text:
    J. M. HARRIS et al. v. STATE.
    No. A-3116.
    Opinion Filed June 28, 1919.
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    J. M. Harris and Carl Burton were each convicted of the crime of unlawful possession of intoxicating liquor, and appeal.
    Affirmed.
    Ed Crossland, for plaintiffs in error.
    S. P. Freeling, Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsa county, wherein the defendants, J. M. Harris and Carl Burton, were jointly tried and convicted of the crime of unlawful possession of intoxicating liquor; the said Burton being sentenced to pay a fine of $100 and to serve 30 days’ imprisonment in the county jail, and the said Harris to pay a fine of $200 and to serve 30 days’ imprisonment in the county jail. This cause has been pending in this court since the 16th day of August, 1917. No brief has been filed and no appearance was made at the date this cause was submitted by counsel representing the defendants to orally argue the same.

Rule 9 of this court provides:

( “When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

An examination of the pleadings, instructions, judgment, and sentence fails to disclose any error committed in the trial prejudicial to either defendant. In conformity with Rule 9, supra, the judgment as to each defendant is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN McCAIN v. STATE.
    No. A-3329.
    Opinion Filed June 30, 1919.
    (182 Pac. 733.)
    Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
    John McCain was convicted of murder, and he appeals.
    Appeal dismissed.
    H. A. Wilkinson, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, John McCain, was by indictment duly returned in the district court of Oklahoma county, charged with the murder of one M. B. Hill, alleged to have been committed in said county on the *19th day of June, 1917, by shooting her with a pistol, and upon his trial the jury found him guilty and assessed the punishment at imprisonment for life. Judgment was rendered in accordance with the verdict on November 10, 1917, from which judgment an appeal was perfected by filing in this court on April 24, 1918, a petition in error with case-made.

Plaintiff in error by his counsel of record has filed motion to dismiss the appeal; said motion being filed by request of plaintiff in error. It is therefore considered and ordered that said motion be sustained, and the appeal herein dismissed.


text:
    TOM PHILLIPS et al. v. STATE.
    No. A-3237.
    Opinion Filed July 9, 1919.
    (181 Pac. 944.)
    Appeal from County Court, Stephens County; J. W. Marshall, Judge.
    Tom Phillips and Lester Keeter were convicted of a violation of the prohibitory liquor law,, and they appeal.
    Affirmed.
    J. B. Wilkinson, for plaintiffs in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Tom Phillips and Lester Keeter were convicted on an information jointly charging that they did unlawfully convey 13 sacks of intoxicating liquor from a place in Stephens county unknown to a place about five miles southeast of the town of Comanche, and were each sentenced to be confined in the county jail for 99 days and to pay a fine of $300.- Ftom the judgment an appeal was perfected by filing in this court on January 8, 1918, a petition in error with case-made. No brief has been filed, and the cause was submitted on motion by the Attorney General to affirm the same for failure to prosecute the appeal. An examination of the record discloses that the evidence is sufficient to sustain the verdict; that the appeal is without merit.

The judgment is therefore affirmed. Mandate forthwith.


text:
    A. N. ABERNATHY v. STATE.
    No. A-3241.
    Opinion Filed July 9, 1919.
    (181 Pac. 945.)
    Appeal from County Court, Pontotoc County; Orel Busby, Judge.
    A. N. Abernathy was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    King & Crawford, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

A. N. Abernathy was convicted on a charge that he did sell to one Amon Walker intoxicating liquor, to wit, four-ounce bottle of Jamaica ginger, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment an appeal was perfected by filing in this court on January 15, 1918, a petition in error with case-made. No brief has been filed. An examination of the record discloses that the evidence is sufficient to sustain the verdict. It appears that the plaintiff in error had a fair and impartial trial, and no material error was committed.

It follows that the judgment should be, and the same is hereby, affirmed.

Mandate forthwith.


text:
    HENRY GODFREY v. STATE.
    No. A-3557.
    Opinion Filed July 9, 1919.
    (182 Pac. 251.)
    Appeal from District Court, Logan County; John R. Hickam, Judge.
    Henry Godfrey was convicted of keeping a place with the intent to sell intoxicating liquors, and he appeals.
    Reversed.
    H. C. Olds, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Henry Godfrey, was convicted on an information charging that he did keep a place in the city of Guthrie with the felonious intent to sell intoxicating liquors, and on the 26th day of November, 1918, he was sentenced to be imprisoned in the penitentiary for the term of two years and to pay a fine of $250. To reverse the judgment an appeal was duly perfected.

In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which the prosecution in this case was based was held unconstitutional and void. For tlie reasons stated in the opinion in the Proctor Case, the judgment is reversed.


text:
    Ex parte JESS LITTRELL.
    No. A-3064.
    Opinion Filed July 12, 1919.
    (182 Pac. 733.)
    Petition by Jess Littrell for writ of habeas corpus to be let to hail. Denied, and hail refused.
    Carr & Henderson and A. B. Burris, for petitioner.
    R. McMillan, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, Jess Littrell, filed his petition in this court on the 5th day of July, 1917, praying that a writ of habeas corpus issue for the purpose of being admitted to bail, being in custody under an order of commitment by an examining magistrate on a charge of having murdered one L. M. Boulware.

Petitioner avers that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the charge of murder is not evident, nor the presumption thereof great.

On August 7, 1917, a supplemental petition was filed, at which time, upon consideration of the petitions it was the opinion of the court that petitioner was not as a matter of legal right entitled to be admitted to bail, and it was ordered and adjudged that the writ he denied, and bail refused.


text:
    In re ROY E. HEFFNER.
    No. A-3584.
    Opinion Filed July 12, 1919.
    (182 Pac. 88.)
    Application of Roy E. Heffner for writ of prohibition to the county court of Nowata County.
    Writ denied.
    Bert Van Leuven, for petitioner.
   PER CURIAM.

Application of Roy E. Heffner for writ of prohibition to prevent the county court of Nowata county from entertaining jurisdiction of an appeal taken by petitioner from a judgment of the municipal court of the city of Nowata, wherein the petitioner was fined $50 and costs, for a violation of Ordinance No. 238 of said city, which is an ordinance prohibiting, among other things, the operation of moving picture theaters on Sunday, and to prohibit said municipal court from enforcing the payment of said fine.

It is alleged that for various reasons, specifically stated, said ordinance is illegal and void, that the judgment of said municipal court is a nullity, and said court had no jurisdiction to try petitioner, and that said county court has no jurisdiction in said cause. *

We are inclined to think that, to test the validity of said ordinance, petitioner should have refused to pay the fine assessed against him, and, if committed for refusing to pay the same, he could then apply for writ of habeas corpus. Having elected to take an appeal from the judgment of said municipal court, we are of the opinion that he is not entitled to the relief prayed for. It is therefore ordered and adjudged that the application for writ of prohibition be denied.


text:
    Ex parte JOHN W. MUSIC.
    No. A-3122.
    Opinion Filed July 12, 1919.
    (182 Pac. 734.)
    Application of John W. Music for release upon hail by writ of habeas corpus.
    Bail allowed.
    John L. Gleason, for petitioner.
    R. McMillan, Asst. Atty. Gen., and I. E. Hill, Co. Atty., for the State.
   PER CURIAM.

The petitioner, John W. Music, filed his petition in this court August 25, 1917, for the purpose of being admitted to bail pending the final hearing and determination of a charge of murder filed against him in Cimarron county, wherein upon his preliminary examination before the county judge he was held to answer for the murder of one Wade Burnett, on the 2d day of July, 1917. Attached to said petition arid made a part thereof is a stipulation as to the facts which the evidence tended to show, and that the judge of the district court of Cimarron county has been absent from the state; also the statement of E. B. McMahan, county judge, recommending that petitioner be admitted to bail.

In eonsidération of said stipulation it was on the 25th day of August, 1917, ordered and adjudged that said petitioner be admitted to bail, and the same is fixed in the sum of $12,000, bond to be conditioned as required by law. Upon giving bond in this sum, the same to be approved by the court clerk of Cimarron county, the petitioner to be released from custody.


text:
    CHARLIE RANKIN v. STATE.
    No. A-3130.
    Opinion Filed July 25, 1919.
    Appeal from District Court, Choctaw County; C. E. Dudley, Judge.
    Charlie Rankin was convicted of the crime of conjoint robbery, and appeals.
    Dismissed.
    John Cocke and Utterback & McDonald, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Choctaw county, wherein the defendant, Charlie Rankin, was convicted of the crime of conjoint robbery, and on the 16th day of May, 1917, was sentenced in said court to serve a term of ten years’ imprisonment in the state penitentiary at McAlester and on failure to give a supersedeas bond, the said Rankin has been confined in said penitentiary pending the determination of this appeal. The defendant,, Rankin, was • convicted of having robbed, on the 22d day of November, 1916, one W. W. Jeter and one W. W. Moran, officers of a bank located in Boswell, Choctaw county, Oklahoma, of the sum of $11,362.32.

Since this cause was submitted, the defendant, Charlie Rankin, has filed a verified motion to dismiss his appeal as follows:

“Charlie Rankin, Appellant, vs. State of Oklahoma, appellee. No. A-3130.

“Petition to Dismiss Appeal.

“Comes now the appellant, Charlie Rankin, and moves that the Honorable Criminal Court of Appeals of the state of Oklahoma shall dismiss from the records his appeal in said case, and that the action of the said appellant in appealing said case from the district court of Choctaw county, state of Oklahoma, shall and is hereby held for naught.

“(Signed) Charlie Rankin, Appellant.

“State of Oklahoma, Pittsburg County, ss.

“Personally appeared before me, J. G. Duncan, a notary public, in and for the aforementioned county and state, Charlie Rankin, who being first duly sworn according to law and being personally known to me, disposes and says that he is the appellant in the above-entitled case and that he is the party signing the foregoing petition and that the facts therein contained are true and correct.

(Seal.) “(Signed) ,T. G. Duncan, Notary Public.

“My commission expires 11-3-1920.”

The motion of the appellant to dismiss the appeal is sustained, and it is therefore ordered that the appeal be dismissed. Mandate forthwith.


author: PER CURIAM:

text:
    MONROE McINTOSH v. STATE.
    No. A-3424.
    Opinion Filed July 31, 1919.
    (182 Pac. 733.)
    Appeal from District Court, Haskell County; W. H. Brown, Judge.
    Monroe McIntosh was convicted of murder, and he appeals;
    Dismissed.
    E. O. Clark, for plaintiff in error.
   PER CURIAM:

The plaintiff in error, Monroe McIntosh, and Alice Dodd, were jointly charged with the murder of one Solon Dodd, alleged to have been committed in Haskell county on or about the 26th day of August, 1917, by giving and administering 7% grains of a certain deadly poison, to wit, “bichloride of mercury.”

A severance was asked and granted. Upon his separate trial the plaintiff in error was convicted and his punishment assessed at imprisonment in the penitentiary for life at hard labor. Prom the judgment and sentence rendered in accordance with the verdict on the 7th day of February, 1918, plaintiff in error appealed by filing in this court on August 7, 1918, a petition in error with case made.

Plaintiff! in error by liis counsel of record has filed a motion to dismiss his appeal, which motion is sustained; and it is ordered and adjudged that tho appeal herein be dismissed.


text:
    W. A. HIGH et al. v. STATE.
    No. A-3253.
    Opinion filed Aug. 12, 1919.
    (182 Pac. 907.)
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    AV. A. High and another were convicted of violating the prohibition liquor law, and they appeal.
    Affirmed.
    J. F. Thomas, for plaintiffs in error.
    The Attorney General and AV. 0. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, AV. A. High and N. B. High, were jointly charged, tried, and convicted on an information charging the offense of unlawfully transporting intoxicating liquors from a place in Comanche county unknown, to another place in the public road in Comanche county, a bridge on the Meridian Road in the Ft. Sill Reservation, and the punishment of each was assessed at 60 days’ imprisonment in the county jail and a fine of $200. The evidence for the state, which is uncontradicted, shows that plaintiffs in error were apprehended on a road 2*4 miles from Lawton, in a Ford car, which contained about 200 quarts of whisky, gin, and wine, and one said they came from AVichita Falls and were going to Oklahoma City.

An examination of the record discloses that the evidence is ample to support the verdict, and, no error appearing that could affect the merits of the case, the judgments appealed from are affirmed.


text:
    RICHARD BOYDSTON v. STATE.
    No. A-3245.
    Opinion Filed Aug. 12, 1919.
    (182 Pac. 718.)
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    Richard Boydston, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.
    Victor C. Phillips, for plaintiff in error.
    The Attorney General and AV. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Richard Boydston, was convicted in the county court of Bryan county on a charge that he did unlawfully transport, carry, and convey from one place in Bryan county, the exact location of which is unknown, to another place in Bryan county, in the town of Caddo, near the mail crane on the Missouri, Kansas & Texas Railway, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in the county jail and pay a fine of $50.

The sole question presented is the sufficiency of the evidence to support the verdict.

Emmit Boydston, the complaining witness, testified that he was standing just south of the depot at Caddo when the train from the south arrived about 10 o’clock at night, and saw the defendant in the door of a coach with a suit case in his hand. When the train stopped the defendant got off and walked about 20 steps and laid the suit case down and walked back and commenced talking to some men that were standing there, and witness picked up the suit case and came back to where the defendant ¡was, and asked him if it was his suit case, and he said it was not. The suit case contained 24 pints of whisky, and he delivered it to the sheriff.

The defendant testified that he had been to Durant and returned to Caddo on the train. When the train stopped he got off at the depot. When the train pulled out Emmit Boydston came to where he was talking to some men with the grip, and asked him if it was his grip, and he told him he had no suit case that night, and knew nothing of the suit case. This was all the evidence in the case.

We think upon this evidence it was purely a question of fact for the jury to determine as to whether defendant had a suit case when he left the train.

In cases of this kind this court will not settle the conflict and reverse the judgment upon the weight of the evidence.

The judgment of the lower court is therefore affirmed.


text:
    B. W. BOWDRY v. STATE.
    No. A-3249.
    Opinion Filed Aug. 12, 1919.
    (182 Pac. 250.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    B. W. Bowdry was convicted of the crime of unlawful possession of intoxicating liquors, arid sentenced to pay a fine of $200, and to serve 90 days in the county jail and he appealed.
    Appeal dismissed.
    O. S. Booth, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county court of Tulsá county, wherein the defendant, B. W. Bowdry, was convicted of the crime of unlawful possession of intoxicating liquors in the county court of Tulsa county, and judgment rendered on the 22d day of September, of Tulsa county, and judgment rendered on the 2d day of September, to the county jail for a period of 90 days. From this judgment an appeal was attempted to be taken to this court, 'but the petition in error and case-made were not filed in this court until the‘22d day of January, 1918, more than 120 days after the rendition of judgment, to wit, the 122d day.

Where the appeal in misdemeanor cases is not filed within 120 days after the rendition of the judgment, this court has no jurisdiction to entertain the same. 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.

In conformity with the repeated decisions of this court in the foregoing and other cases to the same effect, the appeal is dismissed. Mandate forthwith.


text:
    LESTER KEETER v. STATE.
    No. A-3238.
    Opinion Filed Aug. 12, 1919.
    (182 Pac. 732.)
    Appeal from County Court, Cotton County; J. O. Norman, Judge.
    Lester Keeter was convicted of the crime of unlawful possession of intoxicating liquors, and sentenced to pay a fine of $200 and to serve 60 days in the county jail, and appeal's.
    Judgment affirmed.
    Lon Morris, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This appeal has been pending in this court since the 9th day of January, 191S. On the. 3d day of June, .1919, the case was called for submission. No appearance was made at that time by counsel representing plaintiff in error to orally argue the cause, nor has any brief been filed in behalf of plaintiff in error. At the time the cause was submitted, the Attorney General filed a motion to affirm the same for failure to diligently prosecute the appeal.

It is apparent that this appeal has been abandoned, as several extensions of time were granted to counsel for plaintiff in error for the purpose of briefing the cause, but no brief has been filed.

The motion of the Attorney General to affirm the judgment for failure to diligently prosecute the appeal is sustained, and the judgment of conviction is affirmed. Mandate forthwith.


text:
    J. B. STURGIS v. STATE.
    No. A-3236.
    Opinion Filed Aug. 12, 1919.
    (183 Pac. 516.)
    Appeal from District Court, Pittsburg County; R. P. do Graffenreid, Assigned Judge.
    J. B. Sturgis was convicted of the crime of adultery, and sentenced to serve a term of four years in the penitentiary, and appeals.
    Judgment affirmed.
    T. D. Taylor, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

J. B. Sturgis was convicted in the district court of Pittsburg county of the crime of adultery, and his punishment fixed as above stated.

This appeal has been pending in this court since the 7fh day of January, 1918, the cause having been submitted on June 3, 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions' taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions, judgments, and sentence discloses no prejudicial error, and in accordance with Rule 9, supra, the judgment is affirmed.


author: PER CURXAM.

text:
    BROOKS ANDREWS v. STATE.
    No. A-3251.
    Opinion Filed Aug. 12 1919.
    (182 Pac. 250.)
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Brooks Andrews was convicted of a violation of the prohibitory liquor laws, second offense, and sentenced to pay a fine of $500 and to serve one year’s imprisonment- in the state reformatory at Granite, and appeals.
    Affirmed.
    Bridges & Vertrees, for plaintiff in error.
    The Attorney General, for the State.
   PER CURXAM.

Brooks' Andrews was convicted in the district court of Jefferson county of a violation of the prohibitory liquor laws, second offense, and his punishment fixed as above stated.

This appeal has been pending in this court since the 29th day of January, 1918, the cause having been submitted June 3, 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions and judgment and sentence discloses no prejudicial error, and in accordance with Rule 9, supra, the judgment is affirmed.


text:
    R. P. SMITH v. STATE.
    No. A-3248.
    Opinion Filed Aug. 12, 1919.
    (182 Pac. 730.)
    Appeal from County Court, Choctaw County; W. T. Glenn, Judge.

      R. P. Smith was convicted of a violation of the prohibitory liquor law, ancl he appeals.
    Reversed.
    Jordan & Burke, for plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted upon a charge that he did unlawfully have in his possession about 2% gallons of beer with intent to barter, sell, and give away the same, and liis punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. To reverse the judgment rendered on the .verdict he appeals.

Various errors have been assigned, but in the view we take of this ease, wo deem it necessary only to consider the question of the sufficiency of the evidence to support the verdict.

The evidence was substantially as follows: R. B. Fitzgerald testified that in company with Joe Dupree, his deputy, ho went to the farm of defendant, about two miles south of Forney, and found the defendant in a field where he and his boy had been planting cotton; he told Smith he wanted to search his place for intoxicating liquors. Smith returned to the house with him, where the officers found three or four quarts of what they called Choctaw beer in bottles, and afterwards, about ISO yards from the house, they found a ten-gallon keg partly buried in the ground in which was about one gallon of Choctaw beer, and lots of empty bottles were found about the place. The testimony of both witnesses as to the character of the liquor found is vague. They testified that they believed it was Choctaw beer, and that it was intoxicating. There was no evidence offered tending to prove payment of the special tax required of liquor dealers by the federal government; no testimony tending to show an unlawful indent to violate provisions of the prohibitory law. The. qu^nUtv foun(l is not sufficient to constitute prima facie evidence of an unlawful intent.

Upon a careful consideration of all the evidence in the ease, we are of opinion, as a matter of law, the evidence was insufficient-to justify a conviction.

The judgment is therefore reversed.


text:
    V. GARCIA et ux. v. STATE.
    No. A-3305.
    Opinion Filed Aug. 19, 1919.
    (182 Pac. 251.)
    Appeal from County Court, Coal County; C. M. Threadgill, Judge.
    V. Garcia and Mrs. V. Garcia were convicted of a violation of the prohibitory liquor law, and they appeal.
    Affirmed.
    George Trice, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, V. Garcia and Mrs. V. Garcia, were convicted in the county court of Coal county on an information jointly charging that they did have in their possession six quarts of whisky and about 65 gallons of Choctaw beer, with the unlawful intent to sell the same. The jury fixed the punishment of F. Garcia at a fine of $500 and 90 days in the county jail, and of Mrs. V. Garcia at $250 and 30 days in the county jail. From the judgments rendered on the verdicts an appeal was perfected by filing in this court on March 27, 191S, a petition in error with case-made.

No briefs have been filed. When the case was called for final submission, no appearance was made on behalf of plaintiffs in error. The Attorney General has moved to affirm the judgments for failure to prosecute the appeal.

Finding no available error in the record, the judgments herein are affirmed.


text:
    W. T. LEWIS v. STATE.
    No. A-3308.
    Opinion Filed Aug. 19, 1919.
    (182 Pac. 733.)
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
    W. T. Lewis was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    P. A. Gavin, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on a charge that he did have unlawfully in his possession six one-gallon cans of alcohol, with the intention of selling the same. His punishment was fixed at 30 days' confinement in the county jail, and a fine of $200. From the judgment rendered in pursuance of the verdict an appeal was perfected by filing in this court on March 30', 1918, a petition in error with ease-made.

No briefs have been filed. When the case was called for final submission no appearance was made in behalf of the plaintiff in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal.

Finding no available error in the record, the judgment herein is affirmed.


text:
    WALTER BOWERS v. STATE.
    No. A-3342.
    Opinion Filed Aug. 19 1919.
    (183 Pac. 432.)
    Appeal from County Court, Rogers County; Edward Jordan, Judge.
    Walter Bowers was convicted of the crime of unlawful possession of intoxicating liquors and his punishment fixed at a fine of $125 and 30 days’ imprisonment in the county jail, and he appeals-
    Judgment affirmed.
    H. Tom Right and H. H. Brown, for plaintiff in error.

      The Attorney General, for the State.
   PER CURIAM.

This appeal has been pending in. this court since the .'10th day of April, 1918. On the 7th day of.June, 1919 the case was called for submission. No appearance was made at that time by counsel representing plaintiff in error to orally argue the cause nor has any brief been filed in behalf of plaintiff in error. At the time the cause was submitted the Attorney General filed a motion to affirm the same for failure to diligently prosecute the appeal.

It is apparent that this appeal has been abandoned. The motion of the Attorney General to affirm the judgment for failure to diligently prosecute the appeal is sustained and the judgment of conviction is affirmed. Mandate forthwith.


text:
    COLE LEDDON v. STATE.
    No. A-3270.
    Opinion Filed Aug. 19, 1919.
    (183 Pac. 432.)
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Cole Leddon was convicted of felonious assault, defined by section 2344, Revised Laws 1910, and sentenced to pay a fine of $50- and to serve three months in the county jail, and he appeals.
    Judgment affirmed.
    Bridges & Yertrees, for plaintiff in erx’br.
    The Attorney General, for the State.
   PER CURIAM.

Cole Leddon was convicted in the district court of Jefferson county of'felonious assault, defined by section 2344, Revised Laws 1910, and his punishment fixed as above stated.

This appeal has been pending in this court since the 28th day of February, 1918, the cause having been submitted June- 4, 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and in accordance with Rule 9, supra, the judgment is affirmed.


text:
    DOROTHY ROY v. STATE.
    No. A-3285.
    Opinion Filed Aug. 19, 1919.
    (183 Pac. 428.)
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.

      Dorothy Roy was convicted of keeping a bawdyhouse, and sentenced to pay a fine of $250, and she appeals.
    Judgment affirmed.
    R. B. Thompson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Dorothy Roy was convicted in the superior court of Creek county of keeping a bawdyhouse, and her punishment fixed as above stated.

This appeal has been pending in this court since the 12th day of March, 1918, the cause having been submitted Juno 5, 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in her behalf. Rulé 9 (12 Okla. Cr. viii, 165 Pac. x) of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the' pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and, in accordance with Rule 9, supra, the judgment is affirmed..


text:
    WILSON SMITH v. STATE.
    No. A-3288.
    Opinion Filed Aug. 19, 1919.
    (183 Pac. 515.)
    Appeal from District Court, MeCurtain County; C. E. Dudley, Judge.
    Wilson Smith was convicted of the crime of embezzlement, and sentenced to serve a term of turn years’ imprisonment in the state penitentiary, and he appeals.
    Modified and affirmed.
    Jeff McLendon, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Wilson Smith was convicted in the district court of MeCurtain county of embezzlement, and his punishment fixed as above stated.

This appeal has been pending in this court since the 13th day of March, 1918, the cause having been submitted June 5, 1919', >at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

It is to be noted also that the case-made contains no copy of any supersedeas bond given by the defendant. The judgment was rendered on the 22d day of September, 1917, with directions to the sheriff of Me-Curtain county to immediately transport the defendant to the state penitentiary at McAlester. Presuming that the judgment was carried into effect according to its terms, the defendant has already served, allowing time for good behavior, the two-year term of imprisonment imposed against.him, and the questions involved in this appeal would for that reason be moot.

Where an appeal is taken to this court from a judgment of conviction, and the record fails to show that the judgment was superseded by the giving of the required supersedeas bond in the court below, the presumption obtains in this court that said judgment was immediately carried into effect according to its terms by the incarceration of the-prisoner in -the penitentiary, where such imprisonment is provided in the judgment. And where it is apparent that, had said judgment been carried into effect, the term of imprisonment would have been served, and no appearance is made in this court by counsel representing the-defendant, either to orally argue! -the case or by filing a -brief in behalf of his client, this court will, in its discretion, either dismiss the appeal -because the .questions involved are moot, or else affirm the judgment under the provisions of rule 9, supra.

This appeal has evidently been abandoned. An examination of the pleadings, instructions, judgment, and sentence discloses -no prejudicial error. However, the journal- entry of judgment shows that the -court pronounced judgment as of a conviction for the crime of “robbery,” sentencing the defendant to imprisonment for a term of two years. The minimum punishment provided for robbery, under the statutes of this state, is five years’ imprisonment. The information charges the crime of embezzlement. th° court charged on that crime, and the jury returned a verdict of “guilty as charged in the information,”, imposing-a punishment of two years’ imprisonment in the penitentiary.

The incorporation of the word “robbery” in the journal entry of judgment is clearly a clerical error. The judgment is modified by substituting the word “embezzlement” for the word “robbery” in each instance where the latter word appears in the journal entry of judgment, and, as so modified, the judgment is affirmed under rule 9, supra.


author: PEE CURIAM.

text:
    DADE HUGHES v. STATE.
    No. A-3284.
    Opinion Filed Aug. 26, 1919.
    (183 Pac. 431.)
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    Dade Hughes was convicted of the crime of unlawful possession of liquor, and his punishment fixed at a fine of $500 and six months’ imprisonment in the county jail, and he appealed.
    Judgment affirmed.
    E. B. Thompson, for plaintiff in error.
    The Attorney General, for the State.
   PEE CURIAM.

Dade Hughes was convicted in the superior court of Creek county of the crime of unlawful possession of liquor, and his punishment fixed as above stated.

This appeal lias been pending in this -court since the 12th day of March, 1918, the cause having been submitted June 5, 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in bis behalf. Bole 9 (12 Okla. Cr. viii, 105 Pac. x) of this court provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto1, and the judgment and ¡sentence, and if no prejudicial error appeal's, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and in accordance with rule 9, supra, the judgment is affirmed.


author: PEB CURIAM.

text:
    J. M. SMITH v. STATE.
    No. A-3286.
    Opinion Filed Aug. 26, 1919.
    (183 Pac. 429.)
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    J. M. Smith was convicted in the superior court of Creek county of the crime of unlawful possession of intoxicating liquor, and sentenced to serve a term of 30 days in the county jail and to pay a fino of $100, and he appeals-
    Judgment affirmed.
    B. 1?. Thompson, for plaintiff in error.
    The Attorney General, for the State.
   PEB CURIAM.

J. M. Smith was convicted in the superior court of Creek county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed as above stated.

This appeal has been i>ending in this court since the 12th day of March. 1918, the cause having been submitted June' 5. 1919, at which time no appearance was made by any counsel representing plaintiff in error, nor has any brief been filed in his behalf. Rule 9 (12 Okla. Cr. viii, 165 Pac. x) of this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court >and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidently been abandoned. An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and in accordance with rule 9, supra, the judgment is affirmed.


text:
    HENRY ANDREWS v. STATE.
    No. A-3345.
    Opinion Filed Aug. 26, 1919.
    (183 Pac. 249.)
    Appeal from District Court, Choctaw County; O. E. Dudley, Judge.
    Henry Andrews was convicted of robbery, and he appeals.
    Appeal dismissed, on motion of plaintiff in error.

      Warren & Warren, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Henry Andrews, was convicted in the district court of Choctaw county on a change of venue from McCurtain county of the crime of robbery. The information charges that in McCurtain county, on or about the 11th day of iMay, 1917, he did unlawfully and feloniously and by means of force and fear take from the possession of Louis Kirk the sum of $773.50: The jury fixed his punishment at imprisonment in the penitentiary for the term of 20 years. From the judgment rendered on the verdict on the 31st day of October, 1917, an appeal was taken by filing in this court May 1, 191S, a petition in error with case-made.

Plaintiff in error has filed a motion to dismiss his appeal, signed by himself and acknowledged before J. G. Duncan, a notary public in and for Pittsburg county, which motion is allowed, and the appeal herein is dismissed.


text:
    FRANK BORNHEIM v. STATE.
    No. A-3031.
    Opinion Filed Aug. 30, 1919.
    (183 Pac. 514.)
    Appeal from County Court, Pittsburg County; S. P. Brown, Judge.
    Prank Bornheim was convicted of keeping a house of ill fame, alnd sentenced to pay a fine of $500, and he appeal's.
    Judgment affirmed.
    Andrews & Anderson, for plaintiff in error.
    ñ. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Pitts-burg county, wherein the defendant, Prank Bornheim, was convicted of keeping a house of ill fame, and sentenced to pay a fine of $500.

He was jointly informed against for the offense with one Mabel Reed, his married daughter, who was an inmate of the house at the time of the alleged commission of the offense. Upon a joint trial, Mabel Reed was acquitted, and properly so, because there was no evidence that she had any control whatever over the premises, being merely an inmate of the house and not the keeper thereof.

It is strenuously contended that the evidence is insufficient to sustain this conviction. The court cannot agree with this contention. The evidence is amply sufficient to sustain the conviction as to Prank Bornheim, as the proof is conclusive that a house of ill fame was in operation on his premises on the 16th day of December, 1916, as charged in the information; that he had been in possession and control of said premises for a number of years, had admitted men and women there at late hours of the night, and had assigned a room to a man and woman in his home at the late hour of 1 a. m.; that said house had for a long period of time the reputation of being a house of ill fame; that men were frequently seen to enter1 said house at late hours of the night; that women were roomers in said house; that the house was furnished with a dance hall and slot piano, and numerous bedrooms on either side of a long hall; that, on the night of December 16th, two women and about 12 men were found in said house at 11 o'clock at night dancing; that one of the women .was seen to sit upon the lap of one of the men present, and embrace him; that when the officers entered said house, the women were dressed in kimonos, were scantily clad, and indulged in lewd conduct and used lascivious language; that two men were found in one of the beds in one of the bedrooms, and that the men attempted to make their escape when the raid was made; and other circumstances which tended conclusively to show that the premises had been conducted as a house of ill fame for some length of time and that the defendant had occupied said premises for numerous years and must have been acquainted with the carryings-on therein. The evidence was sufficient, as the defendant, Frank Bornheim, interposed no defense thereto.

. Among other assignments of error is that the court erred in overruling a motion for a continuance based upon the absence of one Mabel Morris, who was alleged to be a material witness for the defendant, and whom the evidence discloses was one of the inmates of the: house at the time of the raid on December 16, 1916. The application was properly denied, as there is absolutely no showing of diligence on the part of defendant in attempting to procure the attendance of this witness. The witneso was shown to be an intimate friend of Mabel Heed, one of the defendants. The defendants were arrested on. Dceniber -j 1916, and on the 14th of March, 1917, the case was set for trial for April 3d following. The application for continuance was filed on April 2d. No effort had been made to obtain the attendance of the said witness Mabel Morris between the 14th of March and the 2d of April, and the application shows that the absent witness was living in Okfuskee county at the time said application was made, and her attendance could probably have been obtained within three or four days at the 'farthest: There was no request to continue the case for a short period of time,' but the application was for a continuance for the entire term of court. The court did not abuse its discretion in refusing to continue this ease for the term, in view of the lack of diligence shown by the defendant to discover the whereabouts of this witness, or to keep in touch with such witness between the 18th day of December, 1916 (the date of the arrest of defendant) and the' 2d day of April, 1917 (the date the case was called for trial).

A certain instruction given and a certain instruction refused, both over the objection and exception of the defendant, are assigned as errors. We have carefully examined the instructions. The court .gave three of the defendant’s requested instructions, and refused the' fourth. The requested instruction refused was to the effect that the jury could' not convict if there was a reasonable doubt as to whother or not' any one of the elements of the offense had been proven. The la.w covered by this instruction was substantially covered in the general cliáfge of the court, and when the instructions are considered as a whole the law of the ease is fully covered in a fair and impartial manner.

A reading of this record convinces the court that the ‘conviction of this defendant is just and merited under the law and the evidence; that the alleged errors relied upon are more technical «than súbstantiái; that' the defendant was accorded a fair and impartial trial; and, for the reasons stated, the judgment is affirmed.


text:
    BERT SHADRICK v. STATE.
    No. A-3266.
    Opinion Filed Sept. 2, 1919.
    (183 Pac. 520.)
    Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.
    Bert Shadrick was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Pruiett, Sniggs & Patterson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bert Shadrick, and Charles H. Holden were jointly charged, tried, and convicted on an information charging the' unlawful transporting of 60 half pints of whisky in an Overland automobile from one point to another certain point in Oklahoma City. The jury fixed the punishment of each at confinement for three months in the county jail and a fine of $25C- From the judgments rendered in pursuance of the verdict an appeal was perfected by filing in this court on February 20, 1918, petition in error, with case-made.

The appeal of the defendant Holden was dismissed on account of tus leaving the state without leave of the court. 14 Okla. Cr. 463, 172 Pac. 977. An examination of the record discloses that the testimony on the part of the Gate to prove the allegations of the information is undisputed, and that the errors assigned are destitute of merit.

The judgment against the plaintiff in error, Bert Shadrick, is therefore affirmed. Mandate forthwith.


text:
    C. H. JONES et ux. v. STATE.
    No. A-3317.
    Opinion Filed Sept. 10, 1919.
    (183 Pac. 518.)
    Appeal from County Court, Oklahoma County; AVm. H Zwick, Judge.
    O. H. Jones and Mrs. C. H. Jones were convicted of a violation of the prohibitory liquor law, and they appeal.
    Affirmed.
    O. A. Cargill, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error, C. H. Jones and Mrs. C. H. Jones, were tried and convicted on an information charging that on the 12th day of September, 1917. they did keep and maintain a place at 106% East Third street, Oklahoma City, where intoxicating liquor was kept and stored for the purpose of selling, bartering, giving away, and otherwise furnishing the same .to others. In accordance with the verdicts, C. H. Jones was sentenced to be confined in the county jail for a period of six months and to pay a fine of $500, and Mrs. C. H. Jones was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgments an appeal was perfected by filing in this court on April 11, 1918, a petition in error with case-made.

The proof on the part of the state is that W. B. Nichols, chief of police, and Dell Bruce and John Heep, policemefa. accompanied by Chas. B. Selby, county attorney, went to the defendants' place, and on the back porch found a sack containing 13 half pints of whisky; that the general reputation of the Jones' place was that of being a place where whisky was kept for sale, and where people congregated for the purpose of drinking same. There was also proof of sales. Mrs. Jones testified that she did not know who put the whisky there. The defendant C. H. Jones did not testify.

The only question presented by this appeal is the sufficiency of the evidence to support the verd'ets. The credibility of the witnesses and the weight and value to be given their testimony is a question solely for the jury’s determination. After a careful examination of the evidence, we are not prepared to say that the jury was not warranted in finding the defendants guilty.

The judgments appealed from are therefore affirmed. Mandate forthwith.


text:
    C. H. JONES v. STATE.
    No. A-3318.
    Opinion Filed Sept. 10, 1919.
    (183 Pac. 519.)
    Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.
    C. H. Jones was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    O. A. Cargill, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. H. Jones, was convicted on a charge that he did have unlawfully in his possession five quarts of whisky with the unlawful intent to sell the same, and in accordance with the verdict was sentenced to be confined in the county jail for 30 days and to pay a fine of $50i From the judgment rendered February 11, 1918, he appealed bv filing in this court on April 11, 1918, a petition in error with ease-made.

The proof on the part of the state sustains the allegations of the information and is undisputed. The onlv question presented by this appeal is the sufficiency of the evidence to sustain the verdict. After an examination of the record, our conclusion is that the appeal is wholly destitute of merit. The judgment appealed from is therefore affirmed. Mandate forthwith.


author: PUR CURIAM.

text:
    C. H. JONES v. STATE.
    No. A-3319.
    Opinion Filed Sept. 10, 1919.
    (183 Pac. 519.)
    'Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge. •. •
    C. H. Jones was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    ' O. A. Cargill., for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PUR CURIAM.

Plaintiff 'n error was convicted on an information charging the unlawful conveyance of one quart and one half pint .of whisky from á point unknown in Oklahoma county to the corner of 'Third and Santa Fe streets, in Oklahoma City, and in pursuance of the Verdict was sentenced to be confined in the county jail for 90 days and to pay a fine of $200 and the costs.

The only testimony is that introduced by the state: W. W. Slayton testified that on the 12th day of September, 1917, he was capta'n of police, and on said date saw the defendant. Jones, going west on Third street, and met him near the corner of Third and Santa Fe streets shook hands with him, and said to him, “Charley, I want that whisky and thereupon Jones said. “I am blowed up;” that he searched Jones and found a quart and two half pints of whisky on him.

The only question presented is the snffic'encv of the evidence to support the verdict. An examination of the record discloses no merit in this appeal; The judgment herein is therefore affirmed. Mandate forthwith.


text:
    ALLISON SHADRICK v. STATE.
    No. A-3246.
    Opinion Filed Sept. 11, 1919.
    (182 Pac. 732.)
    Appeal from County Court, Oklahoma County; Wm. H. Zwick, judge. ' •
    AÜispn Shadrick was convicted of a violation of the prohibitory lijquor law, and appeals.
    Affirmed.
    Twyford, Smith & Crowe, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Allison Shadrick. • was . convicted o'n ^an' information charging that on the 9th day of December,' A. D. 1916, he carried and transported in a certain Buick automobile, 12 quarts of whisky, from a point unknown, through and along Lindsay street, to a point at the intersection of said Lindsay street with First street in Oklahoma City, and in accordance' with the verdict, was sentenced to be confined in the county jail for 90 days and to pay a fine of $100, From the judgment an appeal was taken by . filing in this .court on January 21, 1918, a petition in error with case-made. ■ ■

The only testimony is that of two witnesses introduced by the state and it supports the allegations of the information. From a careful examination of the whole case, both a= to the law and the ev'dence, we have failed to discover anything whereof the plaintiff in error has just right to complain.

The judgment is therefore affirmed. Mandate forthwith.


text:
    CHAS. A. WILHITE et al. v. STATE.
    No. A-3303.
    Opinion Filed Sept. 20, 1919.
    (183 Pac. 625.)
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    Charles A. Wilhite and Catherine M. Wilhite were convicted of unlawfrllv settling on land and fined $50 each, and each appeals.
    Judgments affirmed.
    G. A. Chappell, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

Charles A. Wilhite and Catherine M. Wilhite were convicted in the county court of Kay county of the crime of unlawfully settling on land, and. their punishment fixed as above stated.

This appeal has been pending in this court since the 29th day of March, 1918, the cause having been submitted June 6, 1919, at which time no appearance was made by any counsel representing plaintiffs in error, nor has any brief been filed in their behalf. Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadmgs, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

This appeal has evidentlv been abandoned. An examination of the pleadings, instructions, and judgment and sentences discloses no preju-d;cia> error, and in accordance with rule 9, supra, the judgment is affirmed.


text:
    LAWRENCE FREEMAN v. STATE.
    No. A-3339.
    Opinion Filed Sept. 22, 1919.
    (183 Pac. 626.)
    Appeal from County Court, Tulsa County; H.. L. Standevcn, Judge.
    ■ Lawrence Freeman was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    • Ed Crossland, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lawrence Freeman, was convicted in tile county court of Tulsa county on a charge that he did have possession of 58 pints of whisky, 11 quarts of whisky, one gallon of alcohol, and two pints of champagne, with the intent to sell the same, and in accordance with the verdict of the .iury he was sentenced to be confined for 30 days and to pay a fine of $50.

The sole question presented is the sufficiency of the evidence to support the verdict.

Jim Patton testified that in serv'ng a search warrant he saw the defendant at the Oliver Hotel, on East First street, city of Tulsa, going upstairs; that he and another officer followed him, and found the liquor described in the information in the l'nen room under a trap door in the floor; that he often saw the defendant there, and that his wife stayed upstairs.

T.' L. Powell testified that defendant, Freeman, was running the place: that he with two or three other officers served a search warrant; that down stairs there was a long bar, cigar case, with the back room partit'oned off. and a little counter in there: that he and the'officers broke through the back door, and defendant turned out the lights; that they found in the floor of a clothes closet up stairs a secret door, and under tills they found the whisky, alcohol, and wine described in the information ; that he had been there about 15 times, and defendant was always there; that at those times defendant acted as‘proprietor.

The only evidence introduced by the defendant was that of his att«rn«v. who +p®tifiofl that w'tnes® Powell bad told him on two occasions that he did not know of his own knowledge that Lawrence Freeman owned this place.

We think that upon this evidence it was purely a question of fact for the iury to determine whether the defendant had the possession of the liquors seized. Questions of fact are to be decided by the jurv, and, where the evidence reasonably supports the verdict, the judgment will be affirmed.

The judgment is affirmed.


text:
    G. BELCHNER v. STATE.
    No. A-3335.
    Opinion Filed Sept. 29, 1919.
    (183 Pac. 925.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    G. Belchner was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Ed. Cro'ssland, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, G. Belchner, was convicted on a charge that he did have possession of nine half pints of whisky with intent to sell the same, ami was sentenced to be confined for 30 days in the county jail and to pay a fine of $50.

The only testimony in the case was that of two police officers of the city of Tulsa, in substance: That they observed the defendant on the date alleged in a monument yard in the 200 block, west side of North Main street. 'Tulsa. He was standing by a monument, and stooped down, and picked up something, and put it in his pocket, and walked away. The officers intercepted him and searched him, finding two half pints of whisky. They then walked back into the monument yard and found seven half pints of whisky, concealed in a hole, near the place where he was stand'ng. when first seen by the officers. The defendant stated that that was all; that there was no more there.

The errors assigned are to the effect that this evidence was insufficient to support the verdict. It is sufficient to say that the case was one for the consideration of the jury, and the evidence of guilt was ample to justify the verdict.

The judgment is therefore affirmed. Mandate forthwith.


text:
    R. E. WHATLEY v. STATE.
    No. 3240.
    Opinion Filed Oct. 1, 1919.
    (183 Pac. 925.)
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    R. E. Whatley '-as convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    Crockett & Fowler and Victor C. Phillips, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, R. E. Whatley, was convicted on a charge that he did sell to one S. Saunders, for the sum of $12, three quarts of alcohol, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment he appeals.

The errors assigned are: (1) That the court erred in overruling the motion for a new trial; (2) that the court erred in giving instruction No. 6; (3) that the court erred in its rulings admitting incompetent evidence on the part of the state, and in refusing to admit competent evidence on the part of the defendant; (4) because of inability of plaintiff in error to make and file in this court a true and correct case-made, for which condition plaintiff in error is in no wise responsible.

The record shows that the plaintiff in error acted as his own counsel, and that he refused the offer of the court to appoint him counsel.

No objection was made or exception taken during the course of the trial, and the testimony was not taken bv the court reporter. The record contains the following statement of the trial judge:

“The statement of the county judge, Lewis Paullin, with reference to the fact that it is his recollection that he asked the defendant and counsel for the state if they needed a stenographer to take the evidence in the case, and both answered in the negative.”

The motion for new trial was based on the ground of newly discovered evidence. Attached to the same is what purports to be a statement of the evidence in the case but the same is not authenticated. In the absence of a duly authenticated transcript of the testimony taken upon the trial, the question as to whether the court erred in overruling the motion for a new trial on the ground of newly discovered evidence is not before the court. The question could not be raised in that manner.

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


author: PER CURTAM.

text:
    DICK THAYER v. STATE.
    No. A-3287.
    Opinion Filed Oct. 1, 1919.
    (183 Pac. 931.)
    Appeal from County Court, Oklahoma County; William H. Zwick, Judge.
    Dick Thayer was convicted of the crime of conveying intoxicating liquors, and sentenced to pay a fine of $300 and to serve 60 days in the countv jail, and he anneals.
    Judgment affirmed.
    Pruiett, Sniggs & Bums, for plaintiff in error.' . " ■
    ■ . S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURTAM.

This is on apoeal from the county court of Oklahoma county, in which the defendant was convicted of the crime of • unlawfully conveying intoxicating liquors, and sentenced to pay the fine and to serve the term of imprisonment-as above stated.

For grounds of reversal, two alleged errors are relied upon:

(1) That the court erred in overruling the demurrer to the original information, for the reason that the same was verified before a person unauthorized to administer an oath. The, original information filed in this case anpears to ham Roen verified before a person designating himself “Deputy Court Clerk.” • ■

The defendant interposed no motion to set-aside or quash this information because of this defective verification, hut entered' his nlea of not guilty and proceeded with the imoaneling of the jury. After the impaneling of the jury commenced, the defendant asked leave of the court to withdraw his plea of not guilty for the purpose of demurring to the information, which leave wa« granted. Thereunon, the defendant filed a demurrer to the information upon two grounds: (1! That the same did not state facts sufficient to constitute a public offense: CD that the information did not conform to the law and did not particularly set out the crime, or charge a crime against the laws of the state, so as to give the defendant snffknent notice of .the nature and character of the charge attempted to be filed against him. The demurrer on the^e two grounds was overruled bv the court, to whi"h the defendant excepted, and the defendant thereupon entered his plea of not guilty. • ■■ ■;

The defendant, failing to move to quash or set the information aside because of the defect in the verification, which appeared upon the face of the information, waived the defect. The information was sufficient for all purposes without a proper verification, except to authorize the issuance of a warrant of arrest, and under our Code of Criminal Procedure the method of attacking such an insufficiently verified information must be by, motion to quash or set aside the same. Such question is not properly raised by a demurrer; especially would this be so of a demurrer upon the grounds above stated. In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805; Muldrow v. State, 4 Okla. Cr. 324, 111 Pac. 656; Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003.

On motion of the county attorney,- the court permitted the original information to be amended by inserting the words “about a quarter of a mile west of the place where western avenue intersects G avenue in 'Capitol Hill, in said city, county, and state,” and striking therefrom the words, “designated as Western and G avenue, said city, county, and state.”

The effect of the amendment was to change the place to which the whisky was alleged to have been conveyed from the intersection of Western and G avenues to a point about a quarter of a mile west of said intersection. This amendment, having been made over the objection and exception of the defendant, is alleged to have been particularly prejudicial to him, in that it materially changed the description of the offense, and also because the information was not required to be reveri-fied after the amendment was made.

It is -sufficient to state that, in the opinion of the court, the amendment did not materially alter the offense as charged in the original information; also, it may be observed that, had the information been materially altered by an amendment, the fact that the defendant proceeded to trial without -asking additional time in-which to plead to such amended information, and without filing any motion to quash, or set the same aside, amounted to a waiver of the failure to reverify the same.

Finding no prejudicial error in the record, the judgment of conviction is affirmed.


author: PER OURIAM.

text:
    Ex parte F. M. VAN FLEET.
    No. A-2565.
    Opinion Filed Oct. 14, 1919.
    (183 Pac. 986.)
    Petition by F. M. Van Fleet for writ of habeas corpus.
    Petitioner ordered discharged from custody.
    A. O. Towne, for petitioner.
    The Attorney General, for respondent.
   PER OURIAM.

In this proceeding the petitioner, F. M. Van Fleet, presented to this court a verified petition, averring -that he is unlawfully imprisoned in the county jail of Ottawa county by the sheriff of said county. It is further averred: That on October 12, 1915, one H. L. Herbert filed1 a complaint before J. L. Speer, a justice of the peace, charging that affiant was about to commit a breach of the peace. That petitioner was arrested and brought before said justice of the peace, and filed an affidavit for change of venue, wliicli was denied. • Thereupon the petitioner demanded a trial by jury, which 1 was refused. That over the objection of petitioner the case was tried, and said justice of the peace made an order requiring petitioner to give bond in the sum of $300 to keep the peace and to appear at the next term of the district court of Ottawa county, and in default of such bond he stand committed to the county jail. That petitioner is unable to give bond, and is now being illegally and unlawfully held under said commitment by said sheriff. Copies of the complaint and affidavit for change of venue, the judgment, and order of commitment are attached to said petition. That he made application for writ of habeas corpus to the district court of said county, and the same was denied.

An order to show cause was entered and issued, and upon the return day, thé parties appearing by counsel, the case was argued and submitted. Thereupon it was ordered by the court that petitioner be discharged; the court holding that upon the filing of a proper affidavit for a change of venue, as was done in this case, it was the duty of said justice to transfer the case to another justice of the peace; that under section 6149, Rev. Laws, in a criminal proceeding, when the defendant files an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial tr;al before the justice of the peace, his duty in the case thereafter is purely ministerial, and he can only enter a' proper order transferring the cause to another justice of the peace as the statute provides, and for tlrs reason the court was without jurisdiction to render the judgment or issue the order of commitment thereon.


text:
    JOE CUNEO v. STATE.
    No. A-3232.
    Opinion Filed Oct 14, 1919.
    (182 Pac. 251.)
    Appeal from County Court, Comanche County; R. J. Ray, Judge.
    Joe Cumeo was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    J. F. Thomas, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff In error, Joe Cuneo, was convicted on a charge that he did have possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail. From the judgment, he appeals.

The sole question presented is the sufficiency of the evidence to support the verdict. The fact that the defendant did have possession of whisky at his place of business was undisputed, and it was for the jury to determine on the evidence in the case as to whether or not he intended to sell the same. There is nothing in the record to indicate that the defendant did not have a fair trial,

The judgment is therefore affirmed.


text:
    RICHARD MOGG v. STATE.
    No. A-3355.
    Opinion Filed Oct. 15, 1919.
    (183 Pac. 520.)
    Appeal from District Court, Canadian County; Geo. W. Clark, Judge.
    Richard Mogg was convicted of grand larceny, and he appeals.
    Appeal dismissed, and cause remanded, with direction.
    Chas. H. Carswell and J. N. Roberson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Richard Mogg, was tried and convicted in the district court of Canadian county on an information charging the theft of one Ford automobile, the personal property of one J. C. Shriver, and in accordance with the verdict of the jury he was on the 28th day of December, 1917, sentenced to serve a term of one year in the penitentiary at McAlester. From the judgment an appeal was perfected by filing in this court on May 10, 1918, a petition in error, with case-made.

. On July 5, 1919, plaintiff in error filed a motion to dismiss his appeal. The' appeal herein is therefore dismissed, and the cause remanded to the trial court, with direction to cause its judgment to be carried into execution. Mandate forthwith.


text:
    CHARLIE SANDS v. STATE.
    No. A-3268.
    Opinion Filed Oct. 21, 1919.
    (183 Pac. 429.)
    Appeal from District Court, Greer County; T. P. Clay, Judge.
    Charlie Sands was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    Stewart & Edwards, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district ' court' of Greer county of the offense of having in his possession intoxicating liquors with intent to sell the same.

It is-alleged in the information that he had been previously convicted in the county court of Greer county of the offense of selling whisky. Judgment was rendered in accordance with the verdict, and he was sentenced to be confined for 30 days in the county jail and pay a fine of $50. From the judgment he appeals.

The only evidence is that introduced by the state, and it is ample to sustain the verdict. Discovering no prejudicial error in the record,, the judgment is affirmed. Mandate forthwith.


text:
    BESSIE THOMPSON v. STATE.
    No. A-3283.
    Opinion Filed Oct. 25, 1919.
    (184 Pac. 467.)
    Appeal from County Court, Garfield County; B. L. Swigert, Judge.
    Bessie Thompson was convicted of the crime of keeping, a báwdy-house, and her punishment, fixed at a fine of $100, and she appeals.
    Affirmed.
    W. W. Sutton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Garfield county, wherein the defendant was convicted of the crime of keeping a bawdyhouse, and house of prostitution, and place for persons to visit for unlawful sexual intercourse, and fined in the sum of $100.

The prosecution is based on section 2467, Rev. Laws 1910, which provides as follows:

“Any person who keeps any bawdyhouse, house of ill fame, or assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor mote than five hundred dollars for each offense.*’

The charging part of the information alleges that:

“On or about the 1st day of August, 1917, in Garfield county and state of Oklahoma, one Bessie Thompson did then and there unlawfully and willfully keep and maintain a bawdyhouse, and house of prostitution and a place for persons to assemble for unlawful sexual intercourse, at about 104% West Randolph street, in the city of Enid, said county and state.”

The defendant demurred to the information on the ground that the ' same did not state facts sufficient to constitute an offense. The demurrer was overruled, and exception taken thereto, and it is here urged that the court erred in overruling the said demurrer to the information.

The information is drawn in the language of the statute, and in the opinion of the court is sufficient to charge the offense.

It is also urged that the court erred in overruling the demurrer to the evidence and refusing to direct a verdict of not guilty'after the conclusion of the state’s evidence.

The court has carefully examined the evidence, and the conclusion is reached that the facts and circumstances detailed by the state’s witnesses, if believed by the jury, was sufficient to sustain the conviction. While, there was a sharp conflict between the testimony given by the .witnesses for the state and those for the defendant, it was for the jury to determine whom they would believe and whom disbelieve.'

The trial court also, over the objection and exception of defendant’s counsel, gave an instruction defining the term “reasonable doubt.” This court has repeatedly admonished trial courts against giving any instruction attempting to define the term “reasonable doubt.” Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157; Nelson v. State, 5 Okla. Cr. 369, 114 Pac. 1124.

However, the jury was told -that,1 before the defendant could be found guilty, the jury must-have “a .fixed--abiding canvictim!**' p® -guilt An instruction defining the term “reasonable doubt” similar toifhe one given in this case was approved by the Supreme Court of the ¡.United States in Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614, 20 L. Ed. 708.

This court is not authorized to reverse a judgment "of-conviction on the ground of a misdirection of the jury unless the error-complained of ■ apparently resulted in a miscarriage of justice, or deprived the de? fendant of some constitutional or statutory right. Section 6005, Rev, Laws 1910.

Find'ng no error in the record which resulted to the-.prejudice of the substantial rights of the defendant, the judgment is affirmed. :


text:
    J. F. KINCHELOE v. STATE.
    No. A-3289.
    Opinion Filed Oct. 29, 1919.
    (184 Pac. 602.)
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    J. F. Kincheloe was convicted of forgery, and he appeals.
    Proceedings abated.
    A. Eddleman and J. C. Thompson, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. F. • Kincheloe, was convicted of forgery, and his punishment fixed at 18 months in the -penitentiary. Shorn the judgment rendered on the verdict on the 20th day of September, 1917, an appeal was perfected.

The Attorney General has filed a motion that the proceedings abate by reason of the death of the plaintiff in error. Attached to said motion’ is the affidavit of the sheriff of Carter county, which, omitting .caption and jurat, is as follows: ..

“I, Buck Garrett, sheriff of Carter county, Oklahoma, being first’ duly sworn, upon oath depose and say that I knew J. F. Kincheloe during his lifetime, and I was present when he was convicted in the district court of Carter county, Oklahoma, and I know the said J. Fv Kincheloe to have died at Little Rock, Arkansas, while in the- service of the United States at Camp Pike. Arkansas”

—which affidavit was duly subscribed and sworn to on the 27th day of, October, 1919.

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 adjudged and ordered that all the proceedings in this prosecution be abated by reason of the death of the plaintiff in ei-’-or. The district court of Carter county is directed to enter its appropriate order to that effect.


text:
    WILLIS RIDLEY v. STATE.
    No. A-3636.
    Opinion Filed Nov. 1, 1919.
    (183 Pac. 516.)
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Willis Ridley was convicted of burglary, and he appeals.
    Appeal dismissed, and cause remanded, with direction to cause judgment and sentence to be executed.
    Bond & Kolb, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Willis Ridley, was convicted in the district court of Stephens county of burglary in the second degree, and in accordance with the verdict of the jury he was on the 16th day of April, 1919, sentenced to imprisonment in the penitentiary at Granite for the term of two years. From the judgment an appeal was perfected by filing in this court on October 2, 1919, a petition in error, with case-made.

On October 31, 1919, plaintiff in error filed a motion to dismiss the appeal, which motion is signed by himself and subscribed and sworn to before G. A. Witt, court clerk. The motion to dismiss the appeal is granted, and the appeal dismissed, and the-cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution.


text:
    H. G. AUTRY v. STATE.
    No. A-3189.
    Opinion Filed Nov. 8, 1919.
    (184 Pac. 786.)
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    H. G. Autry was convicted of assault, and he appeals.
    Affirmed.
    Bridges & Ver trees, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This judgment of conviction is sought to be reversed upon one ground alone, to wit, that the verdict is not sustained by sufficient evidence.

The defendant was indicted in the district court of Jefferson county, charged with the crime of assaulting one Lum Stroud with a shotgun with intent to kill him. The cause was tried to a jury, and a verdict returned, which by its terms finds the defendant guilty of a simple assault, and fixes his punishment at 15 days’ imprisonment in the county jail.

The evidence on the part of the state shows that the defendant assaulted one Lum Stroud, and attempted to shoot' him with a shotgun, and that the defendant would have done so had not defendant’s wife and son interfered and prevented the defendant from inflicting any wounds upon the prosecuting witness. The evidence for the defense was directly in conflict with that for the state.

Where the evidence is conflicting, this court will not disturb a judgment of conviction unless the evidence for the prosecution, if believed, is entirely insufficient to support the judgment. In this .case.-: the state's evidence is sufficient to support the verdict and judgment, and it was for the jury to decide the conflict in the evidence. Having done so adversely to the defendant, the judgment of conviction must stand, and it is hereby affirmed.


text:
    STATE v. HENRY SULLIVAN et al.
    No. A-3315.
    Opinion Filed Nov. 12, 1919.
    (184 Pac. 921.)
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    Henry Sullivan and Boss Neal were charged by indictment with the crime of conspiracy. Prom a judgment sustaining a demurrer to the indictment, the State appeals.
    Dismissed.
    S. P. Preeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., - Chas. P. Abbott, Co. Atty., and Utterback & MacDonald, for the Stated
    Hatchett & Ferguson, for defendants in error.
   PER CURIAM.

In this case the state appeals from a judgment rendered in the county court of Bryan county, sustaining a demurrer to an indictment charging Henry Sullivan and Boss Neal with the crime of conspiracy.

It appears from the record that the trial court, in rendering judgment sustaining the demurrer to the indictment, made no order authorizing the matter to be submitted to another grand jury or directing that the defendants be prosecuted by information. A petition in error.was filed in this court on April 6, 1918, and no brief has been filed by the county attorney or special prosecutors. When the case was called for final submission, the Attorney General moved that the áppeal' bé dismissed ; that for the reasons stated the attempted prosecution is at '¿n' end, and “this case presents only an academic or moot question, involving only an elementary principle of pleading, which would not justify this office in filing a brief solely in support of it.”

The appeal herein is therefore dismissed.


text:
    WALTER DOBBINS v. STATE.
    No. A-3483.
    Opinion Filed Nov. 29, 1919.
    (184 Pac. 789.)
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Walter Dobbins was convicted of a violation of the prohibitory liquor law, and he appeals.
    Appeal dismissed, and cause remanded with direction.
    J. A. D'ffendaffer, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Walter Dobbins, was convicted in the county court of Cotton county on a charge of unlawfully conveying intoxicating liquors, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in tbe county jail and to Day a fine of $125 and the costs.

From the judgment he appealed by filing in this court on November 14, 1918, a petition in error with case-made. On this day, he, by his counsel of record, has filed a motion to dismiss his appeal. The motion to dismiss the appeal is sustained, and the cause remanded to the trial court, with direction to cause its judgment and sentence to bo carried into execution.

Mandate forthwith.


text:
    L. M. MENDENHALL v. CARTER, Sheriff.
    No. A-3356.
    Opinion Filed Dec. 8, 1919.
    (184 Pac. 789.)
    Petition by L. M. Mendenhall for writ of habeas corpus to be admitted to bail.
    Bail denied, and writ discharged.
    Tom W. Neal and White & Reid, for petitioner.
    S. P. Preeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., Philos S. .Tones, and E. L. Taylor, for respondent.
   PER OURIAM.

This is an application of L. M. Mendenhall, for writ of habeas corpus to be admitted to bail, in which the petitioner alleges that he is confined in the county jail of LeFlore county on a commitment issued out of the court of P. H. Green, justice of the peace, -commanding the sheriff of LeFlore county, the respondent, to hold the petitioner without bail upon the charge of murdering one Alex Nowlan ■on the 30th day of March, 1918, in the town of Howe, LeFlore county, Okla.

As grounds for the issuance of the writ, the petitioner alleges that the proof of his guilt of the crime of murder is not evident, nor the presumption thereof great. The cause was submitted on the 14th day of May, 1918, on a transcript of the evidence taken at the examining trial •of the petitioner, and in addition thereto certain affidavits and the answer of the respondent, admitting that he held said petitioner pursuant to such commitment, and further alleging that the said petitioner had been denied bail by Hon. W. H. Brown, district judge of the Fifth judicial district of the state of Oklahoma.

After a consideration of the evidence and the arguments of counsel on behalf of petitioner and respondent, it was the opinion of the court that bail should be denied and the writ discharged; and it was so ordered.


text:
    JOE HASTINGS v. STATE.
    No. A-3331.
    Opinion Filed Dec. 15, 1919.
    (185 Pac. 534.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    Joe Hastings was convicted of a violation of the prohibitory liquor law, and ho appeals.
    Affirmed.

      Morse Garrett, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. G. Hall, Asst. Atty. Gen., for the. State.
   PER CURIAM.

Plaintiff in error, Joe Hastings, was tried and convicted on an information charging that in Tulsa county, on the 22d of August, 1917, he did have in his possession 86 half pints of whisky, 57 quarts of whisky, and 36 bottles of beer, with intent then and there to sell the same; and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for 90 days and to pay a fine of $200 and the costs.

From the judgment he appealed by filing in this court on April 24, 1918, a petition in error with case-made.

The state relied for this conviction on the ‘testimony of Carl Lewis, who testified that, in executing a search warrant on the date alleged, he found in the basement of the defendant’s residence the intoxicating liquors described in the information, and the defendant told him that he was the owner of the same. This was all the evidence in the case.

The errors assigned are the usual ones: That the court erred in overruling the motion for a new trial; the verdict is contrary to the law and the evidence; that the court erred' in admitting, over the objection of the defendant, incompetent evidence.

After a careful examination of the record, we have failed to .discover any prejudicial error, and our conclusion is that, the appeal in this case is wholly destitute of merit.

The judgment of the trial court is therefore affirmed.


text:
    JOE HASTINGS v. STATE.
    No. A-3332.
    Opinion Filed Dec. 16, 1919.
    (185 Pac. 534.)
    Appeal from County Court, Tulsa County; H. L. Standeveii, Judge.
    Joe Hastings was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Morse Garrett,' for plaintiff in error.
    . S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., fór the State.
   PER CURIAM.

Plaintiff in error, Joe Hastings, and T. R. McCullough were tried and convicted on an information charging that they in Tulsa county on the 14th day of October, 1917, did have in their-possession six quarts of gin, two quarts of whisky, and,69 half’ pints of whisky, with the unlawful intention to sell the same. The punishment of plaintiff in error was fixed at imprisonment in the county jail for 60 days and a fine of $200. From the judgment rendered on the verdict, he appeals. The errors assigned question the sufficiency of the evidence to sustain the verdict.

The only tesfimony is that introduced by the state. It is as follows: G. H. Blaine, a police officer, testified that he was acquainted with Joe Hastings and his codefendant; that he saw Hastings on the date alleged at a garage in the city of Tulsa; that he and another officer were watching the garage, and they saw a car drive in the alley which stopped in the rear of the garage, and the defendant Hastings lifted out a sack of whisky and took the same into the garage; that he and the other officer went in, arrested the defendant Hastings, and lu.ik the whisky; that they also found a plant located in the concrete fl' or of the garage and there found a large amount of whisky; that shortly afterwards he had a conversation with the defendant Hastings, and Hastings admitted that he and his codefendant, McCullough, owned the whiskv and that rhey were selling whisky.

Carl Lewis, a policeman, testified that he was with Officer Blaine^ watching the garage, and his testimony is in substance the same as that of the witness Blaine.

The foregoing statement shows that the testimony is such that it unquestionably supports the verdict and conviction.

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


text:
    Ex parte ROY KIRK.
    No. A-3311.
    Opinion Filed Dec. 23, 1919.
    (185 Pac. 706.)
    Application by Roy Kirk for writ of habeas corpus.
    Petition dismissed.
    Mounts & Davis, for petitioner.
   PER CURIAM.

This is an application on the part of Roy Kirk for a writ of habeas corpus to be discharged from the custody of the warden of the penitentiary at Granite, Okla., in which institution he was, at the time of the application for the writ, confined pursuant to a commitment issued out of the district court of Jackson county, upon a judgment and sentence of conviction for the crime of burglary.

Since this application has been pending, the attention of this court has been cailed to the fact that the said Roy Kirk has applied for, and been granted, a parole from said conviction, and has accepted the same, and is not now in custody of the warden of said penitentiary under said commitment.

The purpose of the application for the writ being to secure the release of the petitioner from confinement in the state penitentiary under what was alleged to have been a void judgment against him, and it appearing that said petitioner is not now in custody under said alleged void judgment, the purpose of the application for the writ is-ended, and the legal questions involved are moot.

For the reasons stated, the petition is dismissed.


text:
    H. J. TEARNEY v. STATE.
    No. A-3227.
    Opinion Filed Dec. 23, 1919.
    (185 Pac. 1104.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    H. J. Tearney was convicted of tlie unlawful possession of intoxicating liquors, and lie appeals.
    Reversed.
    Nelson & Blair, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on a charge that he did have in his possession nine half pints of whisky with intent to sell the same, and his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail. From the judgment rendered on the verdict he appeals. Upon the record in this case, the sole question presented is the sufficiency of the evidence to sustain the verdict. The state relies for this conviction upon the evidence of two police officers of the city of Tulsa.

H. H. Townsend testified that the defendant conducted a rooming house at 10954 South Cincinnati street, in the city of Tulsa, and conducted a restaurant across the street, and in serving a search warrant he found nine half pints of whisky in room No. 9 of the rooming house; that it was in a dresser drawer covered with heavy pieces of wrapping paper; that he arrested the defendant’s wife and took her to the station, and the defendant appeared and said he ran the place; that the reputation of the place had been getting bad 60 days prior to the raid.

Cross-examined, he stated that he had talked about the reputation of the rooming house with one mán in that vicinity.

T. L. Powell testified that he-was present when nine half pints of whisky were found in a dresser drawer in room No. 9; that he had raided the place before and never found any whisky while- the defendant owned the rooming house; that he examined the register and found somebody registered in room No. 9.

As a witness in his own behalf, the defendant testified that he ran the rooming house and restaurant across the street and had been running the same for about a year; that every one was required to register when they took a room; a man by the name of White was registered and occupied room No. 9 for several months; he always paid his room rent weekly; was an oil field worker, and would be sometimes out at work four or five days without returning; that his rooming house consisted of 18 rooms. He denied any knowledge of the whisky found.

Mrs. H. J. Tearney testified that she conducted the rooming house; that Mr. White bad room No. 9 for several months prior to the time the raid was made; the room was always locked during his absence; that he usually left the key over the transom, but this time had the key with him.

Earl Howard testified that he is a son-in-law of the defendant; lived at the rooming house with his wife for more than a year: knew of his own personal knowledge that Mr. White occupied room No. 9.

There is no conflict of evidence in the case. The undisputed facts, taken singly or as a whole, are not inconsistent with the innocence of the-defendant. Concefljtajg-.that they.'show, constructive possession of the whisky found, there-is go competent, evidence tending.-to. show an intent to sell the samé'.' "O^bn tlie whole'case, we. are clearly of opinion that as a matter of law the evidence is insufficient to sustain the conviction.

■ -The judgment herein is therefore reversed.


text:
    Z. D. LAMB v. STATE.
    No. A-3243.
    Opinion Filed Jan. 7, 1920.
    (186 Pac. 1101.)
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    . Z. D. Lamb was convicted of a violation of the prohibitory laws, and he appeals.
    Affirmed.
    Victor C.. Phillips and Porter Newman, for plaintiff in error.
    S. P. Ereeling, Atty. Gen., and W. C. Hall., Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Bryan county wherein the defendant, Z. D. Lamb, was convicted of having the unlawful possession of certain intoxicating liquors, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days. Prom this judgment of conviction he has -appealed to this court, and has assigned several alleged grounds of error for a reversal of the judgment.

The evidence shows that the defendant was the proprietor of a drug store, and as such had in his possession a large quantity of certain compounds containing from 12 to 50 per cent, of alcohol, measured by volume, which said compounds were capable of being used for beverage purposes, and also, in addition to these compounds, a certain quantity of alcohol. The evidence on the part of the state’s witnesses shows conclusively that this. defendant repeatedly sold these liquors to numerous persons who were in the habit of becoming intoxicated, and at various times when said persons were visibly under the influence of liquor. The evidence on the part of the state, if believed, clearly sustains the conclusion that the sales made of these alleged medicated compounds were for the purpose of using same as beverages by those parties who bought them. The intent on the part of the defendant, that the purchasers should use said liquors for beverage purposes is plainly deducible from the evidence of the state’s witnesses.

The defendant denied -any intention of selling the liquors for beverage purposes, but the jury decided the conflict adversely to him.

Certain instructions given by the court are complained of, but we find no objection made or exception taken to the giving of these instruc-lions at the time. Under such a condition of the record, no question of error in the instructions is presented for review. Suffice it to say that an examination of the court’s instructions discloses no prejudicial error to the defendant sufficient to cause a reversal of this judgment.

Certain instructions were requested to be given, the refusal to give which is separately assigned as error. The court’s action in, refusing to give these instructions was not erroneous in either instance, because there wá's no- evidence tó support th'é theory-upon which some, of1,these; instructions'were- requested,' and the 'instriictibus-'given' fáii-íy coVér' 'tifié' l'áw of the casé in as-favorable a manner, to the- defendant as 'theevb. dence would 'warrant. • ..

'■ The conclusion. is reached-that the'conviction of this def.endanf under the evidence is just, and comes clearly within the purview of. the' law making it a misdemeanor to. have such prohibited, liquors, in. posse^-sión with intent to sell the same. - • : ■,

For the reasons stated, the judgment is -affirmed.


author: PER CURIAM.-

text:
    BILLY MILES v. STATE.
    No. A-3400.
    Opinion Filed Jan. 10, 1920.
    (186 Pac. 489.)
    Appeal from County Court, Tulsa County; H. L. Standeven; Judge.
    Billy Miles was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. M. Martindale, for plaintiff in error.
    W. O. Hall, Asst. Atty. Gen., for the State
   PER CURIAM.-

Plaintiff in error was tried and convicted on an information charging that in Tulsa county, on the 17th day of September, 1917, he did have in his possession 898 bottles of beer and 193 bottles of whisky, with intent then and there to sell the same, and in accordance with the verdict of -the jury he was sentenced to he confined in the county jail for 90 days and to pay a fine of 8500.

The evidence for the state is undisputed, -and supports the allegations of the information. An examination of the record discloses that the appeal in this case is wholly destitute of merit.

The judgment of the trial court is therefore affirmed. Mandate forthwith.


author: PER CURIAM-

text:
    LAFE LEWELLEN v. STATE.
    No. A-3402.
    Opinion Filed Jan. 10, 1920.
    (186 Pac. 245.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    Lafe Lewellen 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, Lafe Lewellen,- was tried and convicted on an information charging in Tulsa county, on the 10th day of August, 1917, he did have in his possession one barrel and a half barrel of beer with intent then and there' to sell the same, and in accordance with the verdict of the jury he was on the 23d day of February, 1918, sentenced to be confined in the county jail for 60 days and to pay a fine of $100 and the oosts. No brief has been filed; no appearance made on behalf of plaintiff in error. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal, which motion is sustained, and the jndgment of the lower court is affirmed.


text:
    A. B. JEFFRIES v. STATE.
    No. A-3410.
    Opinion Filed Jan. 10, 1920.
    (186 Pac. 245.)
    Appeal from County Court, Tulsa County; H. L. Standeven, Judge.
    A. B. Jeffries 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, A. B. Jeffries, was tried and convicted on an information • charging in Tulsa' county, on the 13th day of December, 1917, he did have in his possession eight half pints of whisky, with intent then and there to sell the same, and in accordance with 'the verdict of the jwry he was, on the 2d day' of March, 1918, sentenced to be confined in the county jail for 60 da.ys and to pay a fine of $50, and the costs. No brief has been’filed; no appearance made on behalf of plaintiff in error. When the ease was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal, which motion is sustained, and the 'judgment of the lower court is affirmed.