author: KICHABDSON, Judge.

text:
    JAKE ENSLEY v. STATE.
    No. A-456.
    Opinion Filed May 28, 1910.
    (109 Pac. 250.)
    1. APPEAL — Necessity of Written Notice. Under section 6949 of - Snyder’s Comp. .Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, actual knowledge on the part of the clerk and the prosecuting attorney, that an appeal is intended does not dispense with the necessity of giving formal notice and making due proof thereof. "
    2. SAME. Under section 6949 of Snyder’s Comp. Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, a written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by journal entry, is insufficient.
    3. NOTICE — Service — Necessity of Written Notice. Generally, wherever a statute requires notice to be served in a legal proceeding, a written notice capable of legal service, of proof and return, and of being filed, is intended; and especially so where ’ service of such notice and proof thereof are jurisdictional.
    4. SAME. The word “service,” when used with reference to summonses, writs, subpoenas, notices and other legal processes, means' the reading of the same to the person to be served, or the delivery to such person of the original or a copy thereof; and the expression, “service of a notice,” without qualification of any kind, means a personal service of a written notice.
    5. APPEAL — Service of Notice. In the county court notice of appeal may be served upon the county judge, or upon the clerk of the county court if there be one; in the district court it must be served upon the district clerk.
    6. SAME — Office of Notice. The notice of appeal in criminal cases provided for in section 6949 of Snyder’s Comp. Laws of Okla., is analogous to a citation or a summons in error, and is designed to take the place thereof.

      7. APPEAL — Time of Taking — Change in Procedure. The Act of 1909, (sec. 6948 of Snyder’s Comp. Laws of Okla.), requiring appeals in misdemeanor casos to he taken within 60 days from the rendition of judgment, is applicable to an offense committed prior to its passage, where the defendant is not tried until after the act became effective.
    8. STATUTES — Repeal—Effect on Procedure. Section 54 of art. 5 of the Constitution of Oklahoma, providing that the repeal of a statute shall not “affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute,” has no reference to changes in the law of procedure merely.
    S. APPEAL — Notice—Record — Dismissal. Under section 6949 of 'Snyder’s Comp. Laws, notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal, is jurisdictional in a criminal case; and where the record fails to show the service of such notice, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from the County Court of Wagoner Countyj W. T. Drake, Judge.

    Jake Ensley was convicted of violating the prohibition law, sand his punishment was assessed at a fine of $100.00 and imprisonment in the county jail for a term of sixty days. From an order •overruling a motion for a new trial and in arrest of judgment, he appeals.
    Appeal dismissed.

      Robert F. Blair, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   KICHABDSON, Judge.

The state has filed a motion to dismiss the appeal herein on the ground that no notice thereof was served by plaintiff in error upon the county attorney and county .judge, or in lieu of the county judge upon the clerk of the county •court, as required by Section 6949 of Snyder’s Comp.'Laws of 'Oklahoma.

To this motion plaintiff in error has filed a response in which he asserts that he did give such notice in open court, in the presence of the county attorney, the county judge and the clerk of the county court, on October 2, 1909, immediately after the court had pronounced sentence upon him. In proof of this our attention is directed to that portion of the case-made containing the journal .entry of the judgment below, which recites that the defendant prays an appeal to the Criminal Court of Appeals, that the same is allowed, and that time is given for making and serving a case-mate, the suggestion of amendments thereto, and for settling and signing the same. Also the affidavits of plaintiff in error’s attorney, the clerk of the county court, the county judge and the county attorney have been filed in all of which it is stated that at the time sentence was pronounced upon plaintiff in error, his attorney stood up in open court, and, in the presence and hearing of the county attorney, the county judge, and the clerk of the county court, gave oral notice of appeal in behalf of plaintiff in error.

In other words, it is shown on the one hand, and admitted on the other, that oral notice of appeal was given to the proper officers in open court, but that no written notice was served upon any of them. Plaintiff in error contends that such oral notice given in open court is within the letter and spirit of the statute, and is sufficient; and he urges us to review and overrule the former decisions of-this court and of the Supreme Court of the Territory of Oklahoma holding that the service of written notices of appeal is necessary.

The statute under consideration reads as follows':

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he' can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

Counsel for plaintiff in error urges with great zeal’ and force that, inasmuch as the statute in requiring service of notice of appeal omits the word “written,” the word should not be read into the statute; that the sole object of the statutory provision is to have the county attorney and the trial court notified within the time allowed for perfecting the appeal that an appeal has been or will be taken; that this purpose is fully accomplished by an oral notice given in open court in the presence of those officers, and can be shown in no better way than by a recital of that fact in a proper journal entry; and that when the case-made further shows the allowance of time for making and serving a case-made, the service thereof upon the county attorney within the time prescribed, the county attorney’s agreement thát it is true and correct and may be settled and signed as such, its proper certification by the judge, the filing of it in. his office, and the approval and filing of a supersedeas bond, then it is shown that the county attorney and county judge were as fully apprised of the defendant’s intention to appeal as they could possibly have been by any character or number of written notices to that effect; and that anything further i& purely ceremonial, and is useless and senseless.

Whether or not the statute in question is wise or useful, or prescribes only a mere idle ceremony, is a question for the determination of the lawmakers and not for the courts. The Legislature is the sole judge of the necessity, wisdom or expediency of any law within its power to enact.. It is within its power to regulate the manner of taking appeals, and this statute was designed for that purpose. The only matter left for us to determine then is, what does the statute mean?

Our laws contain positive provisions in regard to the allowance of time for making and serving case-mades. An appeal which involves the consideration of the evidence and the rulings of the .trial court upon the admission or rejection of evidence can be taken only by a case-made or by transcript containing a bill of exceptions. The service of the case-made or bill of exceptions, notice of the time and place of settling and signing the same or a waiver thereof, and the signing and settling are by express statutes made indispensable prerequisites to the taking of an appeal for the review of any question except such as may be presented on the record proper. Moreover, if the defendant would prevent the enforcement of the judgment against him pending the appeal, the statute provides that be must give a Supersedeas bond, and cause it to be approved and filed. ’In addition to these provisions, and separate and apart from them, the statute in express terms requires that notice of appeal must'be given. Now,-whether that notice may be written or oral, no one eán contend that "such knowledge of the matter as the judge may obtain from the defendant’s request for time to make and serve a ease-naade, its presentation to him- for settling and signing, the filing of it in his court,- and from the approving and filing of the supersedeas bond, or such knowledge as the county attorney may receive from the service of the case-made upon him, is the notice which the statute contemplates and prescribes. If it were, then section 6949 is entirely superfluous; for the doing of all these other things necessary to an appeal, which imparts to the proper, officers knowledge that an appeal is being contemplated, is already provided for by other mandatory sections of the statute. But these sections must be construed together. They are not contradictory or conflicting; and they must be so construed if possible as to give meaning and effect to every word, clause and sentence of each provision. We find that in the great majority of the states the requirements in this respect are practically the same. The case-made or bill of exceptions must be served and it must be settled and signed; yet in nearly all of the states, notwithstanding the judge and prose•cuting attorney actually know from these preliminary steps that an appeal is intended, still formal notice of appeal and proof thereof are required in criminal cases. A defendant in error in a civil suit knows by the service of the case-made upon him or his attorney that an appeal is intended, but his actual knowledge of that fact does not dispense with the necessity of service of a citation or summons in error upon him, and a written one at that, unless waived by him.

Now, if the knowledge obtained by these officers from their handling of the ease-made preparatory to the appeal does not dispense with formal notice of some kind, if notice either written or oral is still required, then all that portion of the argument in regard to the knowledge of the officers obtained from handling the record is without weight and may be left out of view. For if formal notice, either written or oral, is required, actual knowledge does not supply its place.

. Then all that is left for plaintiff in error to stand on is the fact that he gave oral notice of appeal to the proper officers, in open court; and here we are brought face to face with the real question in the case, is oral notice sufficient ? We think not. It may be laid down as a general proposition, first, that wherever the statute requires notice to be served in a legal proceeding, a written notice capable of legal service, and of proof and return, and capable of being filed, is intended; and especially is that true where service of such notice and proof thereof are matters jurisdictional, as they are in this character of proceedings. Jenkins v. Wild, 14 Wend. (N. Y.) 539; Minard v. Douglass County, 9 Ore. 206; Rathbun v. Acker, 18 Barb. (N. Y.) 393.

In the next place, in our opinion, a close and analytical examination of the section in question shows conclusively that only written notice is contemplated. The statute provides that an appeal is taken by the service of a notice. The word service itself as used with reference to summonses, writs, subpoenas, notices and other legal processes, means the reading of the same to the person to be served, or the delivery to such person of the original or a copy' thereof. We are aware that there are times and occasions when the word is otherwise used, but generally stated in legal proceedings when the expression "service of a notice” is used without qualification, it means a personal service of a written notice. In the next place, it will be observed that the statute provides that the appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered. It does not require service upon the judge or upon the court, but only upon the clerk. There being no mandatory provision that the county court shall have a clerk, service either upon the county judge or his clerk, if be has one, is held good; but under this statute the service of notice upon the district judge or the district court in open court would not be good. The service in the district court must be upon the clerk of the court. In Baberick v. Magner, 9 Minn. 217, it is held that the purpose of requiring the notice to be served upon the clerk is that the files may be supplied with some evidence as to the character of the notice given, and that the notice served on the clerk is to be regarded as a file in the case.

The statute further provides that if the appeal 'be taken by the defendant, “a similar notice must be served upon the prosecuting attorney; if taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the court/-’ Suppose that the’ appeal be taken by the state, and that the defendant be foimd in the county; would oral notice to the defendant, miles away from the county seat, be isuch service of notice upon him as is contemplated by the statute? Or would the state be required to serve a written notice upon him, and have proper proof and due return thereof made?

In the next place, no provision is made in our statute for the issuance or service of citation or summons in error in a criminal ease. In our opinion notice of appeal is analogous to such summons in error, and is designed to take the place thereof. It was so held in Pacific Coast Ry. Co. v. Superior Court, 79 Cal. 103, 31 Pac. 609. And when such purpose of the notice is considered, we think that the conclusion must inevitably follow that the notice must be in writing, must be served, and that proof of service must be properly made. See Hunter v. Ter. (Ariz.) 36 Pac. 175.

The Indiana statute and our statute are identical; and in McLaughlin v. State, 66 Ind. 193, where appellant gave notice of appeal in open court and the same was entered upon the journal of the court, the Supreme'Court dismissed the appeal, saying:

“The statute provides, that the appeal must be taken within one year after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken. An appeal is taken by the service of a notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. 2 R. S. 1876, p. 411, secs. 151, 152.
“There being no proof of notice to the clerk and the prosecuting attorney, as above required, we have nothing before us to show that an appeal has been taken in the cause.
“It is the notice which constitutes the appeal. Winsett v. The State, 54 Ind. 437; Buskirk Practice, 417.
“An appeal in a criminal cause, during term time, by order of the court trying the cause, is not authorized by ihe statute and does not dispense with the notice provided for in section 152, supra.”

And in Buell v. State, 69 Ind. 125, the court said:

“In section 152 of the Criminal Code of this state, it is provided that ‘An appeal is taken by the service of a notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment. If taken by-the defendant, a similar notice must be served upon the prosecuting attorney/ 2 R. S. 1876, p. 411. In the case at bar, it does not appear that the appellant has served any notice of his intended and attempted appeal upon either ‘the clerk of the court where the judgment was rendered,’ or ‘upon the prosecuting attorney.’ It does appear, however, from the record of the cause, that, upon the rendition of the judgment below, the appellant prayed an appeal to this court, and tendered his appeal bond with certain named sureties, which bond was approved. Such mode of appeal to this court, in a criminal cause, is not authorized by any provision of the Criminal Code of this state. In the recent case of McLaughlin v. The State, 66 Ind. 193, it was held by this court that an appeal in a criminal cause, during term time, was not authorized by the statute, and though prayed for and granted in open court, such an appeal would not dispense with the notices required in and by said section 152 of the Criminal Code. In other words, it is the statutory notices- which constitute the appeal. Buskirk Prac. 417.”

See, also, State v. Rogers, 71 Iowa, 753, 32 N. W. 7; Territory v. Hanna, 5 Mont. 246, 5 Pac. 250; Bailey v. Ter., 9 Okla. 461, 60 Pac. 117; Arispi v. Ter., 2 Okla. Cr. 79, 99 Pac. 1099; Howard v. State, 2 Okla. Cr. 642, 103 Pac. 864; McCullough v. State, 2 Okla. Cr. 717, 103 Pac. 1071.

It is stated by plaintiff in error that in no decision construing this statute in this jurisdiction has it ever been said that the notice must be in writing; but we find that in Bailey v. Territory, 9 Okla. 461, 60 Pac. 117, Judge Burford said, “In either case the notices served upon the clerk and county attorney, with proof of service, should be filed with the record in this court, or duly authenticated copies filed in lieu thereof.” And in Arispi v. Territory, 2 Okla. Cr. 79, 99 Pac. 1099, Judge Doyle said, “In order to give this court jurisdiction, notice as required by the foregoing provision must be served upon the clerk of the court and the prosecuting attorney. The proof of service and the notices, or a waiver of the same, should be filed with the record in the appellate court, or in lieu thereof there should be filed duly authenticated copies.” And we are unable to perceive how an oral notice can be filed, or a duly authenticated copy thereof made.

We think that the construction heretofore placed upon this statute is correct. It has been uniformly followed in this court, and we see no reason why it should be changed now.

In 1909 the Legislature passed an act requiring appeals in misdemeanor eases to be taken within sixty days after rendition of judgment, unless the trial court for good cause shown should grant an extension of time for that purpose, not exceeding sixty days. See. 6948, Snyder’s Comp. Laws. This act became effective June 11, 1909. Prior to that time a defendant had a year in which to perfect his appeal. The offense of which plaintiff in error was convicted is alleged to have been committed on May 19, 1909; the information was filed on July 17th of that year, trial was had on July 19th; motions for a new trial and in arrest of judgment were filed, and were overruled on October 2, 1909, on which day the court rendered the judgment appealed from. And it is now contended that inasmuch as the offense was committed, if at all, before this act became effective, plaintiff in error is entitled to a full year in which to appeal, and therefore may yet serve the notices required and thus avoid a dismissal, although ,the information was not filed, trial had, or judgment rendered until after the act took effect. It is admitted by plaintiff in error that the act in question relates only to the procedure, and is not therefore ex post facto; but he insists that the right contended for is preserved to him by section 54 of article 5 of our Constitution, which reads' as follows:

“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”

Plaintiff in error places his reliance on that porsion of the above section relating to “proceedings begun by virtue of such repealed statute.” But again we are, compelled to disagree with him. No proceeding of any kind had been instituted at the time the act in question became effective. No right to appeal had accrued, because no trial had been had and no judgment had been rendered. No appeal had been “begun.” And it would seem to require neither argument nor citation of authorities to show that this prosecution was not a proceeding begun by virtue of the statute, now repealed, granting to a defendant convicted of a misdemeanor a year in which to appeal. What that statute had to do with making criminal the. act complained of, we are unable to perceive. This prosecution was begun by virtue of the statute making it an offense to sell intoxicating liquor or to have the same in one’s possession with the intent to sell. That was the basis of the action, the statute creating and- defining the crime; and that was the statute- under and by virtue of which the proceeding was begun and carried on. If, after the. prosecution had been instituted, the prohibition law had been repealed, under the constitutional provision quoted the state’s right to proceed with the prose-ration would not have been affected thereby; but the law prescribing the procedure during the trial or any portion thereof, and the manner and time of taking the appeal, is not within either the letter or the spirit of the section quoted.

Lastly, it is urged by plaintiff in error that the motion to dismiss should not be entertained, because .the same was not filed by the state until after the time had expired within which plaintiff in error might serve such notice upon the county attorney and the clerk of the county court. A sufficient answer to this contention is the fact that the service of such notice is jurisdictional, and until such service is had and proof thereof has been made and filed in this court, no appeal has in fact been taken, and this court has acquired no jurisdiction of the cause. And that being true, even if no motion to dismiss is ever filed by the state, unless the state enters its appearance, the court is bound to dismiss the appeal for want of jurisdiction. If a plaintiff in error desires this court to review a judgment of conviction against him, the affirmative duty rests upon him to perfect his appeal in the manner and within the time prescribed by law; and the state is no more required to move for a dismissal of an appeal on this ground within the time prescribed by law for perfecting the appeal than is a defendant in a civil suit, on whom no summons has been served, required to move for the dismissal of the plaintiff’s petition before the action is barred by the statute of limitations.

The motion to dismiss must be sustained. It is therefore ordered that .the purported appeal herein be and the same is hereby dismissed, and that a mandate issue to the County Court of Wagoner County directing said court to enforce its judgment herein.

FTJBMAN, Presiding , Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    WALTER JAMES v. STATE.
    No. A-464.
    Opinion Filed May 28, 1910.

      Appeal from County Court of Wagoner County; W. T. Crake, Judge.

    Walter James was convicted of violating the prohibition law, and sentenced to pay a fine of $300.00 and to be imprisoned in the county jail for a term of sixty days, and he appeals.
    Appeal dismissed.

      B. J. Berners, for plaintiff in error.

      Fred, 8. Caldwell for the State.
   PER CURIAM:

No notice of appeal was given-by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws of Okla. the record showing only that plaintiff in error, on being sentenced, prayed an appeal which was allowed. The State has filed a motion to dismiss the appeal for failure to file the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed; and that a mandate issue directing the county court of Wagoner county to enforce its judgment herein.


author: PEE CTJEIAM.

text:
    JOE FLOWERS v. STATE.
    No. A-466.
    Opinion Filed May 28, 1910.

      Appeal from the County Court of Wagoner County; W, T. Drake, Judge.

    Joe Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $100.00 and be imprisoned in the county jail for a term of ninety days, and he áppeals.
    Appeal dismissed.

      B. J. Beavers, for plaintiff in error.

      Fred S. Caldwell, for the State!
   PEE CTJEIAM.

No notice of appeal was given by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws Olda., the record showing only that plaintiff in error, on being sentenced, prayed an appeal which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Bnsley v. State, infra, 109 Pac. 250, the motion is well taken and will be sustained.

It is therefore ordered that the purported appeal herein be, and the same is hereby dismissed; and that a mandate issue directing the County court of Wagoner county to enforce its judgment and sentence herein.


author: PEE CUEIAM.

text:
    C. M. NICHOLS v. STATE.
    Nos. A-461 and A-462.
    Opinion Filed May 28, 1910.
    (109 Pac. 255.)

      Appeal from Wagoner County Court', W. T. Drake, Judge.

    C. M. Nichols was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned-in the county jail for a term of 60 days, and he appeals.
    Appeal dismissed.

      B. J. Beavers, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE CUEIAM.

No notice of appeal was given by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws Okla.; the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to enforce its judgment and sentence herein.


text:
    JOHN FLOWERS v. STATE.
    No. A-472.
    Opinion Filed May 28, 1910.
    (109 Pac. 255.)

      Appeal from Wagoner County Court; W. T. Drake, Judge. ■

    John Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $100 and to be imprisoned in the county jail'for a term» of 30 days, and he appeals.
    Appeal dismissed.

      B. J. Berners, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE CUEIAM.

No notice of appeal was given by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws Oída.; the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Hpon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to- enforce its judgment and sentence herein.


text:
    P. W. WILLIAMS v. STATE.
    No. A-445.
    Opinion Filed May 28, 1910.
    (109 Pac. 255.)

      Appeal from Wagoner County Court'; W. T. Drake, Judge.

    P. W. Williams was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned in the county jail for a term of 30 days> and he appeals.
    Appeal dismissed.

      B. C. Allen, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PEE CUEIAM.

No notice of appeal was given by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws Oída.; the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to enforce its judgment and the sentence herein.


author: PER CURIAM.

text:
    JOE FLOWERS v. STATE.
    No. A-467.
    Opinion Filed May 28, 1910.
    (109 Pac. 256.)

      Appeal from Wagoner County Court; W. T. Drake, Judge.

    Joe Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a term of 30 days, and he appeals.
    Appeal dismissed.

      B. J. Beavers, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

No notice of appeal was given by plaintiff in error, as provided by _ section 6949 of Snyder’s Comp. Laws Oída.; the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure, to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to enforce its judgment and sentence herein.


text:
    WALTER JAMES v. STATE.
    No. A-463.
    Opinion Filed May 28, 1910.
    (109 Pac. 255.)

      Appeal from, Wagoner County Court; W. T. Brahe, Judge.

    Walter James was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a term of 90 days, and he appeals.
    Appeal dismissed.

      B. J. Berners, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

No notice of appeal was given by plaintiff in error as provided by section 6949 of Snyder’s Comp. Laws Oída.; the record showing only that plaintiff in error, 'on being sentenced,, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and' the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to enforce its judgment and sentence herein.


text:
    BOB AYTCH v. STATE.
    No. A-471.
    Opinion Filed May 28, 1910.
    (109 Pac. 256.)

      Appeal from Wagoner County Court; W. T. Drake, Judge.

    Bob Aytch was convicted of violating the prohibition law, and sentenced to pay a fine of $400' and. to be imprisoned in the county jail'for a term of 6 months, and-he' appeals.
    Appeal dismissed.

      B. J. Berners, for plaintiff in error.

      Fred S. Caldwell, for the'State.
   PER CURIAM.

No notice of appeal- was given by plaintiff in error, as provided by section 6949 of Snyder’s Comp. Laws Okla.'; the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state ha& filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well taken, and will be sustained.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a -mandate issue directing the county court of Wagoner county to enforce its judgment and sentence herein.


text:
    BOB MALONE v. STATE.
    Nos. A-468, A-469, and A-470.
    Opinion Filed May 28, 1910.
    (109 Pac. 255.)

      Appeal from Wagoner County Court :, W. T. Drake, Judge.

    Bob Malone was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned in the county jail for a term of 90 days, and he appeals.
    Appeal dismissed.

      B. J. Beavers) for plaintiff in error.'

      Fred 8. Caldwell, for the State.
   PEE CUEIAM.

No notice of appeal was given by plaintiff-in error as provided by section 6949 of Snyder’s Comp.*Laws Oída.;. the record showing only that plaintiff in error, on being sentenced, prayed an appeal, which was allowed. The state has filed a motion to dismiss the appeal for failure to serve the notices required by law. Upon the authority of Ensley v. State, infra, 109 Pac. 250, the motion is well.taken, and will be sustained.

It is therefore ordered that the purported appeal herein be ■and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county, to. enforce its.judgment and sentence herein.


text:
    M. J. WADE v. STATE.
    Nos. A-454 and A-455.
    Opinion Filed May 28, 1910.
    (109 Pac. 254.)

      Appeal from Wagoner County Court; W. T. Drake, Judge.

    Mts. M. J. Wade was convicted of violating the prohibition law, and her punishment assessed at a fine of $250 and imprisonment in the county jail for a term of 30 days. From an order overruling a motion for a new trial and in arrest of judgment, she appeals.
    'Appeal dismissed.

      Robert F. Blair, for plaintiff in error.

      Fred 8. Caldwell', for the State.
   PEE CTJEIAM.

The record in this ease is in the same condition as that in ease number A-456; just decided, entitled Jake Ensley v. State of Oklahoma, infra, 109 Pac. 250; no written notices of appeal having been served. The state has filed a motion to dismiss this appeal on that account, and plaintiff in error has filed a response identical with .that filed in the Ensley Case, and has made the same showing as made in that case. Eor the reasons stated in the Ensley Case, we hold the notice given insufficient, and therefore sustain the motion to dismiss the appeal.

It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue directing the county court of Wagoner county to enforce its judgment and sentence herein.


text:
    WALTER STEEN v. STATE.
    No. A-77.
    Opinion Filed May 28, 1910.
    (109 Pac. 1118.)

      Appeal from Tulsa County Court; N. J. Gubser, Judge.

    Walter Steen was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a period of 90 days. From an order overruling a motion for a new trial, he appeals.
    Appeal dismissed.

      Davidson & Malloy, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PEE CTJEIAM.

The record in this case discloses the service of no notice of appeal upon either the county judge, the clerk of the county court, or the county attorney. For that reason the state has filed a motion to dismiss the appeal herein, to which motion plaintiff in error has filed no response. The motion is well taken, and will be sustained. It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that a mandate issue to the county court- of- Tulsa county, directing said court to enforce its judgment and sentence herein.


text:
    FRED EDWARDS v. STATE.
    No. A-282.
    Opinion Filed May 28, 1910.
    (109 Pac. 256.)

      Appeal from Blaine County Court; C. F. Malcomb, Judge.

    Fred Edwards was convicted of a violation of the prohibition law, and he appeals.
    Appeal dismissed.

      Baker & Bloss, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Blaine county for the crime of unlawfully selling intoxicating liquor. The judgment was entered on August 10, 1908, and he was sentenced to be confined for a period of 30 days in the county jail and to pay a fine of $50 and costs, from which judgment and sentence an appeal was attempted to be taken by filing in this court on August 7, 1909, a petition in error with case-made attached.

On March 9, 1910, on behalf of the state, there was filed a motion to dismiss the appeal, for the reason that no notices of appeal have been served and filed as provided and required by section 6949, Snyder’s St. In response to said motion it is contended:

“First, that the statute does not require any particular way br- manner: in which such notice should be served or given, and under such circumstances a notice in open court is always treated and. considered as fully complying with such statutory requirements; second, that the plaintiff in error, defendant below, gave notice in open ourt, at the time the motions for a new trial and in arrest of judgment were overruled, of appeal, as will more fully appear from an examination of record and case-made (page 41), and the stipulation of parties filed and of record in this court shows that the county attorney and the clerk of the county court were both present at said time; third, for the further reason that the stipulation of parties filed in this court shows that the notice was given in open court, and that the county attorney and clerk of the county court were both present at said time, and could not be heard to say that they did not both have full knowledge of the fact, and that such notice as so stipulated serves all purposes that a written notice so served upon them could have done, and fully complies with the -requirements of the law.”

This question has heretofore been passed upon by this court in numerous cases, commencing with Arispi v. Territory, 2 Okla., Cr. 79, 99 Pac. 1099, up to the ease of Jake Ensley v. State, infra, 109 Pac. 250, wherein the authorities are fully reviewed in an opinion by Judge Bichar dson. The second syllabus is as follows:

“Under section 6949 of Snyder’s Comp. Laws, requiring notice of appeal to be served'upon the clerk of the court and the prosecuting attorney, a written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by journal entry, is insufficient.”

For the reasons given in the opinion, and upon the authorities cited in that case, the motion to dismiss the appeal must be sustained.

It is therefore ordered that the purported • appeal herein be and the same is hereby dismissed, and the case remanded to the county court of Blaine county, with direction to enforce the judgment and sentence.


text:
    W. P. SCOTT v. STATE.
    No. A-168.
    Opinion Filed May 28, 1910.
    (109 Pac. 240.)
    1. INDICTMENT AND INFORMATION — Intoxicating Liquors — Duplicity. An information charging defendant with unlawfully carrying whisky from one place to -another within the state, and also that he did on a certain date willfully give away whisky' to a person named, was a violation of Snyder’s St. sec. 6699, providing that an indictment must charge hut one offense.
    2. SAME.— .General Verdict — Sufficiency. Where an indictment' charged illegally carrying liquor from place to place, and also an illegal sale,' a general verdict of guilty is not sufficiently . certain to enable -the court to pronounce judgment.

      Appeal from Washita County Court; L. B. Shean, Judge.

    W. P. Scott was convicted of a violation of'the prohibition law, and he appeals.
    Reversed.

      Knott & Smith, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Washita county upon an information the charging part of which is as follows: . ...

“Did then and there, wilfully and unlawfully carry intoxicating. liqupr, to wit, whiskey, from one. place within the state to another therein, the said whiskey so conveyed not being a lawful purchase, as authorized by the laws of Oklahoma. The above count is based upon complaint of W. H. Dean duly filed April 20, 1908, which is referred to and made a part of this information. Second, Said P. W. Scott did on the 20th day of April, 1908, wilfully and unlawfully give away and otherwise furnish intoxicating liquor, to wit, whiskey, to one Enoch Montgomery,- contrary to the form of the statute,” etc.

To which information a demurrer was filed, alleging, among other grounds, that the information charges or pretends to charge two offenses. Upon a trial had the jury returned the following verdict: “We, the jury, duly impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths find the defendant guilty.” On May 9, 1908, judgment was entered, and the defendant was sentenced to pay a fine of $Í25 and be confined'for a period of 75 days in the county jail. From which judgment and sentence an appeal was taken by filing in this court on May 8, 1909, a petition in error with ease-made attached.

The first assignment of error alleged in the petition is: “That the court erred in overruling the demurrer to the information filed in said cause.” Section 6699, Snyder’s Statutes, provides:

“The indictment must charge but one offense, but where the .same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses, may be set forth in separate counts in the same indictment and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

Upon the authority of Sturgis v. State, 2 Okla., Cr. 362, 102 Pac. 57, and De Graff v. State, 2 Okla., Cr. 579, 103 Pac. 538, the objection of plaintiff in error was well taken, and the judgment cannot be permitted to stand. In Sturgis v. State, swpra, Presiding Judge Furman, after reviewing' the authorities, used’ this language:

“As we approve the reasoning of the cases above quoted, we will not pursue this question further than to state that selling intoxicating liquor and shipping or conveying §uch liquor from on$ place in the state to another place in the state cannot be joined in the same information or indictment. They constitute distinct offenses, based upon separate transactions or acts. The trial court, therefore, erred in not' sustaining the objection to the indictment upon the ground of duplicity.”

The verdict rendered is a general verdict of guilty, not specifying'whether the defendant is guilty of'the offense charged in the first or second count of the information, or both, and is not sufficiently certain to enable the court to pro'nounce Judgment upon it according to the right of the case. Where an information contains more than one count, it should clearly show on its face' that the matter set forth in the different counts is descriptive of one and the same offense.

The Judgment1 of the county court is therefore reversed, and the cause remanded, with direction to sustain the demurrer.


text:
    R. C. BITTLE v. STATE.
    No. A-166.
    Opinion Filed May 28, 1910.
    (109 Pac. 1113.)

      Appeal from Washita County Court; L. B. Shewn, Judge.

    R. C. Bittle was convicted of a violation of the prohibition law, and appeals.
    Reversed.

      Knott & Jones, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Washita county upon an information the charging part of which is as follows: “Did then and there wilfully and unlawfully give away and otherwise furnish intoxicating liquor, to wit, whiskey, to others, to wit, to one Mrs. Andrew Davis.” Second count: “And said Bittle did on said date convey intoxicating liquors from one place in the state to another, same not being a lawful purchase.” To which information a demurrer was filed, alleging, among the other grounds, that the information is bad for duplicity, in that more than one offense is sought to be charged therein. Upon a trial had, the jury returned a verdict, which reads as follows: “We, the jury duly impaneled and sworn to try the issues, in tbe above-entitled cause, do upon our oaths find the defendant guilty.” On May 9, 1908, judgment was entered, and defendant was sentenced to pay a fine of $100 and to be confined in the county jail for a period of 60 days, from which judgment and sentence an appeal was taken by filing in this court on May 7, 1909, a petition in error with ease-made attached. Upon the authority of Sturgis v. State, 2 Okla. Cr. 362, 10.2 Pac. 57, and De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 558, the objection of plaintiff in error was well taken, and the demurrer should have been sustained. In Sturgis v. State, supra, Presiding Judge Furman, after reviewing the authorities, used this language:

“As we approve the reasoning of the cases above quoted, we will not pursue this question further than to state that selling intoxicating liquor and shipping or conveying such liquor from one place in the state to another place in the state cannot be joined in the same information or indictment. They constitute distinct offenses, based upon separate transactions or acts. The trial court, therefore, erred in not sustaining the objection to the indictment upon the ground of duplicity.”

The verdict rendered is a general verdict of guilty, not specifying whether the defendant is guilty of the offense charged in the first or second count of the information, or both, and is not sufficiently certain to enable the court to pronounce judgment upon it according to the right of the cause. Where an information con-' tains more than one count, it should clearly show on its face that the matter set forth in the different counts is descriptive of one and the same offense. The judgment of the county court, is therefore reversed, and the cause remanded, with direction to sustain the, demurrer.


author: RICHARDSON, Judge.

text:
      In re W. C. JONES.
    No. A-724.
    Opinion Filed June 8, 1910.
    (109 Pac. 570.)
    1. MUNICIPAL CORPORATIONS — Powers—Scope. The powers of a municipal corporation are only those granted by express words; those fairly implied in, or incident to, the powers expressly granted; and tliose indispensable to the declared objects and purposes of t'he incorporation.
    2. NUISANCE — Power to Declare — Billiard and Pool Halls. Within constitutional limitations the Legislature has the power to- declare what shall constitute a nuisance; ‘ and in the exercise of that power it is not restricted to ■ declaring only such things a nuisance as were so at common law or are so per se. It may declare billiard and pool halls and,.bowling alleys nuisances and forbid them.
    3. SAME — Delegation of Power to Municipal Corporations. The Legislature may lawfully delegate to municipal corporations, to be exercised within their corporate -boundaries, the power to declare what shall constitute a nuisance and to prevent the same.
    4. SAME — Scope of • Municipality's Power. A statutory grant of • power to a municipality to declare what shall constitute a nuisance does not empower the municipality to declare a thing a nuisance which is clearly not one; but it does empower the mu - nicipality to declare anything a nuisance' which-'is so per se, or. - I which by reason of its location, management or use, or of local conditions and surroundings, may or does become such within the common law or statutory definition of a nuisance, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds.
    5. SAME — Discretion of Municipality. Where a thing may or may not be a nuisance, depending, upon its location,- management or use, and the conditions existing in the municipality, thus requiring judgment and discreUon in determining the matter, the determination of the question by a municipality having power to declare what shall be a nuisance is conclusive upon the courts.
    6. NUISANCE — What Constitutes. Under section 4751 of Snyder’s Comp. Laws and by the common law, anything which annoys, injures or endangers the comfort, repose, health or safety of others, is a nuisance.

      7. SAME — Billiard and Pool Rooms. The operation of a billiard hall or a pool room for gain is not recognized by the law as necessary or useful, or as a business which a person has an inherent right to engage in; and a municipal ordinance declaring them a nuisance and forbidding them, passed under statutory authority to declare what shall constitute a nuisance and to prevent the same; is valid.'
    8. APPEAL — Recitals in Judgment — Conclusiveness. "Where a » judgment of a justice of the peace recites that after duly considering the “evidence as produced and confessed” the court finds the defendant guilty, in the absence of an affirmative showing that no evidence was introduced, it will be presumed that evidence was taken.
    (Syllabus by the 'Court.)

      Original Proceeding by Habeas Corpus.

    The Incorporated Town oí Eldorado, Oklahoma, passed an ordinance entitled "An ordinance describing what shall constitute a public nuisance; prescribing the punishment for maintaining the same, and providing methods for the abatement thereof,” by which ordinance it was declared in substance that all billiard halls, poolrooms, or other places where any billiard, pool or combination billiard and pool table or tables are or may be kept or operated for hire, shall be deemed public nuisances, and making it a misdemeanor punishable by a fine of $25.00 for any. person, either as owner, servant or employee, to open, establish, carry on or maintain the same, or to assist in so doing, within the corporate limits of said town, and making each day’s continuance thereof a separate offense. This ordinance became effective on January 1, 1910. .
    On January 25, 1910, the petitioner W. C. Jones was convicted before the town justice, of Eldorado of violating, said ordinance by running a poolroom for hire in said town, and he was sentenced to pay a fine of $25.00 and cost, failing and,refusing to pay which he was ordered committed to the town jail to be there imprisoned until said fine and cost were liquidated, allowing him $2.00 per day for each day of his imprisonment. . Being- in custody under said .commitment, he applied to this, court fox a writ of habeas corpus to the end that he be released. He contends that his imprisonment is illegal for two reasons: first, because the ordinance in question is void for want of power in the town trustees to enact the same; and second, because the judgment of conviction is void in that it was rendered without any testimony being taken or produced, and without any plea of guilty beihg entered by petitioner. The writ was issued and served, and return thereto was made setting forth the ordinance in question, the complaint made against petitioner in the justice court, the justice’s record of the trial and judgment, and the order of commitment under which petitioner is held; and upon these the cause came on for determination.
    Writ discharged and petitioner remanded to custody.

      J. T. Skive and Henry Bulow, for petitioner.
    Citing 1 A. & E. Ene. L. 89; In re Sam Kee, 31 Fed. 680; Hennessey v. St. Paul, SI Fed. 565; In re Gribben, 5 Okla. 379; 20 A. & E. Ene. L. 1140; Stale v. Young, 3 Kan. 445; Whiting v. West Point, 88 Ya. 905.

      W. C. Austin and Shartel, Keaton & Wells, for respondent.
    No brief reached the reporter.
   RICHARDSON, Judge.

It is contended by petitioner that the ordinance in question is void, for the reason that the Incorporated Town of Eldorado had no statutory grant of power to pass the same; that municipal corporations are creatures of the Legislature, and can exercise only such powers as are expressly conferred by their charter or by statute; that a grant of power to them must be strictly construed, so that they take nothing by implication; and that they have no power to declare anything a nuisance unless it is so per se.

It is true that a municipal corporation has no power except that which is specifically granted or necessarily implied. Dillon on Municipal Corporations defines the powers of such corporations as, “First, those granted in express words; second, those necessarily or fairly implied in,, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” And he also states that, “Any fair, reasonable doubt concerning the existence of power is resolved by the court against the corporation, and the power is denied. Of every municipal corporation, the charter or statute by which it was created is its organic act. Neither the corporation nor its officers can do any act or make any contract or incur any liability not authorized thereby. All acts beyond the scope of the powers granted, are void.” The foregoing statements of the law have been quoted, approved and adopted by courts innumerable; and constitute perhaps- as clear, accurate, and succinct a rule for determining the power and the limitations upon the power of municipal corporations as could be formulated. Bearing this rule in mind, then, as our guide, let us examine our statutes and see if such power as that attempted to b.e exercised by the passage of this ordinance is granted to incorporated towns in this state.

Cities of the first class are by express statute authorized “to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution, and other disorderly houses.” Section 683, Snyder’s Comp. Laws. But no such express grant of power is given to incorporated towns and villages so far as billiard halls and bowling alleys are concerned. It is provided by section 847 of Snyder’s Comp. Laws with respect to towns and villages that, “The board of trustees shall have the following powers, namely: 4th, to declare1 what shall constitute a nuisance, and to prevent, abate and remove the same, * * And it is clear that if the town of Eldorado had the power to enact the ordinance in question that power must be found in the 4th sub-division of the section just quoted; and -from the title and wording of the ordinance it is also clear that it was from this source that the trustees claimed the power which they sought to exercise.

Within constitutional limitations the Legislature has the power to declare what shall constitute a nuisance; and in the exercise of that power it is not restricted to declaring only such things a nuisance as were so at common law or are so per se. Joyce on the Law of Nuisances, sections 81, 82. and 83; Ripley v. State, 4 Ind. 264; Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113; Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381; Moses v. United States, 16 App. D. C. 428, 50 L. R. A. 532; Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 113; Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205. It may declare billiard and pool halls and bowling alleys nuisances and forbid them; that is a legitimate exercise of the police power. State v. Noyes, 30 N. H. 279; Freund on Police Power, sec. 193.

Now, the Legislature may delegate this power' to municipal corporations to be exercised within their corporate boundaries. “After repeated challenge of municipal authority to exercise the police power, on the ground that it is a sovereign power and therefore non-delegable, the doctrine is firmly established and now well recognized that the Legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power within their boundaries; the measure of power thus conferred is subject to legislative discretion.” 28 Cyc. 693, and the many cases there cited. And Judge Freeman states in his note to Robinson v. Mayor of Franklin, 34 Am. Dec. 625, 632, that, “Discretionary powers” granted to a municipal corporation, to be exercised according to its judgment as to the necessity or expediency of a given measure, vests the corporation, within the sphere of the powers delegated, with a control as absolute as the Legislature would have possessed if it had never delegated the powers, and the discretion of the municipality in respect to the exercise of the powers granted is as wide as that possessed by the government of the state.” And in support of the statement he cites the following cases: Gas Co. v. Des Moines, 44 Iowa, 509, 24 Am. Rep. 56; Dillon on Munic. Corp., sec. 308, (3d Ed.) ; Ex parte Burnett, 30 Ala. 469; Osborne v. Mayor, 44 Id. 498; Ex parte Wall, 48 Cal. 321, 17 Am. Rep. 425; Covington v. East St. Louis, 78 Ill. 550; Indianapolis v. Gas Light and Coke Co., 66 Ind. 402; Perdue v. Ellis, 18 Ga. 591; Kniper v. Louisville, 7 Bush (Ky.) 601; Mayor v. Morgan (La.) 7 Mart. 5, 18 Am. Dec. 234; Portland v. Water Co., 67 Me. 137; Heland v. Lowell, 5 Allen (Mass.) 108; State v. Dwyer, 21 Minn. 513; St. Paul v. Coulter, 12 Id. 46; Taylor v. Carondelet, 22 Mo. 110; Metcalf v. St. Louis, 11 Id. 103; State v. Noyes, 30 N. H. 288; Howe v. Plainfield, 37 N J. L. 146; Presb. Church v. New York, 5 Cow. 541; Markle v. Akron, 14 Ohio, 590; Respub. v. Duquet, 2 Yeates (Pa.) 500; State v. Williams, 11 S. C. 291; Trigally v. Memphis, 6 Coldw. (Tenn.) 389; Milne v. Davidson, 5 Mart. (La.) 409; 16 Am. Dec. 189, and note.

Now, turning again to the statute under consideration, we find that the board of trustees of incorporated towns are expressly empowered to declare what shall constitute a nuisance, and to prevent the same. This delegation of authority is apparently as broad and comprehensive as the Legislature could make it, and according to some decisions grants to a municipality the power to declare anything local in its character and operation a nuisance which the Legislature could constitutionally include in a statutory definition of the word, and' thus leaves the municipal power in this respect limited only by the state and federal Constitutions. But according to the greater weight of authority this grant empowers a municipality to declare only those things a nuisance which are so per se, or which by reason of their location or use may become such within the common law or statutory definition of a nuisance, or those things “which in their nature may be nuisances, but -as to which there may be honest differences of opinion in impartial minds”; and according to áll .the cases it does not and could not authorize a municipality to declare that a nuisance which is clearly not so. Laugel v. Bushnell, 197 Ill. 20, 58 L. R. A. 266; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207, 44 Am. Dec. 788; Harmison et al. v. City of Lewistown, 153 Ill. 313; Kansas City v. McAleer, 31 Mo. App. 433; Glucose Refining Co. v. City of Chicago, 138 Fed. 209; State v. Iams (Neb.) Ill N. W. 604, 11 L. R. A. (N. S.) 736. The real point of, division among the authorities is whether under this grant of power a municipality may enlarge tlie common law or statutory definition of a nuisance, or is restricted to declaring only those things a nuisance which in their nature, character and tendencies come within the establishéd definition of the word. We do not find it necessary to determine this question; for where under the statutory definition a thing may or may not be a nuisance, depending upon its location, management or use,, or upon the conditions existing in the municipality, thus requiring the exercise of judgment and discretion in determining the matter, it is held that under a grant of power such as is contained in this statute the action of the board of trustees, who reside in the town and are familiar with local conditions .and surroundings, and who are presumed to have investigated and considered the matter in all its phases, will be conclusive upon the courts. Thus in North Chicago City Ry. Co. v. Town of Lake View, supra, where it was held that under a statutory grant of authority to define, declare and prevent nuisances, a municipality might forbid the using of steam as a motive power on a public street, it was said:

“We do not at all question the general proposition, which has been argued with so much elaboration by appellant’s counsel, that under a general grant of power over nuisances, like tfie one in question, town authorities have no power to pass an ordinance declaring a thing a nuisance which in fact is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary, would be an abuse of it. But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of, circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question.”

The same doctrine was adhered to in Harmison et al. v. Lewistown, 153 Ill. 313, where it was held that a city or village might by ordinance forbid slaughter-houses within its corporate limits. The syllabus of that case is as follows:

“Under a general power over nuisances, town authorities cannot declare a thing a nuisance which is clearly not one; but if the thing is of such character that it might or might not be a nuisance, depending upon circumstances, the action of such authorities, in the exercise of their legislative functions, will be conclusive.”

In Kansas City v. McAleer, 31 Mo. App. 433, Justice Ellison announces the same rule, quotes from North Chicago City Ry. Co. v. Town of Lake View with approval, and holds that Kansas City, having power to define and declare what shall constitute a nuisance and to prevent the same, may forbid the running of a rock-crushing machine on any block within the corporate limits where there are as many as three residences. See also Laugel v. Bushnell, supra. The same rule is announced by Judge Kohlsaat in Glucose Refining Co. v. City of Chicago, 138 Fed. 209, and he cites in support thereof Dillon on Municipal Corporations, sec. 379; N. Chicago City Ry. Co. v. Lake View, supra; Roberts v. Ogle, 30 Ill. 459, 83 Am. Dec. 201; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; State v. Heidenhain, 42 La. Ann. 483, 7 South. 621; Walker v. Jameson, 140 Ind. 598, 37 N. E. 402, 39 N. E. 869, 28 L. R. A. 679, 683, 49 Am. St. Rep. 222; Monroe v. Gerspach, 33 La. Ann. 1011; Gundling v. Chicago, 176 Ill. 349, 52 N. E. 44, 48 L. R. A. 230; Cincinnati v. Miller, 11 Ohio Dec. 788; People v. Detroit White Lead Works, 82 Mich. 472, 46 N. W. 735, 9 L. R. A. 722; People v. Lewis, 86 Mich. 276, 49 N. W. 140. In Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830, the court said:

“We are not unmindful of the rulé that a municipal corporation has no power tó-treat a thing as a nuisance which cannot be one; but while we recognize this rule, we also recognize the equally well settled rule that it has the power to treat as a nuisance a thing that from its character, location and surroundings, may and does become such. In discussing this general subject it was said, in a recent case: ‘But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question/ North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; 44 Am. Rep. 788. The chancellor, in 'the course of a discussion of the question in the famous case of Hart v. Mayor, etc., 3 Paige, 213, said: ‘It therefore becomes necessary, in all populous towns and crowded harbors, to regulate such matters by police ordinances. And public policy requires that the corporation of the place, or conservators of the port, should not be disturbed in the exercise of those powers, unless they have clearly transcended their authority.’”'

See also Walker v. Towle, 156 Ind. 639, 53 L. R. A. 749; Chicago v. Gunning System, 214 Ill. 628, 70 L. R. A. 230; St. Paul v. Haugbro (Minn.) 66 L. R. A. 441; Ex parte Cheney, 90 Cal. 617; Waters Pierce Oil Co. v. Town of Iberia, 47 La. Ann. 863.

Now, under our statute (sec. 4751, Snyder’s Comp. Laws), and by the common law, anything which annoys, injures or endangers the comfort, repose, health or safety of others, is a nuisance. And who can say that a public billiard hall or poolroom operated for gain in a small town may not through its management or use, or on account of local conditions and surroundings, become a nuisance, or that it is not a- thing “which in its nature may b'e a nuisance, but as to which there may be honest differences of opinion in impartial minds?” Bowling alleys, tenpin alleys and stages for rope dancing were held at common law to be nuisances per se. 1 Hawk. P. C. by Curwood, c. 32, sec. 6; Jacob Kail’s case, 1 Mod. 76, 2 Keb. 846. In Tanner v. Trustees of Albion, 5 Hill (N. Y.) 121, 40 Am. Dec. 337, it is held that a ten-pin alley kept for gain is a nuisance at common law, and may be prohibited by a municipal corporation under a charter authorizing it to make bylaws relative to nuisances, although the printed rules of such alley posted up therein prohibited all betting and the attendance of minors. In the opinion the court said:

“Establishments of this kind in populous communities are, at best, and even when used without hire, very noisy, and have a tendency to collect idle people together and detain them from their business. When built and kept on foot for gain, the owner is interested to invite and procure as full an attendance as possible, day after day; and for this purpose-temptations beyond mere amusement are often resorted to, such as drinking and gaming. So far as I have been able to discover, erections of every kind adapted to sports or amusements, having no useful end, and notoriously fitted up and continued with the view to make a profit for the owner, are considered in the books as nuisances. Not that the law-discountenances innocent relaxation; hut because it has become matter of general observation, that, when gainful establishments are allowed for their promotion, such establishments are usually perverted into nurseries of vice and crime. Common stages for rope-dancers have been adjudged nuisances at the common law; ‘not only/ says Hawkins, ‘because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which can not but be very inconvenient to the neighborhood’: 1 Hawk, P. C., by Curwood, c. 32, sec. 6 * * * I mention common stages for rope-dancing, because bowling-alleys were long since held to stand on the same footing: Jacob Hall’s Case, 1 Mod. 76. Hall, a rope-dancer, had erected a stage, or was about erecting one, at Charing Cross, which the Court of King’s Bench pronounced to be a nuisance. Hale, C. J., mentioned as a precedent, ‘that in the eighth year of Charles I., Noy came into court and prayed a writ to prohibit a bowling alley erected near St. Dunstan’s Church, and had it.’ In the report of Hall’s Case, in 2 Keb. 846, • Chief Justice Hale is represented as saying that ‘Noy prayed a writ to remove a bowling alley; and had it, without any presentment at all.’ Thus we see Hawkins is sustained by the highest authority in saying that such places can not but be nuisances.
“The tendency of the alley being well known, it was adjudged to be a nuisance of itself; and a writ accordingly issued to remove it without any trial; Now this is not because rope dancing or playing at nine-pins, or any other game with bowls is a mischief; nor that being a spectator at a rope dance is censurable in the least. Such acts are not nuisances. In themselves they are entirely innocent. The nuisance consists in the common and gainful establishment for the purpose of sports, having the aptitude and tendency of which Hawkins speaks; not that this always produces the consequences of which he complains, but because there is imminent danger of its doing so.”

This decision was followed in Updike v. Campbell, 4 E. D. Smith (N. Y.) 570, where it was held that a contract leasing certain premises for the purpose of conducting a bowling alley therein was void, because the leasing was for an illegal purpose. And State v. Haines, 30 Me. 65, holds the running of a bowling alley an indictable nuisance, and says that it was such at common law. And we see no distinction in principle between a bowling alley and a billiard hall. We do not desire to be understood, however, as holding that billiard halls and bowling alleys are nuisances per se. There are plenty of modern decisions to the effect that they are not, and with them we are in entire accord. We cite these cases merely for the purpose of showing how they were regarded by the common law, and the differences of opinion that exist even among the courts in regard to the matter. That they may become nuisances, however, from the manner in which they are conducted, managed or used, from the character and conduct of the people who frequent them, or on account of local conditions or surroundings, no one will deny. They are not recognized as necessary or useful; no one has an inherent right to engage in that business, and the business is subject to regulation or absolute prohibition by the state or its duly authorized agencies.

The ease of Ex parte Murphy (Cal.) 97 Pac. 199, is a case very like the one at bar. Section 11, article 11, of the Constitution of California provides that, “Any county, city, town or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.” Under this provision the City of South Pasadena passed an ordinance in the exact words of the ordinance of Eldorado now in question. Murphy was convicted of violating the ordinance, and made application to the Court of Appeals for a release by writ of habeas corpus, contending that the ordinance was void in that poolrooms are not a nuisance per se, and that it was not within the power of the board of trustees of Pasadena to enact the ordinance. The court in holding the ordinance valid said:

“We may concede at the outset that the business of conducting a public billiard hall and poolroom is not per se a nuisance. In the case of Ex parte Meyers (Cal. App.) 94 Pac. 870, this court, in considering the validity of ‘an ordinance prohibiting minors from visiting * * * pubic billiard and pool rooms * * *5 said: ‘That a billiard hall is immoral per se because it is public will hardly be contended by any one.’ Petitioner insists that, unless the business is held to be immoral, or a nuisance per se, it is not subject to the exercise of the city.’s police power to the extent that it may be prohibited. His contention is that billiard halls and poolrooms fall within that class of cases, the conduct of which might, by reason'of the character of the business, prove obnoxious or injurious to health, or affect the comfort and welfare of others, such as laundries, tanneries, and soap factories; that as to those the power of a municipality is to regulate only. This is true as to that class of business recognized as necessary and useful employments, but the character of which renders their operation obnoxious to the health, welfare, or comfort of others in the community. The question of the reasonableness of ordinances regulating the conduct of such business, and excluding their operation from, or confining it to, certain prescribed limits, as well as the uniform operation of the same, is always a proper subject for. judicial inquiry. Such avocations being necessary and useful, the citizen, under proper restrictions, has a fundamental right to engage therein. Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 588. When dealing with a nonuseful calling, the power of the municipality is much broader. The citizen possesses no inherent right to conduct for profit a public place intended purely for the amusement of its patrons, the tendency of -which is immoral or vicious. In all such cases the question arises, what is the effect of the conduct of the business upon the morals and public welfare of the community. ‘That a public pool and billiard hall,’ says petitioner’s counsel, ‘is a proper subject for police regulation is not denied,’ and concedes that ‘stringent rules undoubtedly may be enacted to regulate the said business.’ Beferring again to the case of Ex parte Joseph Meyers, supra, wherein this court held that a poolroom was not per se a nuisance, it was said: ‘That it may become such by the presence of the professional billiardist and gambler, ready to fleece the unwary and to inculcate the gambling habit in the youths of the city, must be admitted.’ In the case of Tarkio v. Cook, 120. Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678, it is said: ‘Public billiard halls are regarded by many as vicious in their tendencies, leading to idleness, gambling, and other vices.’ In Goytino, v. McAleer et al., 4 Cal. App. 655, 88 Pac. 991, Mr. Justice Allen, expressing the views of this court, said: ‘Nor can it be -said that as ordinarily, if not invariably, conducted, such business might not within the limits of reasonable probability be attended with uses injurious to the public peace and morals.’ ‘Any practice or business, the tendency of which as shown by experience is to weaken or corrupt the morals of those who follow it, or to' encóuráge idleness instead of habits of industry, is a legitimate subject for regulation or prohibition.’ Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933; Ex parte Lacey, 108 Cal. 326, 41 Pac. 411, 38 L. R. A. 640, 49 Am. St. Rep. 93; State v. Thompson, 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 468. It thus appears that a public billiard hall and poolroom may, by reason of its environment or conditions existing in some communities, constitute a menace and danger to the morals and well-being of the citizens thereof; and it is therefore a subject for regulation or absolute prohibition, notwithstanding the fact that it is not a nuisance per se; the right of the city depending upon a question of fact, the existence of which it is conclusively presumed the board of trustees has properly passed upon, the courts cannot go behind such finding. Ex parte Shrader, 33 Cal. 279. Regulation measures, not extending to the stringency of prohibiton, might afford adequate protection in some communities, while in others conditions might exist by reason of which the public welfare demand the absolute suppression of the business. In all cases, however, the extent to which the power shall be exercised is a matter for the legislative body of the municipality to determine.”

The Supreme Court of Kansas in the case of Burlingame v. Thompson, 74 Kan. 393, sustaining an ordinance prohibiting the maintenance and operation of pool tables for hire in a city of the third class, said:

“Many games and practices may be detrimental to the welfare of a community which are unaccompanied by boisterousness and cannot be classed with nuisances of the disturbing kind. Some of the most enticing are reported as ‘gentlemen’s games,’ in playing which the nicest decorum is observed. So the constant tendency to become disorderly may be but one of the faults of the small-town poolroom. It may be vicious and not be loud. The Supreme Court of Nebraska has said that a poolhall in a village is apt to degenerate into a trysting place for idlers and a nidus for vice. (Morgan v. State, 64 Neb. 369. 90 N. W. 108.)”

They are evidently so regarded by the lawmaking power in our state, for by section 681 of Snyder’s Comp. Laws we find it provided that cities of the first class “shall have authority to levy and collect a license tax on * * * dramshops, saloons, liquor sellers, billiard tables and other gambling tables, bowling alleys,” etc.; and by section 683, that “the city council shall have power to enact ordinance to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution and other disorderly houses,” etc. To say the least, the statute casts a shadow on their reputation by the company to which it assigns them. And also it would be peculiar if the statutes, which have granted to cities of the first class ordinarily well policed, the power to suppress billiard halls and poolrooms, should be construed to withhold that power from towns and villages often possessing little or no police protection. In our opinion our statutes are not susceptible of that construction.

Our conclusions -therefore are: First, that the Legislature may lawfully delegate to municipal corporations the power to declare what shall constitute a nuisance within its corporate boundaries, and the power to prevent, abate or remove the same. Second, that under such delegation of power the municipality may not lawfully declare a thing a nuisance which clearly is not one, but that it may declare anything a nuisance which is so per se, or which by reason of its location, management or use, or on account of local conditions or surroundings, may or does become a nuisance within the common law or statutory definition thereof, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. Third, that where a thing neither necessary nor useful may or may not be a nuisance, depending upon a variety of facts and circumstances, or upon local conditions and surroundings, the determination of the question by the municipality through its legislative body, is, under such a grant of power, conclusive upon the courts. And fourth, that billiard halls and poolrooms are not protected as necessary or useful institutions; that they may or may not be nuisances, depending upon circumstances, ‘and that the determination of that question locally by the town trustees of Eldorado is conclusive upon us. We therefore hold the section "of the ordinance in question to be valid. '

Was there such a trial of the case before the town justice as would warrant a judgment of conviction ? .The judgment, omitting the caption, reads in part as follows:

“And’now, on this the 25th day of January, 1910, came on .to be heard the above entitled matter, the plaintiff present by W. C. Austin, special attorney for the plaintiff, and the defendant present in person and by his attorney, J. T. Shives. The defendant having waived arraignment in open court enters a plea of not guilty, and both parties having .announced ready for trial, defendant waives jury and thereupon the plaintiff reads. and offers the complaint charging the defendant with wilfully and unlawfully engaging in, establishing, opening, keeping, carrying on and assisting in carrying on, maintaining and assisting in maintaining a poolroom and place by then and there, to wit, on Jan. 24, 1910, in Eldorado, Oklahoma, keeping pool tables for hire and for public use in violation of ordinance Number .40 of the said incorporated town of Eldorado, Oklahoma. And the defendant after the plaintiff had proven the ordinance under which said charge was made enters a confession on his part of having committed the corporal -acts and matters therein charged against him; and the court aider hearing the argument of the counsel and after duly and fully considering the law applicable thereto, and the evidence as pro-■dueed and confessed, finds the defendant guilty as charged; and it is the order of the court that a fine of $25.00 be and the same is entered against the said defendant..”

This judgment purports to have been rendered upon “the evidence as produced and confessed”; no attempt has been made to show by evidence of any kind that no testimony was in fact taken; and in the face of the judgment recital we will not presume that the justice did not in fact hear testimony.

We therefore hold that the petitioner’s imprisonment is not illegal. The writ of habeas corpus heretofore issued will accordingly be discharged, and the petitioner will be remanded to the custody of the town marshal. It is so ordered.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
      In re A. H. HULING.
    No. A-723.
    Opinion Filed June 8, 1910.
    (109 Pac. 576.)
    Application of A. H. Huling for writ of mandamus.
    Writ discharged, and petitioner remanded.

      J. T. Shive and Henry Bulow, for petitioner.

      W. G. Austin and Shartel, Eeat-on & Wells for respondent.
   PER CURIAM.

The facts in this case are in all respects identical with those in case No. A-724, In re W. C. Jones, infra, 109 Pac. 570. This petitioner was convicted for violating the same ordinance of the town of Eldorado which Jones was charged with violating; and he makes identically the same contention made by Jones. The decision in that case is controlling in this case.

The writ of habeas corpus heretofore issued in this case will therefore be discharged, and' the petitioner remanded to the custody of the town marshal of Eldorado. It is so ordered.


author: PEE CUBIAM.

text:
    C. L. JOHNSON v. STATE.
    Nos. A-701 and A-711.
    Opinion Filed July 12, 1910.

      Appeal' from the County Court of Coal County; R. H. Wells, Judge.

    C. L. Johnson was convicted of violating the prohibition law, and ’he appealed.
    Appeal dismissed.

      Cutler Mclnnis and George Trice, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE CUBIAM.

Plaintiff in error has filed a-motion to dismiss the appeal herein. The motion is sustained; the appeal is dismissed at plaintiff in error’s cost, and a mandate is ordered issued to the court below directing said court to enforce its judgment herein.


author: PEE OHEIAM.

text:
    JIM GRAY v. STATE.
    No. A-659.
    Opinion Filed July 12, 1910.

      Appeal from the County Court of Stephens Coimty; W. H. Admire, Judge.

    Jim Gray was convicted of violating the prohibition law, and lie appealed.
    Appeal dismissed.

      E. E. Morris, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE OHEIAM.

Plaintiff in error has filed a motion to dismiss the appeal herein. The motion is sustained; the appeal is dismissed at plaintiff in error’s cost, and a mandate is ordered issued to the court below directing said court to enforce its judgment herein.


text:
      In re M. F. FRALEY.
    No. A-828.
    Opinion Filed July 13, 1910.
    1. HABEAS CORPUS — Subsequent Application — Conolusiveness of First Decision. Where the Criminal Court of Appeals on final hearing has discharged a writ of habeas corpus theretofore issued, it will not ordinarily entertain a subsequent application for a writ 'based on the same' ground and the same facts, or on any other ground or facts existing when the first application was made, whether presented then or not.
    2. HOMICIDE — Evidence—Threats —'Reputation—Materiaity. Upon a charge of murder, where the killing is admitted, evidence of the general reputation of the deceased and of the threats made by the deceased, whether communicated or uncommunicated, are neither relevant nor material, unless some evidence is first introduced tending to show that the defendant acted in his real or apparent necessary self-defense in committing the homicide.
    3. BAIL — Right to — Life Endangered by Confinement. Where it is clearly shown that a defendant, held to answer a capital charge, is suffering from a serious malady, endangering his life, and that confinement in jail would probably result .fatally to him, and that it will be several months before he can be tried, !he may be admitted to bail.
    (Syllabus by the Court.)

      Original Proceeding in Habeas Corpus.

      Boone, Leahy & McDonald and Thomas T. Cope, for petitioner.

      L. P. Roberts, County Attorney of Osage County, for the State.
   RICHARDSON, Judge.

M. F. Fraley, the petitioner, is confined in the county jail of Osage County charged with the murder of one Dan Parker, and he has applied to this court for the second time for a writ of habeas corpus to the end that he be let to bail. The writ was granted, return thereto has been made; and the matter has been heard on the testimony taken in petitioner’s examining trial, and on additional testimony tending to show that petitioner prior to the killing was recognized in the community in which he lived as a man of good character; that the deceased had a bad reputation; that prior to the killing the deceased had made threats of violence against petitioner; and that the petitioner is now in ill health, that he has lost thirty pounds since his incarceration in jail, that he is fast becoming a nervous wreck, and that he has become afflicted with a serious kidney trouble likely to terminate - fatally in the event that he is continued in confinement, and that the next term of the district court of Osage County will not convene until November, 1910.

The petitioner made a former application to this court by writ of habeas corpus to be let to bail, there contending that his guilt was not evident or the presumption thereof great; and upon a hearing of the matter this court held that on the showing made the petitioner was not entitled to bail. The testimony taken in the preliminary examination, the proof now offered of petitioner’s good character and the deceased’s bad reputation, and the fact that the deceased had made threats of violence against petitioner, go only to the issue already determined in the previous application for the writ. The facts which that evidence tends to prove, if true, existed at the time of the former application; the evidence might then have been offered in support of that application, but the matters to which it relates now stand concluded by the judgment of this court already rendered upon the former application. This court will not entertain successive applications fox writs of habeas corpus based upon the same ground. Ordinarily, whatever causes exist at the time application for, a writ of habeas corpus is made why the petitioner should be discharged or let to bail, must be presented to this court upon the hearing of that application; and if they be not so presented at such time, they will not be heard in a subsequent application. Furthermore, the killing being admitted, the reputation or character of the deceased and the matter of threats made by him, whether communicated or or uncommunicated, are neither relevant nor material, unless some evidence is first introduced tending to show that the defendant acted in his real or apparent necessary self-defense, which has not been done in this case.

It is now made to appear, however, that the judge of the district court of Osage County is disqualified to try this case because of the fact that he was practically a witness to the killing, and for that reason and on account of the fact that no other judge was assigned to that county, the trial has been continued until the November term of the court. It is also clearly shown by the testimony of three reputable physicians that since his “first application the condition of the petitioner’s health has become serious, endangering his life, and that further confinement will probably result fatally to him. No counter-showing whatever has been made. On the contrary the county attorney of Osage County upon this hearing stated to the court that he was unable to controvert those matters for the reason that he knew them to be true in fact, and that in his opinion the petitioner should be granted bail. Considering all these matters, we are of the opinion that the petitioner should now be let to bail, and that his bail should be fixed at the sum of $30,000.

It is therefore ordered that the petitioner, M. F. Fraley, be and he is hereby admitted to bail upon the charge of murder _now pending against him in the District Court of Osage County, and that his bail be and the same is hereby fixed at the sum of $30,000; and that he be released from custody upon his executing and causing to be filed with and approved by the clerk of the District Court of Osage County a good and sufficient bond in said sum, conditioned as required by law.

FUEMAN, Presiding Judge, and DOYLE, Judge, concur.


text:
    LON THOMAS et al. v. STATE.
    No. A-717.
    Opinion Filed July 18, 1910.

      Appeal from the District■ Court of Gree'r County; G. A. Brown, Judge.

    Lon Thomas and' H. M. Gregson were jointly convicted of grand larceny, and they appeal.
    -Appeal dismissed.

      C. C. Wells and 0. G. Ilornor, for plaintiffs in error.

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

Plaintiffs in error have filed a motion to dismiss their appeal in this case, and the motion will be sustained.

It is therefore' ordered that the appeal herein be and the same is hereby dismissed at the cost of plaintiffs in error; and that a mandate issue to’the district court of Greer county-directing said court to enforce its judgment herein.