plaintiff in error attempted to perfect an appeal in this court on the 2nd day of February, 1910, by filing petition in error and case-made. On the 12th day of September, 1910, the Attorney General filed a motion to affirm for want of prosecution under rule 4. On the 17th day of January, 1911, brief was filed on behalf of the plaintiff in error. On the 12th day of April, 1911, a motion to dismiss the appeal was filed by the Assistant Attorney General, which is as follows:

“Comes now Charles West, Attorney General, and appearing specially and for the purpose of this motion only, moves the court to dismiss the pretended appeal herein, for the reason that no petition in error is attached to or accompanies the case-made, nor has any petition in error ever been filed in this case, and the time within which this appeal could have been perfected has long since expired. Section 6951, Comp. Laws of Oklahoma 1909 (Snyder); Edwards v. State, 2 Okla. Cr. 715, 103 Pac. 1072. Second. Because no notices of appeal were ever served upon the clerk of the district court or county attorney, as required by section 6949, Comp. Laws 1909 (Snyder). Wherefore, the Attorney General says that this court is without jurisdiction to consider this case, and the appeal should therefore be dismissed. Chas. West, Attorney General. Smith C. Matson, Assistant Attorney General.”

The motion is well taken and is sustained. This court is without jurisdiction to review the cause on appeal, and the same is hereby dismissed, with directions to the district court of Muskogee county to enforce the judgment and sentence.

FURMAN, P. J., and DOYLE, J., concur.


text:
    FRANK MOORE v. STATE.
    No. A--.
    Opinion Filed June 27, 1911.
    (116 Pac. 963.)
    Baldwin & Pitman, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted of having in his possession intoxicating liquor with the unlawful intention to violate the provisions of the prohibition law, and was, on March 2, 1911, sentenced to be confined in the county jail for 30 days and pay a fine of $100, and in case said fine was not paid that said defendant be further confined until the same is satisfied at the rate of $1 per day.

From which judgment an appeal was taken by filing in this court on May 9, 1911, a petition in error with case-made. Plaintiff in error, on June 21st filed his motion to dismiss said appeal, which motion is hereby sustained and said appeal is accordingly dismissed, and the cause remanded to the county court of Pottawatomie county, with direction to enforce the judgment and sentence.


text:
    JAMES MENCH v. STATE.
    No. A-.
    Opinion Filed Aug. 1, 1911.
    (116 Pac. 1134.)
    O. F. Mason, for plaintiff in error.
    Smith C. Matson, As¡st. Atty. Gen., for the State.
   PER CURIAM.

James Mench, plaintiff' in error, was convicted of the crime of selling intoxicating liquor, and was, on January 21, 1911, sentenced to be confined in the county jail for 90 days and to pay a fine of $250 and costs, and that in default of payment of said fine and costs, he be further confined until the same is satisfied according to law. From such judgment an appeal was taken by filing in this court on March 22, 1911, petition in error with case-made. Plaintiff in error, on August 1st, in open court by his attorney of record moved to dismiss said appeal, which motion is sustained, and said appeal is accordingly dismissed, and the cause remanded to the county court of Ottawa county, with directions to enforce the judgment and sentence.


text:
    CHARLES MORGAN v. STATE.
    No. A-.
    Opinion Filed Aug. 1, 1911.
    (116 Pac. 1134.)
    O. F. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Charles Morgan, plaintiff in error, was convicted of the crime of selling intoxicating liquor, and was on January 17, 1910, sentenced to be confined in the county jail for a period of 30 days and pay a fine of $100 and costs, and that he be further confined until the same is satisfied according to law. From such judgment an appeal was taken by filing in this court on September 9, 1910, petition in error with case-made. Plaintiff in error, on August 1st, by his attorney of record, moved in open court to dismiss said appeal, which motion is sustained, and said appeal is accordingly dismissed, and the cause remanded to the county court of Ottawa county, with direction to enforce the judgment and sentence.


text:
    CHARLEY MORGAN v. STATE.
    No. A-.
    Opinion Filed Aug. 1, 1911.
    (116 Pac. 1135.)
    O. F. Mason, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Charley Morgan, plaintiff in error, was convicted of the crime of having in his possession intoxicating liquor with the intent to violate the provisions of the prohibition law, and was on the 11th day of July, 1910, sentenced to be confined in the county jail for a period of 30 days and pay a fine of $50 and costs, and that he be further confined until the same is satisfied according to law. From such judgment an appeal was taken by filing in this court on September 9, 1910, petition in error with case-made. Plaintiff in error, on August 1st, by his attorney of record moved in open court to dismiss said appeal, which motion is sustained, and said appeal is accordingly dismissed, and the cause remanded to the county court of Ottawa county, with direction to enforce the judgment and sentence.


text:
    L. H. DISMORE v. STATE.
    No. A-.
    Opinion Filed Aug. 29, 1911.
    (117 Pac. 1129.)
    Zinc & Cline, for plaintiff in error.
   PER CURIAM.

L. H. Dismore, plaintiff in error, was convicted of the crime of having possession of intoxicating liquor with the intent to violate the provisions of the prohibition law, and was, on the 6th day of March, 1911, sentenced to be confined in the county jail for a period of six months, and to pay a fine of $500 and costs, and that, on the failure to pay such fine, he be further confined until the same is satisfied according to law, from which judgment an appeal was taken by filing in this court on May 5, 1911, a petition in error with case-made attached. Plaintiff in error, on August 10th, by his attorneys of record, filed a motion, dismissing said appeal, which motion is sustained, and said appeal is accordingly dismissed, and the cause remanded to the county court of Kiowa county, with directions to enforce the judgment and sentence.


text:
    A. C. BRASHEAR v. STATE.
    No. A-.
    Opinion Filed Jan. 27, 1912.
    (119 Pac. 1129.)
    Warren K. Snyder and Ross N. Lillard, 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 Oklahoma county, at the April, 1911, term, on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $300, and imprisonment in the county jail for a period of 60 days. The appeal was perfected in this court on the 21st day of June, 1911. A careful examination of the record in this case discloses facts upon which the jury could not have reached any other conclusion than that the defendant was guilty as charged. The instructions of the trial court are subject to criticism, but we do not think the errors therein are sufficient to justify a reversal of the judgment. The court should follow the rule laid down in the case of Billingsley v. State, 4 Okla. Cr. 597, 113 Pac. 241, and Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244. If this were a close case on the facts, the judgment would have to be reversed on the errors in the instruction of the court. The proof discloses the fact that the plaintiff in error had sold whisky at this identical place a short time before this offense is alleged to have been committed, and that he had paid the special revenue tax required by the United States government from retail liquor dealers, which in itself, together with possession, is sufficient to justify a conviction. Let the judgment be affirmed.


text:
    ARTHUR WOLTZ et al. v. STATE.
    No. A-.
    Opinion Filed Nov. 4, 1913.
    (135 Pac. 1199.)
    George H. Giddings and J. T. Dortch, for plaintiffs in error.
    Chas. West, Atty. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   PER CURIAM.

Arthur Woltz, Vic Owens, and D. M. Blunk, plaintiffs in error, were by information jointly charged that they did have in their possession unlawfully intoxicating liquor, to wit, whisky, beer and wine, with the intent and purpose on the part of said defendants to sell, barter, give away, and otherwise furnish. The jury rendered a verdict of guilty, and assessed the punishment of each defendant at confinement in the county jail for six months, and that each pay a fine of $500. On the 14th day of May, 1912, the court rendered judgment and sentenced each defendant in accordance with the verdict of the jury. The evidence shows the issuance of a federal, liquor license to “Graves Liquor Company, D. M. Blunk, R. R. Graves; business, wholesale liquor dealer.” It appears therefrom that the license at its issue covered a place at 101 West Reno; that it was transferred to 7 South Santa Fe, and afterwards transferred to 9Y2 South Robinson street; that defendant Blunk was.often seen at the place of business; that Woltz was there working for him, and that when the raid was made Woltz went to the telephone and called up the Santa Fe Station, and asked if Mr. Blunk’s man was there, saying, “Tell him to come over right away, the bulldogs are in here and we need help.” Defendant Owens came in, and said he would give $25 to know who tipped the plant off. Two sacks of beer were found, a case of whisky in half-pints, ten quarts, and eight or ten bottles of wine. This liquor was found concealed behind a panel under a stairway. A horse and small black wagon with a high square bed was kept in the rear, and the defendant Owen had been seen loading it at the depot; defendant Blunk being present. The defendants offered no evidence. The petition contains 27 assignments of error. Upon a careful consideration of the record, our conclusion is that no right of the defendants was prejudiced by any ruling during the trial, and we find no reversible error in the charge of the court. We find that the verdict was. reached after a fair and full consideration of the case by the jury, and that justice and the law require that these convictions should be affirmed. The judgments of the county court of Oklahoma county are therefore affirmed.


text:
    OLLIE OSTENDORF v. STATE.
    No. A-.
    Opinion Filed Jan. 13, 1914.
    (137 Pac. 1196.)
    A. J. Jones, for plaintiff in error.
   PER CURIAM.

The plaintiff, Ollie Ostendorf, was convicted of gaming, and on the 16th day of December, 1912, was sentenced by the court to be confined in the county jail for 30 days and pay a fine of $100. An appeal from this judgment was properly taken. The plaintiff in error has filed a motion to dismiss the appeal, which motion is hereby sustained, and the cause remanded to the lower court, with directions to enforce the judgment herein.


text:
    Ex parte JAMES O’CONNOR.
    No. A-.
    Opinion Filed April 25, 1911.
    (115 Pac. 1132.)
    C. F. Dyer, for petitioner.
    A. L. Emery, Co. Atty., for respondent.
   PER CURIAM.

James O’Connor filed in this court on March 17, 1911, a petition wherein it is alleged that he is unlawfully imprisoned and restrained of his liberty by S. E. Sutherland, sheriff of Blaine county, setting forth the facts constituting the alleged unlawful restraint. Upon this petition a writ of habeas corpus issued, returnable April 15, 1911. With the application was filed a stipulation waiving the personal appearance of the petitioner. No further appearance has been made in said cause. As said proceedings have apparently been abandoned, the writ of habeas corpus heretofore issued is hereby discharged, and said petitioner is hereby remanded to the custody of the sheriff of Blaine county.


author: PER GURIAM.

text:
    G. C. SIMMONS v. STATE.
    No. A-.
    Opinion Filed Jan. 27, 1914.
    Rehearing Denied Sept. 15, 1914.
    Luther James, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER GURIAM.

Plaintiff in error was prosecuted and convicted upon an information which charged that he did unlawfully deal, carry on, open and conduct as owner, a certain game of roulette. In accordance with the verdict of the jury, he was by the court on the 25th day of November, 1912, sentenced to be confined in the county jail for. 30 days and to pay a fine of $300. Numerous errors are assigned. Without entering into a discussion of the same, we will state that from our examination of the record, they are without merit. The information is sufficient, and the evidence of the state as" to the guilt of the defendant is undisputed. The judgment of conviction is therefore affirmed:


text:
    C. G. TRINKLE v. STATE.
    No. A-.
    Opinion Filed Jan. 27, 1914.
    (140 Pac. 1198.)
    Witty & Meyer, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. G. Trinkle, was convicted in the July, 1913, term of the county court of Hughes county, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 60 days. Judgment was rendered in the trial court on the 19th day of July, 1913. The appeal was filed in this court October 17, 1913. No order was made by the trial court extending the time within which the appeal could be filed. The statutory time of 60 days had long since expired when the record was filed in this court. The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not filed within the time allowed by law. Motion is sustained, and appeal accordingly dismissed.


text:
    P. M. VICK v. STATE.
    No. A-1959.
    Opinion Filed Sept. 12, 1914.
    (142 Pac. 1199.)
    Edward Curd, Jr., for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., and W. E. Disney, Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, P. M. Vick, was convicted at the November, 1912, term of the county court of Muskogee county, on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of $150 and imprisonment in the county jail for a period of 30 days. From a careful examination of the record we are unable to find error sufficient to justify a reversal of this judgment. Under the proof introduced at the trial we cannot say as a matter of law that the conviction Was contrary to the evidence. The credibility of the witnesses and the reasonableness of their testimony is a question for the jury. It is clear from the proof that the accused did have possession of liquor, and that the place where it was found in his possession was a “joint” or place where intoxicating liquors were sold. The explanation given by the accused, along with the other testimony, went to the jury, and they found against his contention. This was entirely within their province, and their judgment on the question of fact is final. The judgment is affirmed.


text:
    A. F. HOLMES v. STATE.
    No. A-2279.
    Opinion Filed Feb. 5, 1916.
    (154 Pac. 502.)
    Fogg & Bennett, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Upon rehearing it is urged that the evidence introduced in this cause on behalf of the state is legally of doubtful competency. In fact, all of the direct evidence, under strict adherence to the rules of law governing the introduction of testimony, should probably have been excluded. Taking as a whole, however, and. considering all the facts and circumstances introduced in the case, we entertain no doubt that the jury’s verdict finding defendant guilty was just.

There are errors of law urged in the brief and argument which are of more or less merit, but sufficient prejudice does not appear to warrant a reversal' of this judgment. There is no proof disclosed by the record that the plaintiff in error was ever indicted, or convicted, of a similar offense. There was no proof offered by the plaintiff in error in his defense. He chose to stand on technical errors of law.

Upon a re-examination of the record, we are of the opinion that the irregularities complained of tended reasonably to prejudice the jury In the matter of assessing the punishment. A fine of $250 was imposed and a jail sentence of 90 days. A new trial in this cause would probably result in another conviction; but, if tried according to law, a lighter punishment would probably be imposed.

It is therefore the judgment of the court that the ends of justice warrant a modification of this judgment by reducing the fine from $250 to $150 and imprisonment from 90 to 60 days. It is therefore so ordered.

As modified, the judgment, on rehearing, is affirmed. Mandate ordered forthwith.


text:
    M. E. KELLER v. STATE.
    No. A-2472.
    Opinion Filed July 1, 1916.
    (157 Pac. 939.)
    See, also, 154 Pac. 275.
    Trice & Moore, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, M. E. Keller, was convicted at the January, 1915, term of the county court of Coal county, Okla., on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days. The appeal was filed in this court on the 13th day of March, 1915. No brief has been filed for the plaintiff in error, and no appearance for oral argument. The cause was submitted on the 8th day of March, 1916, upon the motion of the Assistant Attorney General to' affirm the judgment of the lower court for failure to prosecute, as provided by the law and the rules of the court.

The motion is sustained, and the judgment of the trial court is affirmed. Mandate ordered forthwith.


text:
    Ex parte BERT BURLESON.
    No. A-2788.
    Opinion Filed Jan. 6, 1917.
    (161 Pac. 1101.)
    J. T. Michael, for petitioner.
    B. D. Shear, A. T. Boys, and Frank Watson, for respondent.
   PER CURIAM.

This is a habeas corpus proceeding instituted in this court by Bert Burleson, who alleges that he is restrained of his liberty by the chief of police of Oklahoma City and the sheriff of Oklahoma county, under the following state of facts: That on the 10th day of July, 1916, he was arrested on a charge of vagrancy and brought before the municipal judge of said city, and a pretended trial was had, wherein no evidence was introduced tending to prove that said petitioner was guilty as charged, and he “was illegally sentenced to pay a fine of $99 and $1 costs and serve 90 days in the city jail; that thereafter, on the 18th day of July, 1916, and before the time had elapsed within which said petitioner could take an appeal, he was transferred to the county jail and immediately taken to a road gang and placed in chains and compelled to work upon the public highways in Oklahoma county.”

In response to the writ issued, the officers to whom it was directed produced the petitioner in court on July 16th, and the same time filed their answer and return. Upon, the hearing, the opinion of the court was' delivered by the presiding judge, holding that petitioner is unlawfully restrained of his liberty as averred, and it was ordered that he be discharged.

The facts and issues in the case are substantially the same as in the case of In re Tom J. Johnson, 13 Okla. Cr. 30, 161 Pac. 1097, opinion filed December 80, 1916. For the reasons given in the opinion in that case, it was held that the petitioner was entitled to his discharge.


text:
    McFARLAND v. STATE.
    No. A-2096.
    Opinion Filed Nov. 1, 1913.
    (143 Pac. 1197.)
   PER CURIAM.

Affirmed.


text:
    Ex parte JIM ROLES.
    No. A-2738.
    Opinion Filed April 19, 1917.
    (163 Pac. 279.)
    J. A. Minton, for petitioner.
    R. McMillan, Asst. Atty. Gen., and Arthur Leach, Co. Atty., for respondent.
   PER CURIAM.

This was an application to this court for a writ of habeas corpus for the purpose of discharge on bail.

It appears from the petition and the return thereto that upon a preliminary examination before E. G. Mc-Comas, county judge of Beckham county, the petitioner, Jim Roles, was held to the district court to answer upon a charge that he did kill and murder one Perry Parish; that he made application for bail before T. P. Clay, judge of the district court of Beckham county, and the said judge refused to allow bail. It is further averred that the proof was not evident, nor the presumption great; that the evidence on the part of the state was wholly circumstantial. Without entering into a discussion of the evidence, we deem it sufficient to say that, upon a careful consideration of the same, we are of the opinion that the petitioner is not entitled to be admitted to bail as a matter of legal right.

It is therefore considered and adjudged that the writ be denied, and bail refused.


text:
    Ex parte GREEN BELL.
    No. A-2146.
    Opinion Filed Sept. 27, 1917.
    (167 Pac. 1182.)
    J. G. Ralls, for petitioner.
   PER CURIAM.

Petition of Green Bell for writ of habeas corpus, filed this 27th day of September. On application of counsel for petitioner, leave to withdraw petition is this same day granted.


text:
    THOMAS HOLMES v. STATE.
    No. A-2279.
    Opinion Filed Jan. 5, 1918.
    (168 Pac. 246.)
    See also, 13 Okla. Cr. 113, 162 Pac. 446.
    Fogg & Bennett, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Thomas Holmes, was convicted at the March, 1914, term of the county court of Canadian county, on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 90 days. •

Numerous errors were assigned and argued before the court in oral argument and upon brief. Upon the oral argument it was conceded by the Assistant Attorney General that many irregularities occurred at the trial, and that the judgment imposed by the trial court was excessive, and that this judgment should be either reversed or modified, and insisted that the court modify the judgment, rather than reverse it. A modification was agreed to by counsel for plaintiff in error.

Upon a careful consideration of the briefs and argument and a thorough examination of the record, we are impelled to the conclusion that the judgment should be modified to a fine of $50 and imprisonment in the county jail for 30 days, and as modified, affirmed.

It is so ordered. Mandate directed to issue forthwith.


author: MATSON, J.

text:
    Ex parte CHARLES HOLDEN et al.
    No. A-3310.
    Opinion Filed April 12, 1918.
    (171 Pac. 925.)
    Moman Pruiett and Victor A. Sniggs, for petitioners.
    S. P. Freeling, Atty. Gen., R. E. Wood, Asst. Atty. Gen., :and L. A. Pelley, Co. Atty., for respondent.
   MATSON, J.

The petitioners, Charles Holden and E. R. Bryce, have presented to this court a verified petition, wherein they allege that they are each unlawfully and illegally restrained of their liberty by Sheriff Ford of Jackson county, Okla.; that the cause or pretence of their confinement is that the petitioners are charged in the district court of Jackson county, Okla., by information filed therein by the county attorney of said county, with the murder of one Dan Coffee, alleged to have been committed in said county on or about the 15th day of February, 1918. Petitioners further state that they have been given a preliminary hearing at which hearing the testimony was taken in shorthand and is transcribed, and a copy of which is attached to the petition and made a part thereof and marked “Exhibit A.” Petitioners further allege that their restraint is illegal and unlawful because they are not guilty of said murder or any other crime, and that the proof of their guilt is not evident nor the presumption great as shown by the testimony taken in the preliminary examination; that they have presented a petition for a writ of habeas corpus to be allowed to bail to Hon. Frank Mathews, district judge within and for Jackson county, but that said judge refused bail. A response to said petition has beeh filed on behalf of J. C. Ford, sheriff of Jackson county, wherein he admits that he is holding said petitioners on a commitment duly and legally issued, wherein they are charged with the crime of murder of one Dan Coffee as alleged in the petition, but said respondent denied that the cause of their restraint is illegal, and alleges the facts to be that the proof of their guilt of said murder is evident and the presumption thereof great, and for such reason petitioners should be held without bail. The hearing oh said application was had on the 11th day of April, 1918, at which time the matter was orally argued on behalf of the petitioners 'by Hon. Moman Pruiett, their attorney, and on behalf of the respondent by Hon. L. A. Pelley, county attorney of Jackson county.

It is unnecessary to enter into a discussion of the facts in this case. To discuss the facts before trial is had, where the writ is denied, might become prejudicial to the applicants. Therefore we think the proper course to pursue is to avoid any discussion which might become in any way prejudicial to either the applicants or the state. We deem it sufficient therefore, to say that we have carefully examined the evidence in support of the application, and are of the opinion that there is a failure to prove that either of the petitioners is entitled to be admitted to bail as a matter of legal right. The testimony on the part of the state is evidence of their guilt of the crime of murder.

It is therefore considered and adjudged by the court that the writ.be denied, and that bail be refused to both applicants.

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