text:
    JACK REED v. STATE.
    No. A-1748.
    Opinion Filed July 26, 1913.
    Appeal from County Court, Ottawa County; W. Y. Quigley, Judge.
    Jack Reed was convicted of violating the prohibitory law, and appeals.
    Reversed.
    Thompson & Mason, for lolsiintifiE in error.
    C. J. Dav'enport, for the State.
   PER CURIAM.

The plaintiff in error, Jack Reed, was convicted in the county court of Ottawa county at the April, 1912, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of three hundred dollars and imprisonment for a period of sixty days in the county jail. The only testimony introduced on behalf of the state was given by witness Ray Phones, who testified that he bought a half pint of whisky from, the accused some Saturday in March, 1912. He admitted that he was intoxicated at the time. This testimony is flatly contradicted by four other witnesses present, who say that the accused refused to sell liquor to the prosecuting witness. Their credibility is not attacked. In the case of DeFreece v. State 9 Okla. Cr. 689, 133 Pac. 254, this court said: "There was no effort made to impeach any of the witnesses 'for the defendant, all of whom seem to be creditable men, and on'sjhe part of the only witness for the state, We have the fact that he himself testifies to having drank whisky on his way to town that day, and we must take this into consideration in determining how far we shall credit his statement that the defendant had permitted him to take a pint of whisky from his drug store as against the strong defense which was presented by the defendant, not only supporting his denial of having delivered the pint of whisky to the prosecuting witness, but showing that said witness was intoxicated and in possession of a bottle of whisky before he went to the defendant’s drug store. While the cases are very rare in which this court interferes to disturb the judgment of the trial court, and it is only in a ease where the verdict is clearly contrary to the evidence, or when from the doubtful character of the evidence against the defendant and the preponderance in his favor is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it. In this case, we think that the evidence, unless we are to discredit entirely the testimony of unimpeached witnesses, falls within the rule laid down by these cases, and that a new trial should be granted.” The judgment is reversed and the cause remanded with directions to dismiss the prosecution.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex Parte G. L. HAMRICK.
    No. A-1763.
    Opinion Filed July 26, 1913.
    E. L. Persons, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for respondent.
   PER CURIAM.

This is an application'for the writ of habeas corpus by G. L. Hamrick, seeking his discharge from a judgment entered in the district court of Grady county imposing upon him a fine of two hundred and fifty dollars, and imprisonment upon failure to pay the same. The material portion of the judgment upon which the petition is based is as follows: "It is therefore ordered, adjudged and decreed, that the said G. L. I-Iamrick is guilty as shown by the verdiet of the jury, and that he be assessed a fine of $250 and all costs in the above entitled cause, and that the said G. L. Hamrick be confined in the county jail of Grady county, Oklahoma, at hard labor until said fine'and costs are paid, at one dollar per day. It is further ordered that the bond by reason of which said G. L. Hamrick is now out shall continue in force for five days, and if said fine and .costs are paid by that time the defendant, G. L. Hamrick, shall be discharged; otherwise, he shall be taken into the custody of the sheriff of Grady county, Oklahoma.” It is contended by the petitioner that the judgment does not specify any legal limit to the imprisonment therein provided, and for that reason is void. With this contention we cannot agree. The judgment is not void. It is irregular, and the irregularity is one which this court will correct on appeal. The writ of habeas corpus does not have for its purpose the correction or modification of judgments unless the legal portion thereof has been complied with. The petitioner would be entitled to have the judgment corrected by proceeding in the trial court, or be released on habeas corpus by this or any other court having jurisdiction after he had served the time prescribed by the statute in case of his failure to pay the fine. The petition is without merit. The writ is denied.


text:
    W. M. CAUDILL v. STATE.
    No. A-2048.
    Opinion Filed August 2, 1913.
    Appeal from County Court, Custer County; J. C. MeKnight, Judge.
    Bulow & Walton, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

In this case the Attorney General has filed a motion to dismiss appeal, which reads as follows: "Comes now the state of Oklahoma by the Attorney General and moves the court to dismiss the appeal herein, and for grounds for said motion shows: That heretofore, to wit, on the 17th day of July, 1912, in the case of State of Oklahoma vs. W. M. Caudill, pending in the county court of Custer county, a verdict was returned by a jury finding the defendant guilty upon an information charging the maintenance of a place where intoxicating liquors were received and kept for sale, etc. That the court upon said verdict imposed a fine of one hundred fifty dollax-s, but did not impose a jail sentence as required by the laws of Oklahoma for violation of the liquor laws. That thereafter and on October 24, 1912, an appeal was prosecuted from said judgment. That on December 7, 1912, the state filed a motion for an order to remand the eause for proper judgment; that the case was set for submission on March 7, 1913, at which time plaintiff in error by his counsel in open court filed a motion to dismiss the appeal; that thereafter on March 22, 1913, this court dismissed said appeal pursuant to the motion of the plaintiff in error and remanded the cause to the county court of Custer county with directions that the court assess the punishment of appellant by both such fine and imprisonment within the terms of "the law as in its discretion it might deem proper. That the mandate issued out of this court on the 8th day of April, 1913, and was received and filed by the clerk of the county court of Custer county on the 10th day of April, 1913; that on said day the plaintiff in error was present in person and represented by his counsel, at which time the court proceeded to sentence the said defendant in compliance with the mandate of this court and of the laws in force, and adjudged and decreed that the plaintiff in error pay a fine of one hundred fifty dollars and that he be confined in the county jail of Custer county for thirty days. And the state says that this appeal is unauthorized; that the trial court in the imposition of the penalty imposed by law acted in strict accordance with the mandate of this court, and that there is no question properly before this court upon this appeal. Wherefore, the state moves that the appeal be dismissed, and that the trial court be directed to enforce the judgment rendered in said cause on the 10th day of April, 1913.” This is the second appeal in this case. See 9 Okla. Cr. 66, 130 Pac. 812. The judgment pursuant to the mandate of this court was entered AprS 10, 1913. This appeal is on a transcript, yet it appears that the lower court allowed 105 days in orders extending the time to make and serve a ease-made. Obviously no good cause could be shown for the orders so made, and the allowance of bail was a matter of doubtful propriety. The motion to dismiss the appeal is sustained. Mandate forthwith, with direction to the court below to cause its judgment and sentence to be executed without further delay.


author: PEE CUEIAM.

text:
    A. E. VANN v. STATE.
    No. A-1940.
    Opinion Filed August 16, 1913.
    Appeal from District Court, Cherokee County; John IT. Pitchford, Judge.
    A. E. Vann was convicted of embezzlement, and he appeals.
    Appeal dismissed.
    Geo. K. Powell, for plaintiff in error.
    Geo. M. Hughes, Co. Atty., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error, A. E. Vann, was convieted at the September, 1912, term of the district court of Cherokee county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a period of three years, and the payment of a fine of $2,040.10. Counsel for the state filed a motion to dismiss the appeal in this ease on the ground that the plaintiff in error has become a fugitive from justice and cannot be made to answer the judgment upon the merits of his appeal by this court. We have carefully examined by showing made, and are of opinion that the motion to dismiss is well founded and should be sustained. The appeal is dismissed and the clerk directed to issue the mandate forthwith.


author: PER, CURIAM.

text:
    TOM PRUITT v. STATE.
    No. A-1637.
    Opinion Filed August 14, 1913.
    Appeal from District Court, Jefferson County; Prank M. Bailey, Judge.
    Tom Pruitt was convicted of larceny and appeals.
    Affirmed.
    P. T. Hamilton, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER, CURIAM.

The plaintiff in error, Tom Pruitt, was convicted at the December^ 1911, term of the district court of Jefferson county on a charge of grand larceny, • and his punishment fixed at imprisonment for a year and a day in the state prison at Granite. The appeal was filed in this case on the 6th day of March, 1912, more than a year prior to the date the cause was set for hearing in this court. No brief was filed on behalf of the plaintiff in error and no appearance made for oral argument. No fundamental error appearing from the record, the judgment of the trial court is affirmed. Mandate stayed for thirty days.


text:
    GEORGE H. DeWITT v. STATE.
    No. A-1808.
    Opinion Filed August 14, 1913.
    Appeal from District Court, Alfalfa County; James W. Steen, Judge.
    George H. DeWitt was convicted of felonious assault, and appeals.
    Appeal dismissed.
    Talbot & Owen, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, George H. DeWitt, was tried at the January, 1912, term of the district court of Alfalfa county on a charge of assault with intent to kill, and was convicted of the included offense of assault with a sharp and dangerous weapon with intent tó do bodily harm without justifiable or excusable cause, and his punishment fixed at imprisonment in the state penitentiary for a period of four years. The appeal was filed in this court on the 12th day of August, 1912." On the 29th day of July, 1913, counsel for the plaintiff in error filed a motion in this court asking that the appeal be dismissed for the reason that the plaintiff in error desired to abandon the appeal and 'seek executive clemency. The motion is sustained and the appeal is dismissed at the request of the plaintiff in error.


text:
    WILL WILLIAMS v. STATE.
    No. A-1661.
    Opinion Filed Semptember 9, 1913.
    Appeal from District Court, Choctaw County; A. II. Perguson, Judge.

      Will Williams was convicted of stealing a cow, and appeals.
    Appeal dismissed.
    Richardson & Warren, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Will Williams, was prosecuted' in the district court of Choctaw county upon an indictment found by the grand jury of that county, which charged that he did steal a certain red cow, the property of C. C. Cole, on the fourth day of November, 1911. In accordance with the verdict of the jury he was sentenced to be imprisoned in the state penitentiary for a period of two years. Prom the judgment an appeal was perfected by filing in this court March 27th, 1912, a petition in error with case-made. The Attorney General Has filed a motion to dismiss the appeal for the reason that said plaintiff in error is out of the jurisdiction of this court, and is not within the state of Oklahoma, but is in the state of Louisiana, and is a fugitive from justice. Which motion is supported by the affidavits of R. M. Connell, sheriff of Caddo county, to the effect that affiant and his deputies have for the past three or four months been endeavoring to arrest said defendant, but have been unable to locate him. And the affidavit of L. W. Ratliff, to the effect that the bondsmen of said Williams have offered a reward of one hundred dollars for his arrest, and the affidavit of W. C. Cotton that he saw the defendant Williams in Caddo parish, state of Louisiana, on the 7th day of September, and that as one of Ms bondsmen he has offered the sum of one hundred dollars for the capture and return of said Williams to the state of Oklahoma. The question presented by the motion to dismiss is the same as the one decided in Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548, wherein it is held that, where a defendant has been convicted and sentenced and has perfected an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the cause, and where the defendant makes his escape from the custody of the law and is at large as a fugitive from justice, this court will on motion dismiss his appeal. It is our opinion that plaintiff in error has waived the right to have his appeal in this court considered and determined-. The motion to dismiss the appeal is sustained. The appeal is dismissed and the cause remanded to the district court of Choctaw county with direction to carry into execution its judgment and sentence.


text:
    GEORGE FAIRGRIEVE v. STATE.
    No. A-1682.
    Opinion Filed September 9, 1913.
    Appeal from County Court, Garfield County; Winfield Scott, Judge.
    D. W. Buckner, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a companion ease to cause No. A-1681. The same error was committed in trial of this cause, as is pointed out in the preceding case. Judgment of the lower court is therefore reversed, and cause remanded for new trial.


author: PER CIJRIAM.

text:
    JOHN ALDEN HARNESS v. STATE.
    No. A-1874.
    Opinion Filed September 13, 1913.
    Appeal from County Court, Woodward County; Clyde H. Wyand, Judge.
    John Alden Harness was convicted on a charge of assault, and appeals.
    Dismissed.
    Hoover, Cougill & Swindall, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CIJRIAM.

The plaintiff in error, John Alden Harness, was convicted at the August, 1912, term of the coimty court of Woodward county on a < charge of simple assault, and his punishment fixed at a fine of $75.00. The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error has become a fugitive from justice and cannot at this time be made to respond to the judgement of the court on the merits of the appeal. No answer has been filed to the showing made on behalf of the state. It is therefore taken as confessed. The motion to dismiss is sustained and the appeal accordingly dismissed. The clerk is directed to issue mandate forthwith.


author: ARMSTRONG, P. J.

text:
    JESS HAYES v. STATE.
    No. A-1811.
    Opinion Filed September 13, 1913.
    Appeal from County Court, Johnston County; Nick Wolf, Judge.
    Jess Hayes was convicted of selling intoxicating liquor, and appeals.
    Reversed.
    Cornelius Hardy and Ratliff & Fenwieh, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Jess Hayes, was convicted at the April, 1912, term of the county court of Johnston county on the charge of selling intoxicating liquor and punishment was fixed at imprisonment in the county jail for six months and a fine of $500. If this plaintiff in error had had a fair and impartial trial in this case the judgment would not be reversed on the ground that it is contrary to the evidence, because there is testimony in the record tending to establish the charge, but the trial appears to have been conducted without due regard to the rights of the accused.. Incompetent and prejudicial testimony was permitted to go to the jury and many repeated prejudicial errors committed throughout the trial. There was proof that plaintiff in error had been arrested on other charges; the prosecuting witness filing numerous complaints charging crimes and misdemeanors against plaintiff in error. Many other irregularities appear from the record. The county attorney, in his argument to the .jury, was guilty off gross misconduct and court repeatedly committed reversible error in permitting such arguments to be made. Among other things the county attorney argued that the accused should be convicted on account of the cost to the taxpayers of the county; that he should be convicted because he was guilty of bootlegging, gambling, running a whore house, assault to kill and every crime on the calendar. Objection to these remarks was sustained by the court, but their prejudicial character could not be removed. Again, the county attorney argued that the defendant was guilty of all these different crimes because the prosecuting witness testified that he had made such complaints before the justice of the peace. Objection was made and overruled by the court, and again the county attorney argued that the accused should be convicted because he didn't go on the stand and deny the officers’ charge against him. Again, that he should be convicted because of the general effect it would have on the bootleggers and other violators of the law. We have had occasion heretofore to criti-cise the conduct of trials had in the manner this trial was permitted, and don’t want to again be called upon to review such a record. People that are to be tried for crime are entitled to be tried fairly and impartially. The law-abiding public stand by and uphold their officers in a vigorous and faithful effort to enforce the law, but no fair minded man can approve sueh conduct as this record discloses, and it will not be tolerated by this court. To permit such trials to be had and judgments to be affirmed would be no better than turning them over to a mob of their enemies to be punished at their whims. The responsibility is on the trial court and the county attorney solely, and it is their duty to conduct these trials as the law requires; in a fair and impartial manner. The county attorney can conduct a vigorous and faithful prosecution and that within the limits of the law. When he does not do that it is the duty of the trial court to make him do it, and when the trial court disregards his duty then it is the duty of this court to require him to perform it. We shall not shirk our responsibility. The assistant attorney general confesses error and advises the court that in his opinion the judgment should be reversed, and with the conditions disclosed by the record we could not do otherwise than reverse the judgment and remand the cause back to the trial court with instructions to grant a new trial according to law. Reversed and remanded.

DOYLE and PURMAN, JJ., concur.


text:
    Ex parte ROBT. KENNEDY.
    No. A-2066.
   Original petition for habeas corpus. Writ allowed, per curiam, September 23, 1913.


author: PEE OURIAM.

text:
    ANDY ANDERSON et al. v. STATE.
    No. A-1913.
    Opinion Filed September 30, 1913.
    Appeal from County Court, Jefferson County; B. T. Price, Judge.
    Andy Anderson and Red Bryson were convicted on a charge of conducting a roulette game, and appeal.
    Reversed.

      Bridges & Vertrees, for plaintiffs in error.
    O. J. Davenport, Asst. Atty. Gen., for the State.
   PEE OURIAM.

Andy Anderson and Bed Bryson were convicted at the January, 1913, term of the county court of Jefferson county on an information purporting to charge them with conducting a roulette game. The Attorney General has filed a confession of error on the ground that information does not charge an offense under the law. This court has repeatedly passed on the form of information relied upon in this case. The demurrer filed by counsel for plaintiffs in error here, defendants in the lower court, should have been sustained and the county attorney directed to file a proper information. The confession of error is sustained and the judgment reversed, with directions to the trial court to sustain the demurrer and cause the county attorney to file a proper information and try this case according to law. There is no justification for a trial court ignoring the settled rules of law and thus burdening the taxpayers of his county with the costs of an unnecessary appeal to this court.


text:
    ALEX ROBERTS v. STATE.
    No. A-1948.
    Opinion Filed September 30, 1913.
    Appeal from County Court, Haskell County; William L. Crittenden, Judge.
    Alex Roberts was convicted of selling intoxicating liquor, and appeals.
    Affirmed.
    Clark & Poster, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Alex Roberts, was convicted at the January, 1913, term of the county court of Haskell county on a charge of selling intoxicating liquor, and Ms punishment fixed at a fine of $50 and imprisonment in the county jail for a period of thirty days. Judgment was rendered on the 27th day of January, 1913, at which time the court gave thirty days within which to make and serve case-made. On the 27th day of February thereafter, and after the expiration of the said thirty days, the court attempted to extend the time within which to prepare and serve case-made for a period of thirty days longer. The Attorney General has filed a motion to strike ease-made on the ground that the order made on the 27th day of February was made at a time when the court was without jurisdiction to grant an extension. The law is well settled in this state that an order extending the time within which to serve case-made must be made before the time originally granted has expired and must conform to the statutory regulations. This order does not conform to the law and is therefore void and the order made by the trial court on the 27th day of February was of no effect. The case-made not having been served within the time granted originally, the motion to strike is sustained and the case-made accordingly striken. Upon a careful examination of the transcript we find no error sufficient to justify a reversal. The judgment of the lower court is therefore affirmed, with directions to that court to cause the same to be enforced. Mandate shall issue instanter.


author: PEB CUBIAM.

text:
    M. A. HOYT v. STATE.
    No. A-1966.
    Opinion Filed September 30, 1913.
    Appeal from County Court, I-laskell County; William L. Crittenden, Judge.
    M. A. Hoyt was convicted of violating the prohibitory law, and appeals.
    Dismissed.
    Ered H. Eannin and A. L. Beeket, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

The plaintiff in error, M. A. Hoyt, was convicted at the January, 1913, term of the county court of Haskell county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of $50.00. The Attorney General has asked the court to advance this cause for final disposition on a motion to dismiss the appeal. The motion to dismiss was filed on the 12th day of April, 1913, and is based on the ground that t'he appeal was not filed within the time provided by law and for this reason the appellate court is without jurisdiction to review the cause on the merits. Judgment was rendered in the trial court January 27, 1913, at which time thirty days were given to make and serve case-made. Later an extension of five days was granted. The appeal was not filed in this court until the 10th day of April, 1913, which w long after the expiration of the time allowed by law within which the appeal could be perfected in this court. The motion of the Attorney General is well taken. We are without jurisdiction to review this cause on the merits. The appeal is therefore dismissed with directions to the trial court to cause judgment and sentence to be carried into execution.


text:
    JAMES LAIRD v. STATE.
    No. A-2076.
    Opinion Filed September 30, 1913.
    Appeal from County Court, Marshall County; J. I. Henshaw, Judge.
    James Laird was convicted on a charge of selling intoxicating liquor, and appeals.
    Dismissed.
    Geo. S. March, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

Plaintiff in error, James Laird, was convicted at the January, 1913, term of the county court of Marshall county on a charge of selling intoxicating liquor and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of $50.' The Attorney General has filed a motion to dismiss the appeal on the ground that the appeal was not filed within the time provided by law. Plaintiff in error by 'his attorney has also requested a dismissal of the appeal on the same ground. It is therefore ordered that the appeal be dismissed by consent of the parties, with directions to the trial court to enforce the judgment and sentence.


text:
    TAVE TEER v. STATE.
    No. A-2033.
    Opinion Filed September 30, 1913.
    Appeal from County Court, Murray County; I-Iarry W. Fielding; Judge.
    Tave Teer was convicted on a charge of selling intoxicating liquor, and appeals.
    Reversed.
    Ira M. Roberts, for plaintiff in error.
    C. J. Davenport, Asst.- Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Tave Teer, was convicted at the May, 1913, term of the county court of Murray county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment 'in the county jail for a period of sixty days and a fine of one hundred dollars. The appeal was perfected in this court on June 30, 1913. The Attorney General has requested the advancement of this cause for immediate determination and «filed a confession of error, and advises the court that in his judgment the conviction had in the lower court should be reversed on account of misconduct on the part of the county attorney during the trial. It appears by the record that the plaintiff in error did not testify during the trial; that he was seated in the court room near the entrance and had been pointed out by witnesses. During the argument the county attorney urged the jury to return a verdict of guilty, and, among'other things, said: “I want you to return a verdict that a man cannot do like the defendant did and then sit back in the audience as a spectator and look the jury in the face.” Counsel objected to this argument; the objections were overruled and exceptions saved. This proposition was raised by motion for a new trial and is assigned as error in this court. Section 5881, Revised Laws 1910, provides: “In the trial of all indictments, infor-mations, complaints and other proceedings against persons charged with the commission of a crime, offense, or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.” This particular section of the statute was the law in Oklahoma Territory prior, to the admission of the state into the Union and was construed in the ease of Wilson v. Territory, 9 Okla. 331, nearly fifteen years ago, and later followed in Perkins v. Territory, 17 Okla. 82. Shortly after the creation of the Criminal Court of Appeals this question was raised in the case of Sturgis v. State, 2 Okla. Cr. 362. The doctrine is stated in the syllabus of that opinion as follows: ‘ ‘ Our -statute is mandatory, and, when the defendant has failed to become a witness in his own behalf, this fact must not, directly or- indirectly, be mentioned or • in any manner referred to or called to the attention of the jury. If sueh an attempt is made by counsel for the defense, the court must at once intervene and reprimand the counsel making sueh an attempt, and see that it is not repeated. If such an attempt is made by the prosecuting attorney and a conviction follows, a new trial must be granted to the defendant.” This doctrine has been uniformly followed by this court. See Brown v. State, 3 Okla. Cr. 442; Kelly v. State, 6 Okla. Cr. 175; Nowlin v. State, 7 Okla. Cr. 27; Weiberger v. State, 8 Okla. Cr. 441. In Ms argument the county attorney called tbe attention of the jury to the fact that the defendant had not participated in the trial, but was rather acting the part of a spectator in the audience. The court should not have permitted the argument, and when the matter was called to his attention he should have granted a new trial without imposing the expense of an appeal on the taxpayers of his county. The judgment is reversed, with instructions for the county court to grant a new trial according to law.


author: PEE CUBIAM.

text:
    M. F. HAWK v. STATE.
    No. A-1671.
    Opinion Filed October 7, 1913.
    Appeal from County Court, McClain County; W. I-I. Woods, Judge.
    M. E. Hawk was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    E. E. Glaseo, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUBIAM.

The plaintiff in error was convicted in the county court of McClain county on a charge that he did unlawfully sell to J. E. Evett three pints of beer for sixty cents, and was adjudged to pay a fine of fifty dollars anti be confined in the county jail for a period of thirty days. The petition sets forth numerous assignments of error. The questions raised have been passed on in numerous cases. From our examination of the record we find no error prejudicial to the substantial rights of the defendant. The judgment of the trial court is therefore affirmed.


text:
    SLICK GREEN v. STATE.
    No. A-1708.
    Opinion Filed October 7, 1913.
    Appeal from Superior (Court, Logan County; S. S. Lawrence, Judge.
    Slick Green was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    McGuire & Smith, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUEIAM.

The plaintiff in error was convicted in the superior court of Logan county on a charge that he did unlawfully sell to one Otto B. Burst, one drink of whisky, and was. sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. Upon a careful examination of the record we are of the opinion that substantial justice requires that the judgment of the trial court be affirmed. The judgment is therefore affirmed.


author: PEE. CUEIAM.

text:
    BILLIE ANDERSON v. STATE.
    No. A-1795.
    Opinion Filed October 7, 1913.
    Appeal from. County Court, Jefferson County; B. T. Price, Judge.
    Billie Anderson was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    Hamilton & Bridges, for plaintiff in error.
    Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE. CUEIAM.

Plaintiff in error was convicted in the county court of'Jefferson county on a charge that he did unlawfully have in his possession intoxicating liquors, to wit, whisky and beer, with the unlawful intent and purpose to sell the same, and was sentenced to pay a fine of fifty dollars, and be confined in the county jail for a period of thirty days. Upon a careful examination of the record we find no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    HENRY SANDERS v. STATE.
    No. A-1702.
    Opinion Filed October 25, 1913.
    Appeal from District Court, Tulsa County; L. M. Poe, Judge.
    Henry Sanders was convicted of aggravated assault, and appeals. Affirmed.
    Davi.dson & Williams, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Pat Malloy, Co. Atty., for the State.
   PER CURIAM.

This appeal is prosecuted from a judgment of the district court of Tulsa county, rendered on the 18th day of November, 1911, wherein the court, in accordance with the verdict of the jury, sentenced the defendant to be confined for a term of thirty days in the county jail. The evidence shows that Billy Harvey, the complaining witness, saw the defendant, Henry Sanders, on the day alleged, about 6 p. m.., at Mose Miller’s place, a road house, a short distance northeast of the city of Tulsa. Harvey was driving a livery auto ear and left Miller’s and came to Tulsa, and returned to Miller’s about 11 o’clock that night, but between the time he left Miller’s and his return he was at another road house known as Cy Husted’s, and there met the defendant. Harvey went to the Miller’s place about 11 o’clock at night in obedience to a telephone message from some parties there, asking him to come out and get them and bring them to town. When he reached Miller’s place the defendant was there with a man by the name of Tobe Lucky and two women. They came to the ear, one of the women took the seat in front by Harvey and the defendant and the other woman took the back seat. Harvey asked Lucky if he was going to pay Sander’s way. Lucky answered that he was not. Harvey then asked the defendant for his fare in advance. The defendant responded that he did not propose to pay any. Harvey answered that he did not piropose for the defendant to beat him. The woman sitting beside Harvey asked him to make the defendant get out of the car, as she had hired the car. Harvey then asked defendant to get out of the car. After some few words the defendant got out and stood by- the car, and tried to get the other passengers to get out, saying if they would get out and wait for him he would get another car; they told him they did not care to do that, and the woman in the front seat told Harvey to go ahead. Harvey reached forward to get his lever and Sanders stepped on the car and hit at him with his fist, the night was dark and the blow struck the woman sitting at Harvey’s side, and knocked her down in front of the car. Harvey jumped out of the car and knocked the defendant down and got on top of him. The defendant commenced to cut him with a knife, cut him five times. I-larvey hallooed for somebody to pull defendant oft', as he was cutting him to pieces. In the wind-up of the struggle on the ground the defendant became the uppermost man. Somebody pulled him off of Harvey. Harvey then came to town in his own car and his wounds were dressed by two physicians. Defendant claimed that the cutting was done in self-defense. The errors relied upon for a reversal of the judgment are that the information is insufficient to charge the crime of assault with intent to kill, and that the court erred in giving certain instructions and in refusing to give instructions requested by defendant. The information is sufficient to charge an assault with intent to kill, and we do not find anything in the charge of the court to warrant the exceptions taken to it. Hpon the whole ease we are of opinion that there is no prejudicial error in the proceedings. We think the plaintiff in error was extremely fortunate in escaping with a punishment of thirty days in jail for the assault committed by him. The evidence of disinterested witnesses show that he was the aggressor. The judgment of the lower court is therefore affirmed.


text:
    L. HERNDON v. STATE.
    No. A-1794.
    Opinion Filed October 25, 1913.
    Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
    L. Herndon was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    George H. Giddings and J. T. Dortch, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction upon an information charging that defendant, on the 15th day of January, 1912, did have in his possession, unlawfully, -intoxicating liquors, to wit, whisky, with the intent and purpose on the part of the said defendant to sell, barter, give away, and otherwise furnish, etc. On the 20th day of May, 1912, the court sentenced the defendant in accordance with the verdict of the jury to he confined in the county jail for a term of six months and that he pay a fine of five hundred dollars, íhe evidence shows that the defendant, on the date alleged, had in his possession two eases of whisky, and in proof of the payment of the special tax required of liquor dealers by the United States, the state introduced a certified copy of the records of the office of collector of internal revenue, showing that on September 28, 1911, Geo. T. Knott, collector of internal revenue, issued to L. Herndon, a retail liquor dealer’s license, at No. 24 West Main street, Oklahoma City. An examination of the record discloses the fact that the defendant had a fair and impartial trial. The judgment of the county court of Oklahoma county is therefore affirmed.


text:
    LEW GREEN et al. v. STATE.
    No. A-1709.
    Opinion Filed October 25, 1913.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    Lew Green and Slick Green were convicted of a violation of the prohibition law, and appeal.
    Affirmed.
    McGuire & Smith, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from judgments of conviction upon an information jointly charging the defendants with the unlawful possession of twenty-four pints of beer, with the intent to sell the same. On January 27, 1912, in accordance with the verdict of the jury, the court sentenced each defendant to be confined in the county ■ jail for three months and to pay a fine of three hundred dollars. Upon a, careful consideration of the record we discover no ground for disturbing the judgments. They are therefore affirmed.


text:
    W. A. CORLEY et al. v. STATE.
    No. A-2091.
    Opinion Filed November 1, 1913.
    Appeal from County Court, Adair County; John A. Goodall, Judge.
    W. A. Corney, P. A. Blanck, Linus A. Williams, and R. R. McCloud were, convicted of misdemeanor in the county eourt of Adair county, and appeal.
    Dismissed.

      Curtis & Pitcliford, W. P. Harris, and Pereival Adams, for plaintiffs in error.
    J. J. Davenport, Asst. Atty. Gen. (W. W. Hastings, of counsel), for the State. ,,
   PER CURIAM.

The appeal in this case was filed on the 18th day of September, 1913, and the plaintiffs in error by their counsel, on the 8th day of October, 1913, filed a motion asking the court to dismiss their appeal. The motion is sustained and the appeal accordingly dismissed. Mandate ordered forthwith.


text:
    T. S. McFarland v. State.
    No. A-2096.
   T. S. McFarland was convicted in the county court of Garvin county, of theft. Affirmed, per curiam, November 1, 1913.


text:
    JOE PROCTOR v. STATE.
    No. A-1688.
    Opinion Filed November 5, 1913.
    Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
    Joe Proctor was convicted of a violation of the prohibition law, and appeals.
    Reversed.
    Thomas W. Connor and J. TT. Beatty for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Monroe Osborne, of counsel), for the State.
   PER CURIAM.

Plaintiff in error was convicted upon an information charging that he did have in his possession unlawfully, intoxicating liquors, with the intent to sell, barter, give away and otherwise furnish the same. On the 27th day of February, 1912, judgment was entered, and defendant sentenced to be confined in the county jail for thirty days and to pay a fine of five hundred dollars. The evidence shows that on the date alleged some state enforcement officers raided race horse barn No. 4, within the fair grounds and found a part of a barrel of bottled beer and a few half pint bottles of whisky. The whisky was found in the pockets of coats that were hanging around in the barn. U. M. Baughman was sworn and called as a witness for the state. Thereupon the state asked leave to endorse the name of S. J. Hanson on the information. Over the objection of the defendant leave was granted. Baughman testified that he was a state enforcement officer; did not know the defendant; raided the barn about four o’clock that afternoon, but did not see the defendant;did not remember of any conversation between he and I. When we were carrying out the beer and breaking it up the defendant appeared and'some one of us spoke up and said that we did not care- so much about the beer, if we could only find the proprietor, and the defendant said, ‘I am the fellow you are looking for if you want to find the proprietor.' ” That he did not know who owned the coats or who owned the liquor found in the pockets, and did not know who owned the beer. That Mr. Hanson asked them not to break the bottles in the barn where the horses would step on them. S. J. Hanson, the next witness for the state, testified that he kept three race horses in said barn, and was there every day during the fair; that the defendant Proctor and his father each kept a race horse in said barn; that he saw the defendant there several times during the fair; that he did not think he ever saw any person drinking or in the defendant’s stall. That he had seen persons drinking in the barns; that the defendant did not have control of the barn, that he rented his part of it from the fair association. That he was there every morning and usually most of the afternoon and never saw the defendant sell any whisky or beer. J. W. Gillispie was next called as a witness for the state and testified that the defendant was not there when the raid was made, but came later, and was standing outside of the stall where he kept his mare and Mr. Baughman asked if the proprietor was there, and Mr. Proctor said he was the man they were looking for. That they found about a half barrel of beer and found a few bottles of whisky-; that three or' four men were drinking beer the first time they went there. On cross-examination he stated that the defendant did not say anything about destroying the liquor. That some one made a request not to break the bottles in the barn, but he did not remember who. James S. Powers, the next witness, testified that he had. examined the record in the office of collector of internal revenue for Oklahoma county, and produced a copy of the same, which is in words and figures as follows: “Name, Olympic Club, Joe Proctor, President, Gene Parham, V. Pres., Fred Glakely, Sec. Business, R. L. D. Place, 214 W. Main, Oklahoma City.” J. C. Gillmore testified that as an "enforcement officer he raided said barn at one time and got some boys for selling, as he saw one of the boys get twenty-five cents there. This was all the evidence on behalf of the state. The defendant moved to direct a verdict, which was overruled. In behalf of the defendant, P. A. Hoskin testified that he kept horses in said barn, and was present when the enforcement officers made the raid, and was there when they broke up the bottles. That the defendant and witness both asked them not to break them in the barn, or over the harness, or out in front where the horses would step on the glass; that the defendant did not say that he was the proprietor of the barn. The defendant offered to prove by said witness that a man by the name of Pry had a government license, and the place named therein was this barn. The state objected and the court sustained the objection. That he was there every day during the fair, and did not see or know of the defendant having any intoxicating liquor there. That there was about twenty people altogether that stayed around the barn. George Keaton testified that he was employed there as a hostler, that he was standing by when the officers were breaking the bottles, and the defendant came in and said he did not want them to break the bottles in there over the harness and asked them not to, and told them if they needed any help to get it out he would help them. ‘That he did not want the broken glass there, as the horses would be liable to step on it, and get hurt. That he said nothing about being the proprietor. A number of errors are assigned upon the rulings made on the trial. It is apparent that there were some rulings of the trial court in receiving and rejecting evidence of doubtful propriety. However, it is unneeessar3' to consider "but the one question, that is, the insufficiency of the evidence to sustain the verdict. We think this assignment well founded. It was essential for the state to prove that the defendant did have possession of the intoxicating liquors in question. The facts proven are simply suspicious circumstances, but do not afford evidence sufficient to establish the fact of the defendant’s possession. . For this reason the judgment m.ust be reversed.


text:
    OSCAR LOFTIN v. STATE.
    No. A-1844.
    Opinion Filed November 8, 1913.
    Appeal from County Court, Jackson County; B. N. Woodson, Judge.
    Oscar Loftin was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    W. T. McConnell, for plaintiff in error.
    Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from convicted had upon an information which charged 'that defendant did unlawfully transport and convey intoxicating liquor from a point on Fourth street, in Olustee, to another point on said street, a distance of two hundred fifty feet. The verdict, omitting the formal parts, is as follows: “Find the defendant guilty as charged, and ask the leniency of the court.’’ On the 13th day of August, 1912, the court rendered judgment and sentenced the defendant to be confined in the county jail for thirty days, and pay a fine of fifty dollars. The only evidence in the case was that of A. W. Collins, who testified that as deputy sheriff he went to arrest defendant and the defendant jerked a bottle out of his pocket and threw it down. 1-Ie was then asked: “Q. What did this bottle contain? A. Well, from the knowledge I have, I think I would say it contained whisky.” On cross-examination he was asked: “Q. Would you swear that that bottle contained intoxicating liquor? A. No. It was possible that it couldn’t have been whiskj, because I have caught whisky that was sold for whisky, that wouldn’t really be whisky; wouldn’t have enough whisky in it to make it whisky. Q. Will you swear that that was intoxicating or a substitute for intoxicating liquor, that was in that bottle? A. No, sir. Circumstances might be that it wasn’t.” Of the various errors assigned it is only necessary to consider the one that the conviction is not supported by sufficient evidence. The testimony of the only witness sworn is that he was unable to state what the contents of the bottle was. A defendant is presumed to be innocent until his guilt is established by evidence beyond a reasonable doubt, and no inference of guilt can be founded upon circumstances, except such as necessarily follows from the facts, and the facts proven must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. The facts proved were suspicious, but suspicion is not proof. It is our opinion that the facts, proved cannot be regarded as evidence sufficient to support the conviction. The judgment is therefore reversed.


author: PEE CXJEIAM.

text:
    SCOOT SCOTT v. STATE.
    No. A-1838.
    Opinion Filed November 8, 1913..
    Appeal from County Court, Cherokee County; J. T. Parks, Judge.
    Scoot Scott was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    George Paschal, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PEE CXJEIAM.

The plaintiff in error was convicted in the county-court of Cherokee county on an information which charged the unlawful sale of one quart of whisky. On the 5th day of July, 1912, in accordance with the verdict of the jury, he was sentenced to serve a term of thirty days in the county jail, and pay a fine of fifty dollars. The record has been carefully examined to ascertain whether the trial court committed reversible error on the trial of the ease. No such error has been found. The verdict is well sustained by the evidence. The judgment is therefore affirmed. Mandate forthwith.


text:
    JENNIE FOSSETT v. STATE.
    No. A-1833.
    Opinion Filed November 15, 1913.
    Appeal from County Court, Custer County; Walter S. Mills, Special Judge.
    Jennie Eossett was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Darnell & Darnell, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error was convicted in the county court of Custer county upon an information which charged the unlawful possession of twenty-eight pints of whisky and seventeen bottles of beer. On the 19th day of July, 1912, in accordance with the verdict of the jury she was sentenced to. be confined in the county jail for six months and to pay a fine of five hundred dollars. After a careful examination of the various questions raised, we are satisfied that under well settled rules, sustained and upheld by the decisions of' this court,' no error prejudicial to the substantial rights of the defendant was committed on the trial, nor have we any reason to doubt that the verdict was reached only upon a fair and full consideration of the case by the jury. The judgment of conviction is therefore affirmed.


text:
    CARSIE ELLIOT v. STATE.
    No. A-1851.
    Opinion Filed November 15, 1913.
    Appeal from County Court, Stephens County; W. H. Admire, Judge.
    Carsie Elliot was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    ■Wilkinson & Morris, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Stephens county on the 13th day of August, 1912, in which appellant was found guilty of the unlawful conveyance of intoxicating liquors, and his punishment assessed at a fine of one hundred dollars, and imprisonment in the county jail for a period of one hundred twenty days. The evidence shows that appellant was arrested driving through Stevens county in a buggy in which he had a suit case with twenty-four pints of whisky in it. The defendant offered no testimony. After a careful examination of the various questions raised, we are satisfied that under well settled rules, sustained and upheld by the decisions of this court, no error was committed. The judgment is therefore affirmed. Mandate forthwith.


text:
    M. A. STITCH v. CITY OF STILLWATER.
    No. A-1783.
    Opinion Filed November 15, 1913.
    Appeal from County Court, Payne County; W. H. Wilcox, Judge.
    M. A. Stitch was convicted of violating the prohibitory ordinance of the city of Stillwater, and appeals.
    Affirmed.
    J. M. Springer, for plaintiff in error.
    Chester H. Lowry, for the city of Stillwater.
   PEE CUEIAM.

The plaintiff in error, M. A. Stitch, was tried and convicted in the county court of Payne county at the April, 1912, term, on a charge of selling intoxicating liquor in violation of the city ordinance, the trial being de novo upon an appeal by this plaintiff in error from the judgment of the city court of Stillwater. The punishment was fixed at a fine of one hundred dollars and imprisonment in the city jail for a period of thirty days. A careful examination of the record discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.


text:
    LINK BROWN v. STATE.
    No. A-1867.
    Opinion Filed November 15, 1913.
    Appeal from County Court, Jefferson County; B. T. Price, Judge.
    Link Brown was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    Chas. A. McBrian, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty Gen. (C. J. Davenport, of counsel), for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had on an information which charged that the defendant did have in his possession intoxicating liquor with the unlawful intent to sell, barter, give away, or otherwise furnish, contrary to, etc. On the 14th day of October, 1912, judgment was entered and the defendant was sentenced to be confined in the county jail for a term of 30 days and that he pay a fine of $150. The evidence shows that the defendant lived on a farm; that the sheriff and deputy sheriff went to his place and found no liquor in the house or barn, but found a jug and a dozen quarts of whisky concealed in some corn shocks and in a bunch of bear grass. There were three or four other men at the defendant’s place; they were cotton pickers. The defendant did not claim the whisky as his, but said to the sheriff that he guessed that the cotton pickers had slipped it in the corn shocks. The-land that the. liquor was found on did not belong to the defendant. There was no evidence tending to show the payment by the defendant of the special tax required of liquor dealers by the United States, or connecting the defendant with the intention to sell, barter, give away or otherwise furnish the same. At the close of the state’s testimony the defendant moved to direct a verdict of acquittal. It is our opinion that the evidence offered on behalf of the state wholly fails to prove the offense charged, for the reason that no actual or constructive possession by the' defendant of intoxicating liquors as charged, has been shown by the evidence, nor is there any evidence tending to show an unlawful intention to violate provisions of the prohibition law. However, upon a charge of this kind in order to prove an intent to violate the prohibition law, possession of intoxicating liquors must first be shown. That was not done in this ease. Por this reason the evidence is insufficient to support the verdict. The judgment of conviction is therefore’ reversed.


author: PEE. CURIAM.

text:
    P. J. LAWLESS v. STATE.
    No. A-1859.
    Opinion Filed November 15, 1913.
    Appeal from the County Court, Craig County; S. P. Parks, Judge.
    P. J. Lawless was convicted of a violation of the prohibitory law,, and appeals.
    Reversed.

      Clyde McCrary, for plaintiff in error.
    The Attorney General, for the State.
   PEE. CURIAM.

This appeal is prosecuted from a conviction had in the county court of Craig county, on the 5th day of July, 1912, in which the defendant was found guilty of so-called malicious trespass, and was sentenced to pay a fine of one hundred dollars. The evidence shows that the defendant was in the possession of certain premises under leases for eight or nine years, and had built and rebuilt certain fences thereon. That the complaining witness, Charles Coppers, purchased said land; that the defendant removed the wire for about seventy yards along the section line by cutting the staples off the posts. That he had done this under a claim of right while he was yet in possession of the premises. No briefs have been filed. However, a cursory examination of the record shows that the information does not state facts sufficient to constitute an offense, and that the evidence is insufficient to show the commission of an offense, and that the instructions do not properly state the law of malicious mischief, which evidently was the offense attempted to be charged, and which is called malicious trespass in the information. As said by this court in McGlasson v. State, 9 Okla. Cr. 135, 130 Pac. 1174: “The most the prosecuting witness would be entitled to, under the law, would be to maintain a civil action for the value of the fencing, and we think that is doubtful. He certainly would not be entitled to invoke the power of the state to prosecute the accused criminally. In equity and good conscience, he is not entitled to anything, and ought to be required to pay the costs of' this x>rose-eution. ” It is our opinion that this ease is destitute of merit. The judgment of conviction is reversed and the cause remanded with direction to dismiss.


text:
    PINK MURPHY v. STATE.
    No. A-1700.
    Opinion Filed November 29, 1913.
    Appeal from. County Court, Jackson County; B. N. Woodson, Judge.
    Fink Murphy was convicted of gaming, and appeals.
    Affirmed.

      [ Dawson & Dabney, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and Herbert M. Peck, for the 'State.
   PER CURIAM.

The plaintiff in error, Pink Murxihy, was convicted at the January, 1912, term of the county court of Jackson county on a charge of gaming and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of sixty days. Upon a careful examination of the record we are of the opinion that the judgment should be affirmed, and it is so ordered.


author: PEE, CUBIAM.

text:
    PINK WILSON v. STATE.
    No. A-1701.
    Opinion Filed November 29, 1913.
    Appeal from County Court, Jaekson County; B. N. Woodson, Judge.
    Pink Wilson was convicted of gaming, and appeals.
    Affirmed.
    Lawson & Dabney, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and Herbert M. Peck, for the State.
   PEE, CUBIAM.

The plaintiff in error, Pink Wilson, was convicted . at the January, 1912, term of the county court of Jackson county for gaming and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of thirty days. Upon a careful examination of the record we are of opinion that the judgment should be affirmed, and it is so ordered.


text:
    T. N. MILLER v. TOWN OF SHATTUCK.
    No. A-1645.
    Opinion Filed November 29, 1913.
    Appeal from County Court, Ellis County; A. L. Squire, Judge.
    T. N. Miller was convicted of violating a city ordinance of Shat-tuek, and appeals.
    Affirmed.
    Perry J. Morris and J. G. Aubuchon, for plaintiff in error.
    B. P. Barnett, Attorney for the town of Shattuck, ’and Prank E. Bansdell, Co. Atty., for defendant in error.
   PEE CUEIAM.

The plaintiff in error; T. N. Miller, was convicted in the justice of the peace court of the town of Shattuck on a charge of failing and refusing to pay an occupation tax imposed by the town ordinance of the town of Shattuck, and hi§ punishment' fixed at a fine o£ $25 and costs. Prom the proof in the record it clearly appears that the plaintiff 'in error failed and refused to pay the license tax lawfully imposed by the town ordinance of Shattuck, apparently on the ground that the city had no right to impose such tax. This is one of many appeals that have no place in this court. Town ordinances of incorporated towns that impose a lawful license tax on persons engaged in business in such towns should be observed, and when they are not observed, if legally adopted, the penalties provided should be applied. This appeal is wholly without merit. The judgment is therefore affirmed.


author: PEE. CUBIAM.

text:
    AARON CASE v. STATE.
    No. A-1865.
    Opinion Filed November 29, 1913.
    Appeal from County Court, Jefferson County; B. T. Price, Judge.

      Aaron Case was convicted of vagrancy, and appeals.
    Affirmed.
    Hamilton & Saye, for plaintiff in error.
    Ohas. West, Atty. Gen., and O. J. Davenport, 4-sst. Atty. Gen., for the State.
   PEE. CUBIAM.

This appeal is prosecuted from a conviction had upon an information charging vagrancy. The jury returned a verdict of guilty and fixed the punishment at a fine of ten dollars. In our opinion there is no merit in the appeal. The judgment is therefore affirmed. Mandate forthwith.


author: PEE OUEIAM.

text:
    Ex parte CHARLIE CHANDLER.
    No. A-1712.
    Opinion Filed December 6, 1913.
    Original habeas corpus proceedings.
    Petition dismissed.
    A. N. Whiteside, for plaintiff in error.
    O. J. Davenport, Asst. Atty. Gen., for the State.
   PEE OUEIAM.

This is an original application for the writ of Babeas corpus filed in this court on the 27th day of April, 1912. The petition alleges that Charles Chandler was unlawfully restrained of his liberty at the time in the county jail of Ottawa county. It appears that he had been tried before a justice of the peace on a misdemeanor charge and had been committed and was at the time in the custody of the sheriff, the commitment requiring him to pay a fine of $25 and the service of thirty days in the county jail. The petition was never presented to any member of this court for the purpose of securing bail pending the determination of the same, and the attention of the court was not called to the matter. More than twelve months having elapsed since the filing of the petition and a much longer period than that for which the prisoner could have been confined, no good purpose can now be served by discussing the propositions the petition intends to raise. No briefs were ever filed on behalf of petitioner and no appearance made for argument, or otherwise. It is evident that the cause has been abandoned. It is the duty of counsel applying for the writ of habeas corpus to present their petition to the court or some member thereof when the same is filed. If this is not done the application is placed on the docket and reached in tEfe due course of business. These petitions should have been determined a year ago and would have been if counsel had followed these suggestions. The petition is dismissed for failure •to prosecute.


author: 3PEE OUEIAM.

text:
    Ex parte HENRY BLYTHE.
    No. A-1711.
    Opinion Filed December 6, 1913.
    ■Original habeas corpus proceedings from Ottawa county.
    A.. N. Whiteside, for plaintiff in error.
    O. J. Davenport, Asst. Atty. Gen., for the State.
   3PEE OUEIAM.

This is a companion case to A-1712, and for the reasons given in that case the application for the writ of habeas corpus is dismissed.


text:
    M. O. WHEELER v. STATE.
    No. A-1831.
    Opinion Filed December 13, 1913.
    Appeal from County Court, ' Love County; R. A. Keller, Judge.
    M. O. Wheeler was convicted of violating the prohibition law, and appeals.
    Affirmed.
    B. C. Logsdon, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted upon an information which charged the unlawful sale of intoxicating liquor to E. P. Gilliam. On the 17th day of July, 1912, he was sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. On this appeal it is contended that the verdict of the jury is contrary to the evidence. The complaining witness swore positively to the purchase. Defendant denied the sale and offered proof of an alibi. The cases are very rare in which this court has reversed judgments upon the ground that the verdict is contrary to the evidence, and’ it is only in a case where the evidence is plainly insufficient to warrant the finding of the jury that the verdict will be disturbed. It is our opinion that the verdict in this case is sufficiently sustained by the evidence. The judgment of conviction is therefore affirmed.


text:
    CARSIE ELLIOTT v. STATE.
    No. A-1879.
    Opinion Filed December 13, 1913.
    Appeal from County Court, Stephens County; W. I-I. Admire, Judge.
    Carsie Elliott was convicted of having unlawful possession of intoxicating liquor, and appeals.
    Affirmed.
    Wilkinson & Morris, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Carsie Elliott, was convicted at the October, 1912, term of the county court of Stephens county on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of $200 and imprisonment in the county jail for a period of ninety days. The appeal was. filed in this court on the first day of December, 1912. On the 4th day of December, 1913, counsel for plaintiff in error filed a motion to dismiss the appeal and asked that mandate be issued forthwith. The motion is sustained and the appeal accordingly dismissed. The clerk is directed to issue mandate forthwith.


text:
    GORDON DAVIS v. STATE.
    No. A-1873.
    Opinion Filed December 13, 1913.
    Appeal from County Court, Woodward county; Clyde II. Wyand, Judge.
    Gordon Davis was convicted of conspiracy to defraud, and appeals.
    Affirmed.
    Appleget & Herod, for plaintiff in error.-
    C. J. Davenport, As.st. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error,. Gordon Davis, was convicted at the July, 1912, term of the county court of Woodward county on a charge of conspiring with another to defraud one Gustave Dahlke of certain real estate situated in said county, and his punishment fixed at imprionment in the county jail for a period of six months and a fine of $300. 'A thorough reading of this record and careful consideration of the facts disclosed thereby lead unerringly to the conclusion that no miscarriage of justice has resulted by the conviction in this case. This 'is a case which, in our judgment, should be affirmed without delay. The judgment is affirmed with instructions to the trial court to cause the same to be carried into execution.


text:
    J. E. YATES v. STATE.
    No. A-1845.
    Opinion Filed December 16, 1913.
    Appeal from. County Court, Payne Countv; W. H. Wilcox, Judge.
    J. E. Yates was convicted of libel, and appeals.
    Reversed.
    P. D. Mitchell and Robt. A. Lowry, for plaintiff in error.
    Smith C. Matson and R. E. Gish, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. E. Yates was convicted in the county court of Payne county in June, 1912, on a charge of libel and his punishment fixed at a fine of $350 and imprisonment in the county jail for a period of three montlis. Among other grounds for reversal by counsel in this ease is the following instruction given by the court: “If you find from the evidence beyond a reasonable doubt, each and every material allegation of the information to be true, except the charge in such information that defendant by such publication intended to charge and did charge that R. E. Grant is an adulterer, then you should acquit the defendant, unless you find from the evidence beyond a reasonable doubt that the article so published contained charges other than adultery concerning the said R. E. Grant which were not true and which were libelous within the definition heretofore given you." This instruction was calculated to confuse the jury and is meaningless. It should not have been given in the form presented. It is the duty of the court to g'ivij clear cut, concise instructions. After a careful reading of this record we are .of opinion that the' time of the court and jury and the money of the taxpayers of Payne county could be used to better advantage than-in the prosecution of such eases as this appears to be. Apparently there is little merit to either side of this controversy. The judgment is reversed and cause remanded for a new trial.


text:
    FRANK WRIGHT et al. v. STATE.
    No. A-1875.
    Opinion Filed December 20, 1913.
    Appeal from County Court, Murray County; I-Iarry W. Fielding, Judge.
    Prank Wright and others were convicted of gaming, and appeal.
    Affirmed.
    C. N. Allen and Walter E. Latimer, for plaintiffs in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Jos. L. Hull, of counsel), for the State.
   PEE CUBIAM.

Plaintiffs in error were indicted in the district court of Murray county December 16, 1911, for the offense of playing poker. Which indictment was duly transferred to the county court of said county. On October 8, 1912, the case came on for trial. The jury returned a verdict of guilty as charged. On October 14, 1912, the court rendered judgment and sentenced each of the defendants to pay a fine of fifty dollars. To reverse the judgment the defendants appealed. We have examined the record and we do not find that it contains any error prejudicial to the substantial rights of the defendants. The judgment of the county court of Murray county is therefore in all things affirmed.


author: PEE CUKIAM.

text:
    CHARLEY MADISON v. STATE.
    No. A-2004.
    Opinion Filed January 6, 1914.
    Appeal from County Court, Major County; P. W. Madison, Judge. Charley Madison was convicted of malicious mischief, and appeals.
    Dismissed.
    Fairchild & Bandall, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUKIAM.

The plaintiff in error, Charley Madison, was convicted at the January, 1913, term of the county court of Major county on a charge of malicious mischief, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of six months. The appeal is dismissed on motion of the Attorney General, and consent of the complaining party. Mandate ordered forthwith.


text:
    OLLIE OSTENDORF v. STATE.
    No. A-1910.
    Opinion Filed January 12, 1914.
    Appeal from County Court, Garfield County; Winfield Scott, Judge.
    Ollie Ostendorf was convicted of vagrancy, and appeals.
    Dismissed.
    A. J. Jones, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Ollie Ostendorf, was convicted at the December, 1912, term of the county court of Garfield county on a charge of vagrancy, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of thirty days. Upon application of counsel for plaintiff in error the appeal is hereby dismissed with directions to the trial court to enforce the judgment and sentence. Mandate is ordered forthwith.


text:
    CHARLES McKNIGHT v. STATE.
    No. A-1606.
    Opinion Filed January 12, 1914.
    Appeal from County Court, Pottawatomie County; Ross P. Lockridge, Judge.
    Charles McKnight was convicted of vagrancy, and appeals.
    Reversed.
    Pitman & Goode, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Charles McKnight, was convicted of vagrancy in the county court of Pottawatomie county, and the judgment and sentence of the court was that ho pay a fine of one hundred dollars. Error is assigned upon the ruling of the court in admitting evidence that the defendant’s general reputation was that of a professional gambler. This is a companion case to the case of Mitchell v. State, 9 Okla. Cr. 172, 130 Pac. 1175, and the record presents the same questions of law. Por the reasons set forth in the opinion in that ease, the judgment of conviction is reversed, and the cause remanded.


text:
    JIM PINKERTON v. STATE.
    No. A-1901.
    Opinion Filed January 17, 1914.
    Appeal from County Court, Garfield County; Winfield Seott, Judge.
    Jim Pinkerton was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    W. O. Cromwell, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information which charged that he did sell whisky to one Rush Kimmel. On the 16th day of December, 1912, he was senteced to be confined in the county jail for four months, and that he pay a fine of four hundred dollars. Numerous errors are assigned, but they are without merit. The information is sufficient. W. P. Calhoun testified that in the city of Enid, in the basement of the Turf pool hall on the 29th day of March, the defendant sold Mr. Scheidigger, Mr. Smith, and witness four drinks of whisky, and that Rush Kimmel paid him for it. This was all the evidence in the ease. The appeal being without merit, the judgment is affirmed, and the cause remanded to the county court of Garfield county with direction to enforce its judgment and sentence therein.


text:
    R. L. C. DAVIS v. STATE.
    No. A-1877.
    Opinion Filed January 17, 1914.
    Appeal from District Court, Garfield County; James B. Cullison, Judge.
    R. L. C. Davis was convicted of the crime of burglary in the second degree, and appeals.
    Dismissed.
    Rush & Smith, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

The plaintiff in error, R. L. C. Davis, was tried and convicted in the district court of Garfield county, of the crime of burglary in the second degree. On June 12, 1912, the court sentenced him to imprisonment in the penitentiary for the term of two years. A petition in error with ease-made was filed in this court on December 12, 1912. The Attorney General has filed a motion to dismiss the appeal for the following reasons, to wit: “Eirst. That on June 12, 1912, judgment was entered, at which time the appellant was granted sixty days in which to make and serve a ease-made; that thereafter, on the 12th day of August, 1912, the court by an order of that date attempted to extend the time within which to make and serve a case-made, but the Attorney General says that said purported order was made after the sixty days allowed on June 12, 1912, and that said order of August 12, 1912, is of no effect. Second. The state further says that there is no transcript of the record filed with the case-made herein for the reason that there is no certificate of the clerk. AVherefore, the Attorney General says that this court is without jurisdiction except to dismiss the appeal herein. ’ ’ Upon an examination of the record it is our opinion that the motion to dismiss is well taken. The purported appeal herein is therefore dismissed and the cause remanded to the district court of Garfield county, with direction to enforce its judgment therein.


author: FEB CUBIAM.

text:
    W. W. KINGLE v. STATE.
    No. A-1764.
    Opinion Filed January 17, 1914.
    Appeal from District Court, Craig County; Preston S. Davis, Judge.
    AV. ~W. Single was convicted of burglary in the second degree and appeals.
    Dismissed.
    E. J. Hobdy, for plaintiff in error.
    Chas. AVest, Atty. Gen., and Smith .0. Matson, Asst. Atty. Gen., for the State.
   FEB CUBIAM.

The plaintiff in error, AV. W. Singlo, was tried and convicted in the district court of Craig county for the crime of burglary in the second degree. In accordance with the verdict of the jury, on the 19th day of December, 1911, the court pronounced judgment and sentenced him. to imprisonment in the penitentiary for the term of two years. A petition in error with case-made was filed in this court on June 12, 1912. The Attorney General has filed a motion to dismiss the appeal for the following reasons: "Because the record shows that this is an attempted appeal from a judgment of conviction for a felony, to wit, burglary, rendered in the district court of Craig county, on December 19, 1911; that at said time the trial court granted plaintiff in error thirty days in which to prepare and serve his case-made upon the county attorney; that thereafter, to wit, on January 18, 1912, and within the time previously granted, the court granted an additional extension of sixty days within which to prepare and serve case-made; that thereafter to wit, on March 16, 1912, and within the’ time theretofore granted, the court made an additional order extending the time sixty days to plaintiff in error within which to prepare and serve his ease-m^de; that thereafter, to wit, on May 18, 1912, the trial court attempted to make an additional order extending the time for preparing and serving case-made thirty days, but the Attorney General respectfully submits that the time theretofore granted had expired on and with the 17th day of May, 1912, and the court was therefore without power to make this pretended additional extension on May 18,- 1912: That the case-made was not served on the county attorney until the 3d day of June, 1912, and after the time legally granted had expired. In this connection, the Attorney General desires to call the court’s attention to the fact that the month of February, 1912, has twenty-nine days. AVhercfore, the Attorney General says that this court is without 'jurisdiction except to dismiss this appeal, there being no certified transcript of the record accompanying the petition in error.” From an examination of the record it is our opinion that the motion to dismiss the appeal is well taken. The purported appeal herein is therefore dismissed and the cause remanded to the district court of Craig county witli direction to enforce its judgment and sentence therein.


author: PER CURIAM.

text:
    Ex parte H. P. RUTHERFORD.
    No. A-2176.
    Opinion Filed January 17, 1914.
    Original habeas corpus proceedings.
    Writ denied.
   PER CURIAM.

On this day a petition for writ of habeas corpus was filed and presented for the purpose of setting at liberty H. P. Rutherford. It appears from the averments in the petition that the petitioner is imprisoned in the county jail of McClain county, under three commitments issued out of the district court of said county, upon three informations filed therein by the county attorney, charging petitioner with the offense of sodomy in each of said informations. It is further averred that said restraint is illegal and unauthorized, because the facts relied upon by the state to support the information in each of said eases, do not constitute the offense of sodomy, or any other crime known to the law, and that such facts so relied upon by the state of Oklahoma in the prosecution of these cases is not sufficient to confer jurisdietioifTipon the district court of McClain county. And that in each of said eases the defendant waived a preliminary examination, and was held to.answer to said district eourt. Section 3893, Rev. Laws, provides: “No eourt or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following * * * 4th. Upon a warrant or commitment , issued from the district eourt, or any other court of competent jurisdiction, upon an indictment or information.” In Ex parte Burroughs, ante, 133 Pac. 1142, it is held by this court that: “The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law; and a defendant, held-by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction, cannot be discharged on habeas corpus on the ground that the evidence adduced upon his preliminary examination was insufficient to show that a public offense has been committed, or probable cause to believe the defendant guilty thereof.” Where a person who is arrested on a criminal warrant, is brought before a committing magistrate for a preliminary examination he can either insist upon or waive examination, and if he waives it the magistrate may bind him over for trial for the offense charged in the complaint, and the county attorney is authorized to file an information in the district court, charging him with the offense charged in the complaint, and when the defendant waives his right to a preliminary examination, and on account of such waiver no examination is had, he will be estopped to claim any advantage because of the absence of such examination. It appearing that the application for writ of habeas corpus is insufficient to show that petitioner is entitled to the writ or a rule to show cause, it will be denied.


author: PEE CTTBIAM.

text:
    M. A. STITCH v. STATE.
    No. A-2072.
    Opinion Filed January 17, 1914.
    Appeal from County Court, Payne County; ,W. H. Wilcox, Judge.

      M. A. Staitch was convicted of a violation of the prohibitory law, and appeals.
    Dismissed.
    J. M. Springer, for plaintiff in error.
   PEE CTTBIAM.

Plaintiff in error was convicted upon an information charging the unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was on the 30th day of April, 1913, sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. An appeal was perfected. His attorney of record has filed a motion to dismiss the appeal. The motion is sustained and the appeal is hereby dismissed and the cause remanded to the trial court with direction to enforce its judgment and sentence therein.


text:
    W. T. WEBER v. STATE.
    No. A-1891.
    Opinion Filed January 17, 1914.
    Appeal from County Court, Caddo County; C. Boss I-Iume, Judge.
    W. T. Weber was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    The Attorney General, for the State.
   PEB CUBIAM.

This appeal is prosecuted from a conviction had on an information which charged that the defendant did have in his possession intoxicating liquors with the unlawful intent to sell the same. In accordance with the verdict of the jury on the 25th day of November, 1912, the court sentenced the defendant to be confined in the county jail for ninety days and to pay a fine of three hundred dollars. The evidence shows that beer was found in the defendant’s place of business; that the defendant paid the federal license tax required of retail liquor dealers, and that he had sold intoxicating liquors at his place of business. A careful examination of the record leads to the conclusion that no error has been committed, to the defendant’s prejudice. The judgment of conviction is therefore affirmed.


text:
    W. E. FERGUSON v. STATE.
    No. A-1884.
    Opinion Filed January 27, 1914.
    Appeal from County Court, Ellis County; A. L. Squire, Judge.
    W. E. Perguson was convicted of conducting a game of poker, and .ppeals.
    Affirmed.
    C. B. Needy, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., (Prank E. Bansdell, of counsel), for the State.
   PER CURIAM.

Plaintiff in error was prosecuted and convicted upon an information which alleges that lie did unlawfully deal, .play, carry on, open and cause to be opened, and conduct the prohibited game of poker, for money, checks, credits and other representatives of value. The said game of poker so opened up, carried on and conducted as aforesaid, being then and there played by the persons playing at said game for money, checks, credits and other representatives of value. In accordance with the verdict of the jury on the 16th day of September, 1912, he was by the court sentenced to be confined in the county jail for thirty days, and to pay a fine of one hundred fifty dollars. Numerous errors are assigned. Without entering into a discussion of the same, we will state, from our examination of the record, they are without merit. The information is sufficient and the evidence on the part of the state was of such a character as to leave the inference of guilt, the only reasonable one possible from the facts disclosed. The judgment of conviction is therefore affirmed.


text:
    STATE v. W. O. LEWALLEN.
    No. A-1880.
    Opinion Filed January 27, 1914.
    Appeal from County Court, Woods County; W. M. Bickel, Judge.
    Demurrer sustained to information, and the State appeals.
    Affirmed.
    Sandor J. Vigg, for plaintiff in error.
   PER CURIAM.

The county attorney filed in the county court of Woods county an information, intending to charge the defendant with a violation of the prohibition law. Upon his arraignment the defendant interposed a general demurrer thereto. Upon considering said demurrer the court gave judgment sustaining the same. Prom said judgment the state appeals. We have examined the information and it is our opinion that the same does not allege facts sufficient to constitute an offense. The judgment of the county court sustaining the demurrer is therefore affirmed.


author: PEE OXJEIAM.

text:
    A. C. SOAPE et al. v. STATE.
    No. A-1890.
    Opinion Filed January 27, 1914.
    Appeal from County Court, Caddo County; C. Ross Hume, Judge.
    A. C. Soape and John Cunningham were convicted of a violation of the prohibition law, and appeal.
    Affirmed.
    Bristow & McPayden, for plaintiffs in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE OXJEIAM.

Plaintiffs in error were convicted upon an information which charged that they did unlawfully have and keep in their possession certain intoxicating liquors, to wit, sixty-seven quarts of beer and eight quarts of whisky, with the unlawful intent to sell the same. In accordance with the verdict of the jury on the 2d day of December, 1912, the court sentenced each defendant to be confined in the county jail for three months and that each pay a fine of two hundred fifty dollars. Prom the judgments the defendants appeal. After a careful examination of the various questions raised we are satisfied that under well settled rules, sustained and upheld by the decisions of this court, no error has been committed, to the prejudice of the defendants. The judgments of the county court of Caddo county are therefore affirmed.


author: PEE CURIAM.

text:
    GEORGE STAMPER v. STATE.
    No. A-1892.
    Opinion Filed January 27, 1914.
    ApxDeal from County Court, Pottawatomie County; Boss P. Lockridge, Judge.
    George Stamper was convicted of a violation of the prohibition law, and appeals.
    Reversed.
    Pitman & Goode, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CURIAM.

Plaintiff in error was convicted of an unlawful sale of whisky to one G. G. Woodruff, and in accordance with the verdict of the jury, on the 18th day of November, 1912, he was sentenced to be confined in the county jail for four months and to pay a fine of three hundred dollars. Prom the judgment he prosecutes this appeal. . We deem it unnecessary to review the testimony further than to say that G. G. Woodruff, a private detective, was the only witness for the state. But whether the defendant was guilty or innocent, he was entitled to a fair and impartial trial according to the forms of law, and we are constrained to hold that this right was denied him. Among the numerous errors assigned is the one that the court erred in refusing to strike out incompetent, irrelevant and immaterial and prejudicial testimony offered by the state. The record discloses the following examination of the state’s witness'Woodruff by the prosecuting attorney: “Q. Mr. Wood-ruff, had anybody come to you and asked you not to testify in this case? A. Yes, sir. Mr. Goode: Objection to as incompetent, irrelevant and immaterial. The Court: Objection overruled. Q. And if so, did they tell you George Stamper sent them? A. Yes, sir. Mr. Goode: We object to hearsay. Q. Just go ahead and tell who came to you about this ease? A. Joe Negonquet. Q. And who else? A. Mr. Peyton Perkins. Mr. Goode: Objected to as incompetent, irrelevant and immaterial. This defendant is not bound by what Peyton Perkins and some other man has said to this gentleman.” Cross-examination. “Q. Mr. Woodruff, where .was this conversation held? A. One of them,, Peyton Perkins came to me in Asher. Q. The defendant was not there? A. I never saw him, but there was some man in the buggy, and I did not know who he was'.” As was said by this court in the case of Will Williams v. State, ante, 136 Pac. 778: “That this testimony was incompetent and prejudicial to the defendant, we think: there can be no doubt. If the minds of the jury were wavering on the question of the innocence or guilt of .the defendant, this incompetent testimony which the court had sanctioned with judicial approbation was sufficient to turn the scale againsi the defendant.” See also Bruner v. U. S., 1 Okla. Or. 205, 96 Pac. 597. We deem it unnecessary to review the other errors assigned. Por error in the rulings of the court in the admission of the testimony above quoted, the judgment of conviction is reversed and the cause remanded for another trial.


text:
    ROBERT L. MILLS v. STATE.
    No. A-1897.
    Opinion Filed January 27, 1914.
    Appeal from County Court, Tulsa County; N. J. Gubser, Judge.
    Robert L. Mills was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    Luther James, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Upon an information filed on the 3d day of November, 1911, charging that “On the 2d day of November, A. D. 1911, Robert L. Mills did unlawfully sell to one Shawnee Chisholm one glass of whisky,” the plaintiff in error was tried and convicted, and in accordance with the verdict of the jury sentenced to be confined in the county jail for ninety days and pay a fine of three hundred dollars. Shawnee Chisholm, a Creek Indian, was the only witness for the state. His testimony indicates that he did not have any direct recollection of the transaction charged, and he was asked by the prosecuting attorney the following question: “Q. Now, to refresh your memory, 1 will ask you if about five minutes ago, in the hall, you didn't tell me you bought a glass of whisky for which you paid him fifteen cents at that time at the restaurant in Sperry?” Over the defendant's objection he answered: “A. No, I did not say I bought whisky by the glass; I bought it that way; I bought fifty cents worth from him. Q. Did you buy a glass of whisky on that occasion? A. I don't know whether I bought a single glass or more, .1 don't know.” After evasive answers to several leading questions, the record shows that Mr. Crossland, who was prosecuting the ease, said: “Judge, I think if you will put this man in jail awhile, he will remember it.” On cross-examination he said that he had a fight with the defendant Robert L. Mills in bis restaurant that day, and then went and had him arrested on this charge. That John Pritch-ard, Aaron Tyner, Ralph Tyner and Bruce Shawnee were all drunk and went with him to the 'clefendant's restaurant, but they did not see him buy the whisky; that he swore out the warrant because he was mad at the defendant for putting him out of his place of business; that he had not spoken a word to the defendant since that time. Robert L. Mills, the defendant, as a witness in his own behalf, testified that on the 2d day of November, last year, the prosecuting witness came into his place of business in the town of Sperry drunk and assaulted him, and they had a fight that resulted in the defendant throwing him out of his plaee of business, and the next day the prosecuting witness had him arrested for assault and selling whisky; that he had conducted a restaurant in Sperry for four years; had never sold any whisky to the prosecuting witness or any other person and did not have a federal license to sell whisky. It is earnestly insisted that the evidence is manifestly insufficient to sustain the verdict, and that the court erred in overruling a motion for a new trial, for this reas'on. Considering the contradictory statements of the complaining witness, and the admitted faet that he made complaint against the defendant because the defendant had whipped him, we do not think that his testimony was worthy of credence. The cases are rare in which this court interferes to disturb the judgment of the trial court, and it is only in a ease where the verdict is clearly contrary to the evidence, or when'from the doubtful character of the evidence against the defendant it is evident that the jury were influenced by passion or prejudice, that a new trial will be granted. It 'is our opinion that the verdict and judgment in this case are clearly contrary to the evidence. The judgment of conviction is therefore reversed.


text:
    V. R. WILSON v. STATE.
    No. A-1925.
    Opinion Filed February 4, 1914.
    Appeal from County Court, Love County; E. A. Keller, Judge.
    Y. R. Wilson was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    B. C. Logsdon, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Y. B. Wilson, plaintiff in error, was tried and convicted upon an information which charged the unlawful conveyance of intoxicating liquor, and on the 10th day of October, 1912, he was sentenced to be confined for thirty days in the county jail, and to pay a fine of fifty dollars. Upon a careful examination of the record, we find no error sufficient to justify a reversal of the judgment. The judgment of conviction is therefore affirmed.


text:
    WALTER PENNER v. STATE.
    No. A-1926.
    Opinion Filed February 5, 1914.
    Appeal from County Court, Beckham County; E. II. Gipson, Judge.
    Walter Penner was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      D. W. Tracy, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was tried and convicted upon an information which charged the unlawful sale of whisky to one J. A. Mulky, and on the 21st day of January, 1913, was sentenced to be confined in the county jail for a period of one hundred fifty days, and to pay a fine of three hundred dollars. An appeal was perfected by filing in this court on March 5, 1913, a petition in error with case-made. After a careful examination of the various questions raised, we are satisfied that, under well settled rules, sustained and uqDheld by the decisions of this court, no error has been committed, to the prejudice of the substantial rights of the defendant. The judgment of the county court of Beck-ham county is therefore affirmed.


text:
    AL JUBY v. STATE.
    No. A-1914.
    Opinion Filed February 14, 1914.
    Appeal from County Court, Tulsa .County; N. J. Gubser, Judge.
    Al Juby was convicted of a violation of the prohibitory law, and appeals.
    Reversed.
    Davidson & Williams, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Tulsa county upon an indictment presented by a grand jury in the district court, which was duly transferred from the district court to said county court, wherein the defendant was charged with having unlawfully sold to one Charles Pino one glass of whisky, and in accordance with the verdict of the jury he was on the 30th day of November, 1912, sentenced to be confined in the county jail for thirty days, and to pay a fine of fifty dollars. Prom this judgment he appealed by filing in this court on Pebruary 18, 1913, a petition in error with ease-made. Upon arraignment the defendant filed his duly verified motion to set aside the indictment, which motion and agreed statement of facts are the same as in the case of Viers v. State, ante, 134 Pac. 80, which motion to set aside was overruled and exception allowed. This presents the identical question passed upon in the Viers case. Por the reasons given in the opinion in that ease, for error of the court in overruling the motion to set aside the indictment, the judgment of conviction is reversed, and a new trial awarded.