text:
    BOB PARK v. STATE.
    No. A-2254.
    Appeal from County Court, Greer County; H. M. Thacker, Judge.
    Bob Bark, convicted of a violation of the prohibitory' law, appeals.
    Affirmed.
    E. M. Stewart, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information filed in the county court of Greer county, charging that the plaintiff in error, Bob Park, did have in his possession about fifteen gallons of whisky with the intention of violating the prohibitory law, he was convicted and his punishment fixed at confinement in the county jail for thirty days and a fine of fifty dollars. The judgment and sentence was rendered on the 17th day of March, 1914.

Erom this judgment the defendant appealed by filing in this court on May 2, 1914, a petition in error with case-made.

No brief has been filed and when the case was called on the assignment for final submission no appearance was made in behalf of the plaintiff in error. Whereupon the Attorney General moved that the appeal be dismissed as having been abandoned, or that the judgment bp affirmed for failure to prosecute the appeal.

It appears that the appeal in this case has been abandoned, and for this reason the motion to dismiss the appeal is sustained. The appeal herein is dismissed and the cause remanded to the trial .court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re MAURINE HOLFORD.
    No. A-2253.
    Petition of Maurine Holford for writ of habeas corpus.
    Writ denied.
    James H. Sykes, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application in habeas corpus brought by Perry Wales Holford, alleging that Mrs. Maurine Holford, his wife, is illegally restrained of her liberty and confined in the Oklahoma State Training School for Girls, at Oklahoma City, by Mrs. Angie A. Russel, superintendent of said state training school, and that she is held in custody under and by virtue of a commitment of the county court of Tulsa county, Oklahoma, confining her in said institution as a juvenile offender. On the filing of the petition the writ issued. On the return day the respondent appeared as commanded. The cause coming on for hearing, and the same being duly presented to the court, it is by the court ordered that the writ -be discharged and the said Mrs. Maurine Iiolford be remanded to the custody of the respondent.


text:
    B. D. BREWER v. STATE.
    No. A-2258.
    Appeal from County Court, Payne County; W. H. Wilcox, Judge.
    B. D. Brewer was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Reece & Grubbs, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, B. D. Brewer, was convicted at the January, 1914, term of the county court of Payne 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 fifty dollars. A careful examination of the record discloses no error sufficient to justify a reversal of the judgment. It is, therefore, affirmed.


text:
    EMMA BRUMBAUGH v. STATE.
    No. A-2272.
    Appeal from County Court, Comanche County; H. N. Whalin, Judge.
    Emma Brumbaugh was convicted of violating the prohibitory law, and appeals.
    Reversed.
    J. E. Thomas, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Emma Brumbaugh, was convicted at the January, 1914, term of the county court of Comanche county on a charge of selling intoxicating liquor, and adjudged to pay a fine of three hundred thirty dollars and to be imprisoned in the county jail for. a period of one hundred days. '

The Attorney General'has conceded error in this ease and advised the court, that in his opinion the judgment of conviction should be reversed.

An examination of the record sustains the confession in error. The judgment of conviction is, therefore, reversed and the cause re.manded, with directions to grant a new trial.


text:
    WILLIAM HEDDENS v. STATE.
    No. A-2275.
    Appeal from County Court, Creek County; Warren H. Brown, Judge.
    Appeal dismissed.
    J. F. Lawrence, and J. B. Rutherford, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of the county court of Creek county, overruling a demurrer to an indictment wherein the plaintiffs in error were charged with the offense of permitting gaming tables, roulette wheels and other gaming devices to be set up and used for the purpose of gambling, in a building belonging to them and of which at the time they had possession and control.

An appeal in a criminal action cannot be taken until after final judgment has been rendered against the defendant. For a full discussion of this question see McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876. The attempted appeal is, 'therefore, dismissed.


text:
    P. J. LAWLESS v. STATE.
    No. A-2278.
    Appeal from County Court, Craig C.ounty; Edw. II. Brady, Judge.
    P. J. Lawless, convicted of a misdemeanor, appeals.
    Appeal dismissed.
    Clyde McGary, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information charging him with the offense of selling a pretended title to land, and his punishment assessed at a fine of one dollar. Judgment was rendered in pursuance of the verdict. To reverse the judgment, an appeal was •taken by filing in this court on May 28, 1914, a petition in error with case-made-

No brief has been filed and when the case was called for final submission no appearance was made on behalf of the plaintiff in error. Whereupon the state moved to dismiss for failure to prosecute the appeal. It appearing that the appeal has been abandoned, the motion to dismiss will be sustained. The appeal is, therefore, dismissed, and the cause remanded to the trial court.


author: PEB CTJBIAM-

text:
    THOMAS HOLMES v. STATE.
    No. A-2279.
    Appeal from County Court, Canadian County; W. A. Morrow, Judge.
    Thomas Holmes was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Fogg & Bennett, for plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the State.
   PEB CTJBIAM-

The plaintiff in error, Thomas Holmes was convicted at the March, 1914, term of the county court of Canadian county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of two hundred and-fifty dollars and imprisonment in-the county jail for a period of ninety days.

The proof on behalf of the state establishes a strong case against the plaintiff in error. There was no defense whatever offered. Counsel stand on technical errors of law.

A careful examination of the record discloses the fact that the assignments based upon the rulings of the trial court are not well founded. The plaintiff in error fails to bring himself within any of the rules heretofore announced by this court. We are of opinion, therefore,-that the judgment should be affirmed. It is so ordered.


author: PEB CTJBIAM.

text:
    BOB HINCH v. STATE.
    No. A-2285.
    Appeal from County Court, Choctaw County; W. T. Glenn, Judge.
    Bob Hinch was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
    Evans & Hardison, for' plaintiff in error-
    B. McMillan, Asst. Atty. Gen., for the State.
   PEB CTJBIAM.

On information charging that he did sell to one Luther Coffee one pint of alcohol, the plaintiff in error, Bob Hinch, was convicted and his punishment assessed at confinement in the eounty jail for sixty days and a fine of two hundred fifty dollars. The judgment and sentence was entered in pursuance of the verdict. To reverse this judgment an appeal was taken by filing in this court on June 4, 1914, a petition in error with case-made. No brief was filed and no appearance made on behalf of plaintiff in error when the case was called for final submission. Whereupon the attorney general moved that the judgment be affirmed for failure to prosecute the appeal. It appearing, for the reasons stated, that the appeal herein has been abandoned, the judgment will be affirmed, and the case remanded to the trial court with directions to enforce its judgment therein.


author: PEE CUBIAM.

text:
    In re A. C. CHILDS.
    No. A-2290.
    Petition of A. C. Childs for writ of habeas corpus.
    Cause dismissed-
    C. E. Corbett, T. C. Cobb, and C. Guy Cutlip, for petitioner.
   PEE CUBIAM.

Petition withdrawn and cause dismissed.


author: PEB CUBIAM.

text:
    RACK BARTLETT v. STATE.
    No. A-2291.
    Appeal from County Court, Osage County; Paul B. Mason, Judge.
    Back Bartlett, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    Peters & Mosier, for plaintiff in error.
    B. McMillan, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

On information charging that he did have in his possession certain intoxicating liquor, to-wit: five pints of alcohol, with the intent to violate the prohibitory liquor laws, the plaintiff in error, Back Bartlett, was convicted and sentenced to be confined for sixty days in the county jail and to pay a fine of one hundred fifty dollars and costs. To reverse the judgment an appeal was taken by filing in this court on June 8, 1914, a petition in error with case-made. No briefs have been filed, and when the case was called for final submission no appearance was made on behalf of the plaintiff in error. Whereupon the Attorney General moved to affirm the case for failure to prosecute the appeal. It appearing that the appeal has been abandoned, the judg-m'ent will be affirmed.


text:
    GEORGE MORGAN v. STATE.
    No. A-2294.
    Appeal from County Court, Comanehe County; TI. N. Whalin, Judge.
    George Morgan, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    W. N. Henderson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and "B. McMillan, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

This appeal is prosecuted from a conviction had in the county court of Comanche county, on an information which charged that George Morgan, the plaintiff in error, did have in his possession intoxicating liquors with intent to sell the same.

On the 16th day of March, 1914, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for thirty days and to pay a fine of fifty dollars.

From a careful examinaion of the record we find that the charge of the court fairly presents the law of the ease, -and the evidence is sufficient to support the verdict. No error being apparent, the judgment of the court below is affirmed.


text:
    WILLIAM ENSEY v. STATE.
    No. A-2295.
    Appeal from County Court, Washita County; L. E. Shean , Judge.
    William Ensey, convicted of violation of the prohibitory law, appeals.
    Eeversed.
    Brett & Billups, for plaintiff in error.
    E- McMillan, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

The plaintiff in error, William Ensey, was tried in the county court of Washita county on an information charging that on or about the 24th day of January, 1914, he did then and there unlawfully and wilfully convey whisky from a place in the state of Oklahoma to the affiant unknown, to the City Hotel, in the town of Sentinel. The jury returned a verdict of guilty and assessed his punishment at thirty days’ confinement in the county jail and a fine of fifty dollars.

On April 20, 1914, the court entered judgment in pursuance of the verdict. From the judgment an appeal was taken by filing in this court on June 16, 1914, a petition in error with case-made.

It is only necessary for the determination of this appeal to pass upon the sufficiency of the evidence to support the verdict. The complaining withness, John Massey, who signs the complaint by making his mark, and who on cross-examination admitted that he is an ex-convict, stated that as city marshal, he arrested the defendant for swearing, in Minion’s restaurant, known as the City Hotel, and as the defendant raised up from the chair a bottle dropped on the floor; that there was a good many in the house at the time and some at the table eating; that witness picked up the bottle and put it in his overcoat pocket and told the defendant to come on, let’s go, and they went to Mr. Goar’s, a justice of the peace, and he plead guilty to swearing. Witness there set the bottle on the table. The defendant prxt the bottle in his pocket and walked down stairs.-

For the defendant, J. L. Adams testified that he was coming out of the restaurant as the defendant was going in, and he called the defendant around the corner and asked him if he had any whisky and the defendant said "no,” and went into the restaurant to get his supper; that the restaurant sold cider and it was kept in bottles.

E. B. Goar testified that he was town justice of the peace; that when the marshal brought the defendant before him he did not see any whisky, but saw that bottle, which was not a regular whisky bottle.

L. E. Elrod testified that he was with the defendant when he was arrested and saw the bottle when it fell on the floor; that when the defendant paid the fine he saw him pick the bottle up off the desk and they started home. That he tasted the contents of the bottle and it was eider- The bottle was offered in evidence, and he testified that its contents were the same that it contained when the defendant took it off Judge Goar’s desk.

G. F. Minion testified that he handles eider at his restaurant, known as the City Hotel,' and sold it in all kind of bottles.

The defendant as a witness in his own behalf testified that the bottle contained cider; that the bottle introduced as evidence and its contents were just the same; that he had no whisky of any kind upon his person when he went into the restaurant.

In our opinion the verdict of the jury is not supported by the evidence. Giving the evidence of the state full credence, by assuming that the bottle in question contained whisky, the evidence wholly fails to show that the defendant had this bottle on his person when he went to the City Hotel. This is the conveying that is charged in the information. Because the verdict is not warranted by the evidence, the judgment is reversed.


text:
    C. W. ROLLINS, et al., v. TOWN OF TIPTON.
    No. A-2302.
    Appeal from District Court, Tillman County; Frank Mathews, Judge.
    C. W. Rollins and John Whitt were convicted of violating a city ordinance, and appeal.
    Appeal dismissed.
    J. E. Red, for plaintiff in error.
   PER CURIAM.

The plaintiffs in error herein were convicted of a violation of a city ordinance of the town of Tipton, prohibiting gambling, and in accordance with the verdict of the jury each was sentenced to pay a fine of ten dollars. An appeal was taken from the judgment by filing in this court on June 23, 3914, a petition in error with case-made. No brief has been filed and when the case was called for final submission, no appearance was made on behalf of the plaintiffs in error. It appearing that the appeal herein has been abandoned, it is ordered that the said appeal be and the same is hereby dismissed.


text:
    In re JOHN RUSSELL.
    No. A-2309.
    Petition of John Russell for writ of habeas corpus.
    Writ denied.
    Robt. A. Lowry, for petitioner.
    C. C. Suman, Co. Atty., for the State.
   PER CURIAM.

The petition filed in behalf of said Russell alleges in substance that on complaint filed in the county court of Payne county, jointly charging Claude Goodpaster, Chris S. Glacken, B. Tuffman, and John Russell, the petitioner with maintaining a place in which intoxicating liquors were received and kept for the purpose of sale, that he was held, to answer to ‘the district court, and being unable to give bail is now unlawfully restrained in the county jail by T. J. Hoyt, sheriff of Pa.yne county; that under the evidence introduced on said examination the petitioner was entitled to have been discharged for -the reason that the evidence is insufficient to show the commission of the offense charged, or probable cause to believe the petitioner to be guilty of said offense, which, it is alleged, will fully appear from the transcript of the testimony taken upon the said examination which is annexed to and made a part of his petition, wherefore petitioner prays that a writ of habeas corpus be granted and that he be discharged from custody.

Upon a consideration of all the evidence presented in support of the petition we are of opinion that it is sufficient to sustain the commitment. It is, therefore, considered and adjudged that the writ be denied.


text:
    In re LAFAYETTE HORN.
    No. A-2312.
    Petition of Lafayette R. Horn for writ of habeas corpus.
    Cause dismissed.
    E. M. Frye, for petitioner.
   PER CURIAM.

Petition withdrawn. Cause dismissed-


text:
    In re ROBERT MALONE.
    No. A-2332.
    Application of Robert Malone for writ of habeas corpus.
    Cause dismissed.
    H. D. Henry, for petitioner.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an application in habeas corpus, brought by the petitioner, alleging that he is illegally restrained and imprisoned by S. H. Tittle, sheriff of Greer county.

A rule to show cause issued, and pending the return and the determination of the cause, petitioner was admitted to bail in the sum of five hundred dollars.

Pending the determination of the cause it was brought to the attention of the court that the Governor had granted a pardon to petitioner.

The object of the writ of habeas corpus is to relieve petitioner from illegal restraint or unlawful imprisonment, and if this release is accomplished by the granting of a pardon, there is nothing for the court to adjudicate or determine- The application will, therefore, be dismissed.


text:
    Ex parte JAMES MORRISON.
    No. A-2335.
    Petition of James Morrison for writ of habeas corpus.
    Writ denied,
    J. Q. A. Harrod, for petitioner.
    E. G. McAdams, for the State.
   PER CURIAM.

The petition filed in this court September 15, 1914, on behalf of said James Morrison alleges in substance that he is unlawfully restrained of his liberty by M. C. Binion, sheriff of Oklahoma county, by virtue of a warrant issued by the Governor of the state of Oklahoma at the instance and request of the Governor of the state of Kentucky; that said restraint is illegal, for that your petitioner denies that he, at any time, fled from the state of Kentucky to avoid prosecution for any crime committed within its borders; denies that he at any time received any money or property while in the state of Kentucky from the persons named in said requisition papers on which said Governor’s warrant was issued, and denies that he was in the state of Kentucky at the time of the commission of the crime alleged, but alleges that if there was ever any crime eommited by virtue of the five hundred dollars or the property mentioned in the requisition papers by this petitioner, it was committed in the state of West Virginia, and not in the state of Kentucky.

On the filing of the petition the writ issued, returnable at two p. m. on said day, at which time the respondent produced in court the petitioner and answered.

The sheriff justified his detention of the petitioner under the executive warrant. It was established upon the hearing then and there had to the satisfaction of the court that the petitioner while a resident of West Virginia had made occasional visits to the state of Kentucky in connection with the business upon which was predicated the charge of obtaining money under false pretence. Whereupon the writ was discharged' and the petitioner remanded to the custody of the sheriff of Oklahoma county, to be delivéred to the extradition agent of the state of Kentucky.


text:
    In re BOB YOUNG.
    No. A-2337.
    Petition of Bob Young for.writ of habeas corpus.
    Writ granted.
   PER CURIAM.

The petition filed on behalf of said Bob Young alleges in substance that he is unlawfully imprisoned in the county jail of Ottawa county by the sheriff of said county on a misdemeanor. On the filing of the petition the writ issued and'was made returnable before the county court of Ottawa county.


text:
    FRED BRANHAM v. STATE.
    No. A-2377.
    Appeal from District Court, Caddo County; J. T. Johnson, Judge.
    Ered Branham, convicted of assault and battery, appeals.
    Appeal dismissed.
    C. II. Carswell, for plaintiff in error.
    Chas. West, Atty. Gen., for the State.
   PER CURIAM.

On information charging a felonious assault, Ered Branham, the plaintiff in error, was convicted of assault and battery, and his punishment fixed at confinement in the county jail for a period of thirty days, and that he pay a fine of one hundred dollars and the costs. From the judgment' and sentence rendered on the verdict, he appealed by filing in this court on December 1, 1914, a petition in error with case-made.

On May 18, 1915, his attorney of record filed in this court a motion to dismiss the appeal. It is, therefore, ordered that the appeal herein be dismissed and the cause remanded to the trial court with directions to cause its judgment and sentence to be carried into execution.


text:
    In re JOE KELLY.
    No. A-2382.
    Application of Joe Kelly for writ of habeas corpus.
    Writ denied.
    McAdams & Haskell, for petitioner.
   PER CURIAM.

It appearing from the averments of the petition that the primal question to be determined involves the authority of a "special assistant attorney general,” to institute a civil proceeding in' the name of the state the writ will be denied for the reasons stated in the opinion of this court in Ex parte Fowler, 3 Okla. Cr. 196, 105 Pac. 180. The writ will, therefore, be denied.


text:
    In re JOSIAH HAWKINS.
    No. A-2396.
    Application of Josiah Hawkins for writ of habeas corpus-
    Writ denied.
    George Paschal, for petitioner.
    R. McMillan, Asst. Atty. eGn., for the State.
   PER CURIAM.

On behalf of Josiah Hawkins, a petition for a writ of habeas corpus was filed in this court on February 15, 1915, alleging that he was unlawfully imprisoned and restrained of his liberty by R. W. Dick, warden of the State Penitentiary.

It appears that the said Josiah Hawkins was convicted and sentenced to serve a term of imprisonment in the State Penitentiary at Me-Alester. It is further alleged that said alleged criminal complaint and said alleged information were and are absolutely void and of .no legal force and effect and did not confer upon the said justice of the peace nor upon the district court of Cherokee county, any jurisdiction to bind over, hold or try the said Josiah Hawkins for any offense committed against the statutes of Oklahoma.

It is a well settled general rule, sustained by an unbroken line of authorities that mere errors or irregularities committed by a court within the sphere of its jurisdiction cannot be inquired into collaterally on habeas corpus proceedings, and erroneous rulings on the sufficiency of an indictment or information to charge a crime are not reviewable in habeas corpus proceedings, where the indictment or information shows that an offense of which the court has jurisdiction has been committed. The question whether the facts averred in an information render it vulnerable to a demurrer cannot be considered except on appeal, and if any error is committed, habeas corpus will not lie- to correct it. We express no opinion as to whether or not the information upon which the j>eti-tioner was convicted is defective in fact. It is only necessary to say, taking the most favorable view of it for the petitioner, enough appears .to prevent his discharge, should the writ issue.

The application for the writ is, therefore, denied.


text:
    In re ED MAYES.
    No. A-2398.
    Application of Ed Mayes for writ of habeas corpus.
    Writ allowed and petition discharged.
    Echols & Merrill, for petitioner.
   PER CURIAM.

On behalf of Ed Mayes, a duly verified petition for a writ of habeas corpus was filed in this court on February 16, 1915, representing that petitioner was' illegally restrained of his liberty and unlawfully imprisoned in the county jail of Beckham county by R. B. Francis, sheriff of said county. It further appears in said petition that the said Ed Mayes was convicted of the crime “of receiving stolen property,” and was sentenced to be imprisoned for the term of three years; that from this judgment of the district court of Beckham county he appealed to this court; that on the 9th day of September, 1914, the judgment was affirmed. (See Mayes v. State, ante, 142 Pac. 1049.)

It is further averred that on the 30th day of September, 1914, a parole was granted by lion. J. J. McAlester, as acting Governor of the state of Oklahoma at five p. m. on said day, during the absence of the Governor from the state, which parole is in part as follows:

"Now, therefore, I, J. J. McAlester, Lieutenant Governor and acting Governor of Oklahoma, in the absence from the state of Lee Cruce, Governor, do hereby grant unto the said Ed Mayes a release and parole from the sentence imposed as herein set out, during good behavior.”

A rule to ghow cause was granted, directed to the respondent, returnable on or before the 2nd day of March, 1915, why such, petition should not be granted, and it was ordered that petitioner be admitted to bail in the sum of three thousand dollars, pending the determination of the cause.

None of the averments of the petition are traversed, and the aver-ments of fact must be taken as true- The parole is a valid parole, and the petitioner by virtue of said parole so issued and accepted is entitled to his liberty at least until he commits a breach of the conditions imposed.

We are of the opinion that petitioner, is unlawfully restrained of his liberty by the respondent and that he is entitled to a discharge from the imprisonment of which he complains. I-Ie is, therefore, by the judgment of this court, discharged therefrom.


text:
    In re WILLIAM SHAFFER.
    No. A-2413.
    Aplieation of William Shaffer for writ of habeas corpus.
    Writ denied.
    James Hepburn, for petitioner.
   PEE CUBIAM.

The petitioner, 'William Shaffer, on March 13, 1915, filed in this court an application for a writ of habeas corpus, wherein it is averred that he is unlawfully imprisoned and restrained of his liberty by W. E. B. Sherwood, sheriff of Logan county, that the cause of said restraint is that on the —9— day of March, 1914, he was jointly charged with one Edward J. Coyle with the crime of arson by two infor-mations filed in the district court of Logan county; that since his arrest there has been three terms of said court, to-wit: the June term, 1914; the November term, 1914; and the January term, 1915- That your petitioner was not tried at any of the terms of said court, and was thereby denied his constitutional right to á speedy trial.

.It appears from the record that upon arraignment at the June, 1914, term, a severance was granted in both cases. The state elected to try the defendant Coyle first.' Later petitioner filed an aplieation in this court for a reduction of bail, which application was by the court allowed. The record further shows that at the November, 1914, term, an application for change of judge was filed. It further appears that petitioner has never demanded a trial on the informations against him. It also appears that by order of said district court a jury will be drawn for the January, 1915, term.

The respondent interposed a demurrer to the petition. We are of opinion that said demurrer should be sustained, for the reason that it appears from the record that the cases were continued for good and sufficient reasons, and that petitioner waived his right to a speedy trial. The application for the writ will, therefore, be denied.


author: PEE CUEIAM.

text:
    In re A. B. WRIGHT.
    No. A2421.
    Application of A. B. Wright for writ of habeas corpus.
    Writ denied.
    Holding & Herr, for petitioner.
    John II. Venable, Co. Atty. and Allen K. Swan, Asst. Co. Atty., for the State.
   PEE CUEIAM.

The petitioner, A. B.’ Wright, represents that he is restrained of his liberty and unlawfully imprisoned in the county jail of Grady county by Hodge Bailey sheriff of said county. The petition alleges in substance that said sheriff holds said petitioner under a commitment issued by E. E. Davenport as judge of the county court of said county after an examining trial wherein petitioner was held to answer for the crime of rape-

It is further averred that the evidence introduced at said trial did not warrant the conclusion that there was probable cause for believing that a crime had been committed as alleged in the complaint, or sufficient to show probable cause that the defendant was guilty thereof.

It is further alleged that on application for bail before the judge of the district court of Grady county, his bail was fixed in the sum of ten thousand dollars, and that the bail so fixed by said judge is excessive and not warranted by the evidence introduced in said case, and that petitioner is unable to make bond in said sum.

A rule to show cause why the writ should not issue, returnable on the 24th day of March, was ordered and the cause was heard at that time. The court being fully advised, denied the writ. Counsel for petitioner and respondent having agreed that the amount of bail should be reduced to seven thorisand five hundred dollars, it is so ordered. The bond to beapproved by the clerk of the district court of Grady county.


text:
    In re CHARLEY ROBINSON.
    No. A-2470.
    Application of Charley Robinson to be admitted to bail.
    Writ allowed.
    Emery A. Foster, for petitioner.
    Streeter Speakman, Co. Atty., for the respondent.
   PER CURIAM.

Application to be let to bail by Charley Robinson. It appearing that the district judge is absent from the county of Lincoln, and the county attorney of Lincoln county conceding that petitioner is entitled to bail, and that bail fixed in the sum of two thousand five hundred dollars would be sufficient, it is ordered that the application be allowed and that bail be fixed in the sum of two thousand five hundred dollars. Bond to be approved by the clerk of the district court of Lincoln county.


text:
    WILLIAM WHITE v. STATE.
    No. A-2307.
    Opinion Filed July 1, 1915.
    Appeal from County Court, Ottawa County. Yern E. Thomas, Judge.
    William White, convicted of a misdemeanor, appeals.
    Reversed.
    A. C. Towne, for plaintiff in error.
    Chas. West, Atty. Gen. and C. J. Davenport, Asst. Atty. Gen., for the State
   PER CURIAM.

The plaintiff in error was convicted of the crime of disturbing religious worship. On May 19th, 1914, judgment was entered and he was sentenced to be confined in the county jail for thirty days and to pay a fine of twenty-five dollars, and costs. To reverse this judgment an appeal was taken by filing in this court on July 8th, 1914, a petition in error with case-made.

The following confession of error has been filed:

“The Attorney General would respectfully call the court's attention to the 29th and 30th assignments of error as follows:
“Said court erred in overruling plaintiff in error's motion for a new trial, and particularly in the allowing the jury to separate after the ease was submitted to them.
“The said court erred in permitting the jury to separate after the case had been finally submitted to' them.
“These assignments of error are based upon that portion of the motion for new trial which reads as follows:
“(28). Misconduct of the court and misconduct of the jury by the court allowing and permitting the jury to separate and the jury separating after the cause was submitted to them without the consent of the defendant as shown by affidavit hereto attached and marked Exhibit B.
“The affidavits and the testimony taken on the hearing of the motion for new trial show that the case was finally submitted to the jury on the evening of February 4th; one of the affidavits reads:
“Deponent further says that before allowing the jury to retire to their jury room the pending trial judge, the lion. Yern E. Thompson, made the statement that he had been advised that there were several members of the jury as well as the proseuting attorney, Mr. W. D. Morse, that desired to attend the ‘Ben Hur’ performance being rendered in Joplin, Missouri, that evening, and that if the jury eould after due consideration of all questions presented to them, and if all fairness and justice to both the State of Oklahoma and the defendant William White, arrive at their verdict before six o’clock so those who desired to attend the performance could catch the evening train for Joplin, Missouri, he would be glad to receive it, but that he wanted them to consider the ease carefully and if they found that they could not-reach a verdict by six o’clock without simply assenting to one verdict or the other so as to have the matter over with and release those jurors who desired to attend the said performance at Joplin, Missouri, that in that event the jury was instructed to return and that the court would then try to make some arrangement satisfactory to all concerned, suggesting that possibly the attorneys for both sides would consent to their being allowed to go to Joplin, and after further considering the case the following morning, could return their verdict then.
“It further appears that the jury did separate and one of the jurors went to the city of Joplin, Missouri, to witness the performance of ‘Ben I-Iur’. It further appears from another affidavit that the jury deliberated for about an hour when the court called the jury and permitted them to separate until the next morning. The State filed the -affidavit of every member of the. jury, to this effect:
“That at the time of the adjournment of the court for the night the court admonished the jury not to- talk with others nor allow others to talk about the case in our presence or hearing and that we should not deliberate further on the ease until we reconvened. That during the recess no one approached me in any way to discuss or influence my decision in the case. That nothing was said by me to any one about the case nor was anything said about the ease in my presence or hearing, neither did I study over the matter myself from the time that I left the jury room until I returned to the jury room the next morning. That nothing happened during the recess to influence me against the defendant and the verdict which I voted to return was based upon the evidence and instructions of the court alone.

The record then shows that the following occurred:

“Whereupon, the defendant asked that the said jurors be subpoenaed that he might cross-examine them to show who they conversed with and where they went and who talked with them and to show that the separation of the jury tended to and did prejudice the substantial rights of the defendant, which request the court denied unless the defendant would deposit all costs of summoning process and serve them and fees and mileage of such jurors, and the officer’s fees in serving same, to which the defendant excepted.

In our opinion these facts bring the case within the rule announced in Samples v. State, 3 Okla. Cr. 430, where this court held that section 6858 Oomp. Laws 1909, being sec. 5906, Bev. Laws 1910, requires the jury to be kept together, after a case is finally submitted to them, until a verdict is agreed upon, and in the opinion said:

“The record in this ease discloses that the jury were permitted to separate after the case h^d been finally submitted to them, and before a verdict had been agreed upon. It appears that they were instructed by the court to return to the'jury room after supper and consider of their verdict, and, if they were unable to agree after a reasonable time they might separate for the night and return to the jury room on the following morning for further consideration.
"And it appears that they were unable to agree during the night, and did separate and return to the jury room the following morning, after which the verdict was agreed upon and returned into court. The attorney general has filed his written confession of error in this case, confessing that under section 6858 of the St. (Comp. Laws 1909) and the rules announced in Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, the action of the court in permitting the jury to separate was error. ’ ’

The confession of error is sustained, and the case reversed and remanded.


author: PEE CTJEIAM.

text:
    T. S. McFARLAND v. STATE.
    No. A-2096.
    Appeal from County Court, Garvin County; W. E. Wallace, Judge.
    T. S. McFarland, convicted of petit larceny, appeals.
    Appeal dismissed.
    Blanton & Andrews, and Carr & Fields, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State-
   PEE CTJEIAM.

On information which charged the theft of ten dollars from one J. D. Hill, the plaintiff in error, T. S. McFarland, was tried and convicted and his punishment assessed at confinement in the county jail for thirty days and a fine of one hundred dollars. From the judgment rendered in pursuance of the verdict, an appeal was attempted to be taken by filing in this court on September 27th, .1913, a petition in error with case-made. The state has filed a motion to dismiss the appeal for the reasons following, to-wit:

Because the record discloses that this is an attempted appeal from a judgment of conviction for a misdemeanor rendered in the county court of Garvin county on the 28th day of May, 1913, and the petition in error and ease-made were not filed with the clerk of this court until the- 27th day of September, 1913, more than one hundred twenty days after the rendition of said judgment, to-wit., on the one hundred twenty-second day thereafter. Wherefore the Attorney General says that this court is without jurisdiction except to dismiss this appeal.”

An examination of the record discloses that the motion to dismiss is well taken. Now on this 1st day of November, 1913, the motion to djsmiss the ‘appeal is sustained, and it is ordered that the attempted appeal herein be and the same is hereby dismissed.


author: PEE OXJEIAM.

text:
    HARRY SULLIVAN v. STATE.
    No. A-2301.
    Appeal from County Court, I-Iughes County. J. Eoss Bailey, Judge.

      Harry Sullivan, convicted of unlawfully transporting intoxicating liquors, appeals-
    Affirmed.
    Nichols & Knickerbocker, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PEE OXJEIAM.

The plaintiff in error was convicted on an information which charged that on or about the 18th day of December, 1913, he did unlawfully transport intoxicating liquors from some point unknown to a point near Coekrun & Company’s store, in the town of Hanna, Hughes county.

On the 21st day of March, 1914, judgment was rendered and in accordance with the verdict of the jury he 'was sentenced to pay a fine of fifty dollars and to be confined in the county jail for a period of thirty days.

The evidence shows that the City Marshal of Hanna, arrested the defendant near Coekrun’s store and took from him a quart bottle partly filled with alcohol-

The defendant as a witness in his own behalf, testified that he got the bottle at a livery stable. That he picked the bottle up and laid some money down.

The only error assigned and not waived calls in question the refusal of the court to instruct the jury that: “Before you can find the defendant guilty of transporting liquor you must find that the defendant had such 'liquor in his possession for the purpose of selling the same. ’ ’

It is evident that the court very properly refused to give the instruction requested. There is no question here of the defendant’s guilt. He was fairly tried and the judgment is affirmed.


text:
    W. O. BRAY v. STATE.
    No. A-1939.
    Opinion Filed July 17, 1915.
    Appeal from Superior Court, Custer County; 1-Ion. J. W. Lawter, Judge.
    W. 0. Bray was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Geo. T. Webster and W. S. Mills, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

W. 0. Bray was convicted at the January, 1913, term of the superior court of Custer county, on a charge o-f having unlawful possession of intoxicating liquor with intent to sell same, ajid his punishment fixed at imprisonment in the county jail for a period of sixty days and a fine of two hundred dollars.

. • A careful examination of the record discloses no sufficient reason for the reversal of this judgment. It is therefore affirmed.


text:
    J. F. FITZSIMMONS v. STATE.
    No. A-2330.
    Opinion Filed July 20, 1915.
    Appeal from District Court, Payne County; A. H. Huston, Judge.

      J. F: Fitzsimmons, convicted of fenony; appeals.
    Appeal dismissed.
    Vaught & Ready and Chester H. Lowry, for plaintiff in error,
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error appealed from a judgment of conviction by filing in this court on August 33 st, 3.93.4, a petition in error with ease-made. When the ease was called on the regular assignment for final submission, his counsel filed a motion to dismiss the appeal on the ground and for the reason that the said plaintiff in error has been granted a full and unconditional pardon. A certified copy of the pardon is attached to the motion. It is as follows:

"State of Oklahoma, Executive Department.
"The Acting Governor of the State of Oklahoma to all to whom these presents shall come, Greetings:
Know Ye, That I, J. J. MeAlester, Lieutenant Governor of the State of the State of Oklahoma, and as such, the Acting Governor of the State of Oklahoma, in the absence from said State of the Honorable Lee Cruce, Governor of the State of Oklahoma, do hereby under and by virtue of the authority vested in me by the Constitution of the State of Oklahoma, grant unto J. E. Pitzsimmons of Cushing, Oklahoma,' convicted at the October, 1913, adjourned term, on May 15th, A. D. 1914, in the District Court of Payne County, State of Oklahoma, at Stillwater, Oklahoma of the crime of wilfully, unlawfully and feloniously keeping a place to-wit:
What is commonly known as the Diamond Pharmacy, in what is commonly known as the Gas Building in the City of Cushing, in Payne County, State of~Oklahoma, on and before November 23rd, 1913, with the intention, of, and for the purpose of, selling, bartering, giving away, and otherwise furnishing spirituous, vinous, fermented and malt liquors, to divers persons, and on the said 16th day of May, 1914, sentenced to imprisonment in the State Penitentiary at MeAlester, Oklahoma, for a term of three years, and a fine of five hundred dollars ($500.00) and the costs of said action imposed, a full, complete and unconditional-pardon for said offense of which he was convicted, as aforesaid, and a full, complete and unconditional remittaance of said fine so imposed.
"IN WITNESS WHEREOF, I have hereunto set my hand at Oklahoma City, the Capitol of the State of Oklahoma, this 29th day of September A. D., 1914, and do hereby direct the Secretary of State forthwith to affix the great seal of the State of Oklahoma hereunto, and to attest the same with his signature.
"Signed:
“ J. J. McALESTER,
"Aeting Governor of the State of Oklahoma.
"Signed 10 a. m., Sept. 29, 1914.
"Attest: Benjamin F. Harrison,
"Secretary of State.
(SEAL).”

Upon the authority of Terrill v. State, ante, 148 Pac. 822, and for the reasons stated in the opinion, the appeal herein is dismissed.


text:
    J. J. SHAWVER v. STATE.
    No. A-2280.
    Appeal from County Court, Canadian County; W. A. Maurer, Judge.
    J. J. Shawver was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Eogg & Bennétt, for plaintiff in error.
    C. J. Davenport, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

The plaintiff in error, J. J. Shawver, was convicted at the January, 1914, term of the county court of Canadian county on a charge of unlawfully conveying intoxicating liquor from one place in said county to another place therein, and his punishment fixed at a fine of $50.00 and imprisonment in the county jail for a period of thirty days.

A careful examination of the record discloses no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    J. A. TILLEY v. STATE.
    No. A-2265.
    Appeal from County Court, Tulsa County. Hon. Conn Linn, Judge.
    J. A. Tilley was eonvieted of unlawfully selling intoxicating liquor, and appeals.
    Affirmed.
    J. P. Evers, for plaintiff in error.
    E. McMillan, Asst. Atty. Gen., for the State.
   PEE CUBIAM.

The plaintiff in error, J. A. Tilley, was convicted at the January, 1914, term of the county court of Tulsa county, on a charge of unlawfully selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars ($50.00) 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 of the trial court should be confirmed, and it is so ordered.


author: DOYLE, P. J.

text:
      L. A. LOVE v. STATE.
    No. A-1927.
    Opinion filed August 30, 1915.
    (150 Pac. 913.)
    1. APPEAL — Objection Below — Information. An objection to tbe sufficiency of an information cannot be raised for the first time upon appeal, unless it is an objection to tbe jurisdiction of tbe trial court over tbe subject matter of tbe information.
    2. APPEAL — .Weight of Evidence — Credibility of Witnesses. Tbe jury are tbe exclusive judges of tbe credibility of tbe witnesses as well as tbe weight to be given to their testimony, and where tbe evidence is sufficient to support tbe verdict, this court will not reverse tbe judgment because tbe greater number of witnesses may have testified favorably to tbe defendant on tbe principal points in the case, unless it appears from, tbe record that tbe jury were influenced by improper motives in arriving at their verdict.
    3. HOMICIDE — Instructions. In a prosecution for intentionally and wrongfully shooting another with a pistol with intent to kill, an instruction that if tbe jury do not find from the evidence that tbe defendant shot said person with a specific intent to kill, “but you do believe from tbe evidence beyond a reasonable doubt that tbe defendant shot said Hollis with a pistol, and you find that such pistol was capable and sufficient to inflict death to a person shot therewith, then it will be your duty to find tbe defendant guilty of tbe offense of an assault and battery by means of a deadly weapon, as defined in paragraph three of these instructions, ” Held, prejudicial to tbe defendant as abstractly erroneous, and not applicable to the evidence adduced and inconsistent with tbe instructions submitting the included offense of shooting with intent to injure any person, but without intent to kill such person. ,
    4. INSTRUCTIONS — Intimation of Opinion. Instructions couched in language which implies tbe expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to convict, or which tend to shift the burden of proof, are improper.

      5. VERDICT — Construction—Validity. While verdicts in criminal cases should be certain and free from, ambiguity, yet any words that convey, beyond a reasonable doubt, the meaning and intention of the jury are sufficient, and all fair intendments will be made to sustain them.

      Appeal from District Court, Roger Mills County; C. A. Brown, Judge.

    L. A. Love, convicted of felonious assault, appeals.
    Reversed.

      J. W. McMurtry and A. J. Welch, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, was convicted upon an information which omitting merely formal parts charges:

“That within the county of Roger Mills, state of Oklahoma, on the 17th day of December, A. D. 1911, one L. A. Love late of the county aforesaid, did then and there unlawfully, knowingly, feloniously, purposely and with premeditated design to effect the death of one W. C. Hollis, shoot, fire and discharge at, toward and into the body and person of 'the said W. C. Hollis, one certain pistol, which he, the said L. A. Loye then and there had charged and loaded with gun-powder and leaden balls, and the said L. A. Love then and there had and held in his hand, which said pistol was then and there charged and loaded with gun powder and leaden balls, and the said L. A. Love with said pistol so loaded and charged as aforesaid and in his hand so held and had as aforesaid, and with a premeditated design to effect the death of the said W. C. Hollis, did then and there shoot, fire and discharge the said pistol at, toward and into the body and person of the said W. C. Hollis, with the intent then and there and thereby, him, the said W- C. Hollis, unlawfully, feloniously, purposely, wrongfully, wilfully and knowingly and with the premeditated design and malice to kill and murder, contrary to,” etc.

The jury rendered the following verdict:

“We, the jury empaneled and sworn to try the issues in the above entitled cause, do upon our oaths, find the defendant L. A. Love, guilty of an assault and battery committed upon W. C. Hollis with a pistol and with which he shot W. C. Hollis with intent to injure said Hollis and without justifiable or excusable cause therefor, and we fix his punishment at imprisonment in the state prison for the period of one year.”

To reverse the judgment rendered in accordance with the verdict, the defendant appeals. The evidence for the state briefly stated was as follows:

The prosecuting witness, W. C. Hollis, testified that he and his partner, W. L,. Arnold were running a short order restaurant and lunch counter in the town of Hammon; that on the night of the shooting the defendant and D. C. McCullum came into his place of business between ten and eleven o’clock, and each ordered an oyster stew; that his partner, Arnold, took the orders and witness prepared the same in the kitchen and brought them to the counter. The defendant was talking to some one; his attention was called to the fact that his stew was getting cold, and he turned around, picked up the soup bowl and threw it on the counter. Witness said: “Nobody is bothering you, why did you do that, nobody said anything out of the way to you and there is no use tearing up everything,” and the defendant said he would tear up the whole thing and throw it out. Witness went around in front of the counter and told the defendant that if he started anything he would throw him out. The defendant walked away and then came back and apologized. About one o’clock in the morning witness said to those in the restaurant, including the defendant and one Jack Gore, that it was getting late and then went behind the counter and blew out the light next to the window. The defendant Gore and others went out and 'witness fastened the door with a button. That W. K. Fretwell was in there and was going to 'sleep with witness in the restaurant. Shortly after someone rattled on the door and he did not answer; then someone shoved against the door and it flew open; that he went to the door to see who it was and the defendant was there. That he asked him what he wanted and the defendant commenced shooting and shot witness through the legs.; that he got hold of th,e defendant’s gun and Mr. Arnold came in and took the pistol; that as the gun went off the last time he had the defendant down, but did not know what he was doing to him. That Arnold pulled witness off the defendant and held him until the defendant left; that the defendant fired five shots; that he could not tell whether the defendant was drunk or sober. That •witness did not have a gun of any kind.

On cross-examination he was asked:

“Q. Do you say Dove shot you? A. I have got these wounds. I don’t know whether he did yet or not.”

Dr. V. C. Tizzle testified that he was called to treat the prosecuting witness, and found flesh wounds on both thighs and on the left arm, that he could not say that these wounds were dangerous or likely to produce death.

W. H. Arnold testified that he went to bed about 12 o’clock in a little place cut off back of the kitchen to sleep in. That hearing a noise in the restaurant he jumped up and put on his pants and went in and hollowed to Judge Love to quit shooting and ran and grabbed the gun and it went off once after he got hold of it. That later he gave it to the city marshal; that it was a five shot Smith-Wesson pocket pistol; that Hollis had the defendant down on his back and was choking him with some effect and he pulled Hollis off; that Hollis and W.’ K. Fretwell, commonly called “Shorty” had a bed by the side of the stove in the restaurant.

W'. K. Fretwell testified that he was outside when he heard a shot and went in but did not see who fired the shots; that about five minutes before the -shooting took place witness and Hollis had a scuffle, but neither were angry.

For the defense, L. A. Love, as a witness in his own behalf testified that with McCullum and Gore he entered Hollis and Arnold’s short order joint and ordered an oyster stew and while sitting there talking over a business affair, Arnold tapped him on the arm and insisted on his eating the soup. That he'said “Go on, the soup will be paid for, I will eat it presently.” Then Hollis made the same request and it irritated him a little and he put his finger on the bowl and turned it over on the counter. That Hollis came from behind the counter and commenced fussing about it and he apologized and fold him that he was sorry that he had lost his temper, and Hollis said it was all right, and invited them to the back room to take a drink with him; that McCullum declined and witness and Gore accepted the. invitation. Shortly after he left the place and went to his room in the Hammond News office and from there to the Valley Hotel; that about an hour later while walking along the street opposite the restaurant he heard some one hollowing in there and looking across he saw two men struggling, one was calling for help, and he went across the street and opened the restaurant door and asked what was going on in there; that about that time Hollis said something and struck him on the head with a heavy stool; that he grabbed him and they both went down together and he reached into his pocket and pulled out a little pistol. That he asked Hollis to let him up; that Hollis kept on fighting and he fired two or three shots and Hollis fired two or three shots; that one shot struck him in the hand and other passed through his clothes and he had a bruise on his head that was sore for a month; that he knew that they all had been drinking and he went there to see if he could not stop the trouble; that Shorty Fretwell was struggling with Hollis when he opened the door and Hollis was intoxicated. That Shorty Fretwell and a fellow named McBee - peddled whisky and made the restaurant their headquarters.

On cross-examination he said he had been drinking some that day and had bought the whisky from Shorty Fretwell and McBee and had bought whisky there in the restaurant.

D. S. McCullum testified that he went to the restaurant with Gore and Love and after the soup incident something was said about taking a drink. That Gore and Love and McBee went back to the kitchen, and all the parties concerned acted like they had had a few drinks.

Walter Stevenson testified that he and J. D. Williams were standing in front of the restaurant when the trouble started; that he looked in the window and they seemed to be pulling off a fight of some kind in there and Judge Love came along and opened the door and walked in and asked what was going on in there, or something like that, and Hollis grabbed up a stool or chair and hit him over the head and they got to scuffling and went to shooting and witness ran over to the pool hall.

Dr. George H. Wallace testified that he was called to treat Judge Dove and found a gun shot wound on the hand and a wound over the right eye and an abrasion near the knee, something like two inches in length; that seemed to have been made by a bullet.

Upon a careful examination of the record the conclusion of the court is that the judgment in this case should he reversed. In the first place the information charges the common-law offense of assault with intent to murder. There is ho such offense known ■to our statute. There is a well recognized distinction between an assault with intent to murder and an assault with intent to kill. However, the information was not challenged by demurrer thereto or by motion in arrest of judgment, and in the lower court no claim was made that it was defective in any way. An objection to the sufficiency of an information cannot be raised for the first • time upon appeal, unless it is an objection to the jurisdiction of the trial court over the subject of the information, or when the facts alleged do not constitute a public offense. Considering the allegations of “premeditated design and malice,” and to “murder,” as mere redundance, we think the information is sufficient to charge the offense of assault with intent to kill by shooting with a pistol.

We shall next consider the assignment, of error that the verdict was contrary to the evidence, and the evidence was insufficient to sustain the verdict. It is true that the testimony of the prosecuting witness is the only evidence tending to show that the defendant was the aggressor, and that the testimony tending to show that the prosecuting witness harbored bootleggers in his place of business, was undisputed, and that the defendant’s testimony that the prosecuting witness was the aggressor was corroborated by other witnesses. However, it is not for this court to determine the question of the defendant’s guilt or innocence by ascertaining whether, as an original proposition we would be satisfied of his guilt beyond a reasonable doubt. By numerous decisions of this court it has been held that the jury-are the exclusive judges of the credibility of the witnesses, as well as the weight to be given to their testimony, and a finding by the jury on conflicting evidence on an issue of fact will not be interfered with, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict.

The record discloses that exceptions to each and all the instructions given by the court, were properly preserved, and further exceptions were preserved to the refusal of the court to give requested instructions. However, we deem it unnecessary to reproduce in full the instructions given and refused. ■ Plaintiff in error complains that the court erred in giving the following instructions:

“1. Every person who intentionally and wrongfully shoots another with any kind of a fire arm with intent to kill such person is guilty of a felony and may be prosecuted and convicted therefor.
“3. The information in this case includes the offense mentioned in paragraph number one of these instructions, añd also the offense of an assault and battery by means of a deadly weapon.
“i. It also includes the offense of shooting another with a fire arm with intent to injure him, although without an intent to kill such person, but without justifiable or excusable cause therefor.
“6. If you find from the evidence beyond a reasonable doubt that the defendant, L. A. Love, in Roger Mills county, state of Oklahoma, on or about the 17th day of December, 1911, with a fire arm or gun, to-wit: a pistol, did intentionally and wrongfully shoot W. C. Hollis with the intention then and thereby to kill him, the said Hollis, then you will find the defendant guilty of the offense defined in paragraph number one of these instructions, and so say by your verdict.
“7. If you do not find from the evidence beyond a reasonable doubt that the defendant wrongfully shot said Hollis with the specific intent then and thereby to 'kill, but you do believe from the evidence beyond a reasonable doubt that the defendant wrongfully shot said Hollis with a pistol, and you find that such pistol was capable and sufficient to inflict death to a person shot therewith, then it will be your duty to.find the defendant guilty of the offense of an assault and battery by means of a deadly weapon as defined in paragraph three of these instructions, and so say by your verdict.
“8. If you do not find and believe from the evidence beyond a reasonable doubt that the defendant is guilty of either of the offenses defined in paragraphs one and three of these instructions, but you do believe from the evidence beyond a reasonable doubt that the defendant at the time and place alleged in the information shot the witness W. C. Hollis with a pistol with intent to injure him, and that such shooting was without justifiable or excusable cause, then it will be your duty to find the defendant guilty of the offense described in paragraph number four of these instructions and so say by your verdict.
“9. If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of the offense charged in paragraphs one or three, or of the offense charged in paragraph four of these instructions, but you have a reasonable doubt as to which of such offenses he is guilty, then you must give him the benefit of the doubt and find him guilty of the lesser offense, to-wit, of that defined in paragraph four of these instructions.’’

It will be observed that the court instructed the jury that the defendant was charged with the offense defined by the first clause of section 2336 of the Penal Code, said section provides that:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of fire arm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

Our Penal Code defines other felonious assaults by the use of deadly weapons besides assault with intent to kill. Section 2344 provides:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with1 any kind of fire arm or airgun, or other means whatever, with intent to injure any person, although without intent to- kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceceding five years; or by imprisonment in a county jail not exceeding one year.”

Under the charge of intentionally and wrongfully shooting with a pistol with intent to kill, and under the evidence in the case, the exceptions to instructions numbered three and seven as given by the court, were well taken. Said instructions are not applicable to the facts in evidence in this case. In instruction number seven, the court told the jury in brief, that if they did not find from the evidence that the defendant shot Hollis with a specific intent to kill, but did believe from the evidence that the defendant wrongfully shot said Hollis with a pistol, and further find that such pistol was capable and1 sufficient to inflict death to a person shot therewith, then it would be their duty to find the defendant guilty of an offense defined by section 2336. This instruction is not only subject to the criticism that it is argumentative, but it is not a correct statement of the law applicable to the second clause of said section 2336 intended to be thereby submitted, and it is manifestly inconsistent with instruction number eight which submits the lesser included offense of shooting with intent to injure any person, but without intent to kill such person, as defined by section 2344.

The language o fthe court in instructions numbered eight and nine is also complained of. We think the language complained of might have been understood by the jury that the court expected a verdict of guilty, or the jury might construe the language used as an intimation that it was the duty of the jury under the evidence to find the defendant guilty of the offense charged, or an included offense. When the defendant may be convicted of a lower degree of the offense charged the instructions should cover the lower degrees, and the jury should have been instructed that if after a fair and impartial consideration of all the evidence in the case they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the information, then it would be their duty to consider as to whether lié was guilty of the next lower offense embraced in the charge.

Nichols v. The State, 10 Okla. Cr. 247, 135 Pac, 1071.

Finally it is contended that the verdict is insufficient to support the judgment. The difficulty with .the verdict rendered in this case is, that it is vague and uncertain. First the jury in effect find the defendant guilty of the offense defined and submitted by instructions numbered three and seven. That is, assault and battery by means of any deadly weapon as defined by the second clause of section 2336 already quoted. Which instructions are herein held to be erroneous and not applicable to the evidence adduced.

Flowever, considering the qualifying language used it would seem that tire intention of the jury was to find the defendant guilty of assault with intent to do bodily harm by shooting with a pistol. While verdicts in criminal cases should be certain, and free from ambiguity, yet any words that convey, beyond a reasonable doubt, the meaning and intention of tile jury are sufficient, and all fair intendments will be made to sustain them. Assault with intent to do bodily harm as defined by section 2344 supra, “is punishable by imprisonment in the penitentiary not exceeding five years or by imprisonment in a county jail not exceeding one year.” Where, as in this case, upon a verdict finding the defendant guilty of the offense defined by said section 2344, the jury fixes the term of imprisonment at one year or less, such limited term must be executed by confinement in the county jail and not in the penitentiary. As the judgment must be reversed, it is unnecessary to correct and modify the same. For the error in the charge of the court, the judgment is reversed.

FURMAN and ARMSTRONG, JJ., concur.


text:
      In re JAS. M. LEGGETT, et al.

    No. A-2509.
    Opinion Filed July 30, 1915.
    (150 Pac. 1121.)
    1. BAIL — Capital Offense — Bill óf Bights. Under section 8, Bill of Bights, providing that: "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,” on habeas corpus, or motion for bail, where a capital offense is charged, the burden of proof, after commitment, is on the accused to show that the proof of guilt is not evident.
    2. BAIL — Admission to Bail — Presumption and Burden of Proof. On habeas corpus to be let to bail, the petitioner is required to show facts sufficient to entitle him to bail when those facts do not appear from the evidence adduced on the part of the state. And where the homicide is proven or admitted, the burden is on the petitioner to show the presence of facts tending to justify, excuse, or mitigate the offense. The court will not presume them merely because the state fails to show their absence.
    3. BAIL — Admission to Bail — Sufficiency of Evidence. A mere conflict of testimony even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail. The evideneee must be considered as a whole; and when so considered, unless a well founded doubt of the prisoner’s guilt of murder is generated, bail will be denied.
    Application of Jas. M. Leggett, Henry Wilmouth, and Virgil Brawley, for writ of habeas corpus, to the end that they be let to bail.

      Moman Pruiett and Henry M. Carr, for petitioners.

      R. McMillan, Asst. Atty. Gen., B. G. Nelson,-Co. Atty., and G. M. Barrett, for the State.
   DOYLE, P. J.

This cause is here on a petition for writ 'of

habeas corpus, by Jas. M. Leggett, Plenry Wilmouth, and Virgil Brawley, in which they aver that they are unlawfully imprisoned and restrained of their liberty in the county jail of McCurtain county, by the sheriff of said county; that the cause of said, restraint is that they; have been committed to said county jail by an examining magistrate upon a preliminary examination held upon a complaint charging petitioners with the murder of one Hiram Strawn, in said county on the 3rd day of July, 1915. Petitioners aver that they are not guilty of the crime charged and that upon the evidence introduced upon the preliminary examination the proof of their guilt of the crime of murder as charged, was not evident, nor the presumption thereof great, and that therefore they are entitled to be let to bail.

The petition is supplemented with a transcript of the testimony taken upon the preliminary examination and the affidavits of the petitioners. The evidence shows or tends to show the following facts:

That the petitioner, Leggett, and Roscoe Strawn and Hiram Strawn, the deceased, had some trouble and on the day of the homicide Leggett armed himself with a shot-gun and in company with Wilmouth and Brawley, went down on the public square in Idabel, just across the street from Strawn & Lightsey’s.store and dared the Strawns to come out on the street and fight it out, and that Roscoe Strawn in a conversation over the telephone with Leggett told Leggett that he would meet him on the street and fight it out. The county attorney hearing of the trouble between Leggett and Roscoe Strawn and hearing of the challenges to fight, swore out informations against Leggett and Roscoe Strawn and sent his assistant to the office of D. B. Price, a justice of the peace to have the warrants issued. Warrants were issued and Roscoe Strawn was arrested and taken to jail. Pie phoned to Attorney John.C. Plead, and asked him to arrange for his bond. Head requested the justice of the peace to remain in his office until he could procure a bond. Pie went to the jail where his bond was signed by Roscoe Strawn. He requested Hiram Strawn, the deceased, to go with him t othe office of the justice of the peace to sign and qualify on the bond. When they reached the office of the justice of the peace, H. P. Hosey, and R. P. Drake were in the office making bond for Leggett. Mr. Plead took a seat near the table and Hiram, Strawn, the deceased, sat in the window. Shortly afterwards Leggett with Wilmouth and Brawley went up the stairs to the office of the justice of the peace, Leggett entered by the front door and Wilmouth went around to the side door. Leggett walked in and asked what they were doing there. Judge Price answered that he was writing a release for him on the warrant charging him with sending a challenge to fight a duel. Leggett then drew his pistol and looking at Hiram Strawn said: “You are one of those sons-of-bitches,” and began shooting. The deceased who was unarmed jumped up and attempted to go towards the door. Five shots were fired by Leggett at the deceased, the fatal shot striking him to the right of the spine just below the floating ribs. As a result of his wounds Hiram Strawn died the next morning. The foregoing facts in substance are testified to positively by several eye witnesses.

On the day of the return of the rule to show cause, July 28th, the case was orally argued. Upon the conclusion of the arguments the decision of the court as to the petitioner Leggett was announced and bail as to him denied. The court reserved decision as to the other two petitioners.

Section 8 of the* Bill of Rights reads as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident or the presumption thereof is great.”

By numerous decisions of this court it is held that the burden of proof after commitment is on the accused on an application for bail, where the charge is a capital offense. On habeas corpus to be let to bail the petitioner is required to show facts sufficient to entitle him to bail when those facts do> not appear from the evidence adduced on the part of the state, and where the homicide is proven or admitted, the burden is on the petitioner to show the presence of facts tending to justify, excuse or mitigate the offense. The court will not presume them merely because the state fails to show their absence.

In re Thomas, 1st Okla. Cr. 15, 93 Pac. 980;

Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461;

Ex parte Smith, 2 Okla. Cr. 24, 99 Pac. 893;

In re Fraley, 3rd Okla. Cr. 719, 106 Pac. 295 (139 Am. St. Rep. 288).

“A mere conflict of testimony, even upon a vital issue, does not of itself entitle a defendant held for murder to be admitted to bail. The evidence must be considered as a whole; and when so considered, unless a reasonable doubt of the defendant’s guilt of murder is generated, bail should be denied.” In re Bollin, 3 Okla. Cr. 725, 109 Pac. 288.

In the case of In re Fraley, supra, it is said:

“We are not permitted to presume for the prisoner either justification or mitigation merely because the evidence for the prosecution fails to show their absence. On the contrary, unless the evidence for the prosecution shows the presence of facts or circumstances tending to justify, excuse or mitigate the offense, then the burden is upon the petitioner to make that showing by evidence at least sufficient to generate a reasonable doubt in that respect. It is the law in .this jurisdiction that even in the trial of the case, the commission of the homicide by the defendant being proved, -the burden of proving circumstances of mitigation that justify or excuse it devolves upon him, unless thq proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Section 6854, Snyder’s Comp. Raws of Oklahoma. That being true in the ultimate trial of the case where the question of the defendant’s guilt or innocence, with all its momentous consequences to him, is to be passed upon, why should a different rule prevail on an application for bail, whose only purpose is to procure a release from custody during the short period of time intervening before the trial ?”

Considering the facts as a whole we find no element of justifiable homicide, and we find nothing in evidence from which it could be inferred that the petitioner Jas. M. Leggett acted in his necessary self-defense, either real or apparent. What may be disclosed upon his final trial, we do not know.

As to the petitioners Henry Wilmouth and Virgil Brawley, there is a direct conflict in the evidence. After a most careful consideration of the same, our conclusion is that under the rules hereinbefore stated said petitioners are entitled to be let to bail. It is therefore ordered that the petitioners Henry Wilmouth and Virgil Brawley be admitted to bail, and that their bail be and the same is hereby fixed in the sum of ten thousand dollars, each. Said bail bonds to be conditioned as required by law, and to be filed with and approved by the clerk of the court of McCurtain county.

ARMSTRONG, J., concurs.


text:
    ELI REED v. STATE.
    No. A-2408
    Opinion Filed November 6, 1915.
    (151 Pac. 488.)

      Appeal from County Court, Lincoln County; H. M. Jarrett, Judge.

    Affirmed.
    S. A. Foster and McCarver & Lindsay, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted on an information charging that he did unlawfully transport two gallons of whisky from a place unknown to the Frisco depot in the city of Chandler. On the 3rd day of December, 1914, the court rendered judgment and sentenced plaintiff in error to pay a fine of one hundred dollars and to be confined in the county jail for a period of sixty days. From the judgment the defendant appealed by filing.in this court on February 2, 1915, a petition in error with case-made.

No briefs have been filed and no appearance made on behalf of plaintiff in error when the case was called for final submission. Whereupon counsel for the state moved that the judgment be affirmed for failure to prosecute the appeal.

The evidence for the state is undisputed*and shows that the plaintiff in error was arrested at the Frisco depot in Chandler; that he was carrying a grip which contained thirty one-half pints of whisky. Obviously the appeal in this case is without merit. The'judgment of the trial court is therefore affirmed.


author: ARMSTRONG, J.

text:
    CHARLEY SHERMAN v. STATE.
    No. A-2083.
    Opinion Filed September 13, 1915.
    (151 Pac. 486.)
    1. APPEAL — Verdict. A verdict of guilty by a jury and judgment imposed accordingly by a trial court cannot be upheld in the Criminal Court of Appeals when the record fails to disclose competent evidence tending reasonably to support such verdict and judgment.
    2. APPEAL- — -Discussion of Case. When a discussion of errors assigned can serve no good purpose, this Court will ordinarily decline to review them.
    (Syllabus by the Court.

      Appeal from District Court, Noble County; Hon. W-. M. Bowles, Judge.

    Charley Sherman was convicted of incest, and appeals.
    Reversed.

      H. A. Johnson, for plaintiff in'error.

      R. McMillan, Assistant Attorney General, for the State.
   ARMSTRONG, J.

The plaintiff in error, Charley Sherman, was convicted at the February, 1913, term of the District Court of Noble county on a charge of incest, and his punishment fixed at imprisonment in the state penitentiary for a period of ten years.

The attorney general has filed a confession in error in this cause, based upon the ground that there is no competent evidence in the record upon which to base a judgment of conviction. A careful examination of the record by the court discloses the correctness of the attorney general’s position. The confession in error is therefore sustained.

No good purpose could be served by a discussion of the errors assigned. The judgment is reversed upon the ground that the evidence is insufficient to justify the conviction.

DOYLE, P. J., concurs; EURMAN, J., absent.


text:
    JOHN FOLEY v. STATE.
    No. A-2316.
    Opinion Filed September 11, 1915.
    (151 Pac. 486.)
    1. EVIDENCE — Sufficiency. In cases of circumstantial evidence it is necessary that all the facts and circumstances essential to a conviction be proved beyond a reasonable doubt.
    2. LARCENY — Proseution—Evidence. In a prosecution for larceny, the evidence in the ease examined and found sufficient to sustain the verdict of the jury.
    (Syllabus by the Court.)

      Appeal from District Court, Hughes County; John Caruthers, Judge.

    John Foley, convicted of grand larceny, appeals.
    Affirmed.

      John L. Coffman and Warren & Miller, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was informed against, and by the verdict of a jury found guilty of stealing thirteen hundred and fifty pounds of seed cotton of the value of fifty dollars, the personal property of one Bill Bean. On the ’6th day of March, 1914, judgment was rendered and in accordance with the verdict of the jury he was sentenced to imprisonment in the penitentiary for the term of one year.

An appeal was taken by filing in this court on July 21, 1914, a petition in error with case-made. The testimony on behalf of the state briefly stated was as follows:

Bill Bean testified that about fourteen hundred pounds of seed cotton, of the value of fifty dollars was stolen from his place about three miles from Holdenville; that he and the defendant John Foley lived about two miles apart; that he last saw the cotton in the field Sunday evening, discovered it was missing the next morning and tracked the wagon to Holdenville, went to Foley’s house with Marion Moore and found no cotton there. That the stolen cotton was raised on red soil.

W. M. Dobson.testified that he was at Bean’s cotton pile early in the morning and saw the tracks and followed them to Holden-ville, arriving there at sunrise and went to Aydelotte’s gin and there saw John Deer, and the defendant John' Foley unloading seed cotton.

John Aydelotte testified that about seven o’clock in the morning he bought some seed cotton from John Deer and paid him for it; that the defendant John Foley was present when he bought the cotton; that he could tell the kind of soil the cotton had been raised on and that the cotton in question was raised on red sandy land. That he heard Foley say the cotton was his and that Deer sold it for him because Adams had a mortgage on it.

Henry Showers testified that he lives between Bill Bean’s place and town, and that the night of the theft sometime after midnight he heard a wagon going towards town.

Fred Sanders testified that he lived on the defendant Foley’s 1 place, and that at the time of the theft Foley had picked no cotton out of his own field for thirty days previous te> the theft, and that on Foley’s place it was a black soil.

V. A. Gamble testified that he saw the defendant Foley the Sunday evening before the cotton was stolen about two or three hundred yards from where the cotton was taken.

For the defense, W. D. Thompson testified that the defendant Foley had fifteen acres of cotton on his wife’s allotment and with other Indians was picking cotton right up to the time Bean’s cotton was taken.

Harris Owen testified that he lived with .the defendant Foley and helped him pick the cotton on his wife’s homestead; that before Bean claimed to have lost some cotton, they had picked about a wagon load of cotton and on that morning Foley hauled his cotton to Holdenville; that they loaded the cotton on Foley’s wagon Sunday evening.

Lucy McCoy’s testimony was substantially to the same effect.

The defendant as a witness in his own behalf testified that he raised a crop of cotton on his wife’s homestead which was about a mile from where he lived; that he had been picking his cotton and had brought it over to his home place, and on Monday morning hauled it to town and got John Deer to sell it for him so that he could get the money to pay the cotton pickers, knowing if he sold it himself, Adams would take the money on his mortgage; that he paid the cotton pickers with the money he received for the cotton, and then paid the balance to Adams.

The admission in evidence of certain conversations between the defendant and the prosecuting witness Bill Bean is assigned as error. The record shows that after the prosecuting witness testified that he went with Marion Moore to John Foley’s place, he was asked:

“Q. What statement did he make to you about going down home? 'A. I told him if he would dig up this money we would not make it very hard on him.
“Q. What did he say? A. He said if we would go back down there to" see John Deer we would get this money. That John Deer had a part of it.”

We do not clearly perceive what objection could have been made to the admission of this evidence. It was a voluntary admission indicative of his guilt and as such was clearly competent and admissible. Several errors assigned relate to certain instructions given to the jury and the refusal of the court to give requested instructions. The requested instructions were argumentative and were properly refused. The instructions given to the jury fairly and fully covered the law of the case. The law of circumstantial evidence was fully explained, and the jury were informed that all the inculpatory facts necessary to establish the guilt of the defendant should be proved beyond a reasonable doubt, and that they must be such facts and circumstances as were incompatible with the innocence of the defendant and incapable of explanation upon any reasonable hypothesis other than that of his guilt. The verdict of the jury was abundantly supported by the evidence and we have found no error in the case on which the judgment ought to be reversed and it is accordingly affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    HALL v. STATE.
    No. A-2357.
    Opinion Filed September 18, 1915.
    (151 Pac. 487.)
    EVIDENCE — i Character Evidence. The weight to be attached to evidence of accused’s good character as a law-abiding citizen depends upon the evidence itself and the nature of the charge; and hence it is an invasion of the province of the jury, to charge that an acquittal cannot be rendered on evidence of good character.
    (Syllabus by the Court.)

      Appeal from County Court, Okmulgee County; ■ Mark L. Bozarih, Judge.

    W. T. Hall was convicted of having unlawful possession of intoxicating liquor, with intent to sell the same, and he appeals.
    Reversed.

      Eaton & Cowley and Alf W. Anderson, for plaintiff in error.

      R. McMillan, Assistant Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, W. T. Hall, was convicted at the August, 1914, term of the County Court of Okmulgee county, on a charge of having unlawful possession of intoxicating liquor, with intent to sell the same, and his punishment fixed at a fine of $50.00 and'imprisonment in the county jail for a period of thirty days. The serious error complained of in this case is the giving of the following instruction by the trial court:

“You are further instructed that the defendants in this action .have offered proof as to their good character in the community in which they live as law abiding citizens. Yet this fact does not entitle the defendants to an acquital in this case, but such facts as good character may be taken into consideration by the jury in determining the guilt or innocence of the defendant.”

The attorney general has filed a confession in error, and among other things says that he does not think “that the foregoing instruction is the law of this state — that is, to limit the jury or invade the province thereof. ‘The weight to be attached to evidence as to character depends as much on the quality of character sought to be established as on the quality of the evidence produced on the opposite side and the nature of the charge. A character for honest)'' and integrity, such as that of Mayor Gaynor of New York, for instance, if offered on the part of the defendant charged with larceny, would cast reasonable doubt on any prosecution, no matter how strong the case might be. . In some instances in which guilt would be otherwise established beyond reasonable doubt, evidence of good character ma)' justly produce an acquittal.’ ” And he cites Underhill on Evidence, section 80; State v. Van Kuran, 25 Utah 8, 69 Pac. 60; Kee v. State, 28 Ark. 155; Douglas v. State, 44 Kan. 618, 26 Pac. 479; People v. Bell, 49 Cal. 485; Newsom v. State, 107 Ala. 133; State v. Douglass, 18 So. 206; People v. Friedland, 37 N. Y. Supp. 974; Friel v. State, 6 Okla. Cr. 533: 119 Pac. 1124; Gilbert v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 129 Pac. 671; Dickerson v. State, 8 Okla. Cr| 151, 104 Pac. 923; Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 624; Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; Wells v. Territory, 14 Okla. 438, 78 Pac. 124.

The confession in error in sustained, and the judgment is reversed, with direction to the trial court to grant a new trial.


text:
    GROVER CARR v. STATE.
    No. A-2417.
    Opinion Filed November 6, 1915.
    (151 Pac. 488.)

      Appeal from County Court, Coal County; P. B. Wilhelm, Judge.

    Affirmed.

      Croxton & Roland and Bdzvard Henderson, for plaintiff in errof.

      R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error,' Grover Carr, and Leonard Stokes, were jointly informed against on a charge of selling whisky to one Bud Harmon. A severance was granted and upon his separate trial, the plaintiff in error was found guilty, and his punishment fixed at a fine of fifty dollars and confinement' in the county jail for thirty days. From the judgment which followed, he appealed by filing in this court on March 16, 1915, a petition in error with case-made. No briefs have been filed and no appearance made on behalf of plaintiff in error when the case was called for final submission. Whereupon counsel for the state moved that the judgment be affirmed for failure to prosecute the appeal. An examination of the record discloses no good reason why the motion to affirm should not be sustained. The judgment of the trial court herein is therefore affirmed.


text:
    OSCAR BLYTHE v. STATE.
    No. A-2310.
    Opinion Filed September 11, 1915.
    (151 Pac. 488.)
    1. HOMICIDE — Trial—Instruction. On a trial for assault with intent to kill, when the evidence tends to show justification in self-defense, it is the duty of the court to submit instructions properly embracing the law of self-defense, and it is reversible error to refuse to instruct the jury upon the law applicable to the case.
    2. HOMICIDE — Trial—Instructions—Submission of Issue. Where the evidence is clearly insufficient to sustain the major offense charged in an information for assault with intent to kill, and there is evidence tending to prove the commission of the offense which is necessarily included within the offense charged, it is the duty of the trial court to instruct the jury of their right to convict of the lesser offense.
    (Syllabus by the Court.)

      Appeal from District Court, Comanche County; J. T. Johnson, Judge.

    Oscar Blythe, convicted of assault with intent to kill, appeals.
    Reversed.

      J. F. Thomas, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. ,
   DOYLE, P. J.

The plaintiff in" error was tried on a charge of assault with intent to kill by shooting one Walter Swanson with a pistol. The verdict of the jury was, “We, the jury do upon our oaths find the defendant Oscar Blythe guilty as charged in the information.”

On January 19, 1914, judgment was rendered and he was sentenced to serve a term of two years’ imprisonment in the penitentiary. To reverse the judgment an appeal was perfected.

The evidence shows that at the time of the shooting the prosecuting witness, Walter Swanson and the defendant Oscar Blythe lived on adjoining farms in the eastern part of Comanche county. That the defendant is a brother-in-law of the prosecuting witness, having married his sister, and that other members of the Swanson family lived in that neighborhood. That some time prior to the shooting the relations of the defendant with his wife’s family, the Swansons, had not been friendly. On the day of the difficulty the prosecuting witness started to walk across the defendant’s farm. He testified that passing b.y the defendant who was milking a cow in the pasture, the defendant called him and said:

“You have got me to fight or I will kill you,” and the defendant struck at him but missed him and he struck the defendant and knocked him down. That when he got up he knocked the defendant down again and was on top of him when the defendant shot him in the calf of the leg.

He further shows that the defendant is a man with but one arm, and much smaller than the prosecuting witness.

The defendant did not elect to testify as a witness in his own behalf. The petition and motion for a new trial allege that the instructions given by the court to the jury do not state the law applicable to the case, and error is assigned upon the refusal of the court to give a requested instruction submitting the issue of self-defense. While the defendant was not entitled to have the instruction given in the form presented, he was entitled to have the issue of self-defense submitted to the jury. The undisputed facts that the defendant was on his own premises and that the prosecuting witness was a trespasser tended to show that he provoked the difficulty. His statement that the defendant, a one arm man, did not pull his pistol until after he had knocked him down once or twice, clearly raises the' issue of justification in self-defense. The defendant was entitled to’ have his case submitted to the jury on instructions fairly applicable to the evidence, including a correct statement of the defendant’s right of self-defense under the particular circumstances disclosed by the evidence. It is apparent from the*record that the court erred in failing and refusing to instruct the jury upon the law of self-defense.

It is also contended that the court erred in failing to submit to the jury the issue on the lesser included offense of shooting with intent to injure any person, but without intent to kill such person as defined by section 2344 Rev. Laws 1910. The charge of the court consists of six instructions and submits only the issue of assault with intent to kill-by shooting with a pistol. We cannot understand why the court below refused to submit the issue of self-defense, and why under the evidence, the court failed to submit the issue of assault with intent to do bodily harm, as it. seems to us, that would be the highest grade of assault that should have been submitted to the jury under the evidence in the case.

In Clemons v. The State, 8th Okla. Cr. 452, 128 Pac. 739, it is held that in a prosecution for assault with intent to kill, the court should submit the case to the jury for consideration upon every degree of assault with the evidence, in any reasonable view. And see Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200.

For the errors in the charge of the court as above pointed out, the judgment of the trial court is reversed and the cause remanded.

FURMAN and ARMSTRONG, JJ„ concur. •


text:
    W. A. SMITH v. STATE.
    No. A-2368.
    Opinion Filed September 25, 1915.
    (151 Pac. 694.)
    APPEAL — Verdict—Evidence. When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.

      Appeal from County Court, Pazmee County; Geo. B. Merritt, Judge.

    W. A. Smith, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      McNeill & McNeill, for plaintiff in error.

      R. McMillan, Assistant Attorney General, for the State.
   ARMSTRONG, J.

The plaintiff in error was convicted on a charge that he did have possession of certain beer, with the unlawful intent to sell the same. On the 20th day of August, 1914, in pursuance of the verdict of the jury, he was sentenced to pay a fine of $100.00 and be confined in the county jail for a period of sixty days. From the judgment he appealed by filing in this court November 20, 1914, a petition in error with case-made.

The proof on the part of the state tended to show that one Earl Fletcher, bought a bottle of beer from the defendant, and thereupon a search warrant issued, in serving which the sheriff found part of a barrel of bottled beer at the defendant’s home. The defendant, as a witness in his own behalf, denied that he had ever sold any intoxicating liquor, and specifically denied that he had ever sold Earl Fletcher a bottle of beer, and stated that the beer was purchased at Kansas City for his own personal use.

The sole question presented by the record is the sufficiency of the evidence to sustain the verdict. We have in many cases announced that under the law as it exists in Oklahoma, the Appellate Court will not undertake to reverse a’ judgment in the absence of errors of law, when there is a clear conflict in the testimony, after a jury has found adversely to the contentions of an accused, and the finding has been approved by the trial court. “When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.” Davis v. State, 10 Okla. Cr., 169; 135 Pac. 438.

We do not think there is any serious ground for the contention that this is a case which would justify this court in interfering with the facts as determined by the jury. The judgment herein is therefore affirmed.

DOYLE, P. J., concurs.