text:
    LINDSEY COLEMAN v. STATE.
    No. A-3422.
    Opinion Filed May 11, 1920.
    (189 Pac. 759.)

    Appeal from District Court, Tulsa County; N. E. McNeill, Judge.
    Lindsey Coleman was convicted under the enhanced penalty act of the prohibitory liquor law, and lie appeals.
    Reversed and remanded.
    D. M. Martindale, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. O. Hall, Asst. Atty. Gen., for' the state.
   PER CURIAM.

Lindsey Coleman was convicted -in the district court of Tulsa county under the enhanced penalty act of the prohibitory liquor law, and sentenced to serve a term of five years’ imprisonment in the state penitentiary and to pay a fine of $50. From tliis judgment of conviction, an appeal has been properly perfected to this court, and several errors are alleged as grounds for reversal. The Attorney General has filed the following brief in the nature' of a confession of error:

“This was a prosecution and conviction under the enhanced penalty act. ¡is provided in -section 2 of chapter 20. Session Laws 1913. With reference to the primary or initial conviction, in the course of the trial of tin's case, the following proceeding occurred:

‘The Court: Sustained. Both sides admit the case is now pending in the Criminal Court of Appeals, and is underetmined. Mr. Reeves (County Attorney) : We admit the case is now pending in the Criminal Court of Appeals and undetermined, but contend that fact is incompetent, irrelevant and immaterial to the issues in this case.’ ‘Under the rule laid down by this court in the case of McAlester v. State, 16 Okla. Cr. 70, 180 Pac. 718, the defendant in this case could not be convicted of the offense under the enhanced penalty act while appeal from the judgment in the previous conviction was pending in the Criminal Court of Appeals. In the McAIester Case, supra, this court held: ‘Pending an appeal to the court from a conviction, where judgment of conviction is suspended, such conviction, until affirmed by this court, is not legal evidence, upon a trial for a second violation of the prohibitory liquor laws of a former conviction. Upon a trial for a second violation of the prohibitory laws, it is prejudicial error to admit in evidence proof of a prior conviction when judgment of such conviction has been appealed to this court, and the execution of the judgment of the conviction legally suspended, and the said appeal is undetermined.’ Therefore the judgment in this case must necessarily fall.”

Tlie admission of the illegal and incompetent evidence complained of over tlie objection and exception of the defendant, was prejudicial error in this case, and the confession of error of the Attorney General is sustained, and the judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HENRY WADE v. STATE.
    No. A-3421.
    Opinion Filed May 11, 1920.
    (189 Pac. 759.)
    Appeal from District Court, Tulsa County; N. E. McNeill, Judge.
    Henry AArade was convicted under tlie enhanced penalty act of the prohibitory liquor law (Laws 1913, e. 20), and sentenced to serve a term of five years' imprisonment in the state .penitentiary and to pay a fine of $50, and he appeals.
    Reversed and remanded.
    D. M. Martindalo, for plaintiff in error.
    S. D. Eroding, Atty. Hen., and AAr. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a companion case to the cast of Lindsey Coleman v. State (No. A-3422) 17 Okla. Cr. 716, 189 Pac. 759, this day decided. Tlie questions involved in this appeal are identical with those involved in tlie appeal in tlie Coleman Case, and the Attorney General had also filed .in this case a brief in the nature of a confession of error upon tlie same ground as. in the Coleman Case. Eor the reasons stall'd by this court in the opinion in tlie case of Lindsey Coleman v. State. No. A-3422, tlie judgment of conviction in this case is .reversed, and the cause remanded to tlie district court of Tulsa county for further procedings not inconsistent with tli(> opinion rendered in tlie case of Lindsey (Ademan v. State, supra.


text:
    OLIVER ROBINSON v. STATE.
    No. A-3432.
    Opinion Filed May 11, 1920.
    (189 Pac. 763.)
    Appeal from District Court, Washita County; Thomas A. Edwards, Judge.
    Oliver Robinson was convicted of the crime of receiving stolen property, and sentenced to serve a term of 18 months’ imprisonment in the State Reformatory at Granite, Okla., and he appeals.
    Appeal dismissed.
    Smith, Jones & Smith, for plaintiff in error.
    S. P. Ereeling, Atty Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from the district court of Washita county, wherein the defendant, Oliver Robinson, was convicted of the crime of receiving- stolen property, and sentenced to serve a term of 18 months’ imprisonment in the State Reformatory at Granite, Oklá. A' petition in error, with case-made attached, was filed in this court o-n the 13th day. of August, 191S. On tlie 13th- of October, 1919, the Attorney General filed a motion to dismiss tlie appeal, which reads as follows:

‘‘Comes now the above-named defendant in error, by S. P. Ereeling, Attorney General, and moves the court for an order to dismiss appeal in the above-entitled cause, for the reason and upon the ground that no notice of said appeal was served upon either the court clerk in the county wherein said' judgment was rendered, nor upon the county attorney or prosecuting attorney in said cause.”

No response to said motion has been made by counsel representing defendant. Section 5992, Revised Laws 1910, provides as follows: “An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served! upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.” Section 599V, Id., provides: “Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error' in all respects and with all the rights, as provided in ‘Procedure, Civil.’ and the summons in error shall he served upon the Attorney General, unless the same is waived as in other cases. Instead of the lase-maue plaintiff m error may attach to his petition in error a transcript of the proceedings of record in the trial court.” An examination of the files of this court in this case fails to disclose the service of notices of appeal upon the prosecuting attorney and clerk of the court, as provided in section 5992, supra, or either the service ... summons in error upon the Attorney General, or a waiver of the same by said officer as provided in section 5997, supra. As no appeal was taken in either of the manners provided .by the foregoing statutes, the motion to dismiss the appeal must be sustained, and it is hereby ordered that the appeal in this case be dismissed.


text:
    JOE JACKSON et al. v. STATE.
    No. A-3437.
    Opinion Filed May 11, 1920.
    (189 Pac. 1102.)
    Ax>peal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    Joe Jackson and Joe Thomas were convicted of the crime of maintaining a place with intent to sell intoxicating liquor, and they appeal.
    Judgment as to each reversed and remanded, with direction to dismiss.
    J. O. Evans, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiffs in error, Joe Jackson and Joe Thomas, were jointly tried and convicted in the, superior court of Okmulgee county of maintaining and keeping a place in the city of Okmulgee, in said county, with the feloneous intent and purl>oso of selling intoxicating liquon., -nd their • xnuii slim cuts fixed at" confinement in the penitentiary for a period of 2 years each, and to pay a fine of $100 eacli. To reverse the jiidgments rendered on the verdict they have each appealed to this court. In the case of Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, the statute upon which this iuosecution is based was held unconstitutional and void. For the reason stated in the opinion, in that ease, the judgment as to each defendant in* this case is reversed, and the cause remanded, with instructions to the trial court to dismiss the same. Mandate forthwith.


text:
    HARRY NORTHRUP v. STATE.
    No. A-3507.
    Opinion Filed May 11, 1920.
    (189 Pac. 1102.)
    Appeal from County Court, Tulsa County; W. B. Williams, Judge.
    Harry Northrup 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, Harry Northrup, was convicted on an information charging the unlawful conveyance of 5 half pints of whisky from a point unknown to the northwest corner of First and Main streets, Tulsa, December 7, 1918. The court rendered judgment, and sentenced him to be confined in the county jail for 60 -days and to pay a fine of $50. The' evidence shows that plaintiff in error was arrested by a police officer, taken to the station, searched, and 5 half pint bottles of whisky found in his pockets. As a witness in Iris own behalf the defendant testified that he had just bought the w'hisky and was taking it to his wife. No brief has been filed. We have examined the record, and find no fundamental error. The judgment is affirmed. Mandate forthwith.


text:
    FRED DOWN v. STATE.
    No. A-3508.
    Opinion Filed May 12, 1920.
    (188 Pac. 687.)
    Appeal from the County Court, Tulsa County; W. B. Williams, Judge.
    Fred Down, convicted of a violation of the prohibitory law*, appeals.
    Afirmed.
    D. M. Martindale, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff 'in error, Fred Down, was convicted in the county court of Tulsa county on an information charging that he did unlawfully have possession of 49 half pints of whisky with the intention of ¡selling the same. On the 7th day of October, 1918, judgment was rendered and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of 30 days and pay a fine of $100 and the costs. From (he judgment he appealed by filing in this court on February 15, 1919, a petition in error with case-made. An examination of the record discloses that the proof on the part of the state shows that at Ills place in West Tulsa, known as the Log Oabin, the defendant had' possession of the intoxicating liquors alleged and is uu-contradicted. , It also appears that the appeal is' without merit. The judgment is affirmed. Mandate forthwith.


text:
    TATE JONES v. STATE.
    No. A-3665.
    Opinion Filed May 18, 1920.
    Appeal from the County court, Lore County; W. I!. Jones, Judge.
    A. L. Jones, convicted- of a misdemeanor, appeals.
    Dismissed.
    J. W. Hays, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, A. L. .Jones, was convicted on a charge that he did unlawfully transport intoxicating liquor in Love county, 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. Erom the judgment he apjieals. His counsel of record has this day filed a motion to dismiss said appeal. The motion is sustained and the appeal dismissed.


text:
    E. L. SMART v. STATE.
    No. A-3453.
    Opinion Filed May 22, 1920.
    (190 Pac. 269.)
    Appeal from County Count, Rogers Comity; Edward Jordan, Judge.
    E. L. Smart was convicted of unlawfully conveying intoxicating liquors, and he axipeals.
    Affirmed.
    Jennings & Hall, 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 Rogers county, Okla., wherein the defendant was convicted of unlawfully conveying certain intoxicating liquors, to wit, 108 qua-rts of whisky ■and 20 gallons of alcohol, from one place within said county to another place therein, and his punishment fixed at imprisonment in the county jail for a period of 00 days, and to pay a fine of $100. II is first alleged that there is a material variance between the allegations in the information as to the particular points from which and to which the said intoxicating liquors were alleged to have been conveyed and the proof adduced upon the trial as to such points. The information alleged certain points of intersection of certain sections of land in said Rogers county as the points from which and to which said conveyance was made, and the evidence in the record discloses that the prosecuting witness was at first somewhat confused as (o the section numbers, but later in his examination, whatever confusion sit first arose in liis mind was cleared up, and there is evidence in the record supporting the allegations contained in the information as to the particular points from which and to which the said intoxicating liquors were conveyed by the defendant, and the jury was authorized to reasonably conclude from such evidence that such points wore the 'identical points charged in the information. It is also contended, that the court erred in refusing to permit the defendant to prove, both by cross-examination of the prosecuting witness and later when said witness was called as a witness in behalf of the defendant, that the defendant had stated to such witness, about one hour after he was arrested, that 'he had purchased the said whisky and alcohol in Webb City, Mo., and was in the act of transporting it from that place -into Rogers county, Okla., at the time he was apprehended. This evidence was properly excluded by the court, even should it -be considered material in defense of this prosecution, which we do not decde, for 'the reason that it was nothing more than an attempt to prove a self-serving declaration on the part of the defendant, made about an hour after he was first arrested, and forming no part of the res gestae of the crime. For the reasons stated, the judgment of conviction is affirmed.


text:
    CHARLEY CRISP v. STATE.
    No. A-3777.
    Opinion Filed May 29, 1920.
    (190 Pac. 1118.)
    Appeal from District Court, Grady County; Will Lynn, Judge.
    Charley Crisp was convicted of grand larceny, and he appeals.
    Appeal dismissed on motion of plaintiff in error, and cause remanded.
    B. Hamilton, for plaintiff in error.
    W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charley Crisp, was convicted in the district court of Grady county on a charge that he did take and steal five automobile casings and inner tubes of the value of $75, the property of the Gilkey-Jarboe Hardware Company, and in accordance with the verdict of the jury he was sentenced to be confined in the penitentiary at Granite for a term of two years. On November 17, 1919, judgment was rendered. On May 13, 1920, ¡an appeal therefrom was perfected by filing in this court a petition in error with case-made. On May 26, 1920, counsel for plaintiff in error filed a motion' to dismiss the appeal for the reason “that plaintiff in error no lojnger desires to prosecute the same and has begun to serve his sentence therein.” The motion to dismiss-is sustained, and the cause is remanded to the. lower court.


text:
    CHARLES HOLDEN v. STATE.
    No. A-3455.
    Opinion Filed May 29, 1920.
    (190 Pac. 1119.)
    Appeal from District Court, Cleveland County; F. B. Swank, Judge.
    Charles Holden was convicted of manslaughter in the first degree. and he appeals.
    Appeal dismissed, on motion of plaintiff in error. and cause remanded.
    Pruiett. Sniggs & Patterson, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Charles Holden, was informed against for the crime of murder, alleged to have been committed on the 24th day of August, 1917, by shooting one Grover Ful-kerson with a pistol. Upon his trial he was found, guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a period of four years. From thg__ judgment rendered on the verdict he appeals. His counsel ol record have filed a moiion to dismiss his appeal. The motion is sustained, and the cause remanded to the trial court.


text:
    JOHN SHERWOOD v. STATE.
    No. A-3275.
    Opinion Filed May 29, 1920.
    (190 Pac. 270.)
    Appeal from County Court, Payne County; Wilburforee Jones, Judge.
    John Sherwood was convicted of a violation of the prohibitory liquor laws, and he appeals.
    Appeal dismissed.
    John Adams and W. It. Taylor, for plaintiff in error.
    S. P. Freeling, Atty. (Jen.-, and W. O. Hall, Asst. Atty. (Jen., for the ¡átate.
   PER CURIAM.

J ohn ¡áherwood was convicted in the county court of Payne county on an information charging him with unlawfully conveying certain whisky from a place unknown in Payne county to another place in said county, to wit, a point on the public highway in the southwestern part of the city of Cushing. The petition in error recites that judgment was rendered against the plaintiff in error on the 25th day of February, 1918, and there is a recital in the minutes of the clerk of the trial court to the effect that the court ordered that the defendant be confined in the county jail for a period of 60 days and that he pay a fine of $100 and costs. The appeal is by transcript of the record, and the record before us contains no copy of any judgment as rendered 'in the court below from which an appeal could be taken. This court has repeatedly held:

“When an appeal is taken from an alleged judgment of conviction, 'aad the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction.” Harjo v. State, 14 Okla. Cr. 187, 169 Pac. 659; Lloyd v. State, 12 Okla. Cr. 82, 151 Pac. 1190; Fowler v. State, 11 Okla. Cr. 157, 143 Pac. 658; Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328; Allen v. State. 6 Okla. Cr. 665, 118 Pac. 1102; Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535; McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876.

For the reason that the ‘transcript does not contain a copy of the judgment appealed from, we are of opinion that this court is without jurisdiction to consider the appeal, and for such reason the appeal is dismissed.


text:
    JOHN MARTIN v. STATE.
    No. A-3467.
    Opinion Filed May 29, 1920.
    (190 Pac. 268.)
    Appeal from District Court, Oraig County; Ernest B Hughes, Judge.

      John Martin was convicted, of the crime of manslaughter in the first degree and sentenced to serve a term of 35 years in the state penitentiary, and he appeals.
    Affirmed.
    Riddle, Bennett, Wilson & Mitchell, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted of the crime of manslaughter in the first degree, and his punishment fixed as above stated. Judgment rendered on May 25, 1918. This appeal has been pending in this court since October 5, 1918. No brief has been filed in behalf of plaintiff in error, and no appearance was made to orally argue the cause at the time same was submitted. 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.”

After ..an examination of the pleadings, the instructions of the' court, and the judgment and sentence, the court finds that no prejudicial error occurred sufficient to authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    DAVE THOMPSON v. STATE.
    No. A-3470.
    Opinion Filed May 29, 1920.
    (190 Pac. 275.)
    Appeal from District Court, Kiowa County; Tilomas A. Edwards, Judge
    Dave Thompson was convicted of stealing an automobile, and he appeals.
    Affirmed.
    ■ Geo. Martin, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State..
   PER CURIAM.

The plaintiff in error, Dave Thompson, jointly with Jim Thompson, Pane Thompson, and Ernest Stuart, was charged with the theft of one Ford automobile, the property of Fred Tilley. The defendant Jim Thompson pleaded guilty. Upon their trial the. other defendants were found guilty, but the jury was unable to agree upon the punishment. The judgment and sentence of the court was that plaintiff in error, Dave Thompson, be confined in the state reformatory at Granite for a period of 18 months. He has appealed from said conviction to this court, but tlieré has been no appearance in his behalf on his appeal, and the case was submitted on the record. We have carefully examined the record in connection with the errors assigned, and we find that the testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict, and, finding no error in the record, the judgment is affirmed. Mandate forthwith.


author: RI5R CURIAM.

text:
    W. M. THOMPSON v. STATE.
    No. A-3316.
    Opinion Filed Sept. 13, 1919.
    On Rehearing June 7, 1920.
    (189 Pac. 1091.)

      Appeal from County. Court, Oklahoma County; William H. Zwick, Judge.
    W. M. Thompson was convicted of the crime of unlawful possession of intoxicating liquors, and lie appeals.
    Judgment affirmed. Modified on rehearing.
    Reardon & Hereford, for. plaintiff in error.
    S. V. Freeling. Atty. (ten., and W. C. Hall, Asst. Atty. Gen., for the State.
   RI5R CURIAM.

W. M. Thompson was convicted in the county court of Oklahoma county of the crime of unlawful possession of intoxicating liquors, and punishment fixed at a fine of $150 and six months’ imprisonment in the county jail. From this judgment he has appealed to this court, and assigns, two grounds for reversal of the judgment:

(1) That tlie court erred in refusing to sustain the motion of the defendant to instruct the jury to return a verdict of not guilty at the completion of the state's evidence, to which action oi' the court the defendant duly excepted. This assignment of error is based on the contention that it is necessary for the stale to allege in the information, and prove, the iierson or persons to whom the defendant intended to sell the intoxicating liquors witli which lie was possessed. The information alleges an unlawful intent on tlie part of the defendant to sell the liquors to others, nor naming any parties or parly The contention is without merit. In a prosecution for the crime of unlawful possession of intoxicating liquors with intent to sell same, the particular person to whom, the defendant intended to sell such liquors is not an essential element of the crime. It is sufficient if it appears from the evidence that the defendant had possession of the liquors within the jurisdiction of the court with the intent to sell to any person or persons whomsoever. The authorities of this court, to the effect that it is necessary to allego and prove tlie person to whom a sale of intoxicating liquors is made, or that -the name of such person is unknown, are not in point, and are not controlling, as to prosecutions for unlawful possession with intent to sell.

It is contended that the information is defective, in that it does not stale facts sufficient to charge an offense against the laws of the state' and (o sustain a conviction. The information charges the offense as follows:

“In the name and by the authority of tlie state of Oklahoma, comes now Charles B. Selby, the duly qualified and acting county attorney in and for Oklahoma county, state of Oklahoma, and on his official oath gives the county court in and for said Oklahoma county and state of Oklahoma to know and be informed that heretofore, to wit, on the 5th day of December. A. D. 1017. in Oklahoma county, state of Oklahoma. W. M. Thompson, whose more full and correct name is to your informant unknown, then and there being, did then and there willfully, unlawfully, have in his possession certain intoxicating liquors, (o wit. twenty quarts of whisky, with the then and then1 unlawful intent on the part of him, the said W. M. Thompson, to sell, barter, give away, and otherwise furnish the said intoxicating liquor to others contrary to file form of the statutes in such cases made and provided, and against the peace and dignity of (he state of Oklahoma. Charles B. Selby. County Attorney, Oklahoma County, by George M. Callihan, Assistant County Attorney.”

In this connection it is contended that the information is defective and deficient, for the reason that it fails to charge that the defendant intended to sell, barter, give away, and furnish the intox-ica ling' liquors to others within the state of Oklahoma. No demurrer was interposed to the information. Objection was urged to the introduction of evidence for the reason that the information failed to charge any offense against the laws of the state. This court has repeatedly held that where a defendant goes to trial, and for the first lime objects to the information when the state attempts to introduce testimony hereunder, the objection should be overruled, .if by any in-tendment or presumption tin» information or indictment etui be sustained. Wilsford v. State. 8 Okla. Cr. 535, 120 Pac. 80; McDaniel et al. v. State. 8 Okla. Cr. 209. 127 Pac. 3858; Edwards v. State. 5 Okla. Cr. 20. 113 Pac. 214: White v. State. 4 Okla. Cr. 140. 111 Pac. 1010. The information charges that tito said W. 11. Thompson, in Oklahoma county, state of Oklahoma, had in his possession certain ‘intoxicating liquors, to wit. 20 quarts of whisky, with the then and there unlawful intent- tut the part of him. the said W. M. Thompson, to sell, barter, give away, and otherwise furnish the said intoxicating liquors to others, it is evident from the allegations contained in the information that tlu> pleader intended to charge the defendant with the unlawful possession of intoxicating liquors in Oklahoma county, state of Oklahoma, witli tile unlawful intent then and there~-i. e..--in said county and state — to sell the same' to others.. Such would bo the only reasonable construction to place upon the allegations of the information. and. in view of the fact that the defendant failed to interpose' a demurrer to the information, sucli a construction will obtain in this court. The conclusion is reached that the grounds assigned for reversal of this judgment are purely technical and without substantial merit. The judgment is affirmed.

On ltehearing.

Subsequent to ilie rendition of the opinion affirming the" judgment of tlie county court of Oklahoma county in this appeal, the plaintiff in error, W. M. Thompson, has filed a petition for rehearing, containing a motion and request for a modification of the judgment. The original judgment imposed a fine of $150 and imprisonment in the county jail for a period of 6 months. The Attorney General, in open conr;. agreed (hat that part of the judgment imposing imprisonment for a period of (> months should bo modified, to provide imprisonment in the county jail for a period of 60 days, in view of the fact that the plaintiff in error is a man of advanced years and has never heretofore been convicted of crime. Under due consideration, therefore, it is the opinion of the court that the ends of justice will be best subserved by a modification of the original judgment to provide a fine of $150 and imprisonment’ for a period of 60 days, and the judgment is thus modified, and. as so modified, is affirmed.


author: PER CURIAM. PER CURIAM.

text:
    W. W. HUTCHINS v. STATE.
    No. A-3372.
    Opinion Filed March 6, 1920.
    On Rehearing, June 7, 1920.
    (189 Pac. 1085.)
    Appeal from County Court, Ottawa County: N. O. Harry. Judge.

      W. W. Hutchins was convicted of the crime of unlawful posses-t-ion of intoxicating liquor, and he appeals.
    Affirmed. Modified on ■< «hearing.
    Mason & Jones, for plaintiff in error.
    S. P. ITreeling, Atty. Gen.., and W, G. Hail, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Ottawa county, wherein the defendant was convicted of unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of 30 days. From this judgment he has taken an appeal 'to this court, and asks a reversal upon the sole ground that the evidence is insufficient to sustain the conviction. The state 'introduced three or four witnesses who testified, in substance, that on the 29th day of August, 1917, at about dark on the evening of said day, as the result of a search of the premises of this defendant, nine gallons of whisky contained in two separate five-gallon glass bottles or demijohns were found concealed in a patch of peas a. -short distance north of the garage on the defendant’s iwemises in the town of Commerce, Ottawa county. It also appears that a short time before supper on said day a previous search by some of the same officers had been made of the premises of the defendant, and no liquor was found on said premises at (hat time, although a search of -this s-ame pea patch was made. It further appears that the defendant was away from home at the -time of the first search, but was discovered by 'the officers in a public highway about 250 yards from his home while the officers were on their way there to make the second search. At that time the defendant was in possession of an automobile, the lights of which were out. The officers, however, searched the defendant and1 -the car, finding no liquor, but discovering a Colt’s pistol in said car, which the defendant admitted belonged to him. The defendant also testified 'that he left ' home about 1 o’clock in the afternoon of that day and drove up to town in his car for the purpose of mailing a letter and to see if he had any mail at; the post office. Finding no mail there, defendant says he loafed around town all day until dark, spending the time from about 3 o’clock in the afternoon at McOleary’s barn, helping repair an automobile truck, and says he drove his automobile into the driveway of said barn, and that it stayed there all that afternoon until the officers overtook him taking it home at the time of his detention and subsequent arrest on this charge. In explanation of the possession of. the pistol found in defendant’s automobile he says that he purchased it that day when in town from a traveling man whom he did not know, and paid him $3 or $4 for it. The defendant also admitted -that -the patch of peas in which this whisky was found was located- on' his premises, belonged to him, and was planted aiul tended by him. The state in rebuttal introduced a deputy sheriff, who testified that he exent.ed a search warrant on McOleary’s barn about 4 o’clock in the afternoon of that day, and that at that ;ime nobody was there working on an automobile truck, and that there uns no Ford car standing in the driveway of said barn at that time. Defendant also admitted that he had stated that he would rather pay $50 than to be “shoused around in court in this case.’’ The foregoing substantially -states the incriminating facts and circumstances of the case.

■j-'xuí jur> In liiv k-.m-iu>i\[_• trier oí tile filets, and where there is •y.ldanee from vhieli rlie jury with reason might find a defendant guilty, this coun will not disturb the verdict for alleged insufficiency of the evidence. Crilley v. State, 15 Okla. Cr. 44, 181 Pac. 316; Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486; Davis v. State, 10 Okla. Cr. 169, 135 Pac. 438; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737. An examination of the evidence in this case convinces the court that there, was sufficient evidence to authorize the trial court to submit the cause to the jury, and that it was not error to refuse to direct a verdict of not guilty. It is not.the province of this court to subsiitute its judgment on the question of the weight of the evidence for that either of the jury or the trial judge. The jury and the trial judge are much better situated to pass upon questions by reason of the opportunity afforded to observe the witnesses, and, provided there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty of the crime charged, the judgment will not be disturbed upon the sole ground that the evidence is insufficient to sustain it. No other error of law being urged in the brief of counsel for the defendant as ground for a reversal of this judgment, it is the opinion of the court that 'the judgment should be affirmed, and it is so ordered.

On Rehearing.

PER CURIAM.

The defendant, IV. W. Hutchins, since the rendition of the opinion, filed March 6, 1920, affirming the judgment of the county court of Ottawa county, imposing a fine of $500 and imprisonment for 30 days in this case, has filed a motion and request for modification of the judgment. Upon consideration of the several grounds set forth in said motion, and after due and careful reconsideration of the evidence against the defendant, it is the opinion of the court that the ends of justice will be best subserved by a modification of the original judgment to provide a fine of $100, instead of $500, and imprisonment for a period of 30 days in the county jail, and the judgment is modified to that extent, and, as so modified, is affirmed. Mandate forthwith.


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    STATE ex rel. C. O. SUMAN v. WRIGHT, District Judge.
    No. A-3793.
    Opinion Filed June 9, 1920.
    (189 Pac. 745.)
    Proceeding by the State, on relation of G. C. Suman, County Attorney, of Payne County, for a writ of prohibition against Inicien B. Wright, Judge of the Twenty-Second Judicial District.
    Alternative writ set aside, and proceeding dismissed, on a showing that the parties before tbe return agreed to a dismissal.
    C. O. Suman, for petitioner.
   PER CURIAM.

This proceeding was filed by C. C. Suman, county attorney of Payne county, on June 3, 1920, seeking from this court a writ of prohibition, commanding Duden B. Wright, judge of the 22nd judicial district, to take no further proceeding in a certain cause then pending before him. On presentation of the petition to this court on the same day an alternative writ was issued, returnable on the 8 th clay of June. 1920. Bel ore the icturu day. ».-y ngieemem or the parties, tlie cause is dismissed. It is therefore ordered that the alternative writ he set aside and this proceeding dismissed.


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    IKE POLLYKOFF v. STATE.
    No. A-3306.
    Opinion Filed June 26, 1920.
    (190 Pac. 420.)
    Appeal from District Court, Oreelc County: Ernest 15. Hughes, Judge.
    Ike Pollykoff was convicted of grand larceny, and he 'appeals.
    Affirmed.
    O. B. Ilockwood, 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 by transcript of the record from a judgment of the district court of Creek county convicting the defendant, Pollykoff, on the 29th day of September, 1917, of the crime of grand larceny and sentencing him to serve a term of two years' imprisonment in the 'state penitentiary. The appeal has been- pending in this court since 'the 28th day of March, 1918. No brief has been filed in behalf of the defendant, nor was any appearance made to orally argue the case at the time the same was submitted. 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.”

After an examination of the record, the court finds no error, and the judgment is affirmed.


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    JESSE RIPLEY v. STATE.
    No. A-3363.
    Opinion Filed June 26, 1920.
    (190 Pac. 710.)
    Appeal from Superior Court, Creek County; G. R. Wilcox, Judge.
    Jesse Ripley was convicted of the crime of conveying intoxicating liquors, and he appeals.
    Affirmed.
    Asp, Snyder, Owen '& Lybrnnd and It. B. Thompson, for plaintiff in error.
    S. P. Ereeling, Atty. Gen., and W. O. Hall and E. L. Pulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

Jesse Ripley was convicted in the superior court of Creek county of the crime of conveying intoxicating liquors from one place within 'the state to another place therein on an amended information filed in said court by the county attorney of said county on the 22d of November, 1917, charging the offense as committed on or about the 21st of May. 1917. The punishment imposed was a fine of $250 and imprisonment for a period of 90 days in the county jail. The trial in which the conviction resulted was had on the 5th day of March. 1918, and it appears from the record that the defendant had at a previous term of the superior court been tried for the same offense. At both trials the defendant interposed a plea to the jurisdiction of the superior court over the subject-matter of the action. This plea was based on the proposition that the county- attorney of Creek comity had previously filed an • information against • the defendant, Ripley, in the county court of Creek county, charging this identical offense, and that the county court had transferred said cause to the superior court, but that the court clerk had failed to transfer the original information and other papers on file in said cause from the county court to the superior court. The plea is based upon the assumption that the defendant Ripley was tried upon an • information transferred from the county court to the superior court, but the record dot's not support any such assumption. The record clearly discloses that the defendant was tried upon an amended information, filed originally in the superior court of Creek county, charging this offense, which information amended an information also originally filed in said court. The filing of such an information in said court gave the superior court jurisdiction of ‘the subject-matter of ihc offense. the crime charged being a misdemeanor over which the law-clothed the superior court of that county with jurisdiction, it being alleged in the information that the crime was committed in Creek county. It also appears (liat the superior court acquired jurisdiction of the person of the defendant in this cause. lie was present in court, both at the term at which a conviction w-as had and also at a previous term of the court, and had entered -a plea of not guilty to the crime. In Ex parte Ralph Brown. 3 Okla. Cr. 329, 105 Pac. 577. it is held:

“When there is jurisdiction of the party and of the offense for which he was tried, the decision of all other questions arising in the case is but an exercise of that jurisdiction.”

This court is clearly convinced from an examination of the record that the superior court of ('reek county had jurisdiction of the subject-matter of the offense» charged in the information'upon which the defendant was tried, and also jurisdiction over the person of the defendant. and that the plea interposed to the jurisdiction of the court over the subject-matter of the offense was not w’dl taken, and was properly overruled, because the same was based upon the assumption that the superior court of Creek county was proceeding to try the defendant upon an information transferred from the county court of said county, when in truth and in fact the superior court of Creek county tried the defendant upon an information originally filed In said court charging this offense. For reasons stated, the judgment of conviction is affirmed.


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    S. R. LITTLE v. STATE.
    No. A-3387.
    Opinion Filed June 26, 1920.
    (190 Pac. 706.)
    Appeal from County Court, Cotton County: J. R. Norman. Judge.
    S. R. kittle was convicted of violating the prohibitory law. and lie appeals.
    Reversed and remanded.
    A. S. Wells. for plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, S. R. Little, John Little, and E. G. Trimble were by information filed in the county court of Cotton county on the lltli clay of May, 1016, jointly charged with a violation of the prohibitory law. Upon arraignment, John Little pleaded guilty and was sentenced to pay a fine of $100 and to be confined for 30 days in the county jail. February 5, 1018, an amended information was filed charging that on the 11th day of May, 1916, plaintiff in error, S. K. Lit'de, John Little, and E. G. Trimble did unlawfully convey intoxicating liquor, and on the same day plaintiff in error was arraigned and tiled a demurrer to the amended information, which was overuled, and the case was called for trial. Thereupon plaintiff in error filed an affidavit for continuance on the ground that John Little, a material witness for this defendant, is now in Tampico, Mexico, working on a pipe line for the Prairie Pipe Line Company, under a contract for six months’ employment, dating from November 1, 1017; that at the time lie left for Tampico this cause was not set for trial; that affiant ;d'id not know of the intention of the said John Little to leave the United States, and immediately after he learned that John Little had left he communicated with Mm, and John Little wrote to affiant that lie would return to the United States about May 1, 1918, and would be available as a witness at any time after May 1st; that said witness, if present, would testily .hat on the 11th day of May, 1916, the said John Little, E. G. Trimble, and- ibis deientlauf were driving from Wichita Falls into Oklahoma Ciiy in a Eord car; that said defendant was in the employ of John Lir.Ie and E. G. Trimble as driver of said car and for no other purposes that said parties were at that time employed by the Gunsburg & Foreman Oil Company in making pixie line connections, and when they employed this defendant to drive them to Wichita Falls they said that their business was to procure parts and fittings for pipe lines from (lie supply houses in Wichita Falls; that John Little procured some whisky and beer at Wichita Falls and loaded the same into said car without knowledge of the defendant; that this defendant did not examine the contents of said car and was not advised that there was any whisky in said car; that said John Little pleaded guilty to said offense and served the sentence imposed; that on account of conditions existing in Mexico-it was impracticable to attempt to take the deposition of '¡-aid John Little. Affiant states that lie can procure the attendance of said witness, and Cult said witness would, testify as herein stated, and that he believes the same to be true; that said testimony is material to his defense, and said facts cannot lie proved by any other witness. The motion for continuance was overruled and exception allowed. Proof was also offered by calling the former county attorney, who filed the original information as a witness, who testified that at the time John. Little entered his idea of guilty and consented, as the owner of the car. that it be confiscated, lie dismissed the case as to tlie defendant Trimble', and agreed to .dismiss the case against plaintiff in error when John Little had served his 'sentence, and paid his fine: that he did not consult the court at. the time of making iliis agreement.

The Attorney General lias filed a confession of error which concludes as follows:

“We think that the defendant was entitled to a continuance in view of the nature of the case and the likelihood that the state’s witnesses would, have been available at some successive term of the court. Under the peculiar stiuation in this case, as just outlined, we do not think that the judgment should be permitted to stand; that the cause should be reversed with instructions to give defendant a reasonable time in which to secure the attendance of his witnesses or to obtain their depositions.-’

In our opinion the confession of error is well founded and should be sustained. If what is alleged could be proved by the absent witness, i‘t is of the most material character, and it is apparent that no diligence could have secured the presence of the absent witness when the case was called. The law does not require impossibilities. Because the court erred in overruling the defendant’s motion for a continuance, the judgment will be reversed, and the cause remanded.


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    W. F. (DUTCH) WEBER v. STATE.
    No. A-3554.
    Opinion Filed June 30, 1920.
    (189 Pac. 747.)
    Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
    \V. E. (Dutch) Weber, convicted of grand larceny, api>eals.
    Dismissed.
    Pruiett, Sniggs & Patterson for plaintiff in error.
   PER CURIAM.

The plaintiff in error, W. E. (Dutch) Weber, was convicted in the district court of Oklahoma county of the theft of one Eord live-passenger automobile, the property of C. E. Smith, and his punishment assessed at three years’ imprisonment in the state pentitentiary. From the judgment rendered, nuiemuer 30, 1918, in pursuance ol' the verdict, he appealed by filing in this court on May 28, 1919, a petition in error with case-made. His counsel of record have this day moved the court to dismiss the appeal, which motion is sustained and the appeal herein dismissed, and the cause remanded to the trial court with directions to carry into immediate effect the judgment, rendered in this cause. Mandate forthwith.


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    Ex parte CHARLEY BROACH et al.
    No. A-3614.
    Opinion Filed July 17, 1920.
    (189 Pac. 746.)
    Petition by Charley Roach. F. H. Anthony. ':md James J. Kelly for writ habeas corpus to have bail reduced.
    Writ dismissed.
    L. L. Roberts, for petitioners.
    The Attorney -General, Rollin (’. Clark. Co., Atty., an(t 'A. M. Simmons, Asst. Co. Atty., for the respondent.
   PER CURIAM.

The petitioners. Charley Roach, F. H. Anthony and James J. Kelly, filed their application for a writ of habeas corpus in this court on August 18. 1919. alleging that they were unlawfully imprisoned and restrained of their liberty by Lee Webb, sheriff of Craig county: ihaf ■tin* cause of said restraint is that petitioners were jointly charged with the larceny of a Ford automobile, and upon their preliminary examination before the judge of the county court of Craig county on the 9th day of August, 1919, it was ordered that each of -.them be held to answer said charge in the district court of Craig county at Uie November, 1919, term thereof and the said magistrate fixed the amount of petitioners Anthony’s and Kelly’s bail, each 'in the. sum of $25,000, and fixed petitioner Roach’s bail in the amount of $10,000, and alleging that the amount of said bail so fixed is excessive, unreasonable and. disproportionate to the offense involved and denies to petitioners their constitutional right to have reasonable bail; that Hon. A. C. Brewster, judge of the district court of Craig county, is absent from the state and is now in the state of Colorado and will not return to said judicial district until about the 18th day of September, 1919., and praying that their bail as hereinbefore set forth be reduced and the same fixed at a reasonable amount. On the same day llieir counsel presented their application to the court. The writ was granted as prayed for and made returnable before the district court of Ottawa county, or the judge thereof. .S. O. Fullerton, at the district court room in the court house at Miami, Oklahoma, 1:30 p. m., August 25th, or as soon there,after as the court or judge thereof may designate It appears from the record filed with the clerk of this court ihat return was duly made and upon a hearing on the 27th day of August, 1919, before Judge Fullerton, it was by him considered, ordered and adjudged that: 'the applicants. Charley Roach, F. H. Anthony and James J. Kelly, he admitted to bail each in file sum of $5,000, with good and sufficient sureties to' he approved hv the court clerk of Craig county, stale of Oklahoma.


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    Ex parte W. H. PARRICK.
    No. A-3613.
    Opinion Filed July 17, 1920.
    (189 Pac. 745.)
    Petition by IV. 1-1. Parrick for writ of habeas corpus to be let to bail.
    Bail allowed.
    P. S. Davis, for petitioner.
    The Attorney General, Rollie C. Clark. Co. Ally., and W. ¡á. Shnmons, Asst. Co. Ally., for respondent.
   PER CURIAM.

In this proceeding petitioner. W. II. Parr'ick. filed in this court on August 18, 1919. his duly verified petition alleging that, he is unlawfully imprisoned and restraine I of his liberty in the county jail of Craig county, by Lee Webb, sheriff of said county; that petitioner was committed to sa'id jail by an examining magistrate upon a preliminary examination held on the 14th day of August. 1919. upon a complaint charging him with the crime of murder: that lie 'is not guilty of the crime of murder as charged, and that upon .the evidence introduced on said preliminary examination petitioner’s guilt of the crime of murder is not evident or the presumption thereof great and -that therefore petitioner is entitled to he let. to bail; that A. C. Brewster, judge of the district, court of Craig county, is absent from the state, being in the state of Colorado on his summer vacation, and will not return until about the middle of September: that the county attorney of Craig county has consented to the admission of petitioner to bail in the sum of $25,000. which assent is attached to this petition. Upon a consideration of the application and the assent of counsel for the state, it is the conclusion of the court that hail should he allowed. It is therefore ordered that petitioner, IV. H. Patrick, be admitted to bail in the sum of $25,000, bond to be conditioned as by law required with good and sufficient sureties to be approved by the court clerk of Craig county.


author: PER, CURIAM.

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    Ex parte LEE MEAGHERS.
    No. A-3611.
    Opinion Filed July 17, 1920.
    (189 Pac. 745.)
    In the matter of petition of Lee Meaghers for a writ of habeas corpus.
    Cause dismissed on motion of petitioner’s counsel.
   PER, CURIAM.

In the above entitled and numbered cause a petition was filed with the clerk of this court on August 18, 1919, for writ of habeas corpus, and upon the same day, on motion of L. L. Roberts, counsel for petitioner, the cause was dismissed and leave granted to withdraw the petition.


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    Ex parte EDDIE WILKINS.
    No. A-3612.
    Opinion Filed July 17, 1920.
    (189 Pac. 747.)
    Eddie Wilkins petitioned for writ of habeas corpus.
    Dismissed on motion of petitioner’s counsel.
   PER CURIAM.

In the above entitled numbered cause a petition was filed with the clerk of this court on August 18, 1919, for writ of habeas corpus, and upon the same day, on motion of L. L. Roberts, counsel for petitioner, the cause was dismissed and leave granted to withdraw the petition.


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    PRESSY JAMES v. STATE.
    No. A-3491.
    Opinion Filed August 14, 1920.
    (190 Pac. 421.)
    Appeal from County Coin!, Oklahoma County; W. R. Taylor, ■i udge.
    Pressy James was convicted of selling unlawfully intoxicating liquors, and he appeals.
    Aftinned.
    Giddiugs & Giddings, for plaintiff 'in error.
    AV. C. Hall. Ass'i. Atty. Gen., for the defendant in error.
   PER CURIAM.

Plaintiff in error, Pressy James, was convicted at the June. 1918, term of the county court of Oklahoma county on a charge of unlawfully selling intoxicating liquor and his punishment fixed at a fine of $100 and imprisonment in 'tile county jail for a period of 60 days. No briefs have been filed on behalf of plaintiff in error and no appearances made for oral argument. The Assistant Attorney General has imposed a motion to affirm the judgment of the trial court on the ground that the appeal lias been abandoned. A careful examination of the record discloses no fundamental error prejudicial to (he substantial rights of the plaintiff in error. It also appears that the appeal is without merit and has been abandoned. The motion of the Attorney General to affirm for failure to prosecute is therefore sustained. The judgment is affirmed.


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    JACK KING v. STATE.
    No. A- 3153.
    Opinion Filed Aug. 14, 1920.
    (191 Pac. 1118.)
    Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.
    Jack King- was convicted of a "violation of the prohibitory law, and he appeals.
    Affirmed.
    S. A. Byers, for plaintiff in error.
    Tlie Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Jack King, was convicted on a charge of selling one-half pint of whisky and two quarts of beer to one II. L. Griffin, and in accordance with the verdict of the jury he was on the 2nd day of June, 1917, sentenced to be confined in the county jail for 90 days and to pay a fine of $100. Prom the judgment he appeals. No brief has been filed. The record shows that Che testimony of the four witnesses for the state is und'ispuied. An examination of the record discloses that plaintiff in error had a fair and impartial trial, .and that the appeal is without merit. The judgment is therefore affirmed.


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    SAM MILLER v. STATE.
    No. A-2725.
    Opinion Filed Aug. 28, 1920.
    (191 Pac. 1119.)
    Appeal from County Court, Garfield Counity, E. L. Swigert. Judge.
    Sam Miller was convicted of violating an ordinance of the city of Enid, and he appeals.
    Reversed.
    Adam S. Garie, for plaintiff in error.
   PER CURIAM.

The plaintiff in error. Sam Miller, was convicted in the police court of the city of Enid of violating a city ordinance, and lie appealed to the county court of Garfield county, where upon his trial he was again convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $5 and the costs. Prom this latter judgment, he appealed to this court. The penalty for the violation of the ordinance in question is a fine of not less than $5 nor more than $50. Por the reasons stated in tire opinions of the court in the eases of Ex parte Johnson, 13 Okla. Cr. 30, 161 Pac. 1097 and Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 238, we are of opinion that the proceedings had upon the trial and conviction of the plaintiff in error were illegal and void. The judgment is therefore reversed -and the cause remanded.


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    Ex parte J. M. CONLEY, et al.
    No. A-3657.
    Opinion Filed Aug. 30, 1920.
    (190 Pac. 421.)
    Application of J M. Conley and Bess Conley for writ of habeas corpus to -be let to bail.
    Bail allowed.
    McCombs & McCombs: for petitioners.

      Tlie Attorney General, Luther Kyle, Co. Atty., and Erye & Frye, for respondent.
   PER CURIAM.

A petition filed November 17, 1919, on behalf of J. M. Conley and Bess Comey, alleges in substance that they are illegally restrained of their liberty and imprisoned by Ben F. Faulkner, sheriff of Sequoyah eoumy, that they are held in custody by virtue of a certain commitment issued by Joe Brandon, a justice of the peace, in and for district 9 of said county upon a preliminary examination had upon a complaint wherein petitioners were jointly charged with the murder of John Horn. It is averred that the proof is not evident nor is the presumption that they are guilty of 'said ci'imo great. Attached to the petición are numerous affidavits and a transcript of the testimony taken upon the preliminary examintion. The cause was submitted and on December 1919, it was considered, ordered, and adjudged that bail should be allowed in the sum of $15,090, each bond or bonds to be conditioned as by law required and the same to be approved by the court clerk of Sequoyah county, and upon the giving and approval of the same petitioner to be released from custody.


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    Ex parte FRED COX.
    No. A-2660.
    Opinion Filed Aug. 30, 1920.
    (191 Pac. 1118.)
    Petition by Fred Cox for writ of habeas corpus.
    Petition withdrawn, and cause dismissed.
    West & Hagan, for petitioner.
   PER CURIAM.

Petition withdrawn, and cause dismissed


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    Ex parte FORREST JOHNSON et al.
    No. A-3650.
    Opinion Filed Aug. 30, 1920.
    (191 Pac. 1118.)
    Petition of Dick Johnson and others for whit of habeas corpus.
    Cause dismissed, on motion of counsel for petitioners.
    John R. Beach, of Leach, Hunt & Beauchcamp, Jas. S. Davenport and Preston S. Davis, for petitioner.
    W. C. Hall, Asst. Atty. Gen., and O. F. Mason, for respondent.
   PER CURIAM.

On behalf of Dick Johnson, Forrest Johnson, Raymond Scaggs. and Dan Scaggs, a duly verified petition for writ of habeas corpus was filed in this court on November 10, 1919, alleging that pe.itioners were illegally restrained of their liberty and unlawfully imprisoned in the county jail of Delaware county, at Jay, the county seat, by George W. Hogan, sheriff of said county, upon commitments' issued by the court clerk of said county, upon judgments of conviction for rape, as jointly charged in an information, and alleging that notices of said appeal from ‘said judgment had been duly given, and that the court, in fixing the amount of supersedeas bond, fixed the same in excessive amounts, and asking that the alleged excessive bail be reduced. A demurrer was interposed and thereupon the cause was dismissed, on the motion of counsel for petitioners.


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    Ex parte RED KELLY.
    No. A-2642.
    Opinion Filed Aug. 30, 1920.
    (191 Pac. 1118.)
    Petition of Kid Kelly for writ of habeas corpus.
    Dismissed.
   PER CURIAM.

Proceedings dismissed.


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    Ex parte PATRICK McGLAUHLIN.
    No. A-3582.
    Opinion Filed Aug. 30, 1920.
    (191 Pac. 1118.)
    Petition by Patrick McGlanghlin for writ of habeas corpus.
    Demurrer to- petition 'sustained, and cause dismissed.
    P. W. Jacobs, for petitioner.
   PER CURIAM.

Petition for writ of habeas corpus filed July 3, 1919. Demurer to the petition sustained, and cause dismissed.


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    Ex parte ANDREW LAWLER.
    No. A-3450.
    Opinion Filed Aug. 31, 1920.
    (191 Pac. 1119.)
    Petition for writ of habeas corpus by Andrew Lawler against A. K. Gossont, Superintendent of the State Training School at Pauls Valley, to which petitioner had been committed by order of the judge of the juvenile court.
    Petitioner discharged, and committed to the custody of his father, by agreement subject to the further order of the court.
    George S. March, for petitioner.
    S. P. Freeling. Atty. Gen., R. McMillan, Asst. Atty. Gen., and Geo. L. Sneed, Co. Atty., for respondent.
   PER CURIAM.

This was a petition for writ of habeas corpus, filed for sotting at liberty Andrew Lawler. The writ was granted returnable before Ibis court September 1, 1918. It is averred in the petition that Andrew Lawler is a minor of the agb of 15 years: that C. W. Lawler, of Kingston, Marshall county, Olcla., is his father: that' petitioner is unlawfully restrained of his liberty in the State Training School at Pauls Valley, by A. K. Gossom. superintendent; that J. I. Henshaw, judge of the juvenile court of Marshall county, made on order that petitioner be committed to the care of his father, O. W. Lawler, if it should he proven that his father was of good character and a worthy citizen: that proof was made that petitioner's father was a man of •excellent character and a suitable person- for the care and custody of petitioner, which proof was undisputed, and the father of ftetitioner in open court pledged his word to the court that he would faithfully keep and provide and conform to all orders made by the court and require said petitioner (o obey all orders of the court with fidelity. Tt was further averred that said juvenile court was without jurisdiction to make said order of commitment to the State Training School, because no evidence was received tending to prove that the petitioner was a delinquent child. Return was duly made to the rule to .show cause why the writ should not he allowed, at which time it was agreed that petitioner he discharged and committed to the custody of his father, subject to the further order of the juvenile court of Marshall county; and 'it was so adjudged and ordered.


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    A. L. IVEY v. STATE.
    No. A-3500.
    Opinion Filed Sept. 1, 1920.
    (191 Pac. 745.)
    Appeal from County Coun, Oiclahoma County; W. It. Taylor, Judge.
    A. L. Ivey was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    1). S. Levy and S. A. Byers, for plaintiff in error.
    S. P. Freezing, Atty. Gen., and W. C. Hall, Astt. A;ty. (Jen., for the State.
   PER CURIAM.

This is an appeal from the county court of Oklahoma county, in which court the said defendant, A L. Ivey, was convicted of the crime- of unlawful possession of intoxicating liquor, and his punishment fixed at a fine of |250 and imprisonment in the county jail for a period of 00 days. To reverse this judgment of conviction defendant has appealed to this court. The evidence on the part of the state is to the effect that on the 10th day of May, 1918, the defendant was operating a rooming house at No. 718% North Broadway, Oklahoma City; that about 9:30 o’clock p. m. on said day several officers of the Oklahoma City police force raided said premises, and in a plant under the floor of room Np.' 5 in said rooming house 12 or 14 quart bottles- of whisky were found stored; that the defendant and his wife and some other parties were present in said room; that some of the officers had a conversation with the defendant, in which it was virtually admitted by the defendant that he was the owner of the whisky, and had disposed of a considerable quantity of the same that 'day before 'the officers got there. The proof is also conclusive that the defendant was in possession and control of the premises, every room of which contained a similar storage plant. '.The defendant denied that he was in possession of the whisky, and claimed that it. must have been stored in said plant before he took possession of the premises. The plant was located under a gas stove and under' a -zinc mat, and was so concealed 'that the same was not found by the officers until a second search of the room was made. This court has examined the evidence, the instructions of the court, the judgment .and sentence, and has carefully considered all the assignments of error set forth in the petition, and the conclusion is reached that the defendant had a fair and impartial trial, that the instructions are as favorable -to the defendant as the evidence would warrant, and that no alleged error is presented, such as' should result in a reversal of this conviction. The judgment of conviction is therefore affirmed. Mandate forthwith.


author: PER OURIAM.

text:
    Ex parte J. J. SHEPHERD.
    No. A-3434.
    Opinion Filed Sept. 1, 1920.
    (192 Pac. 237.)
    Petition for writ of habeas corpus by J. J. Shepherd.
    Petitioner discharged- after hearing on rule to show cause.,...
    Hainer & Ballinger, for petitioner.

      The Attorney General and R. McMillan, Asst. Abty. Gen., for respondent.
   PER OURIAM.

This was a petition for writ of habeas corpus filed for the purpose of setting at liberty J. J. Shepherd. A rule to show cause was entered, answerable before this court August 22, 1918, at which time a hearing was had, and it was adjudged and ordered that petitioner be discharged. It is alleged in the petition that petitioner is unlawfully and unconstitutionally restrained of his liberty and confined in the county jail of Ottawa county by Ed. Freeman, sheriff of said county, upon an order of the judge of the county court of Ottawa county. It is further averred that:

“He was adjudged guilty of contempt of the county court of said county on the 24th day of July. 1918, by filing an affidavit of disqualification of the judge of :saiid court on the question of bias and prejudice against this defendant, and that said judge was material witness on the part of the defendant in five misdemeanor cases then pending in said county court, a copy of which affidavit is hereto attached and made a. part hereof, and that immediately upon the submission of said affidavit .in each of said cases, asking for a change of judge, your petitioner was adjudged guilty of contempt of court, and was fined $500 in each of four of said eases, anid ordered committed until the fines be paid, making an aggregate fine of $2,000, and in the other case your petitioner was ordered committed to the county jail of Ottawa county for a period of 12 months; that said imprisonment is illegal, unauthorized, and void for want of jurisdiction of the court to adjudge your petitioner guilty of contempt and further void for the reason that the court was without jurisdiction to assess said fines and order petitioner to be commited to jail until said fines be paid, for the further reason your petitioner committed no offense under the laws of this s^ate, and that the court was without jurisdiction to render said judgments. Your petitioner furher alleges that he was summarily sentenced without having an opportunity to be heard or to procure counsel to represent him in said proceedings, which right is guaranteed to said petitioner by the Constitution and laws of this state, and therefore the judgments of conviction are void, and his imprisonment is without due process of law.”

It is neither important nor necessary to discuss the questions presented in the record further than to say .that in the case of Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A. 719, the questions presented in this case were determined, and upon the authority, and for the reason stated in the opinion in that case, it was held that petitioner is imprisoned without due process- of law, and was entitled to a discharge from the imprisonment of which he eomplains. It was therefore adjudged and ordered that petitioner be discharged therefrom.


text:
    Ex parte MARY DORRIS.
    No. A-3847.
    Opinion Filed Sept. 25, 1920.
    (192 Pac. 432.)
    Application by Mary Dorris for writ of habeas corpus to be let to bail.
    Writ denied, and bail refused.
    Robertson & Harley, for petitioner.

      The Atorney General, and W. C. Hall, Asst. Atty. Gen., for the State.
   PER OURIAM.

In this proceeding petitioner, Mary Dorris, by her attorneys, has presented to this court a duly vertified petition, wherein she alleges that she is unlawfully .imprisoned and restrained of her liberty in the county jail at Eufaula, McIntosh county, by John W. McOune, sheriff of said county; that she is so held under a commitment issued by Horace D, Raubelt, county judge, based upon a preliminary examination held by him upon a complaint wherein Samuel Dorris and your petitioner, Mary Dorris, his wife, were jointly charged with the murder of Mrs. Plora Green, alleged to have been committed in said county on or about the 13th day of August, 1920. Petitioner avers that she is not guilty of the crime of murder as charged; that the proof of her guilt of the charge of murder is not evident nor the presumption thereof great. It is also shown that the judge of the district court of said county is absent from the state. Attached to said petition is a transcript of the testimony offered by the state at the preliminary examination. Also the affidavits of the petitioner and her husband, co-defendant. On August 31st, the application was presented to the court. We have examined the record and without entering into a discussion of the facts we deem it sufficient to say that upon a careful consideration of all the evidence presented in support of the petition, we are of the opinion that petitioner is not entitled to be admitted to bail as a matter of leg'al right. It is therefore considered and adjudged that the writ be denied and bail be refused.


author: PER CURIAM..

text:
    E. L. LONG v. STATE.
    No. A-3378.
    Opinion Filed October 2, 1920.
    (192 Pac. 428.)
    Appeal from District Court, Tulsa County; N. E. McNeill, Judge.
    E. L. Long was convicted' of a second violation of the prohibitory liquor law, and he appeals.
    Reversed.
    See, also, 192 Pac. 427.
    P. P. Nelson, John S. Hale, D. M. Martindale, and R. K. Robertson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM..

Plaintiff in error, E. L. Long, was convicted of having on the 9th day of October, 1917, intoxicating liquors in his possession with the intent to sell the same and alleging said offense to be the second offense, said defendant having been convicted in the county court of Tulsa county on the 11th day of May, 1917, of the same offense. Prom the judgment rendered on the verdict he appeals. This is a companion case of Long v. State, 17 Okla. Cr.-, 192 Pac. 427. this day decided. The Attorney General has filed a confession of error based on the same exceptions, and the judgment must be reversed on the authority of McAlester v. State, 16 Okl. Cr. 70, 180 Pac. 718.

Accordingly the judgment is reversed.


text:
    C. A. BELVIN v. STATE.
    No. A-3405.
    Opinion Filed Oct. 5, 1920.
    (192 Pac. 364.)
    Appeal from District Court, Garvin County; F. B. Swank, Judge, ■. C. A. Belvin was convicted of shooting at another with intent to kill, and1 he appeals.
    Prosecution abated.
    ■ Carr & Henderson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. ó. Hall, Asst. Atty. Gen:, for the State.
   PER CURIAM.

Plaintiff in error, C. A. Belvin, was convicted of shooting .at another with intent to kill, and his punishment assessed at imprisonment in the penitentiary for a period of one year and one day. From the judgment rendered on the 16th day of January, 1918, in pursuance of the verdict, an appeal was perfected by-filing in this court on June 24, 1918, a .petition in error with casé-made. Since the appeal was taken and before the final submission of the cause, suggestion of the death of the plaintiff in error, C. A. Belvin, has been made. In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. I.t is therefore adjudged and ordered that all proceedings in this prosecution lie abated and the district court of Garvin county is directed to enter its appropriate order to that effect.


author: _ PER CURIAM.

text:
    J. J. McADAMS v. STATE.
    No. A-3393.
    Opinion Filed Oct. 5, 1920.
    (192 Pac. 428.)
    Appeal from County Court, Garvin County; J. D. Mitchell, Judge.
    J. J. McAdams was convicted of violation of the prohibitory liquor law. and he appeals.
    Appeal dismissed, and cause remanded, with directions.
    Carr & Henderson, for plaintiff jn error.
    S. P. Freeling, Atty Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   _ PER CURIAM.

Plaintiff in error, J. J. McAdams, was convicted _ on a charge of unlawfully having intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $50. and to be confined in the county jail for 30 days. From the judgment rendered on the 12th day of February, 1918, an appeal was attempted to be taken by filing in this court on June 13, 1918, a petition in error with case-made. The Attorney General, on July 8, 1020, filed motion to dismiss the appeal on the following grounds:

“First. Judgment was rendered on the above-entitled cause on the 12th day of February, 1918, and the record was not filed in this court until June 13, 1918, which was more than 60 days and more than 120 days thereafter; that the plaintiff in error on the day of the rendering of said judgment procured an order allowing him 90 days from that, date in which to appear and servo case-made, but did not procure any order extending the time for filing appeal in this court. Second. Notice of appeal was not served upon the county attorney, as required by statute. Third. The certificate ol the trial judge of the ease-made is not attested by the court clerk, or the seal of the court thereto attached.”

An examination of the record discloses that the motion of the Attorney General is well-taken. The statute (Comp. Daws 1909, § 69481 limiting the time within which appeals can be taken to this c.ourt is mandatory. An appeal from a judgment of conviction in a misdemeanor case must be taken within 60 days, unless for good cause shown the trial court makes an order, extending the time not to exceed 60 days additional. There was no order extending the time made in this case, and appeal was filed on the 121st day after the judgment was rendered. It is therefore ordered that the purported appeal he, and the same is hereby, dismissed, and the cause remanded lo the trial court, with direction to cause its judgment and sentence ro be carried into execution.


author: MATSON, J.

text:
    DAVID ORR McNEILL v. STATE.
    No. A-3147
    Opinion Filed Sept. 18, 1920.
    (192 Pac. 256.)
    (Syllabus.)
    WITNESSES — Defendant as Witness. A defendant, offering himself as a witness, vouches for his competency, and subjects himself to all the rules of evidence governing other witnesses.
    APPEAL AND ERROR — Review—Necessity for Prejudicial Error. Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court.
    SAME — Cure of Error by Instruction. The error, if any, in striking certain evidence from the consideration of the jury, is cured by a subsequent instruction that the jury should consider same.
    EVIDENCE — Opinions of Nonexperts — Insanity. On a trial fox-murder, where insanity is interposed as a defense, a nonexpert witness, after testifying to the acts, conduct, and appearance of the defendant, may state whether such acts, conduct and appearance impressed him as being rational or irrational.
    CRIMINAL LAW — Test of Criminal Responsibility — Insanity —Appeal—Review of Instructions. The test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act, and, where defendant wholly fails to meet this burden, in order to be acquitted on the ground of insanity, he cannot be heard to complain of any alleged errors in the instructions of the trial court on the question of insanity.

      Appeal from District Court, Beaver County; W. C. Crow, Judge.

    David Orr McNeill was convicted of murder, and he appeals.
    Affirmed.
    This is an appeal from the district court of Beaver county, wherein the defendant was charged by information with the murder of one Anson D. Green, in said county, on the 20th day of October, 1916. A trial by jury at the March, 1917, term of said court resulted in a verdict of 'guilty, and the punishment assessed at imprisonment in the state penitentiary at hard ¡labor for life.
    The killing occurred on Main street, in the town of Porgan, between the hours of 1 and 2 o’clock in the afternoon of the 20th day of October, 1916. Deceased and defendant had for some time, up until about .two years prior to the commission of the homicide, lived on adjoining farms in Beaver county, and at the time of the commission of the homicide and for several years previous thereto ill feeling existed between them. About two years before the commission of the ho*micide deceased had left Beaver county, and had gone to the state of California where he resided. He came back to Beaver county, the evidence discloses, about a week before he was killed, for the purpose of looking after some business matters for his father, who then lived in the town of. Liberal, Kansas.
    On the day before the commission of the homicide defendant left bis farm, southwest of the town of Forgan, and drove a team hitched to a farm wagon into Forgan, where he stayed all night, and all morning of the 20th of October, 1916. Deceased came into the town of Forgan about noon of said day, having driven from Beaver City with some friends in an automobile. Deceased ate dinner at a restaurant in Forgan, and after dinner transacted some business at the ¡bank and at some mercantile establishments. Defendant had learned that deceased was in Forgan, and a short- time prior to the commission of the homicide had passed him a time or two on the public streets of said town.
    The homicide occurred at the northwest corner of the crossing of the two main streets in Forgan. Deceased was traveling west along the main street and defendant east. Defendant passed deceased to the south, and when he had taken a step or two; east of deceased he drew his pistol .from scabbard in which he carried it near his shoulder, and immediately turned upon deceased and shot him in the back. Defendant fired in all .five shots, two of which were fired into the 'body of deceased after he had fallen to the ground.
    According to the testimony of the state’s witnesses, deceased was doing nothing except walking along the public sidewalk at the time he was killed. He made no demonstration of hostility whatever toward defendant, but was shot down without warning, in a cruel manner.
    The defense interposed was insanity. However, defendant took the witness stand in his own behalf, and testified that he shot deceased in self-defense, stating that deceased made a demonstration with his left hand to attack defendant as he passed deceased, and that defendant thought his life was in danger, and shot deceased for that reason. All the eyewitnesses to the tragedy contradict defendant as to the manner in which the homicide was committed.
    Defendant introduced several alienists, who testified that he belonged to the type of insane persons known as paranoiacs; that he was subject to delusions-of persecutions; but upon cross-examination, in response to questions asked as to whether defendant at the time knew right from wrong, the alienists testified that defendant knew right from wrong, and could understand the consequences of his act.
    The state in rebuttal introduced several nonexpert witnesses, wtho had known defendant ever since he came to that country.12 or 14 years^'before the commission of the homicide, who testified that they had observed defendant in his various walks of life, had had business transactions with him, and that in their opinion he was sane. . •
    The defense of self-defense interposed by defendant was abandoned, counsel relying solely upon the defense of insanity, which defense was fully covered by the court’s instructions. The various assignments of error relied upon for reversal will be treated in the opinion of the court, which follows.

      William A. Briggs, for plaintiff in error.

      S, P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

It is first contended that the court erred in excluding certain competent evidence offered by defendant. Alleged evidence which it is contended the court erred in excluding was sought to be elicited 'from defendant. In the brief of counsel for defendant it is stated that defendant was not placed upon the witness stand “to present the material, competent, and relevant facts surrounding the homicide, but for the sole and only purpose of demonstrating the fact that defendant was insane.” In other words, it is contended here that the defendant was placed in evidence in the nature rather of an exhibit than as a witness, and that for such reason the ordinary rules of evidence should not be applied to his examination, but that the court should have permitted him to testify ad libitum to anything which came to his mind or which was called to his attention by counsel.

The law of this state is that persons of unsound mind at the time of their production as witnesses are incompetent to testify. Section 5050, Revised Laws 1910. Also, the defendant at his own request, and not otherwise, may become a witness in his own behalf.

Furthermore, a defendant offering himself as a witness subjects himself to all the rules of evidence governing other witnesses. State v. King, 67 Wash. 651, 122 Pac. 323; State v. Mattivi, 39 Utah, 334, 117 Pac. 31; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341.

When the defendant offered himself as a witness in this case he vouched for his competency, and he was subject to the same rules governing his testimony as those which would apply to any other witness in the case. His competency as a witness was not attacked in the trial court, and defendant cannot be heard to complain in this court that the trial court applied the ordinary rules, of evidence in its rulings upon the admissibility of his testimony.

We have carefully examined the record in connection with the alleged erroneous rulings of the court in excluding offered evidence, and find that the trial court was very liberal and favorable to defendant in ruling upon the admissibility of evidence, and, if any error was committed ¡by the trial court, the error was against the state and in favor of defendant in that the trial court permitted evidence to go before the jury which was clearly incompetent and immaterial, and had no bearing whatever upon the issue of the guilt or innocence, of this defendant.

Measured by the rules of evidence applicable to competent witnesses, the rulings of the trial court in excluding proffered testimony in this case were not erroneous.

It is also contended that defendant was prejudiced by certain remarks of the trial court made throughout the progress of the trial and in the presence of the jury.

We have examined the record carefully with reference of the numerous alleged remarks of the court which are quoted in the brief of counsel who now represents defendant. No objection was made to any of these remarks in the trial court. The remark¡s¡ were made in response to inquiries by counsel for defendant, and were in reply to arguments of counsel for defendant as to the admissibility of certain evidence. The remarks were certainly not considered prejudicial in the trial court, or else objection would have been made and a request directed to the court to admonish the jury not to consider them. This was not done.

In the case of Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112, it is held:

“Only those questions can be considered upon appeal, ¡ess jurisdictional, which were decided adversely to the pellant in the trial court.”

As no objection was made to the various remarks of the trial court complained of, or request that the court instruct the jury not to consider the same, and a ruling on such request adverse to this defendant, there is no question presented for review by this court under this assignment of error.

It' is also contended that the trial court erred m sustaining the motion of the state to strike from the record the testimony of M. L. McNeill, a brother of defendant, to the effect that defendant had another brother, who was at one time confined in an insane asylum at Topeka, Kansas,

The record relative to this assignment of error discloses that the witness M. L. McNeill was permitted to testify that defendant had had a brother who was confined in an asylum in the state of Kansas. On motion by the state this evidence was stricken from the consideration of the jury, but later, after the defendant had introduced other evidence in his- behalf, the court, upon motion of defendant’s counsel, withdrew his ruling concerning this evidence, and specifically instructed the jury to consider same. The alleged error, therefore, if any was committed, was cured by the subsequent ruling of the trial court in permitting such evidence to go before the jury.

It is also contended that the trial court erred in permitting certain nonexpert witnesses for the state in rebuttal to express their opinion as to the sanity of defendant. The objection here urged is that no proper predicate was laid as a foundation for this testimony.

We think this, assignment of error to be without merit. Each of the witnesses testified that they had lived neighbors to defendant for a number of years, had observed him in his everyday walks of life, had had -business dealings with him, had observed his manner of doing business, had conversed with him on various topics, had observed his ap~ pearence and conduct, and were then permitted to express an opinion that defendant was of sound mind. The ruling of the trial court permitting such witnesses, after stating the facts, to express such an opinion, is sustained by the decision of the Supreme Court of the territory of Oklahoma in the case of Queenan v. Terr., 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324, wherein it is held:

“On a trial for murder, where insanity is interposed as a defense, a nonexpert witness, after testifying to the acts, conduct, and appearance of the defendant, may state whether such acts, conduct, and appearance impressed him as being rational or irrational.”

It is also contended that the court erred in giving certain instructions to the jury on the question of insanity.

While we find no material error in any of the instructions given which would in any way prejudice the defendant had the defense of insanity been supported by competent evidence, yet in this case, in view of the fact that the expert witnesses for defendant testified that at the time of the commission of the homicide the defendant knew right from wrong, we are of the opinion that the burden placed upon defendant to introduce evidence sufficient to raise in the minds of the jury a reasonable doubt of his sanity was not met in this case,

In the recent case of Mary F. Roe v. State, 191 Pac. 1048 (No. A-3242), 17 Okla. Cr. 587, this court held:

“Under subdivisions 4 of section 2094, Rev. Laws 1910, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the. accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.”

The defendant, having wholly failed to meet by competent evidence the burden which the law places upon him to raise a reasonable doubt of his sanity before he is entitled to be acquitted on the ground of insanity, cannot be heard to complain of any alleged errors in the instructions of the trial court on the question of insanity in this case.

We have carefully reviewed the record in connection with all the assignments of error relied upon for a reversal of this judgment. The evidence discloses a willful, deliberate, and,- in our opinion, a premeditated taking of human life, without apparent justification or excuse. The defendant was extremely fortunate that the .jury did not assess against him the death penalty. He had a fair and impartial trial according to the forms of law. He had. eminent counsel to represent him, both in the trial court and in this court. Having been justly convicted, fairly tried, and ably represented, he must suffer the consequences of his act.

The judgment of conviction is affirmed.

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