text:
    JIM JOHNS v. STATE.
    No. A-3131
    — Opinion Filed April 15, 1919.
    (179 Pac. 941.)
    1. PROSECUTING ATTORNEYS — Duties and Discretion. A county attorney is vested with a personal discretion and responsibility as a minister of .iustice, and not as a mere licensed attorney, and ho must act impartially, as well ¡is refraining- from prosecuting as in prosecuting. He must guard the real interest of public justice in behalf of all concerned, and be is disqualified from becoming iu any way entangled witli private interests or grievances connected with tlie private practice of law, and, while ho may employ assistants in various ways not involving lii-< official discretion or responsibility, he cannot delegate this discretion except to an assistant, duly appointed and qualified as provided by law.
    2. INDICTMENT AND INFORMATION — Misdemeanor—Signature by Assistant Comity Attorney. It is essential to the validity of an information charging a misdemeanor that the county attorney subscribe his name thereto, or his name should be sigued by a duly appointed and qualified assistant county attorney; and. where it appears that the name of the county attorney was signed by an employee in his office, who was not a licensed attorney, and "who filed the- same in the county court, the motion ‘to quash the information should have been sustained.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    Jim Johns was eonvicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.

      Ed Crossland, for plaintiff in error.

      The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a conviction had in the county court of Tulsa county, in which Jim Johns, plaintiff in error, was found guilty under an information which charged that he did have in his possession intoxicating liquors with the intent to sell, barter, give away, and otherwise furnish the same in violation of the prohibitory liquor laws.

On the 19th day of May, 1917, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $250.

It appears that the information was filed in the county-court on the 15th day of December, 1916; that on the same day defendant was arraigned in open court and filed a motion to quash the information “on the ground that the same was not subscribed nor signed by the duly elected and qualified county attorney within and for Tulsa county, nor any of his assistants or deputies,” which motion is-supported by the affidavit of Ed Crossland, attorney for the defendant, who further avers that the signature “J. P. Evers” to said information is not in the handwriting of the said J. P. Evers, that he knows the handwriting of Miss Gayle Pettus, stenographer in the county attorney’s office at the time of the filing of the information, and that said signature is in her handwriting. On May 10, 1917, a hearing was had on the motion to quash, and J. P. Evers was called as a witness for the state, and testified that he was the former county attorney and held said office on the 15th day of December, 1916, and that Miss Gayle Pettus was his stenographer, and that he was sure that the signature “J. P. Evers” to the information is in Miss Pettus’ handwriting. He further testified as follows:

“Q. Did you authorize her . to sign your name to this information? A. I don’t,know as there was any specific authority to sign the name. I know she did those things, and that was the arrangement that was made. I just told her when certain officers came for informations to let them have them.”

Cross-examination :

“Q. Did you prepare this information? A. No, sir. Q. Were you present at the time this information was sworn to or procured by Mr. Townsend in the county attorney’s office? A. I think not. Q. You didn’t authorize Miss Pettus to sign your name to this information. A. No. Q. You didn’t go into this matter, or any of your deputies, to see whether or not the information should be granted. A. I don’t think there was any of the county attorney’s force present except Miss Pettus. By the Court: Q. Mr. Evers, you say you gave her authority to prepare informations? A. Yes, sir. Q. Now, will you state to the court just what that authority carried with it? A. I think that she was authorized to prepare those informations for filing in the court. Q. After that authority was given she would act in the premises and would prepare and sign and file informa-tions, would she not? A. Yes. Q. And you understood that? A. I know that was taking place. Q. You understood, did you not, Mr. Evers, that was the authority implied in that understanding you had with her? A. Yes; she and I both understood that.”

The action of the court in overruling the motion to quash the information is assigned as error.

The Code of Criminal Procedure directs that:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same.” (Section 5694, Rev. Laws 1910.)

It is essential to the validity of an information charging a misdemeanor that the county attórnéy should subscribe his name thereto, however, he can authorize his name to be signed to such informations by any qualified assistant county attorney.

In the case of McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260, it is said:.

“We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized inter-meddling. The county attorney is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of. all concerned. It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is confided. By section 1557, Rev. Laws 1910, a county attorney is disqualified from becoming in any way entangled with private interests, or grievances connected with the private practice of law. * * * No doubt a county attorney may employ assistants in various ways, not involving his official discretion or responsibility; but our laws have only allowed his official discretion to be delegated where assistant county attorneys have been provided for by the statute. The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of the county attorney’s power or responsibility in this respect.”

In the case of Fullingim v. State, 7 Okla. Cr. 333, 123 Pac. 558, it is held:

“It is essential to the validity of an information charging a misdemeanor that the county attorney shall subscribe his name thereto after the charge has been made, and the failure of the county attorney to so sign an information is sufficient ground for quashing the same.”

In the case of Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271, it is said:

“No doubt a county attorney may employ assistants in various ways not involving official discretion or responsibility, but he cannot authorize his name to be signed to informations by a person other than his duly appointed and qualified ássistant.”

And see Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80.

In the case at bar the undisputed facts are that the name of the then county attorney was signed by an employee in his office, who was not a licensed attorney, and who filed the • same in the county court. That being so, there has been no information signed by the officer designated by law filed in this case. It follows that the motion to quash the information should have been sustained. The judgment appealed from is therefore reversed, and the cause remanded, with directions to sustain the motion to quash the information.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J,

license: Public Domain

text:
    W. C. GILLILAND v. STATE.
    No A-3039.
    Opinion Filed April 15, 1919.
    (179 Pac. 786.)
    1. INTOXICATING LIQUORS — Contents of Bottle — Presumption and Burden of Proof — Government Label. The label upon a bottle required by the Pure Food Laws of the United States (U. S. Comp St. sees. S717-S7281, stating the component parts of the contents of said bottle, is presumptive evidence of what the bottle contains, and such bottle, contents, and label thereon may be legally introduced in evidence in prosecution for a violation of the prohibitory liquor laws of this state, -and, if not rebutted, such evidence is prima facie sufficient to establish the character of the contents of such bottle in so far as the statement contained in said labels is required by law.
    2. TRIAL — Abstract Instructions — Refusal. Requested instructions, though stating a correct proposition of law, are properly, refused, when not applicable to any evidence in the case.
    3 INTOXICATING LIQUORS — Unlawful Transportation — Intent. It is entirely immaterial with what intention an unlawful purchase of prohibited liquors is transported from one to another place in this state, and it is not a defense to a prosecution for transporting such liquors that the party transporting them intends to use such liquors for a lawful purpose.

      Appeal from County Court, Garvin County; J. D. Mitchell, Judge.

    W. C. Gilliland was convicted of violating the prohibitory liquor laws, and he appeals.
    Affirmed.

      Ca/rr & Henderson, for plaintiff in error.

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

Plaintiff in error, W. C. Gilliland, hereinafter referred to as defendant, was by information prosecuted “for unlawfully and willfully conveying from a place in Garvin county to another place therein an imitation and substitute for malt, spirituous, vinous, and fermented liquors, to wit, Jamaica ginger,” convicted and sentenced to pay a fine of $'50, and to be confined in the jail of Garvin county for 30 days and until said fine and costs are paid as provided by statute. 'To reverse the judgment rendered he prosecutes this appeal.

Defendant in his petition in error assigned various errors, but in his brief specifically states that he abandons all assignments of error except two: (1) That there is not sufficient evidence to warrant a conviction; (2) refusal of the court to give requested instructions numbered 1 and 2. And we will therefore confine our review to said assigned errors.

The undisputed evidence in the case is that the defendant was engaged in conducting a country store about 2 or 3 miles from a schoolhouse in Garvin county, Okla., and that on or about October 31, 1915, a deputy sheriff was at said schoolhouse for the purpose of arrésting negroes ■who were gathering there to engage in gambling; that the defendant, who resided about 214 miles from his store, ■came to where said deputy sheriff was, carrying a sack, and put down said sack and sat upon it; that one of the negroes present said they were his groceries and he believed he would go home, and pulled the sack from under the defendant and started off with the sack; that the officer followed the negro, and the negro set the sack down, which the officer took possession of, and found that the sack contained bottles containing a liquor which said bottles were labeled “Jamaica ginger, and contains 51 per cent, of alcohol,” and stating that such label was in compliance with the Pure Food Laws of the United States (Act June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. secs. 8717-8728]), and some of said bottles so labeled were introduced in evidence. There was also evidence, introduced without objection, other than the bottles and the labels thereon, that the contents of the bottles which the defendant was transporting was Jamaica ginger. The defendant did not offer any evidence in the case.

Upon the conclusion of the evidence, the defendant requested the court to instruct the jury to return a verdict of acquittal of defendant, which the court refused 'to do, and the defendant excepted.

Thereupon the defendant requested the court to give the jury the following instructions:

No. 1. “You are further instructed that Jamaica ginger being sometimes used for medical purposes, a person has a right to have the same in his possession or convey the same from one place in the state of Oklahoma to another place, to be used as medicine.”
No. 2. “You are further instructed that the burden of proof is upon the state to prove that the defendant in this case conveyed Jamaica ginger to either barter, sell, or give away, or to use the same as a substitute for spirituous liquors; and-if you are not satisfied from the evidence and beyond a reasonable doubt that the defendant conveyed said Jamaica ginger for the purpose of using the same as a substitute for vinous and malt liquors, you should acquit him.”

The court refused to give each of said instructions, and the defendant separately excepted to said action of the court. The burden was upon the state to establish beyond a reasonable doubt that the defendant was transporting prohibited liquors containing alcohol in excess of one-half of one per cent., measured by volume, to legally convict the defendant.

The evidence was that the bottles in evidence were labeled in accord with the requirements of the Pure Food Laws of the United States, that the contents thereof was “Jamaica ginger, and that it contained 51 per cent, of alcohol,” and it was presumptive evidence that said labels on said bottles- correctly stated the contents thereof, and this presumption the defendant did not attempt to rebut, and, there being undenied evidence that the defendant was caught in the act of transporting said bottles of Jamaica ginger from a place to another place in Garvin county, at the time charged in the information, there was sufficient evidence to show the defendant’s guilt of transporting-liquors in violation of the prohibitory liquor laws of the state, and the court did not err in refusing to direct the jury to return a verdict of acquittal for the defendant.

Requested instruction No. 1 was abstract, because there is no. evidence that the defendant had the said Jamaica ginger for medical purposes, and was properly refused.

It is entirely immaterial for what purpose the prohibited liquor was being transported, the law prohibiting its transportation for any purpose, except the liquor so transported was a legal purchase, as to which there is no evidence' in the case, and the court did not err in refusing to give requested instruction No. 2.

In Earl Watkins v. State, 13 Okla. Cr. 507, 165 Pac. 621, it is held:

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

There was. no merit in the motion for a new trial, and the same was properly overruled.

The judgment of the trial court is affirmed.

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


author: ARMSTRONG, J.

text:
    HENRY McNEAL v. STATE.
    No. A-2871.
    Opinion Filed April 15, 1919.
    (179 Pac. 943.)
    1. INTOXICATING LIQUORS — Unlawful Transportation — Sufficiency of Indictment. An information for unlawfully transporting intoxicating liquor, wliicli avers that such liquor was transported from a place in this state unknown to the county attorney to another certain place therein, is not defective, on the ground that such information does not sufficiently identify the transaction.
    ."3. SAME. Intent is no! a material ingredient of the offense of unlawfully transporting intoxicating liquors, and hence it is not necessary to aver, in an information or indictment for such offense, the intent with which such liquors were transported.
    '3. SAME — Intent—Evidence. It is not necessary, to a legal conviction for unlawfullj transporting intoxicating liquor for the state, to prove that such liquor was transported with the. intent to violate the prohibitory liquor laws of this state.
    ■4. SAME — Defense. The only legal defense to a charge of unlawfully transporting intoxicating liquor, such transportation being legally proven, is that the liquor transported was lawfully purchased and intended for lawful use.
    5. SAME — Sufficiency of Evidence. The .evidence in this ease carefully considered, and found to fully support the verdict rendered, and an examination of the entire record discloses that the trial was free from error.

      Appeal from District Court, McIntosh County; T. P. Clay, Assigned Judge.

    Henry McNeal was convicted of a second violation of the prohibitory liquor laws, and he appeals.
    Modified and affirmed.

      C. H. Tvlly, for plaintiff in error.

      S. P. Freéling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. •
   ARMSTRONG, J.

The plaintiff in error, Henry Mc-Neal, hereinafter referred to as defendant, was informed against for a second violation of the prohibitory liquor laws of this state, the said second violation being for transporting from a place unknown to a designated place in the city of Eufaula, convicted, and sentenced to pay a ñne in the sum of $50, to be confined in the penitentiary of this state for a period of 6 months, and to pay the costs of this prosecution, in the sum of $65.35, and, if said fine and costs are not paid, to serve, after the expiration of said 6 months, an additional time; not exceeding 115 days, until said fine and costs are satisfied according to law. To reverse the judgment rendered, he prosecutes this appeal.

The charging part of the information is as follows:

“That Henry McNeal, in the county and state aforesaid, on the 25th day of May, 1915, was informed against by information in the county court of McIntosh county, duly filed on the 26th day of May, 1915, by John F. Vaughn, county attorney, for the crime of ‘selling spirituous, vinous, malt, fermented, and intoxicating liquors,’ and that on the 8th day of July, 1915, following, the said Henry McNeal personally appeared in open court, and upon arraignment, entered his plea of guilty to said information, and in pursuance of said plea of guilty the said Henry McNeal was by the court, on the 8th day of July, 1915, sentenced to serve a term of 30 days in the county jail of said county and to pay a fine of $50 and costs, and that thereafter, to wit, the said Henry McNeal did. in the said county and state, on the 11th day of April, 1916, commit the crime of violating the liquor laws again and for the second time, and in the manner and form as follows, to wit: That the said Henry McNeal, having been duly convicted as aforesaid, did then and there on the 11th day of April, 1916, knowingly, willfully, unlawfully, and feloni-ously transport one-half pint of alcohol from a point in said county and state unknown to your informant to a point in McIntosh county, Oklahoma, to wit, near the Missouri, Kansas & Texas Railway depot, in the city of Eufaula, Ok’ahorna, contrary to the form of the statutes' in such cases made and provided, and against the peace and dignity of the state.”

The defendant demurred to the information on the grounds:

(1) “That the information does not specifically allege an intention to sell, barter, give away, or otherwise furnish the liquor alleged to have been transported.”
(2) “That said information does not show in what manner, or from what place, said liquor was transported.”
(3) “That said information does not state facts sufficient to state a cause of action.”

The court overruled the demurrer to the information and the defendant excepted.

The evidence in the case is undisputed, and shows that the defendant had, previous to the time that it is alleged that the second offense charged in the information in this case was- committed, pleaded guilty in the county court of McIntosh county to a charge of violating the prohibitory liquor laws of this state; that there was taken from the person of the defendant, at the time and place alleged in the information, by the sheriff of McIntosh county, a half pint of alcohol, and at’the time said alcohol was taken the defendant remarked to said sheriff “that somebody was going to sell it, and he just as well sell it as anybody”; that at a time, not testified to as being about the time of the commission of said alleged offense, Dr. Shaunty, who was treating the wife of the defendant, directed the defendant to obtain some alcohol to bathe the stomach of said wife. The defendánt testified that he had gotten the alcohol, which was taken from the defendant’s person by the sheriff, in accordance with the instructions of the said Dr. Shaunty, and that he (defendant) did not transport said alcohol with the intent to violate the prohibitory liquor laws of this state. There was no evidence tending to show that said alcohol was purchased without this state, and there was strong circumstantial evidence, brought out by questions propounded to the defendant by a juror, that said alcohol was purchased by the defendant in this state

The defendant demurred to the evidence. The court overruled the demurrer, and the defendant excepted.

The defendant assigns the foil owing errors: (1) Overruling the demurrer to the information; (2) overruling the demurrer to the evidence; (3) overruling the motion for a new trial.

It is earnestly insisted that, because the information does not allege that the defendant intended to sell, barter: or give away said alcohol, or state from what place the defendant transported said alcohol, the demurrer to the information should have been sustained, and with this contention we cannot agree.

It is averred in the information in this case that the place from which said alcohol was transported was unknown to the informant, and that it was transported to a designated place in the city of Eufaula, and these allegations as to the transportation of said alcohol were sufficient.

In John Schave v. State, 4 Okla. Cr. 285, 111 Pac. 962, it is held:

“An information charging the unlawful conveyance of liquor from one place in the state to another place therein is not defective for failing to state the place from which the liquor was conveyed, where it alleges that such place was unknown to the informant.”

It was not necessary to aver in the information the intent with which the transporting of the said alcohol was done. In Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, it is held:

“It is not necessary for an information or indictment, charging the unlawful conveyance of whisky from one place to another, to contain an allegation that the whisky is being conveyed for an unlawful purpose, nor for the proof to so show.”

The Procedure Criminal of this state does not authorize a demurrer to the evidence to be interposed. If the evidence is insufficient to sustain a conviction, the proper procedure is to request the court to direct the jury to acquit the defendant. Section 5896, Rev. Laws 1910; Frisby v. State, 5 Okla. Cr. 660, 115 Pac. 472.

However, we will overlook the procedure followed by the defendant in this case, and consider the demurrer to the evidence as a request for a directed verdict of acquittal.

The evidence was undenied that the defendant had, prior to the time of the alleged transporting in this case, pleaded guilty in the county court of McIntosh county to a charge of violating the prohibitory liquor laws of this state, and that he was caught in the act, at the time and place averred in the information, of transporting said alcohol from one place to another certain place in this state; and it not being shown that said alcohol so transported was a legal purchase — a purchase without the state —and the intent with which said defendant - transported said liquor being entirely foreign to a defense in this case. and the fact that the alcohol was transported in accord with the direction of his wife’s attending physician, even if it be conceded that the direction of said physician was about the time and applied to the transportation of the alcohol taken from the person of the defendant by the sheriff, and that the defendant was acting in accord with such direction of the doctor, not being a defense to this prosecution, the court would have erred had he directed a verdict of acquittal.

In Munn v. State, 5 Okla. Cr. 245, 114 Pac. 272, it is held:

“When a person is charged with conveying intoxicating liquors from a point unknown to some definite point named, and the proof shows that the person so charged, when first discovered, was conveying whisky, and fails- to show from what definite point he started with it, it is sufficient.”

In Rupard v. State, 7 Okla. Cr. 201, 122 Pac. 1108, it is held:

“In prosecutions for unlawfully conveying intoxicating liquors from one place in this state to another place therein, the state is only required to establish by the proof, beyond a reasonable doubt, that the liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in this information.”

In Watkins v. State, 13 Okla. Cr. 507, 165 Pac. 621, it is held:

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

Upon the reasoning stated and the authorities herein cited, we are of the opinion that the motion for a new trial was properly overruled.

While the record in this case is entirely free from error, we think that the ends of justice will be properly met by a modification of the judgment rendered in this case. It is therefore ordered by this court, under authority of section 6003, Revised Laws 1910, that the judgment rendered in this case be modified, and that, in lieu of 6 months’ imprisonment in the penitentiary of this state, the defendant is hereby sentenced to imprisonment in the jail of McIntosh county, Oklahoma, for 3 months, and to pay a fine of $50 and the costs of this prosecution, and, upon failure to pay such fine and costs, he be further confined in said jail, after the expiration of the said 3 months, until the said fine and costs are satisfied as provided by law.

The judgment of the trial court, as herein modified, is affirmed.

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


author: DOYLE,, P. J.

text:
    JEFF BALLEW v. STATE.
    No. A-3202.
    Opinion Filed April 17, 1919.
    (170 Pac. 945.)
    APPEAL AND ERROR — Dismissal—Exercise of Pardoning Power. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Jeff Ballew was convicted of murder, and he appeals
    Appeal dismissed.

      George M. Hughes, J. I. Coursey, and S. M. Rutherford, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty Gen., for the State.
   DOYLE,, P. J.

Plaintiff in error, Jeff Bailew, and M. M. Bailew were jointly charged by information - with the murder of one E. C. Neely, alleged to have been committed in said county on or about the 25th day of June, 1917. A severance was demanded, and upon his separate trial plaintiff in error, Jeff Bailew, was convicted, and his punishment assessed at imprisonment for life at hard labor. From the judgment rendered in accordance with the verdict on the 11th day of September, 1917, an appeal was perfected.

While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to dismiss the' appeal for the reason that • on December 20, 1918, a parole was issued by the Governor of the state of Oklahoma and accepted by the plaintiff in error, as shown by a certified copy of the record on file in the office of the Secretary of State.

The uniform holding of this court is that, when a parole is granted by the Governor and accepted by the plaintiff in error, and the matter is judicially called to the attention of this court pending the appeal, the appeal will be dismissed. It follows that the motion to dismiss the appeal is well founded. .

It is therefore considered and adjudged that the appeal herein be dismissed, and the cause remanded to the district, court of Cherokee county.

ARMSTRONG and MATSON, JJ., concur.


author: DOYLE, P. J.

text:
    ISAAC HOUSTON v. STATE.
    No. A-3314.
    Opinion Filed April 17, 1919.
    (179 Pac. 946.)
    ABATEMENT OK PROSECUTION — Death of Accused. In n cmuiiwl proseeiition. the purpose of the proceeding being to punish the accused, tile action mnsi necessarily abate upon liis death, and. where il is made to appear that the plaintiff in error has died pending the determination of his appeal, the canse (yil-l be abated.
    ■ Appeal from District Court, Cherokee ,Countyy ’ • John H. Pitchford, Judge.

    Issac Houston was convicted of murder, and appeals.
    Proceedings abated.

      George W. Benge and George M. Hughes, for plaintiff in error. •

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Isaac Houston, was convicted of murder in the district court of Cherokee county, upon an information filed in said court January 22, 1918, charging that in said county on or about the 28th day of October, 1917, he did kill and murder one Hardy Stevenson by shooting him with a shotgun. From the judgment and sentence rendered in accordance with the verdict assessing the death penalty, an appeal was perfected by filing in this court on April 5, 1918, a petition in "error with case-made.

While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to abate the proceedings, supported by the written státement of Sam L. Morley, warden of the penitentiary at. McAles-ter, to the effect that plaintiff in error, Isaac Houston, under sentence of death while confined in the penitentiary, died on March 28, 1919: cause, tuberculosis.

\

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause do abate. It is so ordered, with direction to the trial court to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ„ concur.


author: MATSON, J.

text:
    HARRY DOUGLAS v. STATE.
    No. A-3171.
    Opinion Filed April 21, 1919.
    (179 Pac. 947.)
    1.' FALSE PRETENSES — Sufficiency of Information — Obtaining Money by Bogus Check. For information held sufficient to charge the crime of obtaining money by means of a false or bogus check, as defined by chapter 72, Session Laws of Oklahoma, 1913. see body of opinion.
    2 SAME — Statutes. Obtaining money by means and use of a check upon a bank, in which the drawer at the time had no funds or credit with which to meet the same, and which he had no reason to believe would honor such check upon presentation at said bank for payment, is within the meaning of chapter 72, Session Laws of Oklahoma 1913, making it a felony to obtain money/hr property by means and use of a “false or bogus check.”

      Appeal from District Court, Okmulgee County; R. P. deGraffenried, Judge.

    Harry Douglas was convicted of obtaining money by means of a bogus check, and he appeals.
    Affirmed.

      Beckett & Roland, for plaintiff in error.

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

Harry Douglas was convicted of a violation of the provisions of chapter 72, Session Laws of Oklahoma 1913, which provides as follows:

. “Every person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or devise, commonly called the ‘confidence game,’ or by means or by use of any false or bogus check or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

The information upon which the conviction is based reads as follows:

“* * * That Harry Douglas did, in Okmulgee county, and in the state of Oklahoma, on or about the 24th day of October, in the year of our Lord one thousand nine hundred and fourteen and anterior to the presentment hereof, commit the crime of passing a bogus check in the manner and form as follows, to wit: That at the county of Okmulgee and state of Oklahoma, on the 24th day of October, 1914, the said Harry Douglas did unlawfully, willfully, fraudulently and feloniously obtain the sum of ten dollars ($10.00) from John Gibson, good and lawful money of the United States of America, and of the value of ten dollars ($10.00), by means and use of a certain false and bogus check, of the tenor, purport and effect fallowing: ‘Okmulgee, Oklahoma, 9 — 24—1914. Guaranty State Bank. Pay to the order of John Gibson, $10.00 ten and no/100 dollars. Harry Douglas.’ — which said check was false and bogus, all of which he, the said Harry Douglas, then and there well knew; and that the said Harry . Douglas did then and there, knowingly, willfully, unlawfully - and feloniously by means and use of said false and bogus check obtain said sum of ten ($10.00) dollars, as aforesaid, with the unlawful, willful and felonious intent, to wrong, cheat and defraud John Gibson, and the Guaranty State Bank out of said sum of money, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Among the, errors assigned as grounds for reversal is the .action of the trial court in overruling a demurrer to the foregoing information. Counsel for plaintiff in error contend that said information is insufficient, “in that it does not apprise the court nor defendant of the conditions, circumstances, or qualities which render the check (set out in the information) false and bogus.” In this connection, it is contended that the allegation that the check was “false and bogus” is a mere conclusion of the pleader, and does not describe the offense with that particularity which is necessary to inform the defendant of every essential element of the crime intended to be charged, and that it is not sufficiently direct and certain as to the particular circumstances of the offense charged.

Counsel for defendant admit:

“The information is within the general rule — charging the offense in the language of the statute. It sets forth that the defendant obtained $10 from another person; that he obtained it by means of a check (setting out the check) ; that the check was false and bogus; that the defendant knew it was such; that he obtained the money with the intent to defraud the other person thereof.”

A comparison of the statute with the information shows conclusively, in the opinion of the court, that every element of the offense set out in the statute is contained in the information. The information enlarges upon the statute to an extent sufficient to meet the' requirements of the Criminal Code of this state, which provides in section 5746, Revised Laws 1910, as follows:

“The indictment or information is sufficient if it can be understood therefrom:
“First: That it is entitled in a court having authority to receive it, though the name of the court be not stated.
“Second. That it was found by a grand jury or presented by the county attorney of the county in which the court was held.
“Third. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown.
“Fourth. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
“Fifth. That the offense was committed at some time prior to the time of filing the indictment or information.
“Sixth. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“Seventh. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

It is the opinion of the court that the information above set forth is sufficient in its allegations to fully comply with section 5746, supra. The information sets out the false check with particularity, and alleges the necessary elements of the offense so as to clearly bring the' defendant within the terms of the statute. Where this is done, we do not deem it essential that all the details of the fraud practiced should be stated in the information, especially as the information alleges that the false and bogus character of the check was well known to the defendant at the time he used the same for a fraudulent purpose.

Before the enactment of chapter 72, Session Laws 1913, supra, by the Legislature of Oklahoma, the identical statute here under consideration had been construed by the Supreme Court of the territory of Arizona, and it was there held in Williams v. Territory, 13 Ariz. 27, 108 Pac. 243, 27 L. R. A. (N. S.) 1032:

“Obtaining money on a check upon a bank in which the drawer never had funds, or which he had no reason tc believe would honor his check, is within the statute making it a felony to obtain money by the use of any false or bogus check.”

The undisputed evidence in this case clearly establishes the guilt of the defendant of the crime of obtaining money by means of a “false and bogus check” within the meaning of an identical statute as construed in the case of Williams v. Territory, supra.

Counsel for plaintiff in error contend, however, that the.construction given to the statute in the Williams Case should not obtain in this state. With this contention we are unable to agree, for the-reason that it is evident that the Legislature of this state had in mind when the statute was enacted the construction theretofore given to it by the highest court of our neighboring territory. It is the opinion of the court that it was clearly the intention of the Legislature to make the giving of a check, if used to obtain anything of value from another, a false pretense within itself, where the drawer of such check had no funds or credit in the bank against which it was drawn to meet same. This is the view taken by the Supreme. Court of Oregon in the case of State v. Hammelsy, 52 Or. 156, 96 Pac. 865, 17 L. R. A. (N. S.) 244, 132 Am. St. Rep. 686, wherein it is held that the giving of such a check under such circumstances is within a statute prescribing a punishment for false pretenses. The diversity of opinion, however, upon this subject prior to the enactment of specific statutes against passing false or bogus checks, was evidently what led to the enactment of the later statutes, and makes clear the intention and purpose of the Legislature in using the term “false or bogus check.”

For the reasons stated, therefore, it is held that the foregoing information sufficiently states the offense of obtaining money by means of a bogus check as defined by chapter 72, Session Laws 1913, supra, and that the evidence is sufficient to sustain a conviction under said statute, as no defense was made to the prosecution except that obtaining money by means of a check upon a bank in which the drawer had no funds or credit did not come within the meaning of the statute.

Judgment affirmed.

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


author: PER CURIAM.

text:
    J. C. KINNEY et al. v. STATE.
    No. A-3105.
    Opinion Filed April 21, 1919.
    (179 Pac. 946.)
    1. APPEAL AND ERROR — Review—Questions of Fact. This court will not substitute its judgment on disputed questions of fact for that of the jury which tried the case. Where then' is competent and legal evidence establishing the corpus delicti of the crime and connecting defendant with it, the evidence will be hold sufficient on appeal, although there may be a conflict between the testimony of the witnesses for the state and those for the defendant.
    2. TRIAL — Kefiu-al to Instruct — Circumstantial Evidence. Where the state does not rely alone on circumstantial evidence for a conviction, it is not error for the trial court to refuse to give an instruction on the law applicable to circumstantial Evidence.

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    J. C. Kinney and Bedford Godwin were jointly tried and convicted of the crime of unlawful possession of intoxicating liquors, Kinney’s punishment being fixed at a fine of $200 and 60 days’ imprisonment in the county jail, and Godwin’s at a fine of $50 and 30 days’ imprisonment, and both appeal.
    Judgment as to each affirmed.

      Fred W. Kopplin, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Att. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsa county wherein defendants, J. C. Kinney and Bedford Godwin, were each convicted upon a joint trial for the crime of unlawful possession of intoxicating liquors, and sentenced to serve the respective terms of imprisonment and to pay the respective fines above set forth.

Counsel for the defendants has filed an extensive brief in their behalf, relying largely upon the insufficiency of the evidence to sustain the convictions.

We deem it unnecessary to enter into a discussion of the sufficiency of the evidence^ as the record is somewhat voluminous for a misdemeanor conviction. The transcript of the evidence has been carefully examined, and the conclusion is reached that there is evidence in the/record from which the jury could legitimately reach the conclusion that each of these defendants was guilty of the crime charged. It is not the intention, nor do we deem it our privilege, nor are we authorized to substitute our judgment on disputed questions of fact for that of the jury which tried the case. Where there is any competent and lega) evidence establishing the corpus delicti of the crime and connecting defendants with it, the evidence will be held sufficient on appeal, although there may be a conflict between the testimony of the witnesses for the state and those for the defendant.

Another alleged error r.elied upon is the refusal of the court to give a requested instruction on circumstantial evidence. In the prosecution of this case, the state did not rely alone on circumstantial evidence for a conviction. It is only in cases where the evidence adduced to support the conviction is entirely circumstantial that it is held tp be error for the trial court to fail and refuse to instruct on the law applicable to circumstantial evidence when the defendant requests it. In cases of this character the accused is not, as a matter of right, entitled to have the jury instructed upon the law applicable to circumstantial evidence. Starr v. State, 9 Okla. Cr. 210, 131 Pac. 543; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102.

Finding no reversible error in the record, the judgment as to each defendant is affirmed-


text:
    MOLLIE STUBBLEFIELD v. STATE.
    No. A-3197.
    Opinion Filed April 21, 1919.
    (180 Pac. 251.)
    1. INTOXICATING LIQUORS — Possession—Sufficiency of Evidence. Evidence held to sustain a conviction for having possession of intoxicating liquors with intent to violate the prohibitory-liquor law.
    2. APPEAL AND ERROR — Sufficiency of Evidence — Review. It is only in a case where there is no substantial evidence to support the verdict that the Criminal Court of Appeals will interfere, on the ground of insufficiency of the evidence. /

      Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

    MÍollie Stubblefield was convicted of a violation of the prohibitory liquor law, and she appeals.
    Aifirmed.

      Edward P. Marshall, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Under an information filed in the county court of Tulsa county March 28, 1916, charging that on March 21, 1916, Mollie Stubblefield did have in her possession 8 pints and 50 half pints of “Old Patterson whisky,” 16 half pints of “White Mule,” and one-half gallon of alcohol with intent to violate provisions of the prohibitory liquor law, the defendant, after securing several con- , tinuance, was tried and convicted on September 17, 1917, and her punishment fixed at confinement in the county jail for 30 days and a fine of $50. She has appealed from the judgment entered upon such conviction.

The sole question presented is the sufficiency of the evidence to sustain the conviction. The only testimony is that introduced by the state, in substance as follows:

R. R. Reynolds, deputy sheriff, testified that he knows where the defendant, Mollie Stubblefield, lives, and on the day charged he visited her place, a three-room cottage occupied by Mrs. Stubblefield and her daughter, and there found in a closet the intoxicating liquors described in the information; that the door of the closet was covered by women’s wearing apparel.

Frank Wolf, deputy sheriff, testified that he assisted Mr. Reynolds in the search of defendant’s place, and they found the intoxicating liquors in the closet there.

. At the close of the state’s evidence defendant asked the court to instruct the jury to return a verdict of acquittal.

The contention is that the verdict of the jury is against the law and the evidence of the case. It is only in a case where there is no substantial evidence to support the verdict that this court will interfere on the ground of the insufficiency of the evidence. It is apparent that the facts disclosed by the testimony in this case do not bring it within that rule.

Finding no reversible error in the record, the judgment is affirmed.


text:
    MOLLIE STUBBLEFIELD v. STATE.
    No. A-3198
    — Opinion Filed April 21, 1919.
    (179 Pac. 253.)
    INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. In a prosecution for unlawful possession of intoxicating liquor, tlie evidence considered, and held sufficient to support the verdict and judgment of conviction.

      Appeal from County Court, Tulsa County; IT. L. Standeven, Judge.

    .Mollie Stubblefield was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.

      Edward P. Marshall for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen.,- for the State.
   DOYLE, P. J.

The information in this case was filed pi the county court of Tulsa county on the 29th day of March, 1916. It charges that on the 28th day of March, 1916, Mollie Stubblefield did have in her possession certain intoxicating liquors, to wit, 2 gallons of “White Mule” and 18 half pints of “White Mule,” with intent to violate provisions of the prohibitory liquor law of the state of Oklahoma.

It appears that the case was continued from term to term on defendant’s application until the 17th day -of September, 1917. The only testimony introduced was that of R. R. Reynolds, deputy sheriff, who testified that he was acquainted with the defendant, Mollie Stubblefield; that she lived in the 400 block on East First street, Tulsa: that on the 28th day of March, 1916, he went there with a search warrant and found Mrs. Stubblefield and her daughter; that in searching the place he found 18 half-pints of White Mule, or diluted alcohol, and 2 gallons of alcohol in a 5-gallon bottle; that the half pints w;ere found between the mattress and the springs of the bed in the east room, and the 5-gallon bottle containing the alcohol was sitting on the floor at the foot of the bed.

On September 18, 1917, the court rendered judgment in pursuance of the verdict and sentenced the defendant to be confined for 30 days in the county jail and to pay a fine of $50. It is urged that the information fails to charge a public offense, in that it does not state the facts which are essential to constitute the offense intended to be charged.

It appears from the record that the information was not challenged in any manner in the court below. No demurrer thereto was filed, and there was no objection made to the introduction of evidence, and no motion in arrest of judgment. Only prejudicial error raised by exceptions reserved requires a new trial, and it is only when we aré satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial court.

Several errors assigned question the sufficiency of the evidence to support the verdict. It.is only when there is no substantial evidence to support the verdict that this court will interfere, and the facts disclosed by the record in this case do not bring it within that rule.

Finding no reversible error in the record, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    WM. BOYLE v. STATE.
    No. A-3229.
    Opinion Filed April 21, 1919.
    (179 Pac. 945.)
    APPEAL AND ERROR — Time of Filing. Under the statute the Criminal Court of Appeals lias no jurisdiction to entertain an appeal from a judgment of conviction for a violation of the prohibitory liquor law, filed on a day later than the 120th day after rendition of judgment.

      Appeal from County Court, TiUman Comity; W. H. Hussey, Judge.

    William Boyle was convicted of violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed.

      Mounts & Davis, for plaintiff in error.
   PER CURIAM.

This is a pretended appeal from the county court of Tillman county from a judgment rendered on the 27th day of August, 1917, convicting defendant of the- unlawful possession of intoxicating liquors, in said ■county, and sentencing him to serve 30 days in the county jail, and to pay a fine of $50.

The petition in error and case-made were not filed in this court until the 27th day of December, 1917, more than 120 days after the rendition of judgment in the lower court. This being a conviction for a misdemeanor, the longest period of time allowed by the statute for perfecting an appeal from the judgment is 120 days.

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


text:
    ODUS W. DAVIS v. STATE.
    No. A-3082.
    Opinion Filed April 21, 1919.
    1. APPEAL AND ERROR — Instructions—Sufficiency. The. instruo f'ion.s given the jury )>.v the eourl musí i)e considered as a whole., and unless fundamental error is shown in the. ¡riving of a paragraph of said instructions the case will not be reversed on account of the giving of such paragraph.
    2. INTOXICATING LIQUORS — Instructions — Sufficiency. The paragraph of the instructions given in this case of which the defendant complains carefully considered and held not to he fundamental error. ,
    3. APPEAL AND ERROR — Exceptions—Remarks of County Attorney. In order .to have alleged improper remarks of the county attorney to the jury reviewed, the record, outside of an averment ir. the motion for a new tria!. mus| show that such remarks were made, and Unit such alleged remarks were, whom made, objected to and mpiest made to the court to withdraw same from consideration of the jury.
    4. APPEAL AND ERROR — Sufficiency of Evidence. The entire record in this case carefully read and considered, and the evidence found sufficient to sustain the verdict, and the judgment thereon rendered, and that no error prejudicial to the defendant intervened in the trial of the ease.

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Odas W. Davis was convicted of having unlawful possession of intoxicating liquor with intent to sell the same, and appeals.
    Affirmed.

      W. J. Crump, H. G. Bailey, and Don M. Crump, for plaintiff in error.

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

The plaintiff in error, Odus W. Davis, hereinafter called' defendant, was by information charged with the offense of having intoxicating liquor in his possession with the intention to unlawfully sell the same, convicted and sentenced to serve a term of six months in the county jail of Muskogee county, Oklahoma, at hard labor, to pay a fine in the sum of $500 and the costs of this prosecution, and to stand committed until said fine and costs were paid. To reverse the judgment rendered, he prosecutes this appeal.

The undenied evidence in this case shows that deputy sheriffs raided a dwelling in the town of Haskell, Oklahoma, and found therein a very large quantity of intoxicating liquors — two or three hundred quarts — at the time alleged in the information; and there was evidence tending to show that the dwelling in which said liquors were found was the dwelling of the defendant. The defendant did not offer any evidence in defense of the offense charged.

Upon the conclusion of the evidence the defendant demurred to the evidence, - which demurrer the court overruled and the defendant excepted. Demurrer to the evidence is not authorized by Procedure Criminal of this state. If the evidence is thought insufficient a request for a directed instruction of acquittal should be asked. We. will consider the demurrer to the evidence as a request for a verdict for defendant to be directed by the court.

We have carefully read and considered all the evidence in the case, and are of the opinion that with the contention of the defendant that the evidence is insufficient to show that the dwelling in which said intoxicating liquors were found was the dwelling of the defendant and to support the verdict and judgment thereon rendered. We cannot agree, as we are of the opinion that such evidence was ..sufficient to reasonably establish that said residence w;as the residence of the defendant, and that the quantity of whisky found was sufficient to show that the defendant intended to sell the same. The court would have erred if he had directed the acquittal of the defendant.

The defendant contends that the court erred in giving the jury the third paragraph of the instructions given. Not so. ' The instructions must be considered as a whole, and when so considered we are unable to see that said instructions as a whole probably resulted in a miscarriage of justice or constituted a violation of a constitutional or statutory right of the defendant, and that the court erred in giving said paragraph. West v. State, 14 Okla. Cr. 312; Seigler v. State, 11 Okla. Cr. 131.

The defendant further complains that the assistant county attorney in addressing the jury was guilty of remarks violative of section 5881, Rev. Laws 1910, but the record fails to show that the remarks alleged to have been made were 'made, except by an averment in the motion for a new trial, and the defendant admits in his brief that he did not object to said remarks, at the time they were alleged to have been'made. Under this state of the record we must decline to review said alleged improper remarks of the said attorney. Bob Walker v. State, 6 Okla. Cr. 370; Norman Sturgis v. State, 2 Okla. Cr. 362.

We think the motion for a new trial was without merit and properly overruled.

The judgment of the trial court is affirmed.

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


text:
    Ex parte WM. TOOTHAKER.
    No. A-3309.
    Opinion Filed April 20, 1918.
    Application for writ of habeas corpus by William Toothaker to be admitted to bail.
    Writ granted and bail allowed.
    Giddings & Giddings, for petitioner.
    S. P. Preeling, Atty. Gen., and Corbett Cornett, County Attorney, ■for respondent.
   PER CURIAM.

This is an application on the part of William .Toothaker to be admitted to bail in two cases now pending in Osage county, in which he is charged respectively, with the murders of Eouis Baldwin and Mrs. Louis Baldwin. These alleged homicides occurred in the public highway near the homes of the petitioner and decedents, who were husband and wife. An application for bail was heretofore made prior to the preliminary examination before Judge R. B. Boone, of the Twenty-fourth district, and was at that time very properly denied, because no unnecessary delay was shown in giving the petitioner a preliminary 'hearing: The undisputed facts appear to be that one of the deceased parties shot the petitioner with a load from a shotgun just prior to the killing. We deem it inadvisable to enter into a discussion of the evidence, but have reached the conclusion, after a careful examination of the record, that these applications for a writ should be granted, and the defendant admitted to bail in each case.

Bail is therefore fixed in the case of State of Oklahoma v. William Toothaker, for the murder of Louis Baldwin, in the sum of $15,000, for the appearance of said William Toothaker to answer said charge at the next term of the district court of Osage county, and from term to term thereafter until said charge is disposed of according to law, to be approved by the court clerk of said Osage County; and bail in the sum of $10,000 is granted to petitioner in the case of State of Oklahoma v. William Toothaker, wherein he is charged with the murder of Mrs. Louis Baldwin, under the same terms and conditions as above provided.


text:
    Ex parte EMMETT MULCARE.
    No. A-3392.
    Opinion Filed August 19, 1918.
    (173 Pac. 376.)
    Application by Emmett Muleare for writ of habeas corpus to be let to bail.
    Bail allowed.
    Brewster & Brewster, for petitioner.
    The Attorney General and R. McMillan. Asst. Atty. Gen., for the State.
   PER CURIAM.

Tliis is an application of Emmell Mulcare. for will of habeas corpus, in which ho seeks to'ho lot to bail- pending the heaving and final determination of a charge of murder filed against him in Mayes county, wherein upon his preliminary examination ho was held to answer for the murder “Of hive Pearl Couch, by cutting him with a knife on the 18th day of May. 1918.

The petitioner avers ■ that he is not guilty of the crime of murder charged, and that the proof of his guilt is not evident, nor the presumption thereof great. Attached to said petition and made a part thereof is a transcript of the evidence taken Upon the preliminary examination, and that used on his application to the district court of Mayes county for admission to bail in said cause. On .Tune 27th, upon. a consideration of the record, it was ordered that said petitioner he admitted to hail, in the sum of $15,000. Upon the application of the petitioner, for good cause shown, the same was reduced and fixed in the sum of $10.000; bond to be conditioned as required by law. Upon the approval of the same by the court clerk of Mayes county, petitioner to ho discharged.


author: PER OURIAM.

text:
    ROBERT J. BOONE v. STATE.
    No. A-2540.
    Opinion Filed October 5, 1918.
    (175 Pac. 66.)
    Appeal from District Court. Muskogee County; Malcolm 10. Rosser, Special Judge.
    Robert .1. Boone was convicted of the crime, of embezzlement, and appeals.
    Affirmed.
    Wash. 10. Hudson and Crump, Bailey & Crump, for plaintiff in error.
    S. P. Ereeling. Atty. Gen., and R. McMillan. Asst. Atty. Gen., for file.State.
   PER OURIAM.

This is an appeal from a judgment of conviction rendered in the district court of Muskogee county, Okla., on the 29th day of April. 1915, wherein the defendant. Robert .1. Boone, was convicted of the crime of embezzlement and sentenced to servo a term of 24 hours in the state penitentiary at McAlester. Okla..

This case is a companion case to No. A-2737, Robert J. Boone v. State, 15 Okla. Cr. 29. 175 Pac. 61, decided the 29th day of April. 1918, petition for rehearing denied September 24, 1918. The questions presented for consideration are identical in the two cases, and counsel for plaintiff in error have filed hut one brief covering both cases.

The opinion rendered in, cause No. A-2737, supra, is decisive of all the questions involved in this appeal, and for the reasons stated therein this judgment of conviction is affirmed. Mandate forthwith.


text:
    CYRUS PYEATT v. STATE.
    No. A-3027.
    Opinion Filed November 2, 1918.
    (177 Pac. 990.)
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Gyrus Pyeatt was convicted of an unlawful sale of intoxicating-liquors, and appeals.
    Suggestion of death of plaintiff in error, and order that proceedings abate.
    Wm. Pfeiffer and J. H. Mathers, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Gen., for the-State. ,
   PER CURIAM.

The plaintiff in error, Cyrus Pyeatt, was convicted on an information charging that he did unlawfully, and feloniously keep- and maintain a i>laee in Wirt, Carter county, with the unlawful and felonious intention and purpose therein of selling, bartering, giving away, and otherwise furnishing intoxicating liquors, and in accordance with the verdict of the jury was sentenced to be confined in the county jait for thirty days and to pay a fine of $300 and the costs. From the judgment an appeal was perfected by filing in this court on May 30, 1917, a petition in error, with case-made. Since the appeal was taken, suggestion of the death of the plaintiff in error has been made by the Attorney General, supported by the affidavit of the county attorney that said plaintiff in error is now dead. It is therefore adjudged and ordered that all proceedings in this cause be abated, with direction to tluv district, court of Carter county to enter an order to that effect.


author: PER . GURI AM.

text:
    Ex parte W. D. PEYTON.
    No. 3108.
    Opinion Filed November 14, 1918.
    (177 Pac. 990.)
    Petition of W. D. Peyton for writ of habeas corpus.
    Dismissed.
    Higgins & Berton. for petitioner.
   PER . GURI AM.

Cause dismissed, on motion of petitioner.


text:
    LEM HILL v. STATE.
    No. A-3013.
    Opinion Filed November 14, 1918.
    (175 Pac. 200.)
    Appeal from County Court. Canadian County: R. B. Forrest, Judge.
    Lem Hill, convicted of assault and battery, appeals.
    Affirmed
    .1. N. Roberson and D. K. Cunningham, for plaintiff in error.
    The Attorney General and R. McMillan. Asst. Gen., for the State
   PER CURIAM.

The plaintiff in error, Lem Hill, was convicted lu the county court of Canadian county on an information charging assault and battery, in that'he did assault, strike, beat, and bruise one Minnie Robinson, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and the costs, and in default of the payment of the fine and costs that he be confined in the county jail or at work on the public roads until said fine and these costs are satisfied as by the statute provided. From the judgment he appealed, by filing in this court May 24, 1917, a petition in error, with case-made.

No brief has been filed, and when the case was called for final submission no appearance was made in behalf of the plaintiff in -ror. Thereupon the case was submitted on the merits. From an examination of the record it appears that the defendant admitted the assault and battery and relied upon self-defense as a justification. The information is sufficient, the instructions of the court fully and fairly cover the law of the case, and no objection was. made or exception taken thereto. Our conclusion is that the appeal in this case is without merit.

The judgment herein is therefore affirmed. Mandate forthwith.


text:
    LEM HILL v. STATE.
    No. A-3014.
    Opinion Filed November 13, 1918.
    (175 Pac. 200.)
    Appeal from County Court; Canadian County; R. B. Forrest, Judge.
    Lem I-Iill was convicted of assault and battery, and he appeals.
    Affirmed.
    .1. N. Roberson and I). K. Cunningham, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Lem Hill, was convicted in the county court of Canadian county on an information charging assault and battery, in that he did assault, strike, beat and bruise one W. R. Forster with a club, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for thirty days, and to pay a fine of $40 and the costs, and, in default of the payment of said fine and costs, that he be further confined in the county jail or at work on the public roads in satisfaction of the same as by law provided. From the judgment he appealed, by filing in this court on May 24, 1917, petition in error with case-made.

No brief has been filed, nor oral argument made, in behalf of the plaintiff in error, when the ease was submitted on the record. An examination of the same shows that there are no errors which would authorize a reversal of the judgment.

The judgment herein is therefore affirmed.


author: PER CURIAM

text:
    JOE FARRAR et al. v. STATE.
    No. A-2972.
    Opinion Filed November 16, 1918.
    (177 Pac. 990.)
    Appeal from County Court, Canadian County; R. B. Forrest, Judge.
    Joe Farrar and Hugli McClure were convicted of violating the prohibitory law, and appeal.
    Affirmed.
    A. F. Decker for plaintiffs in error.
    R. McMillan, Asst. Atty. Gen., for tlie State.
   PER CURIAM

The plainl ffs in error. .Re Fa rar and Hugh McClure, were convicted at the January, 1917, term of the county court of. Canadian county on a cha:ge of conveying in’oxicacina liquor i'rom one place in said county to another place therein, and their punishment fixed at a fine of $500 each and imprisonment in the county jail for a period oi ix months cich. Ueon .arefill examination of the record we find no fundamental error prejudicial to the substantial rights of the plaintiffs in error. The judgment of the trial court is therefore affirmed.


author: PEP CURIAM.

text:
    OSCAR LEMING v. STATE.
    No. A-3059.
    Opinion Filed November 20, 1918.
    (175 Pac. 200.)
    Appeal from County Court, Stephens County; J. W. Marshall, Judge.
    Oscar Leming, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    J. B. Wilkinson, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PEP CURIAM.

Plaintiff m erre r. Oscar Leming, was convicted in the county court of Stephens county on a charge that he did convey whisky from his residence, about one block west of the Chicago, Rock Island & Pacific Railway, in the town of Comanche, to Oak street, in said town. The jury failed to agree upon the punishment. On March 9, 1917. the court rendered judgment, and sentenced the defendant to be confined in the county jail for- 80 days and to pay a fine of' $50 and the costs. From the judgment an appeal was perfected.'

No brief has been filed. When the case was called for final submission, no appearance was made in. behalf of the plaintiff in error. Thereupon the case was submitted on the record. After an examination of the same, our conclusion is the appeal is without merit.

The judgment appealed from is therefore affirmed. Mandate forthwith.


text:
    HARVEY WYNCOOP v. STATE.
    No. A-3071.
    Opinion filed November 23, 1918.
    Appeal from County Court, Oklahoma County; William H. Zwick, Judge. ■
    Harvey Wyneoop was convicted of violation of the prohibitory-liquor laws, and appeals.
    Affirmed.
    Ruth & Tripp, for plaintiff in error. .
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Átty. Gen., for file State.
   PER CURIAM.

Harvey Wyneoop- was convicted in the county court of.Oklahoma county of the crime of unlawfully conveying five half-pint, bqttles of liquor .from near the corner of California avenue, apd .Walker street to a point on south Hudson street in the city of, Oklahoma .City,-his punishment being fixed at a fine of if 100 and imprisonment in the county jail for a period of 60 days.

The evidence showed that the defendant was seen to walx from' a point on California ave ue neir Walker sveet in Oklahoma City to • a point on south Hudson street between Grand and California ■ avenue, at which 'atier pl,u e he was intercepted and a1 rested Five half-pints of whisky were found concealed upon his person in five different pockets of his clothing. No defense was interposed in behalf of the defendant

The grounds relied upon for a reversal are purely technical and without substantial merit. The attorneys who represent the plaintiff in error in this court did not defend him in the .lower court.

After a careful consideration of the grounds urged for reversal, it is the opinion of this court that the guilt of the defendant is established beyond question of a doubt, and that there is no -merit in the contentions urged for reversal.

The judgment of conviction is accordingly affirmed.


text:
    Ex parte J. W. MACK.
    No. A-3101.
    Opinion Filed December 7, 1918.
    (175 Pac. 200.)
    Application of .1. W. Mack for writ of habeas corpus,
    denied and' cause dismissed.
    Warren & Warren; for applicant..
    ■-'■■R. McMillan. Asst. Atty. Gen., for. the State.
   PER CURIAM.

This is an application for writ of habeas corpus by J. Wm. Mack, who alleges he is illegally restrained and unlawfully imprisoned at Hugo by Ben Fitzgerald, sheriff of Choctaw county, under a commitment issued by W. T. Glenn, county judge, as a committing magistrate on a, preliminary examination, on a ■ complaint charging petitioner with attempting to obtain property under false pretenses, and alleging that said restraint is illegal, because the facts adduced in evidence on the preliminary examination' were not sufficient to constitute an offense against the laws of the state of Oklahoma. The petition was presented to this court on August Sth, and upon consideration of the same the application was overruled, on the ground that the facts stated were insufficient to entitle petitioner to the relief prayed for. ami it was i.nlereii Unit I lie cause be dismissed.


text:
    ROY PEEL v. STATE.
    No. A-3199.
    Opinion Filed December 14, 1918.
    Appeal from County Court. Oklahoma County; William H. Zwick, Judge.
    Roy Peel, was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed, and cause remanded to trial court.
    Charles H. Ruth, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error. Roy Peel, was convicted iti the county court of Oklahoma county on an information charging that he did have possession of 22 half pints of whisky with intent to sell, and his punishment was fixed at confinement in the county jail for 30 days and a fine of ?50. Prom the judgment rendered on the verdict he appealed, by filing in this court on November 1) 1917, a petition in error with case-made. The plaintiff in error by bis counsel of record has filed a mo'ion ta dismiss his appeal, which motion is sustained, and the appeal herein ;s dismisse'1 and the cause remanded to flic trial court.


text:
    Ex parte ISAAC WILKINSON.
    No. A-3503.
    Opinion Filed January 21, 1919.
    (177 Pac. 620.)
    Application of Isaac Wilkinson for writ of habeas corpus to be released on bail.
    Application denied.
    J. R. Charlton and R. H. Hudson, for petitioner.
    The Attorney General and R. McMillan. Asst. Atty. Gen., for respondent
   PER CURIAM.

This is an application by Isaac Wilkinson, for writ óf habeas corpus, by which he seeks to be let to bail pending the final hearing and determination of a charge of murder filed !agáinst him in Washington county, wherein upon his preliminary examination Re was Reid to answer for tRe murder of one William Paris, by sRooting Rim with a pistol on tRe 4th day of November, 1917.

TRe petitioner avers tRat Re is now. unlawfully imprisoned and re-rtrained ir. tRe common ;'ail of WasRingten county by the sheriff of said county, and that he is not guilty of the said crime jf murder -harged in said informatun; that the-proof of Ris guilt is net evident, nor the presumption thereof great.

Attached to said petition and made a part thereof is a duly certified iransnip- of the evidence la ken on th • appl Ratio. to t’.e 'lisMct court of Washington county for admission to bail m ¡.aid -ause, which application was denied.

TRe Attorney General concedes that upon the showing made the petitioner is entitled to bail.

Upon a careful consideration of the evidence we are of the opinion that the petitioner herein is entitled to be admitted to bail. It is therefore ordered that said plaintiff, Isaac Wilkinson, be admitted to bail upon the charge of murder now pending against him, and that his bail be, and the same is hereby, fixed in the sum of $15,000, bond to be conditioned as required by law, and upon the approval of the same by the court clerk of said county petitioner be enlarged upon bail.


text:
    Ex parte IRA E. WILLIAMS.
    No. A-3464.
    Opinion Filed February 4, 1919.
    (177 Pac. 990.)
    Application of Ira B. Williams for writ of habeas corpus to be let to . bail.
    Application denied and case dismissed.
    Moman Pruiett, for petitioner.
    R. McMillan, Asst. Atty. Gen., and Joe Eaton. Co. Atty., of Ok-mulgee, for respondent.
   PER CURIAM.

An appeal having been perfected by petitioner from the judgment and sentence on which petitioner prays that he be admitted to bail, the application herein is denied, and the cause dismissed.


text:
    GEORGE GORDON v. STATE.
    No. A-2807.
    Opinion Filed February 11, 1919.
    (177 Pac. 380.)
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    • George Gordon was convicted of keeping a place for the sale of intoxicating liquors, and appeals.
    Reversed.
    J. H. Mathers and Wm. Pfeiffer, for plaintiff in error.

      The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the dis-that be did court of a place in the town of Wirt, known as the “Red Front Cigar Store,” with the felonious intention and purpose of selling intoxicating liquors, and in accordance with the verdict of the jury was sentenced he confined in the county jail for 30 days and to pay a fine of $50.

This piosecution was under section 4 of chapter 26, Session Laws 1913. Under the authority of Proctor v. State, 15 Okla. C. 338, 176 Pac. 771, holding said statute unconstitutional and void, the judgment is reversed.


text:
    ARCHIBALD CLARK v. STATE.
    No. A-2808.
    Opinion Filed February 11, 1919.
    (177 Pac. 549.)
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Archibald Clark was convicted of keeping a place with intent to sell „ intoxicating liquors, anjl he appeals.
    Reversed.
    J. H. Mathers and Wm. Pfeiffer, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Carter place in Wirt, Carter county, with the felonious intention and purpose of selling intoxicating liquors, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and pay a fine of $50.

This was a prosecution under section 4, c. 26, Session Laws 1913. Under the authority of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, holding said provision of the statute unconstitutional1 and void, the judgment is reversed.


text:
    JACK KATHARY v. STATE.
    No. A-2812.
    Opinion Filed February 11, 1919.
    (177 Pac. 550.)
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Jack Kathary was convicted of keeping a place with intent to violate provisions of the prohibitory liquor law, and he appeals.
    Reversed.

      J. H. Mathers and Wm. Pfeiffer, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged that Jack Kathary did keep a place in the town of Wirt, Garter county, known as the “Oil Exchange,” with the intention and purpose of selling intoxicating liquors. On his trial the jury rendered a verdict finding him guilty as charged, and fixed his punishment at confinement in the county jail for 30 days and a fine qf $500. To reverse the judgment rendered on the verdict an appeal was perfected.

This is a prosecution under section 4, c. 26, Session Laws 1913, which provision of the statute was in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, held unconstitutional ánft void. For the reasons stated in the opinion in the Proctor Case, the judgment is reversed.


text:
    GEORGE WHITE v. STATE.
    No. A-2831.
    Opinion Filed February 11, 1919.
    (177 Pac. 550.)
    Appeal from District Court, Muskogee County; R. P. de Graffenried, Judge.
    George White was convicted of keejung a place with intent to violate provisions of the prohibitory law, and he appeals.
    Reversed.
    W. P. Miller and Harry P. Eagan, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an indictment charging that George White did keep a place in the city of Muskogee, known as the “Peerless .Drug Store,” with the intent and purpose of selling intoxicating liquors. On his trial the jury rendered a verdict of guilty, and fixed his punishment at confinement in the county jail for 30 days and a fine of $300. To reverse the judgment rendered on the verdict an appeal was perfected.

This is a prosecution under section 4, c. 26 Session Laws 1913, which provision of the statute was in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, held unconstitutional and void. Por the reasons státed in the opinion of the Proctor Case, the judgment is reversed.


text:
    BERRY JANES et al. v. STATE.
    No. A-3103.
    Opinion Filed February 11, 1919.
    (177 Pac. 626.)
    Appeal from District Court, Garfield County; James B. Cullison, Judge.

      Berry Janes and Sarah Trieber were convicted of keeping a place with intent of selling intoxicating liquors, and they appeal.
    Reversed.
    H. J. Sturgis and E. C. Patton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were jointly charged, tried and convicted on an information charging that they did keep a place in the city of Enid with the intent and purpose of selling intoxicating liquors. The jury fixed the punishment of Berry Janes at five years in the penitentiary and a fine of $50, and the punishment of Sarah Trieber at two years in the penitentiary and a fine of $50. An appeal was perfected.

This was a prosecution under section 4, c. 26. Session Laws 1913. The Attorney General has filed a confession of error, on the ground that said statute was, in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, held unconstitutional and void. For the reasons stated in the Proctor Case, the confession of error is sustained, and the judgment herein reversed.


text:
    Ex parte WILLIE HUTCHINSON.
    No. A-3462.
    Opinion Filed February 11, 1919.
    (177 Pac. 633.)
    Petition for writ of habeas corpus by Willie Hutchinson, by his next friend, Mrs. Florence M. Paige.
    Writ denied.
    J. T. Johnson, for petitioner.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a petition for writ of habeas corpus, verified and filed by Mrs. Florence M. Paige, as next friend, for the purpose of discharging AVillie Hutchinson from the State Training School at Pauls Valley, where it is averred that he is unlawfully imprisoned by virtue of a commitment issued out of the juvenile court of Nowata county, and that said trial and commitment was without the course of law.

The Attorney General filed a demurrer to said petition, on the ground that said petition does not aver facts sufficient to entitle petitioner to the relief prayed for. and that it does not appear from said petition that the juvenile court was without jurisdiction to commit the said Willie Hutchinson to the training school, ¿n examination of the record discloses that the demurrer to said petition should be sustained. >

It is therefore ordered that the writ of habeas corpus upon said petition is denied.


text:
    BILL BOYD v. STATE.
    No. A-2814.
    Opinion Filed February 15, 1919.
    (178 Pac. 891.)
    Appeal from District Court, Garfield. County; James B. Cullison, Judge.
    Bill Boyd was convicted of a felony, and lie appeals.
    Reversed.
    H. J. Sturgis and J. W. Steen, for plaintiff in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Bill Boyd, plaintiff in error, was convicted on a charge that he did keep a place in the city of Enid, known as the “Oxford Billiard Room,” with the intent and purpose of selling intoxicating liquor. The jury failed to agree on the punishment, and he was sentenced by the court to confinement in the county jail for 90 days and to pay a fine of $50. To reverse the judgment an appeal was perfected.

This was a prosecution under section 4, c. 26, Session Laws 1913, which provision of the statute was in the case of Proctor v. State 35 Okla. Cr. 338, 176 Pac. 771, held unconstitutional and void. For the reasons stated in the Proctor Case, the judgment is reversed.


text:
    J. P. PORTER v. STATE.
    No. A-2844.
    Opinion Filed February 15, 1919.
    (177 Pac. 380.)
    Appeal from District Court, Love County; W. F. Freeman, Judge.
    J. P. Porter was convicted of a felony, and he appeals.
    Reversed.
    J. C. Graham and T B. Wilkins, for plaintiff in err.ir.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, J. P. Porter, was convicted of a charge that he did keep a place 1% miles north of the town of Orr, Love county, with the intent and purpose Af selling intoxicating liquors, and his punishment was fixed at one year in the penitentiary. To reverse the judgment rendered on the verdict, an appeal was perfected. •

This is a pr^ecution u>l r section 4, < 26, Session Laws 1913, which provision of the state was, in the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, held unconstitutional and void. For the reasons stated in the opinion in the Proctor Case, the judgment is reversed.


text:
    W. M. KELLY v. STATE.
    No. A-2826.
    Opinion Filed February 20, 1919.
    (177 Pac. 626.)
    Appeal from the District Court, Muskogee county.

      W. M. Kelly was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and he appeals.
    Reversed.
    Crump, Bailey & Crump, for plaintiff- in error.
    The Attorney General and R. McMillan, Asst. Atty. Gen., for the state.
   PER CURIAM.

The plaintiff in error was, by the indictment duly returned by the grand jury in the district court of Muskogee county, ■charged with keeping a place in the city of Muskogee with the intent and purpose of selling intoxicating liquors. Upon his trial the jury returned a verdict finding him guilty and assessing his punishment at 30 days’ confinement in the county jail and a fine of $150. To reverse the judgment entered on the verdict he appeals.

In the case of Proctor v. State, 15 Okla. Cr. 338, 175 Pac. 771, the statute upon Svhich this pr^secnton was based was held ur. onsti-tutional and void. For the reasons stated in that opinion, the judgment appealed from is reversed.


text:
    E. L. LONG et al. v. STATE.
    No. A-3134.
    Opinion Filed April 4, 1919.
    (179 Pac. 478.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    E. L. Long, F.' J. Norris and W. H. Mosby, were convicted of a violation of the prohibitory law, and they appeal.
    Affirmed.
    D. M. Martindale, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Att. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, E. L. Long, F. J. Norris, and W. H. Mosby were jointly tried and convicted on an information charging that they did have possession of “thirty-eight half pints of whisky, one quart of whisky, two gallons and ten half-pints of alcohol, and one quart of wine.”

In accordance with the verdicts the court sentenced E. L. Long to be confined in the county jail for 30 days and to pay a fine of $400, and F. J. Norris and W. H. Mosby to each pay a fine of $50 and to be confined in the county jail for 30.days.

From the judgments tendered on the verdicts an aopeal was perfected. No lirief had been filed, and no appearance made when the case was called for final submission.

An examination of the record discloses that the information is sufficient; that the evidence for the state supports its allegations, and that no evidence was offered on behalf of the plaintiffs in error.

The judgments appealed from are affirmed. Mandate forthwith.


text:
    CLAUD BONDS v. STATE.
    No. A-3438.
    Opinion Filed April 5, 1919.
    Appeal from District Court, Beckham County; Frank Mathews, Assigned Judge.
    Claud Bonds was convicted of. grand larceny, and he appeals.
    Order that proceedings abate.
    A. M. Beets, for plaintiff in error.
    W. C.- Hall, Asst. Atty. Gen., and J. A. Minton, Co. Atty., for the State.
   PER CURIAM.

Plaintiff in error, Claud Bonds, was convicted in the district court of Beckham county of the crime of grand larceny, and was sentenced to be imprisoned in the state reformatory for the term of two years. To revei-se the judgment and sentence he appealed, by filing in this court on August 16, 1918, a petition in error with case-made.

On April 3, 1919, suggestion of the death of plaintiff in error was filed in this court signed by the attorney for plaintiff in error and the county attorney of Beckham county. It is therefore adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of plaintiff in error, Claud Bonds.

The district court of Beckham county is directed to enter its appropriate order to that effect.


text:
    TOM KELLER et al. v. STATE.
    No. A-3179.
    Opinion Filed April 5, 1919.
    (179 Pac. 785.)
    Appeal from County Court, Seminole County. D. G. Hart, Judge.
    Tom Keller and Will Keller were each convicted of having unlawful possession of intoxicating liquors, Tom Keller being sentenced to pay a fine of $50 and to serve 90 days’ imprisonment in the county jail, and Will Keller being sentenced to pay a fine of (TO and to serve 30 days in the county jail, and both appeal.
    Judgment affirmed.
   PER CURIAM.

This cause has been pending in Oiis court since November 1, 1917, no brief having been filed in behalf of plaintiffs in error, and no appearance made by counsel to orally argue the same on the date the cause was submitted.

The court has examined the information, instructions of the court, and judgment and sentence, and finds the proceedings regular.

No reversible error having been urged either in a brief or by oral argument, and none appearing from an examination of the record, the judgment of the conviction as to each plaintiff in error is affirmed.


text:
    ANGELO GOLPI v. STATE.
    No. A-3169.
    Opinion Filed April 5, 1919.
    (179 Pac. 619.)
    Appeal from County Court, Coal County; C. M. Threadgill, Judge.
    Angelo Golpi was convicted of the crime of unlawful possession of intoxicating liquors, and sentenced to pay a fine of $300 and to serve 30 days in the county jail, and he appeals.
    Judgment affirmed.
   PER CURIAM.

This cause has been pending in this court since the 17th day of October, 1917. No brief has been filed in behalf of plaintiff in error, nor was any appearance made in his behalf on the day the cause was set for submission.

The court has carefully examined the record and finds the proceedings regular in every respect. The evidence is amply sufficient to sustain the conviction, the information states a good charge, and sufficiently supports a conviction of unlawful possession of intoxicating liquors. The instructions of the court were very favorable to the defendant.

For the reasons stated, the judgment of conviction is affirmed.


text:
    JOE TAGGART et al. v. STATE.
    No. A-3203.
    Opinion Filed April 5, 1919.
    (179 Pac. 622.)
    Appeal from County Court, Oklahoma County; William H. Zwick,1 Judge.
    Joe Taggart and Dick Taggart were each convicted of the crime of unlawfully conveying intoxicating liquors, and each sentenced to pay a fine of $250 and to serve 90 days in the county jail, and both appeal,
    Judgment affirmed as to each.
   PER CURIAM.

This appeal has been pending in this court since November 23, 1917. No brief has been filed in behalf of plaintiffs in error, nor was an appearance made to orally argue the cause when the same was set for submission.

The court has examined the record, and finds the proceedings regular in every respect. The evidence conclusively sustains the conviction; and, as no defense was interposed in the trial court, apparently this appeal was taken merely for the purpose of delay.

The judgment of conviction as to each defendant is affirmed.


text:
    BILLY MILES v. STATE.
    No. A-3205.
    Opinion Filed April 5, 1919.
    (177 Pac. 784.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    Billy Miles was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    Ed Crossland for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaint'ff in error, Bilty Miles, was convicted in the county court of Tulsa county on a charge that on the 1st day of March, 1917,, in said county, he did have in his possession 66 quarts of whisky, 34 half pints of whisky, and 14 pints of beer with the intent to sell the same. September 26, 1917, he was sentenced to be confined in the county jail for 30 days and to pay a fine of $250 and costs. To reverse the judgment he appeals. No brief has been filed a_d no appearance has been made on behalf of plaintiff in error in this court. The Attorney General has moved to affirm for failure to prosecute the appeal.

The motion to affirm is sustained, the judgment of the lower court is affirmed, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution. Mandate forthwith.


text:
    BILLY MILES v. STATE.
    No. A-3206.
    Opinion Filed April 5, 1919.
    (179 Pac. 784.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    Billy Miles was convicted of a violation of the prohibitory law. and he appeals.
    Affirmed, and cause remanded to trial court, with direction to execute judgment and sentence.
    Ed. Crossland, for plaintiff in error.

      W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case jointly charges that Billy Miles and Pinlca Patton did have in their possession 336 one-half pints of whisky with intent to sell the same. On the trial ,the jury returned a verdict, finding Billy Miles, who pleads, as “W. P. Miles,” guilty, and fixed his punishment at a fine of $250 and imprisonment in the county jail for 60 days. Erom the judgment rendered on the verdict an appeal by transcript with case-made attached was taken. When the case was called for final submission, the Attorney General moved to affirm for failure to prosecute the appeal, in that no brief has been filed and no appearance made on behalf of the plaintiff in error in this court. The motion to affirm is sustained, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution. Mandate forthwith.


text:
    WILSE SHERWOOD v. STATE.
    No. A-3207.
    Opinion Filed April 5, 1919.
    (179 Pac. 784.)
    Appeal from County Court Pittsburg County; S. F. Brown, Judge.
    Wilse Sherwood was convicted for having possession of intoxicating liquor with intent to sell it, and he appeals.
    Affirmed.
    John W. Crow, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Wilse Sherwood, was convicted on a charge that he did have in his possession certain intoxicating liquor, to wit, about 60 quarts of Choctaw beer, with the intent to sell the same, and was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. To reverse the judgment he appeals. No brief has been filed and no appearance made in behalf of the plaintiff in error in this court. The motion of the Attorney General to affirm the judgment for failure to prosecute the appeal is sustained.

The judgment appealed from is affirmed.


text:
    W. O. SHINN v. STATE.
    No. A-3221.
    Opinion Filed April 5, 1919.
    (179 Pac. 785.)
    Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.
    ■ W. O. Shinn was convicted of a misdemeanor, and appeals.
    Order that proceedings abate.
    Charles H. Ruth, for plaintiff in error.

      W. O. Hall, Asst. Atty. Gen., for tlie State.
   PER CURIAM.

Plaintiff in error, W. O. 'Shinn, was convicted in the county court of Oklahoma county of a 'misdemeanor. From thé judgment rendered on the verdict an appeal was perfected by filing in this court on December 11, 191/7, a petition in error, with case-made.

Since the appeal was taken, and before the final submission of the cause, to-wit, January 9, 1918, plaintiff in error died at Oklahoma City.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered that the proceedings in this cause abate, and the same is remanded to the trial court, with direction to enter its appropriate order to that effect.


text:
    H. E. BOUSMAN v. STATE.
    No. A-3155.
    Opinion Filed April 8, 1919.
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge'.
    H. E. Bousman was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, H. E. Bousman, was convicted in the county court of Tulsa county on a charge that he did have in his possession 304 half pints of whisky, 23 pints of whisky, 9 quarts .of gin and 179 pints of beer, with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $150. Prom the judgment he appeals. > •

No brief has been filed, and no appearance made on behalf of plaintiff in error when the ease was called for final submission. Whereupon the Attorney General moved to affirm the judgment for failure to prosecute .the appeal. For this reason the judgment • herein is affirmed, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution.


text:
    LINDSEY COLEMAN v. STATE.
    No. A-3144.
    Opinion Filed April 8, 1919.
    (179 Pac. 617.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

      Lindsey Coleman was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lindsey Coleman, was convicted in the county court of Tulsa county on a charge that he did have in his possession 11 ■ half pints of whisky with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 30 days and to pay a fine of $200.

No brief had’ been filed, and no appearance made for the plaintiff in error when the case was called for final submission. Whereupon the Attorney General moved to affirm the judgment, for failure to prosecute the appeal. Fo<r this reason the judgment is affirmed, and is remanded to the trial court with direction to enforce its judgment.


text:
    G. RHOADES v. STATE.
    No. A-2864.
    Opinion Filed February 15, 1919.
    Appeal from District Court, Canadian County; Geo. W. Clark, Judge.
    G. Rhoades was convicted -of a violation of the prohibitory law, and appeals.
    Reversed.
    Babcock & Trevathan, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged that G. Rhoades did keep a place in the city of El Reno, with the intent and purpose of selling intoxicating liquors. On his trial he was found guilty and was by the court sentenced to serve a term of one year in the penitentiary and pay a fine of fifty dollars. To reverse the judgment rendered on the verdict an appeal was perfected.

This is a prosecution under section 4, ch. 26, Session Laws 1913, which provision of the statute was, in the case of Proctor v. State, 15 Okla. Cr. 338, held unconstitutional and void. For the reasons stated in the opinion in the Proctor Case, the judgment is reversed.