text:
    J. T. SHIVE v. STATE.
    No. A-1346.
    Filed February 3, 1912.
    Appeal from Custer County Court; W. J. Lackey, Judge.
    L. T. Shive was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    Holcombe & Norfleet, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., and E. J. Lindley, Co. Atty. of Custer county, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county-court of Ouster county at the July, 1911, term, on a charge of selling intoxicating liquor, and on the 1st day of August, thereafter, was adjudged to pay a fine of two hundred and fifty dollars and be confined in the county jail for a period of thirty days. The information charges that the accused sold two bottles of beer to one Frank Coker on September 3, 1909, in Custer county, Oklahoma. The testimony of the witness', Coker, was the only evidence introduced by the state tending to establish the charge. His testimony is as follows: “Q. Tell the jury what you did there. (Meaning the house of the accused.) A. I got two bottles of beer there. (J. Just go ahead and tell the rest and when we got them drank Dick said let’s have another, of the transaction. Tell the jury what you did. A. Dick Cole and I was together, and I asked for some beer; first we met Judge on the street, and we walked to his home, and he said he had some beer, so I got two bottles, and Dick Cole drank one, and I drank the other, and when we got them drank Dick said let’s have another and he got two more, and after he had got them, I laid fifty cents on the table in the dining room where we was all at. He was in a hurry and said he had to go to the train and meet his wife and Mrs. Bowes. Q. You may state to the jury in what part of the house this all took place. A. In the dining room. Q. Where was the defendant when you put it on the table? A. We was all in the room there together. -Q. Did he know you put the money there? A. He ought to have known it; we was all in the dining room; but I didn’t see him pick it up. I was the first one out. I think I was out to the gate before they came out of the house. The gate is there near the door. I couldn’t say that he picked it up, for I didn’t see him. Q. Who delivered the beer to you? A. He taken it out of the ice box that set on the table. <J. You say the defendant took it from the ice box? A. Yes, sir, and set it on the table. I am sure he did. Q. Did you lay the fifty cents near the place where you got the beer? A. Yes, sir; right near it I will say. Q. What was said about the beer, if you remember? A. Nothing that I remember. As well as I remember, he was in a hurry and there was not much said. Q. Where was he standing when you laid the money there? A. In the room near the table. I don’t remember just how far, but it was in the same room. Q. Tell the jury what he said. A. He said he was in a hurry, he had to meet the train, as Mrs. Bowles was away, and he left.”

On cross-examination, this witness testified further that he had been arrested and convicted for bootlegging; that he had an agreement with the county officers under which he was to “turn up a lot of them, if they would let me, and he (Ed Thomas, sheriff) told me that if I would go down and bring proofs he would make it right with me. I was to file all I could get.”

Dick Cole, who the prosecuting witness' claims was with him testified on behalf of the defendant as follows:

“Q. Did you on the third day of September, 1909, or any other day, buy any beer of this defendant? A. No, sir; I wasn’t there. Q. Did Frank Coker on the third day of September, or any other time, buy any beer of this defendant in your presence? A. No, sir.”

The testimony of this witness was not shaken on cross-examination. A number of witnesses testified that the reputation of the prosecuting witness, Coker, for truthfulness was bad.'

The Attorney General in Ms brief takes the position that the conviction was improper under the record, and the testimony insufficient upon which to base a verdict of conviction, if the rule in the case of Mask v. State, 2 Okla. Cr. 85, is' adhered to. The county attorney has filed an extensive supplemental brief, principally in opposition to the position assumed by the Attorney General’s office. We have carefully considered this record, and are unable to conclude that this conviction should stand. This court has never upheld a conviction based upon the uncorroborated testimony of a self-confessed criminal, who admitted in his testimony that he was securing immunity by reason of such testimony, and when such witness is impeached for truthfulness and flatly contradicted by other witnesses whose credibility is not assailed. If this were a ease where two witnesses of equal credibility had testified, and the issues had been properly submitted to the jury, this court would not interfere with a verdict of conviction. But no1 such ease is presented.

The county attorney in his supplemental brief has cited numerous authorities, not a single one of which is in point upon the issue here raised. The proof in this case does not anywhere indicate that the prosecuting witness asked the accused to sell him beer. All the circumstances indicate that the parties were merely taking a social drink, if they were at the home of the accused at all. The prosecuting witness laid down fifty cents, and does not undertake to say that the accused ever got it, or knew that he put it or was going to put it there. No act of the prosecuting witness could amount to constituting a sale by the accused. It must be he who parts with his property for consideration in order to establish a sale. If the state is to be allowed to secure convictions without clearly establishing a sale, or proving facts from which, in law, a legitimate inference may be drawn that a sale had been made, then no honest man would be safe from persecution by his enemies. No one would contend that the taking of a social drink is prohibited by the terms of the statute, and it cannot be more consistently urged that, if persons take a social drink and one, without the knowledge or consent of the other, expressed or implied by his acts, leaves money secreted about the place or room, he could by such act cause the prosecution and conviction of the others.

This case comes clearly within the rule of Mask v. State, supra, a rule that has been followed uniformly by this court. If the county attorney of Custer county will devote his time and energy to the end of securing sufficient testimony to clearly establish an offense as vigorously in other cases as he has in his brief presented this, the good citizens of his county will • have no occasion to complain of the lack of proper law enforcement. The confession of error by the Attorney General is sustained, and this cause reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R. C. HARDIN v. STATE.
    No. A-1384.
    Opinion Filed February 3, 1912,
    Appeal from Wagoner County Court; Leon B. Fant, Judge.
    R. C. Hardin was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Sponsler & Graves, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Wagoner county, on a charge of maintaining a place for the unlawful sale of intoxicating liquor, and on July 1, 1911, adjudged to pay a fine of fifty dollars and be confined in the county jail for a period, of thirty days. The appeal was filed in this court on the 9th day of September, 1911. The Attorney General has filed a motion to dismiss the appeal on the following grounds:

"Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor, rendered in the county court of Wagoner county on the 1st day of July, 1911, and the petition in error and ease-made were not filed in this court until the 9th day of September, 1911, more than sixty days after the rendition of such judgment, no order having been made extending the time for filing petition in error and case-made in this court beyond the time allowed by law. ’ ’

There has been no reply to the motion, and we take it as confessed. The motion is sustained, and che appeal accordingly dismissed.


author: PEE CUEIAM.

text:
    JOE ALLEN v. STATE.
    No. A-1385.
    Opinion Filed February 3, 1912.
    Appeal from Wagoner County Court; Leon B. Fant, Judge.
    Miss Joe Allen was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Sponsler & Graves, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Wagoner county, on a charge of maintaining a place for the sale of intoxicating liquors, and her punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. The Attorney General has filed a motion to dismiss the appeal herein for the following reason:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor, rendered in the county court of Wagoner county on the last day of July, 1911, and the petition in error and case-made were not filed in this court until the 9th day of September, 1911, more than sixty days after the rendition of such judgment, no order having been made extending the time within which to file petition in error and ease-made in this court beyond the time allowed by law.”

There is no answer to the motion to dismiss, and it is supported by the record. The motion is sustained, and the appeal accordingly dismissed.


author: PER CUEIAM.

text:
    P. F. FAGAN v. STATE.
    No. A-1395.
    Opinion Filed February 3, 1912.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    P. F. Fagan was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    MeKeene & Walker, for plaintiff*in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State:
   PER CUEIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Garfield county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. . Upon careful examination of the record in this ease we are impelled to the conclusion that the plaintiff in error did not have a fair and impartial trial as contemplated by law. The judgment is reversed and the cause remanded.


text:
    H. F. RICHARDS v. CITY OF TULSA.
    No. A-1405.
    Opinion Filed February 3, 1912.
    Appeal from the Tulsa County Court; N. J. Gubser, Judge.
    H. F. Eichards was convicted of violating the prohibitory law, and ■ appeals.
    Appeal dismissed.
    Clark & Fields, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Tulsa county oh a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of fifty dollars and imprisonment in the city jail of the City of Tulsa for a period of fifteen days. The appeal was filed in this court on the 27th day of September, 1911. The Attorney General has filed the following motion to dismiss the appeal:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Tulsa county on the 21st day of June, 1911, an order having been made on the 20th day of July, 1911, extending the time within which to file the petition in error and case-made in this court, to seventy-five days from said 21st day of June, 1911, and the petition in error and ease-made were not filed in this court until the 27th day of September, 1911, long after said seventy-five days had expired.”

There has been no answer filed to the motion, and no appearance made for plaintiff in error. We take the motion as confessed, and it is sustained. The appeal is dismiseed.


text:
    ORA COYLE v. STATE.
    No. A-1379.
    Opinion Filed February 3, 1912.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    Ora Coyle was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Harry O. Glasser and W. O. Cromwell, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the county court of Garfield county on a charge of selling intoxicating liquor, and on the 17th day of May, 1911, was sentenced by the court, in accordance with the verdict of the jury, to pay a fine of five hundred dollars and be confined in the county jail for a period of six months. The appeal was filed in this court on July 14, 1911. The Attorney General has filed the following motion to dismiss the appeal:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Garfield county on the 17th day of May, 1911; that afterwards on the 28th day of August, 1911, after the sixty days allowed by law in which to file petition in error and ease-made in this court had expired, the county judge attempted to extend the time in which to perfect an appeal, but said judge was at that time without jurisdiction to make such order; that the petition in error and ease-made were not filed in this court until the 14th day of September, 1911, more than sixty days after the rendition of such judgment, no order having been legally made extending the time within which to file petition in error and ease-made in this court.”

No appearance has been made on behalf of accused, and no reply to the motion to dismiss. We take it as confessed, and it is hereby sustained. The appeal is accordingly dismissed.


author: PEE CUBIAM.

text:
    W. F. SHIVERS v. STATE.
    No. A-1354.
    Opinion Filed February 3, 1912.
    Appeal from Blaine County Court; George W. Ferguson, Judge.
    W. F. Shivers was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEE CUBIAM.

Plaitiff in error was convicted in the county court of Blaine county, on a charge of having the unlawful possession of intoxicating liquor for the purpose of sale, and on the 11th day of May, 1911, was sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. After a careful examination of the record we think the judgment of the trial court should be affirmed, and it is so ordered.


author: PEB CUBIAM.

text:
    IRA BROWN v. STATE.
    No. A-1359.
    Opinion Filed February 3, 1912.
    Appeal from Kay County Court; Claude Duval, Judge.
    Ira Brown was convicted of violating the prohibitory law, and appeals.
    Beversed and remanded.
    W. B. Clark, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEB CUBIAM.

Plaintiff in error was convicted in the county court of Kay county at the April, 1911, term on a charge of selling intoxicating liquor, and on the 11th day of May following adjudged to pay a fine of two hundred and fifty dollars and be confined in the county jail for a period of ninety days. The proof on the part of the state was by one witness, who is contradicted by witnesses for the defense .and by the defendant himself. Among other instructions, the court gave the following:

“If you find that any witness has wilfully and knowingly testified falsely to any material question, you are then at liberty to disregard the whole of such witness’ testimony, except so far as the same may be corroborated by other credible witnesses.’’

Such an instruction as this has been condemned by this court in many cases. In Bea v. State, 3 Okla. Or. 269, the objection to this instruction is pointed out and made clear. The opinion in that case was filed on the 7th day of December, 1909. Just why many of the county courts of this state persist in giving instructions of this kind after they have been so often condemned, and so long condemned, is rather puzzling. It is more than two years since this doctrine was announced, and it has been uniformly followed. It is not the purpose of this court to assume a hostile attitude toward the inferior courts in any sense, but the people of this state are entitled to have the law properly administered. It costs the taxpayers of the various counties large sums of money to defray expenses of these prosecutions, and oftentimes guilty men are allowed to escape punishment by reason of errors 'that are inexcusable in the light of precedents that are before the trial courts for their guidance. In some cases this court might not feel called upon to reverse a case solely .upon an objection to a particular instruction, on the theory that the evidence is conclusive as to the guilt of the accused. But in this case the great weight of the testimony is against the contention of the state. ■ At least as to numbers of witnesses testifying. The judgment of the trial court is reversed, and this cause remanded with directions to grant a new trial.


text:
    WILLIAM DAY v. STATE.
    No. A-1358.
    Opinion Filed February 3, 1912.
    Appeal from Kay County Court; Claude Duval, Judge.
    William Day was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    W. B. Clark, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the county court of Kay county, at the April, 1911, term, on a charge of selling intoxicating liquor, and adjudged to pay a fine of two hundred and fifty dollars, and be confined in the county jail for a period of ninety days. Upon a careful examination of the record in this case we find no error sufficient to justify a reversal. The judgment of the trial court is affirmed.


text:
    P. A. EDWARDS v. STATE.
    No. A-1370.
    Opinion Filed February 3, 1912.
    Appeal from Custer County Court; J; C. MeKnight, Judge.
    P. A. Edwards was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Jones & Linville, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted at the .April, 1911, term of the county court of Custer county on a charge of selling intoxicating liquor, and was adjudged to pay a fine of one hundred and fifty dollars and serve thirty days in the county jail. Judgment was rendered on the 11th day. of May. The appeal was filed in this court on the 12th day of September. No brief has been filed on behalf of the plaintiff in error. The Attorney General has filed a motion to dismiss the appeal on the following ground:

“Because the record shows that this is an" attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Custer county on the 11th day of May, 1911, and the petition in error and case-made were not filed in this court until the 12th day of September, 1911, more than 120 days after the rendition of such judgment.;

There has been no answer to the motion to dismiss. We find that the record supports it. The motion is sustained, and the appeal accordingly dismissed.


text:
    H. E. EDWARDS v. STATE.
    No. A-1371.
    Opinion Filed February 3, 1912.
    Apueal from Custer County Court; J. C. MeKnight, Judge.
    H. E. Edwards was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Jones & Linville, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CUEIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Custer county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of one hundred dollars and imprisonment in the county jail for a period of thirty days. Judgment was rendered on the llt'h dav of May, 1911. The appeal was filed in this court on the 12th day of September,. 1911. The Attorney General has filed a motion to dismiss the appeal on the following grounds:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Custer county on the 11th day of May, 1911, and the petition in error and case-made were not filed in this court until the 12th day of September, 1911. more than 120 days after the rendition of such judgment. ’ ’

There has been no answer filed to the motion, and we take it as confessed. The motion to dismiss is sustained, and the appeal is accordingly dismissed.


text:
    ANTHONY YARBROUGH v. STATE.
    No. A-1353.
    Opinion Filed February 3, 1912.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    Anthony Yarbrough was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Rush & Steen, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garfield county, on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and on May 6, 1911, adjudged to pay a fine of fifty dollars and serve thirty days in the county jail. The Attorney General has filed a motion to dismiss the appeal for the following reason:

"Because the record shows that this is an attempted appeal from a judgment of. conviction for a misdemeanor rendered in the county court of Garfield county on the 6th day of May, 1911, and the petition in error and case-made were not filed in this court until the 5th day of September, 1911, more than 120 days after the rendition of such judgment. ’

There is no answer to the motion, and we take it as confessed. The motion is sustained, and the appeal accordingly dismissed.


text:
    ED MITCHELL v. STATE.
    No. A-1351.
    Opinion Filed February 3, 1912.
    Appeal from Garvin County Court; W. B. M. Mitchell, Judge.
    Ed Mitchell was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    John S. Garrison, for plaintiff in error.
    Smith C. Matson, Asst. Atty.' Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Garvin county, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and confinement in the county jail for a period of thirty days. Finding no material error in the record, the judgment of the trial court is affirmed for want of prosecution.


author: PER CURIAM. PER CURIAM.

text:
    L. B. PEYTON v. STATE.
    No. A-1347.
    Opinion Filed February 3, 1912.
    Opinion on Rehearing Filed March 29, 1912.
    Appeal from Delaware County Court; W. O. Hall, Judge.
    L. B. Peyton was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    G. W. Goad and J. G. Austin, 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 Delaware county at the July, 1911, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of one hundred and fifty dollars and confinement in the county jail for a period of six months. Finding no error sufficient to justify a reversal, the judgment of the trial court is affirmed.

OPINION ON REHEARING.

PER CURIAM.

We have carefully gone over the record again in this ease upon request of counsel in their, petition for rehearing. Our attention has been drawn to certain portions of the record which indicate that the jury improperly considered matters not in evidence. The proof in the record, however, clearly sustains the conviction. But these matters pointed out in petition for rehearing, to wit, that certain jurors knew of trouble between the accused and his wife wherein he was alleged to have assaulted her in all reasonable probability influenced the jury in fixing the punishment, which was a fine of one hundred and fifty dollars and imprisonment for six months. In view of the disclosures in the record, we are impelled to the conclusion that substantial justice requires a modification of the judgment. Upon the payment of the fine and costs in cash, the jail sentence is modified and reduced to sixty days in the county jail. The judgment as so modified is affirmed. Mandate is ordered forthwith.


text:
    L. B. PEYTON v. STATE.
    No. A-1348.
    Opinion Filed February 3, 1912.
    Appeal from Delaware County Court; "W. C. Hall, Judge.
    L. B. Peyton was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    G. W. Goad and J. G. Austin, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the July, 1911, term of the county court of Delaware county, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and confinement in the county jail for a period of thirty days. After a careful examination of the record in this case, we are unable to sustain the conviction. The judgment of the trial court is reversed and the cause remanded for a new trial.


text:
    T. E. SIMS v. STATE.
    No. A-1342.
    Opinion Filed February 3, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    T. E. Sims was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Pruiett & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Oklahoma county, on a charge of selling intoxicating liquor, and on the 23rd day of May following was adjudged to pay a fine of five hundred dollars and be imprisoned in the county jail for a period of six months. On this date the court gave plaintiff in error forty days to make and serve ease-made. On July 1, thereafter, an order was made extending the time thirty days longer, and on the 31st day of July an additional order was made extending the time thirty days. No order appears to have been made extending the time within which to file the appeal in this court. The Attorney General has filed a motion to dismiss the appeal, for the following reason:

"Because the record shows that this, is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Oklahoma county on the 23rd day of May, 1911, and the petition in error and case-made were not filed in this court until the 31st day of August, 1911. more than sixty days after the rendition of such judgment, the trial court never having extended the time in which to file petition in error and ease-made in this court beyond the sixty days allowed by law.”

There is no response to the motion, and we take it as confessed. The motion is sustained, and the appeal dismissed.


text:
    J. M McNEIL v. STATE.
    No. A-1334.
    Opinion Filed February 3, 1912.
    Appeal from Canadian County Court; W. A. Maurer, Judge.
    J. M. McNeil was convicted of violating the prohibitory law, and appeals.
    Affirmed. ■
    Eoberson & Roberson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on the 1st day of May, 1911, in the county court of Canadian .county, on a charge of unlawfully conveying intoxicating liquor from one place to another in this state, and on the 29th day of said month was sentenced to pay a fine of four hundred dollars and be imprisoned in the county jail for a period of ninety days. After a careful examination of the record in this ease we think the judgment should be affirmed under the doctrine announced in the case of Clarence Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644. It is so ordered.


text:
    RICHARD HENNESSEY v. STATE.
    No. A-1333.
    Opinion Filed February 3, 1912.
    Appeal from Canadian County Court; W. A.
    Richard Hennessey was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Roberson & Roberson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on the 3rd day of May, 1911, in the county court of Canadian county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and on the 27th day of said month was sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Finding no error sufficient to justify a reversal, the judgment of the trial court is affirmed. The judgment should be corrected to conform to the holding of this court in the case of Ex parte Harry, 6 Okla» Cr. 168, 117 Pac. 726, and the county court of Canadian county is directed to make such correction.


text:
    GEORGE WINTERS v. STATE.
    No. A-1331.
    Opinion Filed February 3, 1912.
    Appeal from Washington County Court; James T. Shipman, Judge.
    George Winters was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Chas. C. Julian, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Washington county, at the June, 1911, term, of having unlawful possession of intoxicating liquor with the intent of selling the same, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. Judgment was pronounced on the 15th day of June, 1911. The appeal was filed in this court on the 20th day of August, 1911, more than 60 days after the rendition of the judgment. The record discloses no order extending the time within which the appeal could be perfected. The statutory time of 60 days having expired, the Attorney General has filed a motion to dismiss the appeal on the ground that it was not filed within the time provided by law. There is no answer in the record to this motion. We take it as confessed. The motion is sustained, and the appeal dismissed.


text:
    J. M. RAKESTRAW et al. v. STATE.
    No. A-1329.
    Opinion Filed February 3, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    J. M. Rakestraw and G. R. Parks were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    Lee-F. Wilson and E. G-. Wilson, for plaintiffs in error.
    Smith C. Matson and E. G-. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiffs in- error were convicted at the April, 1911, term of the county court of Oklahoma county, on a charge of having the unlawful possession of intoxicating liquor for the purpose of sale, and were each sentenced to pay a fine of five hundred dollars and serve six months in the county jail. Finding no error prejudicial to the substantial rights of the plaintiffs in error, the judgment of the trial court is affirmed.


text:
    JOHN YOUST v. STATE.
    No. A-1327.
    Opinion Filed February 3, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    John Youst was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Lee F. Wilson and E. G. Wilson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Oklahoma county, on a charge of selling intoxicating liquor, and his punishment fixed by the jury at a fine of four hundred dollars and confinement in the county jail for a period of six months. Judgment was thereafter pronounced by the court imposing a fine of five hundred dollars and imprisonment for six months. There are two assignments of error that we deem it necessary to discuss. On cross-examining the prosecuting witness counsel asked the following question: "You had whisky on your person when you went there, did you not?” Objection was made by the state, and sustained by the court. Exceptions saved. This witness had already identified whisky that he had purchased from the accused, and counsel contend that they had a right to have this question answered. Their contention is sound, but this error is not sufficient to justify a reversal of the judgment under the facts disclosed by the record. The other assignment is based upon the proposition that the judgment of the court is void for the reason that it does not conform to the verdict of the jury. This contention cannot be sustained. This court has a right to modify the judgment, when excessive, or to make it conform to the verdict of the jury, or to remand the cause to the county court-with directions for the proper correction to be entered there. The judgment is affirmed with directions to the county court of Oklahoma county to correct the judgment and sentence to conform to the verdict of the jury, which would be by imposing a fine of four hundred dollars and imprisonment in the county jail for a term of six months.


text:
    H. RIGGART et al. v. STATE.
    No. A-1326.
    Opinion Filed February 3, 1912.
    Appeal from Oklahoma County Court; John.W. Hayson, Judge.
    H. Riggart and William Gilbreck were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    Lee F. Wilson and E. G. Wilson, for plaintiffs in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Oklahoma county at the April, 1911, term on a charge of selling intoxicating liquor, and the punishment of H. Riggart was fixed at a fine of five hundred dollars and confinement in the county jail for a period of six months, and that of William Gilbreek at a fine of fifty dollars and confinement in the county jail for a period of one month. No errors appearing from the record, the judgment of the trial court is affirmed.


text:
    H. RIGGART v. STATE.
    No. A-1325.
    Opinion Filed February 3, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    H. Riggart was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Lee F. Wilson and E. G. Wilson, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Oklahoma county, on a charge of having the unlawful possession of intoxicating liquor for the purpose of sale, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of six months. No errors appearing from the record, the judgment of the trial court is affirmed.


text:
    OSCAR HYBARGER v. STATE.
    No. A-1297.
    Opinion Filed February 3, 1912.
    Appeal from Garvin County Court; W. B. M. Mitchell, Judge.
    Oscar Hybarger was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    J. S. Garrison and Thompson & Patterson, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garvin county at the April, 1911, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. One of the assignments of error relied upon is as follows:

“The court erred in admitting in evidence, over the objection of the defendant, a certain written memorandum as testified to by witness D. H. Hays, which was not made in the presence of the accused, and which contains a statement of facts purporting to be signed by a third party.”

From the record it appears that the county atorney had.the prosecuting witness, Hays, identify a certain bottle of whisky, which it was contended was the whisky he purchased from the accused on the 9th of January, 1911, and upon which transaction this prosecution is based. It further appears that the officer had written out a statement, which the prosecuting witness and one Robert Badger had signed, and pasted on the bottle. That this bottle and memorandum were admitted in evidence. The memorandum is as follows:

“We, the undersigned, hereby certify that we bought this bottle of whisky from Oscar Hybarger in the town of Lindsey, Garvin county, Oklahoma, on January 9, 1911, about 8 o’clock p. m. at night. Dave H. Hays. Robert Badgér. ”

Robert Badger was not called as a witness by the state, and did not testify at the trial of this case. It is contended that the admission of this exhibit as evidence had the effect of placing before the jury the testimony of Robert Badger, who was not a witness, who was not sworn, and who did not testify in the case. Only one witness testified for the state, and the defendant and two other witnesses contradicted his testimony. The exhibit, that is, the bottle of whisky, was competent evidence, but the memorandum thereon should not have been permitted to go to the jury. The memorandum tells the jury that Dave H. Hays and Robert Badger bought the whisky as alleged iu the information, which is the gist of the testimony given by the prosecuting witness, Hays. Had this case gone to the jury on a controverted question of fact, without error apon the part of the trial court, we would not feel called upon to disturb the verdict of the jury. But there is no rule known to this court under which this memorandum was entitled to be admitted at the trial of this case. The framers of the Constitution saw fit to provide that a person, on' trial should be entitled to confrontation by the witnesses against him. If the court should uphold the practice permitted in the trial of this ease, it would, in effect, declare a rule that would permit a man to be tried and convicted for crime upon the unsworn written statement of any person, which would reduce the enforcement of the criminal law to a joke. Errors of law committed by the trial court do not always presume injury. But not so with a constitutional right, the denial of which always presumes injury. The court should have permitted the introduction of the exhibit, but not the memorandum. The judgment is reversed and the cause remanded with directions to grant a new trial.


text:
    JACK MICHAELS v. STATE.
    No. A-1301.
    Opinion Filed February 3, 1912.
    Appeal from Craig County Court; S. F. Parks, Judge.
    Jack Michaels was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Craig county at the January, 1911, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of three hundred and fifty dollars and confinement in the county jail for a period of sixty days. The Attorney General has filed a motion to dismiss the appeal for the following reason:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the eounty court of Craig county, Oklahoma, on the 6th day of February, 1911, and the petition in error and ease-made were not filed in this court until August 7, 1911, more than 120 days after the rendition of such judgment. ’ ’

There is no answer to the motion, and we take it as confessed. The motion is sustained, and the appeal accordingly dismissed.


text:
    CHARLES MITCHEM v. STATE.
    No. A-1309.
    Opinion Filed February 3, 1912.
    Appeal from Washington County Court; James T. Shipman, Judge.
    Charles Mitehem was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Charles C. Julian, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the June, 1911, term of the eounty court of Washington county, on a charge of having possession of intoxicating liquor with the unlawful intent to sell same, and his punishment fixed at a fine of fifty dollars and confinement in the county jail for a period of thirty days. The Attorney General has filed a motion to dismiss the appeal on the following ground:

“Because the record shows that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the eounty court of Washington eounty on the 5th day of June, 1911, and the petition in error and ease-made were not filed in this court until the 14th day of August, 1911, more than 60 days after the rendition of such judgment, no order having been made extending the time within which to file petition in error and case-made in this court beyond the time allowed by law.”

There is no answer to the motion to dismiss. We take it as confessed. The motion is sustained, and the appeal accordingly dismissed.


text:
    WESLEY McGILL v. STATE.

      No. A-1283.
    Opinion Filed February 3, 1912.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    Wesley McGill was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Hepburn & Grantham, for plaintiff in error.
    Smith C: Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted at the April, 1911, term of the superior court of Logan county on a charge of having the unlawful possession of intoxicating liquor with the intent of selling the same, and on the 6th day of May, thereafter, was sentenced by the court to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Finding no errors in the record sufficient to justify a reversal of this cause, the judgment of the trial court is affirmed.


author: PEE CURIAM.

text:
    JOE HINESLEY v. STATE.
    No. A-1281.
    Opinion Filed February 3, 1912.
    Appeal from Harmon County Court; C. W. King, Judge.
    Joe Hinesley was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    M. M. McGee, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Harmon county, on a charge of having the unlawful possession of intoxicating liquor with intent to sell the same, and on the 8th day of May, thereafter, was adjudged to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Finding no error in the record prejudicial to the substantial rights of the plaintiff in error, the judgment of the trial court is affirmed for want of prosecution.


text:
    JOE ROGERS v. STATE.
    No. A-1274.
    Opinion Filed February 3, 1912.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    Joe Eogers was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    H. C. Olds, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the superior court of Logan county on a charge of unlawfully selling intoxicating liquor, and on the 5th day of May, 1911, was sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for a period of thirty days. Let the judgment of the trial court be affirmed.


text:
    ED THOMPSON v. STATE.
    No. A-1262.
    Opinion Filed February 3, 1912.
    Appeal from Grant County Court; J. W. Bird, Judge.
    Ed Thompson was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      J. B. Drennan, 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 Grant county on a charge of unlawfully selling intoxicating liquor, and on the 22nd day of April, 1911, was adjudged by the court to-pay a fine of fifty dollars and be confined in the county jail for a period of ninety days. We think the judgment of the' trial court should be affirmed, and it is so ordered.


text:
    HARVE DUNLAP v. STATE.
    No. A-1196.
    Opinion Filed February 3, 1912.
    Appeal from Woods County Court; W. M. Bickel, Judge.-
    Harve Dunlap was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    E. W. Snoddy, for plaintiff in error.
    E. G. Spilman, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on the 7th day of April, 1911, in the county court of Woods county, on a charge of violating the prohibitory law, and on the 15th day of said month was sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Finding no error prejudicial to the substantial rights of the plaintiff in error, the judgment of the trial court is affirmed.


text:
    S. L. MILLER v. STATE.
    No. A-1291.
    Opinion Filed February 3, 1912.
    Appeal from Cherokee County Court; J. P. Parks, Judge.
    J. I. Coursey, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for a violation of the prohibitory liquor law and his punishment was assessed at a fine of fifty dollars and thirty days’ confinement in the county jail. Only two witnesses were introduced upon the trial of this cause. Their testimony was .as follows: A. B. Cunningham testified for the state: Witness lived at Tahlequah eighteen or twenty years; acquainted with defendant, S. L. Miller, on the 8th day of Pebruary and saw him on that date in his store. "I went in the store some time late in the evening and asked him if he knew where I could get some liquor and he said he might get some later on and I came back after supper and he got me some;” a quart bottle; witness paid a dollar and a half or two dollars for the liquor. This was in Cherokee county, state of Oklahoma. Witness testified on cross-examination that he had been drinking for several days, and that he bought the whisky in question either Monday or Tuesday evening.

S. L. Miller, defendant, testified: Witness was forty-two years old; lived in the city of Tahlequah twenty-one years; was living there on the 6th or 7th of Pebruary of this year, and the 8th; was acquainted with the prosecuting witness, Andy Cunningham; denied that he sold Cunningham whisky on the 8th of Pebruary or that he ever sold him any; saw Cunningham on Monday night. Cunningham stopped witness on the -street and asked if witness had any whisky at the store. “I said I didn’t. He said, 'Why in the hell have, you not?’ He cursed me and whooped and said, 'You had better quit business.’ I was going to the upper store to check up; it was about nine or ten o’clock.” Witness is engaged in the drug business near the Nicholson Hotel on South Muskogee street. The jury were the exclusive judges of the testimony. The witnesses were before them. The jury having accepted as true the testimony offered by the state, and there being’ nothing in the record to show they were influenced by improper motives, we must accept their verdict as correct. Applied to the evidence, there is nothing in the instruction of the court which could have influenced the jury against appellant. The transfer of the case from the district court to the county court appears to be regular. The judgment of the lower court is therefore affirmed.


text:
    JESSE HARRIS v. STATE.
    No. A-1295.
    Opinion Filed February 3, 1912.
    Appeal from Harmon County Court; C. W. King, Judge.
   PER CURIAM.

On the 8th day of May, 1911, judgment was' pronounced against appellant for a violation of the prohibitory liquor law and his punishment was assessed at a fine of fifty dollars and thirty days’ confinement in the county jail. At the time of the rendition of the judgment there was no order extending the time for serving the case-made beyond the thirty days allowed by law but there was an order giving appellant sixty days in which to perfect the appeal to this court. The. case-made was not served until the 18th day of July, 1911, which was more than thirty days provided by law in which this should be done. The transcript of the record was not filed in this court until the 4th day of August, 1911, which was after the expiration of the sixty days allowed by the court in which the appeal should be perfected. This court therefore did not acquire jurisdiction of the case and the appeal is dismissed, with direction to the county court of Harmon county to proceed with the execution of its judgment.


text:
    POLK HOLLEY v. STATE.
    No. A-1299.
    Opinion Filed February 3, 1912.
    Appeal from Greer County Court; Jarret Todd, Judge.
    B. F. Van Dyke, for appellant.
    Smith C. Matson, Asst. Atty. Gen.,' for the State.
   PER CURIAM.

On the 26th day of April, 1911, judgment was rendered against appellant in the county court of Greer county, for a violation of the prohibitory liquor-law, and his punishment was assessed at a fine of two hundred and fifty dollars and sixty days’ confinement 'in the county jail. The appeal was. not perfected by filing the record in this court until the 7th day of August, 1911, which was more than sixty days after the rendition of the judgment. The Legislature has seen fit to direct that in misdemeanor cases the appeal must be perfected within sixty days after the date of judgment, and has vested the county judge with authority to extend sixty days additional time in which this may be done. Counsel for appellant never applied to the county judge of Greer county for an order extending the time in which he might perfect his appeal, and no such order appears in the record. The court has no power to make such an order except upon motion of counsel for a defendant. If counsel for a defendant see fit to allow the time for perfecting an appeal to expire before applying for and securing an order extending such time, they have no one but themselves to blame. If after such time has expired, an attempted appeal will fail. We cannot do otherwise than sustain the motion of the Attorney General to dismiss this appeal, upon the ground that it was filed too late, and that this court has never acquired jurisdiction of the case. The appeal is therefore dismissed with directions to the county court of Greer county to proceed with the execution of its judgment.


text:
    HENRY BULLARD v. STATE.
    No. A-1293.
    Opinion Filed February 3, 1912.
    Appeal from Comanche County Court; James H. Wolverton, Judge.
   PEB CUBIAM.

On the 1st day of April, 1911, judgment was rendered against appellant for a violation of the prohibitory liquor law and his punishment was assessed at a fine of fifty dollars and thirty days’ confinement in the county jail. The transcript of the record was not filed in this court until August 5, 1911, which was ■one hundred and twenty-five days after the rendition of the judgment. As the time for perfecting- the appeal had long since expired before the case reached this court, we did not acquire jurisdiction of the ■case and the appeal is therefore dismissed, with directions to the eounty ■court of Comanche county to. proceed with the execution of its judgment.


text:
    J. W. GILLESPIE v. STATE.
    Nos. A-629 and A-1363.
    Opinion Filed February 21, 1912.
    Appeals from Garfield County Court; Winfield Scott, Judge.
    J. W. Gillespie was convicted for violation of the prohibition law, ■and appeals.
    Appeals dismissed.
    H. J. Sturgis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. W. Gillespie, was convicted in the county court of Garfield county for violations of the prohibitory law, and in case No. A-629, was sentenced on the 13th day of November, 1909, to pay a fine of one hundred and fifty dollars and serve ninety days in the eounty jail; in ease No. A-1363, he was sentenced on the 13th day of June, 1911, to pay a fine of five hundred dollars and be confined in the eounty jail for a period of six months. The plaintiff in error has filed a motion to dismiss the appeals herein. Upon such motions the appeals are accordingly dismissed.


text:
    G. A. JOHNSTON v. STATE.
    Nos. A-1057, 1245, 1350.
    Affirmed Orally March 6, 1912.


text:
    KELLEY COLLINS v. STATE.
    No. A-584.
    Opinion Filed March 6, 1912.
    Appeal from Payne County Court; P. D. Mitchell, Judge.
    Kelley Collins was convicted of violating the prohibitory law, and ■appeals.
    Affirmed.
    Freeman E. Miller for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in erroT was convicted in the eounty court, ■of Payne county on the 3rd day of November, 1909, on a charge of unlawfully conveying intoxicating liquor from one place in this state to another place therein, and was, on the 10th day of said month, ■sentenced to pay a fine of fifty dollars and be confined in the eounty jail for a period of sixty days. After a careful examination of the ■record in this case we are of the opinion that the judgment of the trial ■court should be affirmed, and it is so ordered. Let the mandate issue •forthwith.


author: IjEB CUBIAM.

text:
    C. A. CHORNE v. STATE.
    No. A-945.
    Opinion Filed March 7, 1912.
    Appeal from Cherokee Countv Court; J. T. Parks, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   IjEB CUBIAM.

On the 15th dav of November, 1909, judgment was rendered against appellant and he was sentenced to pay a fine of fifty dollars for attempting to cure a disease without first procuring a license therefor. Appellant did not perfect his appeal by filing a transcript of the record in this court until the 14th day of November, 1910, which was long after the time provided by law for perfecting the appeal in said ease had expired. This court therefore did not acquire-jurisdiction of the cause and the appeal is dismissed.


author: FURMAN, P. J.,

text:
    LEWIS BAKER v. STATE.
    No. A-1029.
    Opinion Filed March 7, 1912.
    Appeal from Latimer County Court; Cliff V. Peery, Judge.
    Charles H. Hudson, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.,

On the 6th day of January, 1911, judgment and sentence was rendered against appellant in the county court of Latimer county on the charge of escaping from jail, and he was sentenced to-six months' imprisonment in the county jail for said offense. Appellant did not perfect his appeal by filing a transcript of the record in this court until the 8th day of March, 1911, which was sixty-one days after the date of the rendition of the judgment against him. Under our law the appeal must be perfected in misdemeanor cases within sixty days from the date of the rendition of the judgment, unless additional time is granted by the court trying the cause. In this case there was no extension of the time allowed by law for perfecting the appeal. We therefore did not acquire jurisdiction of the case and' the appeal is dismissed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    CLARENCE SQUIRES et al. v. STATE.
    No. A-1130.
    Opinion Filed March 19, 1912.
    Appeal from Pottawatomie County Court; Ross F. Lockridge, Judge.
    S. P. Freeling and I. C. Saunders, for appellants.
    Smith C. Matson, Asst. Atty. Gen., for the State.
    Appellants were found guilty by a jury in the county court of Pottawatomie county of the offense of assault and the punishment of Blaekey Layman was fixed by the court at confinement in the county jail for a period of fifteen days and a fine of one hundred dollars, and the punishment of the defendant, Clarence Squires, was assessed' at a fine of one hundred dollars.
    Appealed. Dismissed.
   PER CURIAM.

In this case the record fails to show that the case-made was ever served upon the county attorney as required by law. The case-made must therefore be stricken from the record. The appeal cannot be considered upon the transcript of the record because-it is not certified to as the law directs. The appeal must therefore be-dismissed.


text:
    J. M. SHAY v. STATE.
    No. A-1082.
    Opinion Filed March 19, 1912.
    Appeal from District Court, Stephens County;- Frank M. Bailey, Judge-
    Gilbert & Bond, for' appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   Appellant was convicted of the offense of manslaughter in the second degree and his punishment was assessed by the court at confinement in the penitentiary for the period of four years. Appealed. Affirmed.


text:
    W. E. BRUMLEY v. STATE.
    No. A-1094.
    Opinion Filed March 19, 1912.
    Appeal from District Court, Choctaw County; Jas. E. Armstrong, Judge.
    George W. Biehardson, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
    On the 21st day of October, 1910, judgment was pronounced against appellant for the offense of' manslaughter in the first degree and his punishment was assessed at confinement for twenty-one years in the state penitentiary.
    Appealed. Affirmed.
   Judge Armstrong, having presided at the trial in the court below, did not participate in the determination of this ease.


text:
    JOE C. SMITH v. STATE.
    No. A-1112.
    Opinion Filed March 19, 1912.
    Appeal from District Court, Okmulgee County; W. L. Barnum,'Judge.
    Barclay Morgan and W. E. Eoster, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   Appellant was convicted of larceny of domestic animals and was •sentenced to three years’ imprisonment in the penitentiary. Appealed. Affirmed.


text:
    ED POWELL et al. v. STATE.
    No. A-1117.
    Opinion Filed March 19, 1912.
    Appeal from Carter County Court; M. E. Winfrey, Judge.
    E. E. Turner for appellants.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   On the 23rd day of Eebruary, 1911, judgment was rendered against appellants Ed Powell, Allie Pettis and Bill Price for the crime of maliciously killing live stock, and each of them was sentenced to a term of ninety days’ imprisonment in the county jail and to pay a fine of four hundred dollars. Appealed. Affirmed.


author: FURMAN, P. J.

text:
    CHARLEY CRAWFORD v. STATE.
    No. A-987.
    Opinion Filed March 19, 1912.
    Appeal from District Court, Johnston County; A. T. West, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
    On the 30th day of June, 1910, judgment was rendered against appellant in the district court of Johnston county for the crime of "burglary and he was sentenced to three years ’ imprisonment. Appealed.
    Affirmed.
   FURMAN, P. J.

In each of the above-numbered and entitled cases, towit: J. M. Shay v. State, No. A-1082; W. H. Brumley v. State, No. A-1094; Joe C. Smith v. State, No. A-1112; Ed Powell, Allie Pettis and Bill Price v. State, No. A-1117, and Charley Crawford v. State, No. A-987, no appearance has been made in this court in behalf of •either of the appellants, either by brief or oral argument. Hpon an examination of the records in these eases we fail to find any fundamental errors and the testimony in each case amply supports the verdict. The judgment in each of the above named eases is therefore •affirmed. .

DOYLE, J., concurs.


text:
    CHARLES STANLEY v. STATE.
    No. A-1586.
    Opinion Filed March 22, 1912.
    Appeal from Caddo County Court; C. Boss Hume, Judge.
   PEE CUBIAM.

Charles Stanley, plaintiff in error, was convicted «f a violation of the prohibition law, and on October 14, 1911, was sentenced to serve a term of four months in the county jail and pay a fine of three hundred dollars. From which judgment he appealed by filing in this court on January 16, 1912, his petition in error with case-made. On this 22nd day of March, plaintiff in error filed motion to dismiss said appeal. Which motion is allowed. Wherefore the appeal is dismissed, and the cause remanded forthwith to the county court, of Caddo county.


text:
    HENRY STEILS v. STATE.
    No. A-1445.
    Opinion Filed March 27, 1912.
    Appeal from Blaine County Court; Geo. W. Ferguson, Judge.
    I. H. Lookabaugh, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Henry Steils, plaintiff in error, was convicted in the county court of Blaine county upon an information which charged1 him with having possession of intoxicating liquors with the intention to violate provisions of the prohibition law. Upon his trial the jury returned their verdict of guilty, and assessed his punishment at a term of six months in the county jail, and a fine of five hundred' dollars. May 26, 1911, in accordance with the verdict, judgment and sentence was rendered. We have carefully examined the alleged errors assigned and argued, but have1 found none that would justify a reversal of the judgment, or that require special discussion. The judgment of the lower court is therefore affirmed.


text:
    In re HERBERT GRIDER.
    No. A-805.
    Dismissed orally, March 30, 1912.


text:
    C. LAMOREAUX v. STATE.
    No. A-1212.
    Opinion Filed April 2, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    C. Lamoreaux was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    D. B. Welty and John R. Guyer, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the April, 1911, term of the county court of Oklahoma county on a charge of having the unlawful possession of intoxicating liquors with the intent to sell' the same, and his punishment fixed by the jury at a fine of five hundred dollars, and imprisonment in the county jail for a period of six months. Finding no errors prejudicial to the substantial rights of the plaintiff in error, the judgment is affirmed.


text:
    W. J. MOON v. STATE.
    Nos. A-1040, 1041.
    Opinion Filed April 3, 1912.
    Appeal from Bryan County Court; Chas. A. Phillips, Judge.
    W. J. Moon was convieted for violations of the prohibitory law, and appeals.
    Appeals dismissed.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

In each of the above mentioned causes the appellant was convicted in the county court of Bryan county, Oklahoma, for violations of the prohibitory law. On the 12th day of November, 1910, judgment was rendered 'against appellant in cause No. 1040 and his punishment was assessed at a fine of fifty dollars and 30 days’ confinement in the county jail, but appellant did not perfect his appeal by filing a transcript of the record in this court until the 20th day of March, 1911. In cause No. 1041 judgment was rendered against appellant on tlie 12th day of November, 1910, and his punishment was assessed at a fine of two hundred and fifty dollars and thirty days’ confinement in the county jail, but appellant did not perfect his appeal by filing a transcript of the record in this court until the 20th day of March, 1911. More than one hundred ad twenty days having elapsed in both eases, from date of judgemnt, before the appeal was perfected, this court did not acquire jurisdiction of the appeal in either case. The appeal is therefore dismissed.

ABMSTBONG and DOYLE, JJ., concur.


text:
    JOE BERTINO et al. v. STATE.
    No. A-554.
    Opinion Filed April 4, 1912.
    Appeal from Pittsburg County Court; E. W. Higgins, Judge.
    Joe Bertino and Joe Nigro were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    Harley & Wilkins, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Joe Bertino and Joe Nigro were convicted in the county court of Pittsburg county, of the crime of unlawfully selling intoxicating liquor. Bertino was sentenced to pay a fine of five hundred dollars and to serve a term of thirty days in the county jail, and Nigro was sentenced to pay a fine of fifty dollars and serve a term of thirty days in the county jail. The judgment was entered January 21, 1910. We have carefully examined the record and no prejudicial error appears. We are of the opinion that the verdict and judgment was right.’ The judgment of the lower court is therefore affirmed and the case remanded thereto with direction to enforce its judgment and sentence therein.


text:
    LUTHER WALLACE v. STATE.
    No. A-551.
    Opinion Filed April 4, 1912.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Luther Wallace was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Tulsa county for unlawfully conveying intoxicating liquor. No briefs have been filed. We have examined the record and no error is apparent., The judgment of the lower court is therefore affirmed. The clerk of this court will issue mandate forthwith, directing the county court to cause its judgment and sentence to be enforced.


text:
    ALEX NOWLIN v. STATE.
    No. A-535.
    Opinion Filed April 5, 1912.
    Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.
    Alex Nowlin was convicted of selling intoxicating liquor to a minor, and he appeals.
    Reversed.
    Sutton & Miller, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C.' Matson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the district court of Pittsburg county upon an information charging him with selling liquor to a minor and was sentenced to imprisonment in the penitentiary for a term of one year. The act declaring this offense a felony and fixing the punishment therefor is unconstitutional and void, and the court therefore had no jurisdiction of the cause. Nowakowski v. State, 6 Okla. Cr. 123, 116 Pac. 351.

This prosecution having been instituted by information and not by indictment, the case is not transferable to the county court, but must be dismissed. Wychoff v. State, 6 Okla. Cr. 122, 116 Pac. 355. The judgment of the district court of Pittsburg county is therefore reversed and remanded with direction to dismiss.


text:
    In re A. G. BRASHEAR.
    No. A-1714.
    Opinion Filed April 8, 1912.
    Petition for writ of habeas corpus from Oklahoma County by A. G. Brashear.
    Writ denied.
    Wilson & Wilson, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

This is a petition for a writ of habeas corpus wherein the petitioner avers that he is illegally restrained of his liberty and is unlawfully confined in the county jail of Oklahoma county by Jack Spain, sheriff of said eouiity, under and by virtue of an order of commitment issued by the county court of said county, in which commitment it is alleged that judgment and sentence had been rendered in said court against petitioner, and petitioner states that as a matter of fact there was no judgment and sentence of record in said court or anywhere else at the time of the isuance of said order of commitment, which petition is duly sworn to by petitioner. The Attorney General, in. his reply to said petition, files a certified copy of a judgment entered in the county court of Oklahoma county against petitioner on the 24th day of April, 1911, which judgment is as follows:

"Court convened on the 24th day of April, 1911, at 9 o’clock a. m., pursuant to adjournment, present: Honorable John W. Hayson, county judge, James S. Powers, clerk, Sam Hooker, county attorney, Yerna De-Armond, official reporter, Jack Spain, sheriff, and H. T. Howard, bailiff. Public proclamation of the opening of court having been ordered and given, the following proceedings are had:

"2446 — State v. Brashear. This cause coming regularly before the court on motion on arrest of judgment and the court being advised, it is ordered that said motion be and the same is hereby overruled and exceptions allowed.

"2446 — State v. Brashear. This case coming regularly before the court on motion of the defendant for a new trial herein, and the court being advised, it is ordered that said motion be and the same is hereby overruled and exceptions allowed, whereupon it is the judgment of the court that the defendant be committed to the county jail of Oklahoma county, state of Oklahoma, and be confined in said county jail for a term of sixty days, and pay a fine of three hundred dollars and the costs of this action, .said fine to be served at the rate of two dollars per day if not paid, to which ruling the defendant excepts. Ordered further that the defendant have forty days in which to make and serve a ease-made on appeal to the Criminal Court of Appeals of the state of Oklahoma, the state to have ten days thereafter in which to suggest amendments thereto, said case-made to be signed and settled upon five days’ written notice by either party. The defendant is further given five days in which to file appeal bond herein, and pending.the filing of the said bond the defendant is released on his own recognizance.

"State of Oklahoma, Oklahoma County, ss:

"I, James S. Powers, clerk of the county court of said county do hereby certify that the foregoing is a full, true, correct and complete ■copy of the judgment and sentence in case No. 2446, State v. Brashear, as fully as the same appears of record in journal 7, page 368, and on file in my office.

“In testimony whereof, I have hereunto set my hand and the seal of said county court at the city of Oklahoma City this the 29th day of April, 1912.

(Seal) “ (Signed) JAMES S. POWERS, Clerk of the County Court.

“By ANNIE HOWER, Deputy.”

It is further made to appear to the court that petitioner appealed from this judgment of the county court to the Criminal Court of Appeals, and that the judgment hereinbefore set out is incorporated in the transcript of the record filed on said appeal. It therefore appears that the affidavit made by petitioner is untrue. The Attorney General is instructed to withdraw the papers in said case from the files of this court and present them to the county attorney of Oklahoma county, in ■order that petitioner and all persons concerned with him in making such untrue affidavit may be prosecuted for perjury. Such practices must be stopped before justice in its purity can be administered in Oklahoma. Criminals must be made to know that it is a serious and exceedingly dangerous thing to make false statements under oath- in this state. All of the time of this court is taken up in considering bona fide eases. We have no time to spend on fictitious cases founded on perjury. Eor a full discussion of our views on the subject of perjury, ■see Coleman v. State-, 6 Okla. Cr. 252.

The writ of habeas corpus is refused. '

ARMSTRONG and DOYLE, JJ., concur.


text:
    In re BEN MITCHELL.
    No. A-1641.
    Opinion Filed April 16, 1912.
    E. G. Cutlip, for petitioner.
   PER CURIAM.

On March 8, 1912, petitioner filed in this court his application for a writ of habeas corpus, alleging himself to be illegally restrained of his liberty by E. A. Pierce, sheriff of Pottawatomie county, in that upon an information filed in the county court of said county, •charging a violation of the prohibition law, he was tried, convicted and sentenced to imprisonment for six months in the county jail and to pay a fine of five hundred dollars and costs, and further averring that said judgment and sentence had been fully executed. The application for a writ of habeas corpus was denied on the ground that said petition did not sufficiently show the execution and satisfaction of the said judgment and sentence. On March 16, petitioner by his counsel of record, moved to dismiss his application at the costs of petitioner. The motion to dismiss is hereby granted and the case dismissed at the costs of the petitioner.


text:
    W. B. McKENZIE v. STATE.
    No. A-784.
    Affirmed orally April 16, 1912.


text:
    J. J. DAILEY v. STATE.
    No. A-984.
    Opinion Filed April 18, 1912.
    Appeal from Rogers County Court; Archibald Bond, Judge.
    J. J. Dailey was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    C. B. Holtzendorff, J. B. Rutherford, O. L. Rider, and J. I. Howard, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and E. G. Spilman,. Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information which charged the unlawful sale of intoxicating liquor, and on September 19, 1910, was sentenced to serve a term of ninety days in the county jail and to pay a fine of five hundred dollars. An examination of the record discloses the fact that there is no merit in this appeal. The verdict, judgment, and sentence should be sustained upon the testimony of the defendant alone. The judgment of the county court of Rogers county is therefore affirmed. Mandate to issue forthwith.


text:
    CHARLES DeSTALL v. STATE.
    No. A-1360.
    Opinion Filed April 18, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Charles DeStall was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.
   PER CURIAM.

The plaintiff in error was convicted upon an information which charged the unlawful possession of intoxicating liquor-with the intent to violate the provisions of the prohibition law. Upon his trial he was found guilty and the jury assessed his punishment at six months’ confinement in the county jail and to pay a fine of five hundred dollars. June 14, 1911, judgment and sentence was entered in accordance with the verdict. An appeal from the judgment was attempted to be taken by filing in this court a petition in error with case-made September 8, 1911. The record does not show an order extending the time beyond the statutory time of sixty days in which to- take an appeal to this court. This court not having acquired jurisdiction, the purported appeal is hereby dismissed and the cause remanded to the county court of Oklahoma county with direction to enforce its judgment and sentence-therein. Mandate to issue forthwith.


text:
    W. C. CUNNINGHAM v. STATE.
    No. A-777.
    Opinion Filed April 18, 1912.
    Appeal from Blaine County Court; George W. Perguson, Judge.
    W. C. Cunningham was convicted, of violating the prohibitory law, and appeals.
    Affirmed.
    Johnson & Wishard, for plaintiff id error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, W. C. Cunningham, was convicted in the county court of Blaine coxinty at the January, 1910, term, on a charge of maintaining a place wherein intoxicating liquors were sold contrary to law, and on the 3rd day of Pebruary, thereafter, adjudged to pay a fine of five hundred dollars and be imprisoned in the county jail for a period of six months. After a careful consideration of the record in this case we are of the opinion that the judgment of the trial' court should be affirmed. The judgment is affirmed with direction to the county court of Blaine county to execute the same.


text:
    CLARENCE ROBERTS v. STATE.
    No. A-S02.
    Opinion Filed April 18, 1912.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Clarence Roberts was convicted of the crime of pointing a pistol, and appeals.
    Affirmed.

      Taylor, Pruiett & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., (Andrew "Wood, of counsel), for the State.
   PER CURIAM.

Plaintiff in error, Clarence Roberts, was convicted in the county court of Oklahoma county at the January, 1910, term on a charge of pointing a loaded pistol at one M. B. Turner, and on the 26th day of February, 1910, was sentenced to pay a fine of fifty dollars and be imprisoned in the county jail for a period of three months. We have carefully examined the record and find no error prejudicial to the substantial rights of the plaintiff in error. The judgment is therefore affirmed.


text:
    In re CHARLES M. LITCHFIELD.
    No. A-872.
    Opinion Filed April 18, 1912.
   PER CURIAM.

The petitioner filed his duly verified application for writ of habeas corpus to be let to bail on August 27, 1910. His petition was presented in open court, and the writ denied. Whereupon petitioner’s counsel dismissed the cause at his cost. Ordered, by the eourt, that said case be dismissed at petitioner’s cost.


text:
    AARON BOURBONNAIS v. STATE.
    No. A-865.
    Opinion Filed April 18, 1912.
    Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge.
    Aaron Bourbonnais was convicted of felonious assault, and appeals.
    Judgment modified and affirmed.
    L. G. Pitman and G. A. Outcelt, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and C. H. Holt, .Co. Atty., for the State.
   PER CURIAM.

The plaintiff in error, who is an Indian, was convicted in the district eourt of Pottawatomie county, at-the March, 1910, term, on a charge of felonious assault, and his punishment fixed at imprisonment in the state penitentiary for a period of two years. The prosecuting witness testified that he was hauling ties in Teeumseh, in said county, on March 2, 1910; that he was assaulted by the accused, who struck him with a piece of iron just behind the ear and across the shoulder, inflicting a painful wound. That he had had no trouble with accused, and did not know he was in danger of being assaulted until he was struck. That he had given testimony against a brother of the accused who was charged with selling intoxicating liquor. The piece of iron with which the prosecuting witness claimed to have been struck was identified by the witness when he was on the stand; but there is absolutely nothing in his testimony from which it can be reasonably inferred that the piece of iron was a deadly weapon per se. Ed Roe testified on behalf of the state that he was working in his shop near where the difficulty occurred. That he came outside for the purpose of securing material to be used in his work and saw the accused walking away, and the prosecuting witness stoop down and pick up a piece of iron, and identified the piece of iron produced by the state as similar to the one picked up at the scene of the difficulty. There is nothing in the testimony of this witness which gives any idea as to the character of the weapon. • These were the only witnesses introduced by the state. The accused introduced no testimony whatever. The proof further shows that the blow struck was not sufficient to knock the prosecuting witness down. This eourt is always anxious to aid in the proper enforcement of the criminal law, and to uphold the judgment of the trial eourt when it can be reasonably done. But the prosecuting attorneys who represent the interest of the state in the trial courts are charged with the duty of protecting the interest of the state by having the records show facts upon which such judgment can be upheld. It is as much the duty of this court to prevent an injustice being done a person charged with crime as it is to uphold a proper judgment. The weapon used not having been shown to be a deadly weapon per se, nor a weapon, when used in the manner in which it was used in this ease, reasonably calculated to produce death or great bodily injury,' we are impelled to the conclusion that the judgment is excessive.

The errors assigned and argued are not sufficient to justify a reversal of the judgment. We think, however, the judgment should be modified.

It is therefore ordered by the court that the judgment of the trial court be modified, and that the accused be adjudged to pay the costs ■of this prosecution and be confined in the county jail for a period of 'six months.

As modified, the judgment is affirmed.


text:
    P. A. PARKER v. STATE.
    No. A-874.
    Opinion Filed April 18, 1912.
    Appeal from District Court, Jefferson County; Prank M. Bailey, Judge.
    P. A. Parker was convicted of felonious assault, and appeals.
    Judgment modified and affirmed.
    Gilbert & Bond and Dillard & Ellis, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, P. A. Parker, was tried at the February, 1910, term of the district court of Jefferson county on a charge of assault with intent to kill, and was convicted of assault with a dangerous weapon with intent to do bodily harm without justifiable •or excusable cause. On the 3rd day of March, thereafter, he was sentenced by the court to imprisonment in the state penitentiary for a period of one year and one day. We have carefully gone over the record and briefs in this case, and are of the opinion that the rights of the plaintiff in error were not properly preserved in the trial court. Counsel who briefed this case on appeal did not represent the accused on the trial below. The only serious questions argued and briefed here were not •saved in the court below.

The evidence in the record clearly established the assault, but there are extenuating circumstances, and we are of the opinion that the judgment should be modified in the interest of substantial justice. It is therefore ordered that the judgment and sentence of one year and one day in the state penitentiary be modified to ninety days in the •county jail of Jefferson county, and as modified the judgment is affirmed.


text:
    JOHN MORGAN v. STATE.
    No. A-979.
    Opinion Filed April 18, 1912.
    Appeal from District Court, Johnston County; A. T. West. Judge.
    John Morgan was convicted of larceny of domestic animals, and appeals.
    Appeal dismissed.
    Gullett & O 'Brien and S. C. Treadwell, for plaintiff in 'error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted at the June, 1910, term of the district court of Johnston county, on a charge of larceny 'of domestic animals, and on the 23rd day of said month was sentenced to ■'serve one year in the state penitentiary. The appeal was filed in this court on the 22nd day of December, 1910. On the 16th day of September, 1911, the Attorney General filed the following motion to dismiss the appeal: .

"Gomes now Charles West, Attorney General, and appearing- specially and for the purposes of this motion only, moves the court to dismiss the appeal in this case for the following reason: Because the said plaintiff in error, John Morgan, is now a fugitive from justice from the state of Oklahoma, and that his present residence is unknown. That since this appeal has been pending in this court, plaintiff in error has been convicted of another crime, amounting to a felony, against the laws of this state, and has since fled without the bounds of this state and beyond the jurisdiction of this court and his whereabouts is now unknown' as appears from the affidavit of J. M.- Williams, sheriff in and for Johnston county, Oklahoma, which is hereto attached and marked 'Exhibit A’ and made a part of this motion. Wherefore, the Attorney General says that under the law and rulings of this court, the plaintiff in error, by placing himself permanently beyond the jurisdiction of this court pending appeal, has forfeited his right to appeal, and in legal effect has abandoned the same in that he now refuses to submit himself to undergo such judgment as may be rendered against him herein. ’ ’

The motion is sustained, and the appeal is hereby dismissed.


text:
    WILLIAM PRICE v. STATE.
    No. A-889.
    Opinion Filed April 18, 1912.
    Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.
    William Price was convicted of assault with intent to kill, and appeals.
    Affirmed.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

William Price, the plaintiff in error, was convicted' in the superior court of PittsbuTg county at the March, 1910, term, on a charge of assault with intent to'kill, and on the 12th day of said month was sentenced by the court, in accordance with the verdict of the jury, to serve eighteen months in the state penitentiary. The appeal was filed in this court on the 12th day of September, 1910. No brief has been filed and no appearance made for oral argument. We have carefully examined the record, and find no error sufficiently prejudicial to justify reversal of this judgment. The Attorney General has entered a motion to affirm for want of prosecution. The motion is sustained, and the judgment affirmed.


text:
    VIRGIL HARGRAVES v. STATE.
    No. A-993.
    Opinion Filed April 18, 1912.
    Appeal from Carter County Court; I. R. Masón, Judge.
    Virgil Hargraves was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Sigler & Howard, for plaintiff in error.
    E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Virgil Hargraves, was convicted in the county court of Carter county on a charge of selling intoxicating liquor, and on the 29th day of November, 1910, adjudged to pay a fine of fifty dollars and be imprisoned in the county jail for a period of thirty days. Upon a careful examination of the record we find no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is, therefore, affirmed.


text:
    L. HEINIMAN v. STATE.
    No, A-1270.
    Opinion Filed April 18, 1912.
    Appeal from Comanelie County Court; James H. Wolverton, Judge.

      Jj. Heiniman was convicted of violating the prohibitory appeals.
    Appeal dimissed.
    Hamon & Ellis, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a conviction for a violation of the prohibitory law had in the county court of Comanche county. On the 14th day of March, 1912, the,plaintiff in error filed the following motion to dismiss his appeal: "Comes now the plaintiff in error, Jj. Heiniman, and dismisses his appeal in said action.” The motion is sustained and the appeal dismissed, and the trial court directed to enforce the judgment and sentence.


text:
    E. B. AMBLER v. STATE.
    No. A-963.
    Opinion Filed April 19, 1912.
    P. D. Mitchell, Judge.
    B. Ambler was convicted of a
    Appeal dismissed.
    Springer & Oursler, for error.
    Smith C. Matson,
   PER CURIAM.

The plaintiff in error was on an tion which charged obtaining a license therefor, and was sentenced to pay a fine of one hundred dollars. The judgment and sentence was entered on August 12, 1910. An appeal was attempted to be taken by filing in this court, petition in error with case-made on December 3, 1910. The Attorney General filed a motion to dismiss said appeal because the petition in error was not filed in this court within the sixty days allowed by statute, and no etxension of time for taking the appeal was granted by the court. It is just as essential to have the order of the trial court extending the statutory time within which to take an appeal as it is to have the time extended within which to make and serve the ease-made. An examination of the record discloses that the motion to dismiss the appeal is well taken. The purported appeal is therefore dismissed and the ease remanded to the county court of Payne county.


text:
    JOHN RODGERS v. STATE.
    No. A-1180.
    Opinion Filed April 20, 1912.
    Boss P. Loekridge, Judge.
    John Bodgers was convicted of violating the prohibitory appeals.
    Affirmed.
    G. A. Outcelt and Edw. Howell, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst.
   PER CURIAM.

Plaintiff in error was court of Pottawatomie county on a charge of maintaining a place for the unlawful sale of intoxicating liquor, and on the 20th day of April, 1911, was sentenced to pay a fine of three hundred dollars and be confined in the county jail for a period of sixty days. After a careful examination of the record in this case and the briefs of both parties, we are of the opinion that the judgment should be affirmed, and it is so ■ordered. Let the mandate issue forthwith.


text:
    JAMES LEE v. STATE.
    No. A-732.
    Opinion Filed April 24, 1912.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
   PEE CUBIAM.

James Lee, the plaintiff in error, was convicted in the county court of Oklahoma county for the unlawful sale of intoxicating liquor. On March 12, 1910, he was sentenced to serve a term of sixty days in the county jail and to pay a fine of two hundred dollars. Erom this judgment he appealed. No briefs have been filed or oral argument made on behalf of the defendant. The appeal having been abandoned, the judgment of the county court of Oklahoma county therein is affirmed and the cause remanded thereto, with direction to enforce the judgment and sentence.


text:
    J. M. DUPREE v. STATE.
    No. A-1314.
    Opinion Filed April 25, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    J. M. Dupree was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Harris & Nowlin and Pruiett & Sniggs, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. M. Dupree, was convicted in the county court of Oklahoma county on the 4th day of May, 1911, on a charge of having possession of intoxicating liquor for the unlawful purpose of sale, and was thereafter sentenced to pay a fine of five hundred dollars and be imprisoned in the county jail for a period of six months. We have carefully examined the record, and finding no error prejudicial to the substantial rights of the accused the judgment of the trial court is affirmed.


text:
    TOWN OF GOLTRY v. HENRY GROSSMAN.
    No. A-1193.
    Opinion Filed April 25, 1912.
    Appeal from Alfalfa County Court; M. E. Gustin, Judge.
   PEE CUEIAM.

This is an appeal from a judgment rendered againát appellant in the county court of Alfalfa county. Counsel for appellant have never appeared in this court, either by filing a brief or by making an oral argument. They have thereby abandoned their appeal. This court cannot examine records for errors and act as counsel for appellant when such errors are not properly presented to the court. See Price v. State, 5 Okla. Or. 148. The judgment of the lower court is therefore affirmed.


text:
    BEN HALL v. STATE.
    No. A-1234.
    Opinion Filed April 25, 1912.
    Appeal from Ottawa County Court;
    W. G. Quigley, Judge.
   PER CURIAM.

On the 2nd day of May, 1911, appellant was found guilty of- a violation of the prohibitory liquor laws of the state, and his punishment was assessed at a fine of fifty dollars and thirty days’ confinement in the county jail. Counsel for appellant has never made an appearance in this court either by brief or oral argument, and the appeal of appellant has thereby been abandoned. The judgment of the lower court is affirmed for want of prosecution.


text:
    S. E. GRANT v. STATE.
    No. A-1592.
    Opinion Filed April 25, 1912.
    Appeal from District Court, Choctaw County; A. H. Ferguson, Judge.
    S. E. Grant was convicted of manslaughter, and appeals.
    Appeal dismissed.
    J. L. Dickson, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, S. E. Grant, was convicted upon an information charging manslaughter in the first degree, and was sentenced to imprisonment for a term of four years in the state penitentiary. The judgment and sentence was entered October 26, 1911. The defendant appealed by filing in this court on January 15, 1912, his petition in error and case-made. The plaintiff in error has this day filed a motion to dismiss his appeal, which motion is allowed and the appeal is hereby' dismissed and the cause remanded to the district court of Choctaw countjr forthwith with directions to enforce its judgment and sentence therein.


author: DOYLE, J.

text:
    RICHARD H. SHARPE v. STATE.
    No. A-921.
    Opinion Filed April 27, 1912.
    Appeal from District Court, Adair County; John H. Pitchford, Judge.
    Richard H. Sharpe was convicted of perjury, and appeals.
    Appeal dismissed.
    Williams'& Williams, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the district court of Adair county for the crime of perjury, and sentenced to serve a term of five years in the. state penitentiary. The judgment and sentence was entered on April 16, 1910. An appeal was attempted to be taken by filing in this court September 22, 1911, a petition in error with ease-made.

The case-made does not contain the judgment of the trial court. No briefs have been filed and no appearance made on behalf of the plaintiff in error. When the ease was called on the regular assignment for final submission the Attorney General moved that the appeal be dismissed for failure to prosecute the same. For the reasons stated, the motion to dismiss the appeal is well taken. The appeal is therefore dismissed and the case remanded to the district court of Adair county with direction to enforce its judgment and sentence therein.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    DOC TALLEY v. STATE.
    Nos. A-1213, A-1214.
    Opinion Filed April 27, 1912.
    Appeal from Greer County Court; Jarrett Todd,. Judge.
    Doc Talley was convicted of violations of the prohibitory law, and appeals.
    Appeals dismissed. '
    Eagin & Bagin, for appellant.
    Smith O. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

On the 3rd day of March, 1911, two judgments were rendered in the county court of Greer county against the' appeL lant for violations of the prohibitory liquor law. In cause No. A-1213 on this docket, appellant was sentenced to pay a fine of four hundred dollars and eighty days’ imprisonment in the county jail. In cause No. A-1214 on this docket, appellant was sentenced to pay a fine of two hundred and fifty dollars and forty-five days’ imprisonment, in the county jail. The time for perfecting the appeal to this court in each of said causes was not extended by judgment or order of the county court. Under the law the appeal in each of said causes should have been perfected within sixty days from date of judgment, but the transcript of the record in both of said causes was not filed in this court until May 18, 1911, which was sixteen days after the time allowed by law for perfecting the appeal in said cause had expired. This court therefore' has not acquired jurisdiction of ■ said attempted appeals and has no power to do otherwise than dismiss them. Both of said attempted appeals are therefore dismissed, with 'directions to the county court of Greer county to proceed with the execution of its judgments.

ARMSTRONG and DOYLE, JJ., concur.


author: • PER CURIAM.

text:
    E. ROBERTS v. STATE.
    No. A-1611.
    Opinion Filed May 7, 1912.
    Appeal from Oklahoma County Court;
    John W. Hayson, Judge.
    E. Roberts was convicted of violating the prohibition law, and appeals.
    Appeal dismissed.
    Wilson & Wilson, for plaintiff in error.
   • PER CURIAM.

Plaintiff in error, E. Roberts, was convicted of a violation of the prohibition law and was, on October 28, 1911, sentenced to serve a term of thirty days in the county jail a#id to pay a fine of one hundred dollars, and in the default of the payment of said fine, to be further confined until the same is satisfied as by law provided. From this judgment he appealed by filing in this court February 7, 1912, a petition in error with case-made. Now on May 7th his counsel in open court moves to dismiss said appeal. The appeal in said cause is therefore dismissed and the cause remanded forthwith to the county court of Oklahoma county with direction to enforce its judgment and sentence therein.


text:
    LUTHER McFARLAND v. STATE.
    No. A-1009.
    Opinion Filed May 7, 1912.
    Appeal from LeFlore County Court; James L. Hale, Judge.
    White & Dubois, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

Appellant was convicted in ■ the county court of DeFlore county for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of fifty dollars and thirty days’ imprisonment in the county jail. .We have carefully examined the brief of counsel and find that the questions of law therein presented ■ have repeatedly been passed upon adversely to the contention made in behalf of appellant. It is therefore unneessary for us to go over these questions again. The evidence amply sustains the verdict. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    R. W. McKINLEY v. STATE.
    No. A-944.
    Opinion Filed May 7, 1912.
    Appeal from Cherokee County Court; J. T. Parks, Judge.
    R. W.- McKinley was convicted of contempt of court, and appeals.
    Appeal dismissed.

      George Paschal, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

At the July, 1910, term of the count}' court of Cherokee county the plaintiff in error was held to be in direct contempt of said court, and was adjudged to pay a fine of twenty-five dollars and to be committed to the county jail for a period of five days. The Attorney General has filed a motion to dismiss the appeal on several grounds, among others that no notice of appeal had ever been served upon the clerk of the county court of Cherokee county, Oklahoma, or upon the county attorney of said county, as provided by law for taking appeal in criminal eases. The motion is sustained and the appeal dismissed with direction to the lower court to enforce the judgment and sentence.


text:
    W. B. GRANT v. STATE.
    No. A-992.
    Opinion Filed May 7, 1912.
    Appeal from Pottawatomie County Court; E. D. Reasor, Judge.
    W. B. Grant was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.
    T. G. Cutlip, Clyde Pitman, and Lydick & Eggerman, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted at the September, 1910, term of the county court of Pottawatomie county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for one hundred eighty days. Counsel for plaintiff in error have brought many assignments of error, and filed elaborate briefs. All of the questions raised have been heretofore adjudicated by this court, and we do not feel called upon to consume time in discussing them again. A goodly number of the assignments are without merit. Others are well taken. Among the assignments involving prejudicial error is one based upon the introduction of incompetent and secondary evidence. We have gone over the record carefully, and are of the opinion that the plaintiff in error did not have that fair and impartial trial guaranteed by the Constitution.

The judgment is reversed and a new trial awarded.