text:
    TOM SOUTHER v. STATE.
    No. A-2402.
    Opinion Filed December 18, 1915.
    (153 Pac. 293.)
    1. LARCENY — Sufficiency of Evidence. In a prosecution for the theft of a hog, the evidence considered and found insufficient to warrant a conviction.
    2. INSTRUCTIONS. — Testimony of Accomplice — Corroboration. Whenever the case for the state depends upon the testimony of an accomplice, the court should instruct the jury _ on the law (section 5884, Rev. Laws), requiring the testimony óf an accomplice to be corroborated.

      Appeal from District Court, Cherokee County; John H. Pitchford, Judge.

    Tom Souther, convicted of the larceny of a hog, appeals.
    Reversed.
    J. D. Cox and S. A. Horton, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Tom Souther, and Jess Nichols were jointly charged with the theft of “one white and one black spotted gilt about fourteen months old, marked crop off the right ear, the property of James Ward.”

The defendant Jess Nichols- was granted immunity and he testified as a witness for the state. Upon the trial the jury returned a verdict of guilty as charged, but failed to assess the punishment. On the 22nd day of September, 1911, the court rendered judgment and sentenced the defendant to be confined in the reform school at Granite for the term of two years. To reverse the judgment an appeal was perfected by filing in this court on February 13, 1915, a petition in error with case-made.

A number of questions are raised in the petition in error and brief, however, the only question we deem necessary to consider is) the sufficiency of the evidence to support the verdict.

James Ward testified that he lived near Peggs, and that he had lost a black and white spotted gilt, about fourteen months old, marked by crop off the right ear, and that he did not know what became of her.

Jess Nichols testified, after stating his name, as follows:

“Q. I will ask you if you were acquainted with the following hog; one black and white spotted gilt, about ’fourteen months old, marked crop in the right ear? A. Yes, sir.
“Q. Where did you stee that animal last? A. Back out there in the mountains.
“Q. What became of her? A. We killed her.
“Q. What did you do with her? A. Eat her.
“Q. Where did you take it? A. Up to Tom’s house.
“Q. In what county was this ? A. Cherokee County, Oklahoma.
“Q. And on or about the 15th day of April, 1911? A. Yes, sir. Somewhere along about that time.”

On cross-examination he stated the county attorney promised him if he would turn “state’s evidence,” the case against him would be dismissed, and admitted that he stated in the presence of steveral persons after the promise of the county attorney, that the hog that they killed was “an unmarked solid coal black hog,” also that his mother owned a lot of hogs running on the same range where he killed this hog, "and that some of them were not marked; that he could not recollect for sure whether the hog they killed was marked or not.

The defendant testified in his own behalf that he and Jess Nichols killed a black sow, weighing between seventy-five and a hundred .pounds; that Jess Nichola was working for him and he told him he was going to Tahlequah and get some meat and Nichols said, “We are out of meat down at home too, mama has been trying to get us to kill one for three or four days, we will just go over there and kill one and you can take part of the meat and I will take the other part.” That they went over and found the hogs and Nichols pointed out an unmarked black hog, saying “That gilt right there is mine, and we will just kill her,” that they killed the hog and carried it to his house, and Jess Nicholsi dressed it; that Mrs. Nichols’ hogs run on the range with Mr. Ward’s hogs; that the hog they killed was a coal black hog, and was unmarked; that he had often helped to catch and mark hogs for Mrs. Nichols and the hog they killed was one that got away the last time he helped to mark some hogs for Mrs. Nichols, that they killed the hog about five o’clock in the afternoon and took out the entrails and left them lying there.

The wife of the defendant testified that it was a black hog, and was without marks; that dhe heard Jess Nichols tell her husband that he wanted him to go with him to kill one of his mother’s hogs.

Several witnesses testified that they heard Jess Nichols say that the hog they killed was his mother’s hog.

J. T. Parks, county judge for five years, and several other witnesses qualified as character witnesses and testified that the reputation of the defendant Tom Souther as a truthful law abiding citizen had always been good.

The witness, Jess Nichols, did not deny that he told the defendant that the hog that they killed was the property of his mother.

As a court of errors, it is not, as a rule, our duty to pass upon the facts of a case where there is evidence of the facts legally required to be shown, however, to justify a conviction 'two things are required, First, the corpus delicti, and, Second, the defendant’s guilty agency in the crime. Here the case for the state depends upon the testimony of the co-defendant, an accomplice, who testified that he knew the hog that was taken, was the .property of James Ward, but he does not testify that the defend- , ant Tom Souther knew that it was Ward’s hog, nor does he dispute the fact that at the time he claimed that it was) his mother’s hog.

For this reason we are of the opinion that conceding the testimony to be prima facie sufficient to establish the corpus delicti, there is no evidence reasonably tending to show the defendant Tom Souther’s guilty agency in the crime, or that the taking in so far as he was concerned was felonious. It appears that there was) no instruction given or requested on the law requiring corroboration of the testimony of an accomplice. (Section 5884 Rev. Taws.)

Because the evidence is insufficient to sustain the conviction, the judgment is reversed and the cause remanded.

FURMAN and ARMSTRONG, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LIGHTFOOT WEST v. STATE.
    No. A-2443.
    Opinion Filed January 15, 1916.
    (153 Pac. 538.)

      Appeal from District Court, Canadian County; John J. Carney, Judge.

    Tightfoot West, convicted of cattle theft, appeals.
    Reversed.
    J. N. Roberson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Tightfoot West; was convicted of the larceny of domestic animals and was) sentenced to be imprisoned in the penitentiary for the term of five years. The, judgment was rendered on October 17, 1914. To reverse the judgment an appeal was perfected by filing in this court on March 15, 1915, a petition in error with case-made.

The attorney general has filed the following confession of error:

“In this case the court gives to the jury the following instruction:
“ ‘The unexplained possession of stolen property recently after the theft, by the party charged with the theft, is a circumstance tending to prove his guilt, and if you find from the evidence in this case, that the defendant has failed to give a reasonable explanation of his possession of the property alleged to have been stolen, consistent with his innocence, then you should consider the fact of his possession as a circumstance tending to prove his guilt; but, on the other hand, if you find that the defendant has given a reasonable explanation of his possession of such .property, not inconsistent with his innocence such possession should not be considered by you ad evidence of his guilt.’
“ ‘The defendant objected and excepted to the giving of the above instruction. John J. Carney, District Judge.’
“We think that this instruction is no longer the law of this state. It usurps the province of the jury, puts the burden on the defendant, requires an explanation on his part, and is contrary to the law of this state as laid down in Cox v. Territory, 2nd Okla. Cr. 678, 104 Pac. 378; Slater v. U. S., 1st. Okla. Cr. 275, 98 Pac. 1010; Askew v. U. S., 2nd Okla. Cr. 155, 101 Pac. 121; Pickering v. U. S., 2nd Okla. Cr. 197, 101 Pac. 123. We therefore confess error.”

We are of the opinion that the giving of this instruction constitutes prejudicial error. It in effect deprives the defendant of the presumption of innocence. It shifts the burden of proof by requiring him to establish his defense by a preponderance of the evidence. It follows that the confession of error is well founded. The judgment herein is' therefore reversed and a new trial awarded.


author: DOYLE, P. J.

text:
    ED ALEXANDER v. STATE.
    No. A-2510.
    Opinion Filed December 29, 1915.
    (153 Pac. 619.)
    DISMISSAL — Fugitive from Justice. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case. And where a defendant makes his escape from the custody of the law, and becomes a fugitive from justice, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from County Court, Kingfisher County; R. F. Shutter, Judge.

    Ed Alexander was convicted of a violation of the prohibitory-law and appeals.
    Appeal dismissed.

      Bradley & Bradley, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Ed Alexander was convicted in the County Court of Kingfisher county on an information charging that on or about the second day of March, 1915, in said county and state, he did sell one quart of whisky to one H. W. Willis, for the sum of two dollars. On the 5th day of May, 1915, judgment was rendered and he was)' sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars and the costs. From the judgment an appeal was taken by filing in this court on the 26th day of July, of this year, a petition in error with case-made.

The attorney general has filed a motion to dismiss the appeal on the ground that plaintiff in error is a fugitive from justice. Which motion is supported by the affidavits of W. B. Blair, county attorney and W. M. Rutherford, sheriff of Kingfisher county.

On the factd as averred in the motion, and by affidavits in support thereof, we think the motion to dismiss the appeal should be sustained, as coming within the following rule declared by this court in numerous decisions:

“Where a defendant has been convicted and sentenced, and perfected an appeal, this court will not consider his appeal, unless defendant igi where he can be made to respond to any judgment or order which may be rendered in the case. And where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice the appeal will be dismissed.”

Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453.

It appearing that the plaintiff in error has escaped from the custody of the sheriff of Kingfisher county, and is at large as a fugitive from justice, the appeal herein is dismissed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    T. S. McFarland v. State.
    No. A-2127.
    Opinion Filed December 29, 1915.
    (153 Pac. 619.)
    PER JUEY — Allegation and Proof — Variance. In a prosecution for perjpry, the proceeding, if judicial, in which the oath was taken, must be accurately described in the information, and must be proved substantially as alleged, and where the information charged that the offense was committed by falsely testifying as a witness on his trial in a criminal ease, and the proof showed that the alleged false statement was made in his affidavit for a continuance in said case, while the same was pending in the trial court: Held, that the variance is fatal to the prosecution.

      Appeal from District Court, Garvin County; R. McMillan, District Judge.

    T. S. McFarland, was convicted of perjury and appeals.
    Reversed.

      Blanton & Andrews and Carr & Fields, for plaintiff in error.
    S. P. Freeling, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted of perjury, and his punishment assessed at five years imprisonment in the penitentiary. From the judgment rendered upon the verdict he appeals.

The material charge in the information was that on a trial before the County Court of Garvin county, wherein the defendant wad on trial charged with petit larceny, he was then and there duly sworn to testify as a witness in his own behalf,

“and while so testifying, said T. S. McFarland did wilfully, corruptly, feloniously, falsely and contrary to such oath, state to said Court, in substance, that one Ethel Davis, prior to siaid trial, had told him in the City of Lawton, Oklahoma, that said Ethel Davis had seen one Mrs. Lula Shiels, in the City of Lawton, Oklahoma, two or three days after the 11th day of November, 1912, open a letter and take therefrom a ten dollar bill; whereas, in truth, and in fact, the said Ethel Davis, prior to said trial' had not told said T. S. McFarland, at any place that said Ethel Davis, had, at any time, seen one, Mrs. Lula Shiels, in the City of Lawton, Oklahoma, open a letter and take therefrom a ten dollar bill; that said statement then and there made to said Court by said T. S. McFarland was then and there material to the question in issue in said case and was false, and said T. S. McFarland then and there knew the same to be false, against the peace and dignity of the State.”

The attorney general has filed a confession of error to the effect that the information was insufficient to properly charge the crime of perjury, and that the evidence was insufficient to sustain the conviction.

It is manifest from an inspection of the record that the confession of error is well founded. The information alleged that the defendant as a witness in hist own behalf did wilfully, corruptly, feloniously and falsely testify on his trial in said County Court. The proof was that the alleged perjury consisted in making the alleged statement in his affidavit in support of a motion for continuance in a petit larceny case then pending in said County Court. This was a fatal variance. In a prosecution for perjury the proceeding, if judicial, in which the oath was administered must be accurately described in the information and must be proved substantially as alleged. To constitute perjury when the oath is taken in a judicial proceeding, the statement falsely sworn to must be material to the issue, or to the point of inquiry. Oaths are of frequent necessity during the progress of judicial proceedings, which are matters of evidence only to procure the exercise of the power, and which can exert no influence on the final judgment, or in any subsequent state of the proceedings. The force of a false oath as matter of evidence is ■exhausted when the point of inquiry is determined. In this case it appears that while the alleged false statement as to what some third person told the defendant might have been material to the point of inquiry at the time it was made. It was not material to any issue in the trial of the petit larceny case. Because of the irregularities noted, the judgment is reversed, and the prosecution ordered dismissed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    ADAM LYTTON v. STATE.
    No. A-2250.
    Opinion Filed December 29, 1915.
    (153 Pac. 620.)
    HOMICIDE — Harmless Error — Conviction of Lesser Crime. In a prosecution for murder, where the court ■ submits the issue, and the jury find the defendant guilty of manslaughter in the first degree, where the law and the facts make the crime murder, the fact that the jury found the defendant guilty of a lower degree than that established by the evidence, is an error in his favor, of which the defendant cannot complain.
    (Syllabus by the Court.)

      Appeal from District Court, Kingfisher County; James B. Cullison, Judge.

    Adam Eytton, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      W. A. McCartney and Daniel W. Lewis, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Adam Eytton, herein referred to as the defendant, was convicted of manslaughter in the first degree on an information filed in the District Court of Kingfisher county on the 10th day of October, 1913, wherein it was charged that the said Adam Eytton in said county, on the 9th day of September, 1911, did kill and murder one Orville H. Smith, by shooting him with a pistol. In accordance with the verdict of the jury on November 1, 1913, the court rendered judgment and sentenced the defendant to imprisonment in the penitentiary for the term of ten years. From the judgment he appealed by filing in this court on April 29, 1914, a petition in error with case-made.

The material facts, as we believe the evidence established them, are as follows:

The deceased, Orville H. Smith, a white man with his family lived on a farm in Kingfisher county, near the old town' of Zion. The neighborhood was largely populated by negroes who on the day of the tragedy were having a picnic with his permission in a grove on Mr. Smith’s place. Mike Hughes), a white man missed a bottle of whisky which he had bought there and had wrapped up in a “slicker,” that was tied to the saddle on his horse. He saw some negroes drinking the whisky and asked Mr. Smith to help him get his whisky back. Mr. Smith asked the negroes to give the whisky to Mr. Hughes. The negroes denied that it was Hughed’ whisky, and Hughes told Motie Jones who held the bottle that they could have the whisky, and they commenced to drink it. Mr. Smith said it was a shame to steal a man’s whisky, and Motie Jones said, “God damn you, you cannot accuse me of stealing,” and drew a knife or razor and advanced on Mr. Smith, who stepped back and drew a pistol, saying: “Don’t you advance on me with that knife, you damn black son-of-a-b — h,” and fired two shots in the air. The defendant Lytton stepped up behind Smith and struck him on the back of the head. Smith fell forward and dropped the pistol -and the defendant Lytton grabbed it and fired two dhots at Smith, saying as he fired each shot, “Get up, you damn son-of-a-b — h.” One bullet entered the right side between the ninth and tenth ribs, took a downward course penetrated the intestines, coming out behind the pubic bone.

Dr. Edward Underwood testified that he was a practicing physician at Crescent and in answer to a telephone call went to Mr. Smith’s place and found him lying where he was shot; that he had him taken to the house and dressed the gun-shot wound; that he also found a bruise and abrasion on the back of the head, apparently made by' some blunt instrument; and that blood, was oozing from one of his ears; that he arrived at Mr. Smith’s place about eight o’clock in the evening and stayed with Mr. Smith until he died at one o’clock p. m., the next day.

The defendant Lytton made his escape and was arrested about two years later in the city of St. Louis, where he was living under an assumed name.

There is'but very little conflict in the testimony of the witnesses to the tragedy.

The defendant as a witness in-his own behalf testified that he had been convicted of the crime of assault with intent to kill in the District Court of Logan county, Oklahoma Territory, and was sentenced to serve a term of five years’ imprisonment in the penitentiary at Lansing, Kansas; that after serving three years and eight months of his Sentence he was pardoned on the 18th day of March, 1906; that he was at the picnic held near Zion on the-9th day of September, .1911, and that evening found a bottle of whisky in the grass about thirty rods from the dancing platform; that Jim Nesbit, Ike Dickerson and Motie Jones were with him at the time and they went over to Claud Anderson’s house and each took a drink; and he handed the bottle to Motie Jones. They then started back to the dancing platform and stopped in a thicket where they all took another drink. Orville Smith and Mike Hughes came up and Hughes said: “Boys; that’s) my whisky you have got there, isn’t it.” The defendant Lytton answered, “No I found this whisky.” Smith said: “That is his whisky Motie, give the man his whisky and let it go, and Smith and Motie got into a squabble; that witness moved around and got by the side of Hughes’ horgte; that Smith said “Get back Motie, get back God damn you, don’t you come up on me with that knife,” and fired two shots saying, “I will kill all you God damned sons-of-b — hes.”

His further testimony is as follows:

“Then I runs up and grabs him and I and him gets to scuffling and I had hold of the barrel and in the fall the gun went off and it burnt me and I turned the gun loose and when he fell on his back he threw his hand back over here (witness indicates). I steps back and looks over and sees the gun and reaches over and gets the gun; I stepped back and said ‘Get up, get up.’ He said, T can’t get up you have killed me now.’ I said ‘Get up, get up and fight for yourself,’ he said, T can’t get up and I shot again; I shot after I first told him to get up. When I fired the gun I aimed to shoot them two loads out of it and put the gun away. I didn’t have any idea that Orville was shot and then if he wanted to fight we could fight it out, but I wanted to get rid of the gun. In the meantime somebody comes up and snatches the gun away from me.
“Q. Did you shoot Orville Smith? A. No, sir, I didn’t shoot him. ■
“Q. Did you have your hand on the trigger of the gun at the time it was fired, or at the time it fired the ball into the body of Orville Smith? A. No, sir, I had my hand on the barrel of this gun, I suppose that the ball went into his body, I do not know where it went.
“Q. Did either of the two shots you fired out of the gun hit Orville Smith? A. No, sir, it did not.
“Q. Did you strike Orville Smith on the back of the head with anything? A. No, sir, I did not.”

The assignments of error are based upon objections to the charge of the court and are in effect that the trial court erred in submitting the issue of self-defense; also that the court erred in failing to define manslaughter in the second degree.

It is a sufficient answer to the contentions made to say that we think after a careful survey of the facts in evidence, that1 there was no element of self-defense in this case. Considering the testimony of all the witnesses in the case excepting that of the defendant, there is no doubt in our minds that the homicide was a deliberate and premeditated murder, and while the defendant’s account of the killing differs somewhat from that given by the other witnesses, he is, we think guilty of murder upon his own statement. It would seem that the demands of justice, and the protection of society, clearly required in this case that the penalty prescribed by the law for the punishment of the crime of murder should have been imposed upon the defendant, however, the court submitted the question of manslaughter in the first degree, and the jury found the defendant guilty of this lower degree. It is the province of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and it has been uniformly held by this court that if the jury in a homicide case find the defendant guilty of a lower- degree, where the law and the facts make it murder, it is an error in favor of the defendant of which he cannot complain. Juries frequently render just such verdicts, and this can only be accounted for upon the theory that the verdict was the result of a compromise of opinion.

It follows that it is our duty to affirm the judgment. The judgment of the District Court of Kingfisher county is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    W. R. KELLY v. STATE.
    No. A-1919.
    Opinion Filed January 10, 1915.
    (153 P. 1094.)
    1. INDICTMENT AND INFORMATION — Information—Amendment —“Forgery in the First Degree’’- — -“Forgery in the Second Degree.’’ On a trial for forgery, charged as defined by section 2621, Rev. Laws, providing that any person is guilty of forgery in the first degree who with intent to defraud, forges “any deed or other instrument, being or purporting to be the act of another, by which any right or interest in real property is, or purports to be transferred, conveyed, or in any way changed or affected, ” it is error to permit an amendment which will change the information so as to charge forgery as defined by section 2626, Rev. Laws, which defines forgery in the second degree to be the making of a false certificate of acknowledgment by an officer authorized to take the acknowledgment of a deed or other instrument affecting real property, which by law may be recorded.
    2. INDICTMENT AND INFORMATION — Conviction of Included Offense — Different Degrees of Same Offense. Where criminal acts of widely different characteristics are arranged together under a statute as degrees of an offense of the same name, a conviction cannot be had of a crime as included in the offense specifically charged, unless the information in charging a higher degree contains all the essential allegations of the lower degree.
    3. INDICTMENT AND INFORMATION — Conviction of Included Offense — Information. Procedure Criminal, sec. 5923, Rev. Laws,' providing that “The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged,” applies only where the allegations of the information embrace or cover the included offense, or when such included offense is an essential element of the offense charged.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; G. A. Brown, Judge.

    W. R. Kelly, was convicted of forgery in the second degree and appeals.
    Reversed.
    The following information, omitting title, verification and endorsements was filed in the District Court of Blaine county:
    “In the name and by the authority of the State of Oklahoma:
    Now comes A. L. Emery, County Attorney, in and for the State and County aforesaid, and gives the court to know and be informed that one W. R. Kelly late of the County of Blaine and State of Oklahoma on the 24th day of November in the year of our Lord one thousand nine hundred and Nine at and within the said County and State did then and there, unlawfully wilfully, and intentionally, knowingly, wantonly, maliciously and felon-iously fraudulently and falsely, make forge and counterfeit and cause to be made, forged and counterfeited, a certain instrument of writing, being and purporting to be the act of another' person,” to-wit: J. J. Kelly which said instrument of writing, as aforesaid was and is in language, words, and figures, and of the following purport, and effect, to-wit:
    ‘Know all men by these presents: Whereas, on the 6th day of July, 1903, a certain mortgage or deed of trust was executed by Ira B. Coon and Cora E. Coon, mortgagors, to J. J. Kelly, mortgagee, for the sum of Eighty-five_no/100 Dollars, upon the following described real estate, viz: Lots 10-11 and 12, in Block 4-0 in the Town of Watonga, Blaine County, Oklahoma, which said mortgage is recorded in Vol. 10 of mortgages on page 32 of the records of Blaine County, Oklahoma.
    Whereas, the note secured by said Mortgage has been paid in full.
    NOW, THEREFORE, J. J. Kelly, the above named mortgagee does hereby remise, release and forever quit claim all his right, title and interest in and to the above mentioned property, which he may have, acquired by virtue of said above named mortgage or deed of trust to_the said mortgagors, their heirs and assigns forever.
    Witness my hand this 10th day of November, 1907.
    J. J- Kelly.’

      State of Oklahoma, Blaine County, ss.
    Before me, a Notary Public, in and for said County and State, on this 10th day of November, 1907, personally appeared J. J. Kelly and_to me known to be the persons who executed the above release and such person duly acknowledged the execution thereof to be his free and voluntary act for the purpose named.
    Witness my hand and official seal the date above written. (Seal.) . W. R. Kelly, Notary Public.
    My commission expires Jan 9, 1909’
    6448
    Release of Mortgage
    from
    J. J- Kelly
    to
    Ira Coon et al
    D 10-11-12 B1 40 Wat.
    State of Oklahoma, ss.
    County of Blaine.
    This instrument was filed for record on the 24th day of Nov. A. D. 1909 at 10:50 a. m. and duly recorded in Book R. 1, page 553. Fees 75 cents due in advance Theodore Graalman Register of Deeds.
    Deputy.
    This release conforms with the printed records of Blaine County.
    Furnished on application by Theodore Graalman Register of Deeds.
    10-32
    11-10-07
    Ira Coon, Call.

      with the unlawful, wilful, fraudulent and felonious intent of him the said W. R. Kelly, to then and there cheat and defraud the estate of J. J. Kelly, he the said J. J. Kelly was then and there deceased, and the said instrument of writing so forged.and counterfeited as aforesaid, being then and there an instrument of writing by which the rights and property of the said estate of J. J. Kelly, deceased, were, are and purport to be diminished and affected and by which said false, fraudulent and felonious making, forging and counterfeiting of said instrument of writing as aforesaid, the said estate of J. J. Kelly, deceased, may be and were affected, bound and injured in its property, contrary to the form of Statute in such case made and provided and against the peace and dignity of the State.”
    To the information the following demurrer was interposed, overruled and exception allowed:
    • “The defendant demurs to the Information filed in said action in said court on the grounds following, to-wit:—
    First, Said Information does not state facts sufficient to constitute a public offense.
    Second, More than one offense is charged in said Information.
    Third, Said Information is not direct and certain as to the offense charged, nor the particular circumstances of the offense charged, and does not sufficiently inform the defendant of the nature and cause of the accusation against him.”
    Upon the trial when the state rested, the defendant moved the court to advise the jury to acquit the defendant, “on the ground that the evidence is insufficient to warrant the conviction of the defendant.of the offense charged in the information, and on the further ground that there is a variance between the allegations of the information and the proof in evidence.” Which motion was overruled and exception allowed.
    Thereupon the defendant introduced his evidence and after all the evidence on the trial had been introduced and both the state and the defendant had rested, the state asked leave to amend the information, and the defendant made objections thereto. Proceedings showing said application and objections are as follows:
    “Mr. Emery: The State at this time asks leave to amend the information by adding the words, adding after the words ‘J. J. Kelly’ in the charging part of the information and where the words “JJ. Kelly’ is first used in the information, the following: ‘and in said instrument knowingly and falsely certified that said instrument was acknowledged by said J. J. Kelly, when in truth and in fact such instrument was not acknowledged by said J. J. Kelly, as certified, and the said W. R. Kelly then and there being a Notary Public, duly commissioned and qualified for the residing ' in said county and state, and.’
    Mr. Foose: The defendant objects to1 the State being allowed to amend the information as requested for the reason that the amendment proposed changes the information so as to charge another, distinct and different offense from the original charged in the information, and for the reason that no cause, reason or excuse is shown why the amendment was not made earlier and before the taking of evidence on the trial, nor why the information did not as originally filed charge the defendant with that offense.
    For the further reason that the case was tried throughout, both on the part of the State and the Defendant upon the theory that the information charged the defendant with the forgery of the words' — with the forgery of the release and the forgery of the name and signature of J. J. Kelly to the release, and not under the theory that the defendant was being prosecuted for making a false certificate of acknowledgment as a Notary Public.
    For the further reason that the defendant has not made any preparation for the defense, nor attempted to make any defense in this trial to the offense which would not be charged against him if the State is permitted to make the proposed amendment.
    For the further reason that under the charge that would be made by the amended information, if it should be amended, the defendant has not had any preliminary examination; nor has he ever been given an opportunity to have a preliminary examination, or to waive the same, and such charge not appearing in the complaint and no complaint was ever filed against him in any court or before the county judge, or any court, for a preliminary examination on such charge.

      For the reason that the substantial rights of the defendant would be prejudiced by the making of such amendment.
    For the reason that if the amendment were permitted, the information as amended would be duplicitious and would charge two offenses in one information, to-wit: the original forgery charged in the release of the signature of J. J. Kelly, and in addition thereto the charge of making a false certificate as a Notary Public, and the defendant asks leave of court to introduce evidence in support of the grounds above stated that no preliminary complaint was ever filed to the charge as amended, and the charge as it would be if the amendment were allowed, and that the defendant was not given any preliminary examination, or ever was given an opportunity to do so.
    The Court: All right; I will permit you to introduce your evidence.”
    The objections of the defendant to the application of the state, amending the information were overruled, to which, the defendant accepted and the state was allowed to amend the information by adding thereto certain allegations as follows, to-wit:
    “and in said instrument knowingly and falsely certified that said instrument was acknowledged by the said J. J. Kelly when in truth and in fact such instrument was not acknowledged by said Kelly as certified and the said W. R. Kelly then and there being a notary public, duly commissioned, qualified for, and residing in said county and state.”
    Thereupon the defendant moved the court to continue the case for the term in order to enable him to prepare for trial on the charge as amended, which motion was overruled and exception allowed. Thereupon the defendant asked for twenty-four hours in tvhich to plead to the information as amended, which application was overruled and exception allowed.
    Thereupon the defendant filed the following motion to set aside the information:
    “The defendant moves the court to< set aside the information as amended and particularly to set aside that part of the information including the amendment which purports to charge the defendant as an officer with the offense of knowingly and falsely making a false certificate of acknowledgment, on the following grounds, to-wit:
    First: — The defendant has not had a preliminary examination on said information as amended nor on the said offense nor on the offense charged therein by said amendment, nor in said action or proceeding, nor has he waived any such preliminary examination, nor has he been given an opportunity to do so, and no preliminary complaint charging the defendant with the commission of the offense charged in said amended information or charged by said amendment or charging him with the commission of the offense of knowingly and falsely certifying that an instrument was acknowledged by J. J. Kelly when in truth and in fact such instrument was not acknowledged by said J. J. Kelly, he the said W. R. Kelly, being a-notary public, in any court or before any court or magistrate, or any where else.
    Second: — The information as amended is not sworn to or verified or affirmed and is not based on or supported by any affidavit, verification or affirmation nor by any verified, sworn or affirmed complaint, and the said amendment was never verified by any oath or affirmation or sworn to or affirmed, nor based on or supported by any affidavit, verification or affirmation, or by any verified sworn or affirmed complaint.
    The defendant offers to introduce evidence in support of this motion and asks leave of court to do so.”
    Which motion was overruled and exception allowed.
    Thereupon the defendant filed a demurrer to the amended information, yffiich was overruled and exception allowed. Thereupon the defendant in support of his motion for a continuance filed his affidavit which reads as follows:
    “State of Oklahoma, Blaine County, ss:
    W. R. Kelly, duly sworn, on his oath says he is defendant in the above entitled case. That by reason of the amendment to the information filed herein this defendant was surprised and is not at this time prepared to meet the charge contained in the information as amended, and that such amendment substantially changes the charge contained in such information, and requires other and different proof to meet such charge.

      Wherefore defendant prays that a continuance may be ,had of the trial of said cause for the term of this Court to enable him to prepare his defense to such information as amended.
    W. R. Kelly.
    Sworn and subscribed to before me this 30 day of September, 1912.
    (Seal) E. J. Warner, Clerk District Court.”
    This application for continuance was overruled and exception allowed. “ •
    Thereupon, without the introduction of any other evidence on the part of the state, and without giving the defendant any opportunity to offer or introduce evidence, on said charge as amended, the court charged the jury in part as follows:
    “1. The information in this case includes the offense of forgery in the first and second degrees, but the court is of the opinion the evidence is insufficient to warrant a verdict of guilty of forgery in the first degree.
    2. Any person authorized to take acknowledgments or proof of any conveyance to real property, or of any other instrument which by law may be recorded, and who knowingly and.falsely certifies that any such conveyance or other instrument was acknowledged by any party thereto, when in truth such conveyance or other instrument was not acknowledged as certified, is guilty of forgery in the second degree.
    Given. Excepted to by defendant. G. A. Brown, Judge.
    3. The Court instructs you that a Notary Public in and for Blaine County, Oklahoma, during his term of office as such notary public, is and was, during the year 1909, an officer authorized to take the acknowledgment and proof of a release of a mortgage upon real property, and such release when so acknowledged may, by law, be recorded in the office of the register of deeds in the county where the mortgage is recorded and in which the real property mortgaged is situatéd.
    Given. Excepted to by defendant. G. A. Brown, Judge.
    4. Now, bearing in mind these instructions and carefully applying them to the evidence, if you believe from the evidence beyond a reasonable doubt that on or about the 24th day of November 1909, in the county of Blaine and State of Oklahoma, the defendant, W. R. Kelly, was a Notary Public in and for said county, and that as such notary public he then and there falsely certified that the release and instrument set out in the information 'herein was acknowledged before him, as such notary public, by J. J. Kelly, when in truth he, the defendant, then and there knew that such release and instrument was not acknowledged before him as such officer by the said J. J. Kelly, as certified by him, the defendant; then you will find the defendant guilty of forgery in the second degree as charged in the information, and so say by your verdict. If you do not°so find and believe, you will acquit the defendant.
    Given. Excepted to by defendant. G. A. Brown, Judge.”
    When the counsel for the state arose to address the jury, the defendant requested that the court reporter be required to take the address of counsel for the state to the jury in shorthand, which request was by the court denied, and exception allowed.
    The jury rendered a verdict finding the defendant guilty of forgery in the second degree as charged in the information, leaving his punishment to be fixed by the court.
    Motions for new trial and in arrest of judgment were duly filed and overruled, and the court rendered judgment and sentenced the defendant to confinement in the penitentiary for thirty days.
    To reverse the judgment, the defendant appeals.

      Bd Baker, Seymour Boose and R. C. Brown of Watonga, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and A. L. Bmery, Co. Atty., for the State.
   DOYLE, P. J.

In the view we have taken of the disposition necessary to be made of this case it is neither important nor necessary to consider more than one of the many questions presented in the record and briefs.

This record shows that the preliminary complaint before the magistrate and the original information filed in the District Court charged the forgery of the name of J. J. Kelly to a release of a real estate mortgage, and that they were framed under Section 2621 Rev. Daws, First Subd., which provides that:

“Any person who, with intent to defraud, forges, counterfeits or falsely alters:
First.: Any will or codicil of real or personal property, or any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way changed or affected;-Is guilty of forgery in the first degree.”

It further shows that after all the evidence had been introduced on the trial, the state asked leave, and against the defendant’s objections, the court permitted the state to amend the information so as to charge the making of a false certificate of acknowledgment as a Notary Public, as defined by Section 2626 Rev. Daws, which provides that:

“If any officer authorized to take the acknowledgment or proof of any conveyance of real property, or of any other instrument which by law may be recorded, knowingly and falsely certifies that any such conveyance or instrument was acknowledged by any party thereto, or was proved by any subscribing witness, when in truth such conveyance or instrument was- not, acknowledged or proved as certified, he is guilty of forgery in the second degree.”

The court in its charge withdrew from the consideration of the jury the offense charged in the original information and submitted only the offense charged in the amendment thereto. The' jury found the defendant guilty of forgery in the second degree.

Counsel for the defendant contend “That the amendment permitted, charged a separate, distinct and different offense from that charged originally, and should not have been allowed; that on this charge no preliminary complaint had ever been filed and his conviction was in violation of the following provisions of the bill of rights: “No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary .examination.” (Const. Art. 2, Sec. 17), and “In all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him, and have a copy thereof.” (Const. Art. 2, Sec. 20)^ It is claimed by counsel for the state that under Section 5923 Rev. Laws, providing that, “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged,” that the amendment was not prejudicial to the substantial rights of the defendant and it is argued that “under our statutes (Sec. 1154 and Sec. 1169 Rev. Laws) the certificate of acknowledgment is a necessary essential element of the forgery of the release, that if forgery in the first degree cannot be predicated upon the release without the acknowledgment under our laws, then the false certificate of acknowledgment is a necessary element and the commission of it is necessarily included in the charge in the information.”

We think the proposition advanced by counsel for the state is untenable. The rule that the defendant may be convicted of any offense the commission of which is necessarily included in that with which he is charged applies only where the allegations of the information embrace or cover the included offense, or when such included offense is an essential element of the offense charged. To constitute forgery under section 2621 supra, as charged in the original information there must be a false writing or alteration of an instrument purporting to be the act of another by which any right or interest in any real .property is, or purports to be, in any way changed or affected, and the instrument as made must be apparently capable of defrauding, and there must be an intent to defraud. To constitute forgery under section 2626 supra, there must be the making of a false certificate of acknowledgment by an officer authorized to take the acknowledgment of a deed or other instrument affecting real estate, which by law may be recorded. The crime under the latter section is a different crime than that under the former. The former is a crime against property while the essence of the latter is the making of a false acknowledgment. Where criminal acts of widely different characteristics are arranged together under a statute as degrees of an offense of the same name, a conviction cannot be had of a crime as included in the offense specifically charged, unless the information in charging a higher degree contains all the essential allegations of the lower degree. It follows that the amendment in effect changed the information so as to substitute another crime for the one originally charged therein.

Under the provision of the constitution already quoted, the defendant in a criminal case has the right to be informed as to the acts which he has committed which constitute his supposed crime; he cannot be charged in the preliminary complaint and in the information with one offense, and upon his trial be convicted of another different offense, and unless the same is included in the offense charged and embraced within the allegations of the information.

Upon a consideration of the record we deem it proper to say that the evidence as we view it was insufficient to support the conviction and the motion to direct an acquittal when the state rested its case should have been sustained.

It may not' be improper to remark that the record in this case goes to show that the criminal law is best administered by a close adherence to the rules of procedure found essential and salutary by experience and established by the wisdom of the ages.

For the reasons stated the judgment of the District Court of Blaine county herein is reversed and the cause remanded with direction to dismiss.

FURMAN and ARMSTRONG, JJ., concur.


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    BEN JOHNSON v. STATE.
    No. A-2449.
    Opinion Filed February 5, 1916.
    (153 Pac. 1165.)

      Appeal from County Court, Canadian County; W. A. Maurer, Judge.

    Ben Johnson, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Babcock & Trevathan and B. T. Barbour, for plaintiff in error.

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

Ben Johnson, plaintiff in error was tried on an information charging that he did have possession of whisky and beer with intent to sell the same; was convicted and sentenced to pay a fine of fifty dollars and to be confined in the county jail for thirty days.

From the'judgment an appeal was perfected by filing in this court on April 30, 1915, a petition in error with case-made.

The evidence as to possession is undisputed. Two or three witnesses testified to having previously purchased whisky from the plaintiff in error.

As a witness in his own behalf he testified that he had the whisky and beer found in his possession for his own use.

An examination of the record discloses that there is no question saved 0by exception for this court to review. The judgment is therefore affirmed. Mandate forthwith.


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    WEBB HIGH v. STATE.
    No. A-2246.
    Opinion Filed February 16, 1916.
    (153 Pac. 1165.)

      Appeal from Superior Court, Oklahoma County; Edward Dezves Oldfield, Judge.

    Webb High, convicted of felony, appeals.
    Appeal dismissed.

      Thos. W. Conner, for plaintiff in error.

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

Webb High, plaintiff in error, was convicted in the Superior Court of Oklahoma county upon an information charging that on the 23rd day of May, 1913, he did feloniously keep a place with the intention of and for the purpose of violating the prohibitory law of the state of Oklahoma, to-wit, a certain building, No. 24 South Broadway street, Oklahoma City, and his .punishment was fixed at a fine of fifty dollars and imprisonment in the penitentiary for the term of two years.

From the judgment rendered on the verdict an appeal was taken by filing in this court on April 25, 1914, a petition in error with case-made.

The attorney general has filed a motion to dismiss said appeal on the ground that subsequent to the perfecting of the appeal in this case, the plaintiff in error applied for, and was granted a parole or pardon, the same being on file in the office of the secretary of state.

No response to the motion to dismiss having been made, the same is hereby sustained and the appeal herein is dismissed.


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    FLORENCE BREWER v. STATE.
    No. A-2458.
    Opinion Filed February 2, 1915.
    (153 Pac. 1166.)

      Appeal from County Court, Pontotoc County; I. M. King, Judge.

    Florence Brewer, convicted of- keeping a disorderly house, appeals.
    Appeal dismissed.

      Crawford, Bolin and Williams, for plaintiff in error.

      Leslie Maxey, City Attorney, for defendant in error.
   PER CURIAM.

Florence Brewer, plaintiff in error, was convicted in the County Court of Pontotoc county upon an appeal from a judgment of conviction in the police court of the city of Ada, on a complaint charging her with the keeping of a disorderly house, and in accordance with the verdict of the jury was sentenced to pay a fine of one hundred dollars and the costs.

An appeal was attempted to be taken by filing in this court on April 9, 1915, a petition in error with case-made.

The city attorney of Ada has filed a motion to dismiss the appeal for the following reasons:

First. That there was no notice of appeal given or served either on the city attorney or the judge or clerk of the County Court.

Second. That the case-made does not contain a copy of the judgment.

Third. That the petition in error and case-made were not served and filed within the time required by law.

An examination of the record discloses that the motion to dismiss is well taken. The purported appeal herein is therefore dismissed and the cause remanded to the County Court of Pontotoc county.


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    JOE MILLER v. STATE.
    No. A-2465.
    Opinion Filed February 5, 1916.
    (153 Pac. 1166.)

      Appeal from County Court, Tulsa County; J. W. Woodford, Judge.
    Joe Miller, convicted of pointing a pistol, appeals.
    Affirmed.

      D. M. Martindale, for plaintiff in error.

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

Joe Miller, plaintiff in error was tried and convicted upon an information charging him with pointing a pistol at and towards one Mathan Perryman, and lie was sentenced to pay a fine of fifty dollars and be confined in the county jail for a period of nine clays. From the judgment an appeal was taken by filing in this court on May 15, 1915, a petition in error with a certified transcript of the record.

The errors assigned question the sufficiency of the verification of the information, and that the record fails to disclose that the defendant was present either in person or by counsel on the day upon which he was sentenced.

No brief had been filed when the case was called for the final submission, no appearance was made in behalf of the.plaintiff in error, whereupon the attorney general moved that the judgment be affirmed for failure to prosecute the appeal.

An examination of the transcript discloses that no exceptions were taken to the sufficiency of the. information or to any proceeding had upon the trial. There being nothing to review, the judgment is affirmed and the cause remanded to the trial court with direction to enforce its judgment therein. Mandate forthwith.


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    CLARE RICHARDS AND JOE KNOBLE v. STATE.
    No. A-2434.
    Opinion Filed January 15, 1916.
    (154 Pac. 72.)
    1. WITNESSES — Cross-Examination of Accused. A defendant, by availing himself of the statutory privilege of becoming a witness in his own behalf, has voluntarily changed his status from defendant to witness, and consequently may be cross-examined within the usual boundaries, and thus be discredited and impeached.
    2. WITNESSES — Impeachment of Accused — Reputation. Where the purpose of testimony is to impeach a witness for want of truth and veracity, the inquiry and answer must be as to his general character or reputation for truth and veracity in the community in which he resides, and testimoy as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose.

      Appeal from County Court, Harper County; A, H. Walker, Judge.

    Reversed and remanded.

      B. J. Dick and Malcolm W. McKenzie, for plaintiffs in error.

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

The plaintiffs in error, Clare Richards and Joe Knoble, were convicted in the County Court of Harper county on 'an information which charged that they did have possession of intoxicating liquors,- amount unknown, with the unlawful intent to sell the same. On the 8th day of February, 1915, judgment was rendered in accordance with the verdict of the jury. To reverse the judgment an appeal was perfected by filing in this court on April 5, 1915, a petition in error with case-made.

The attorney general has filed a confession of error as follows:

“In this case, having read through the record with care, and also having read the elaborate brief of the plaintiffs in error, through their attorneys, we are forced under the recent decisions of this court, to confess error.

There was but one witness that testified as to the main facts on the part of the state, and he admitted that he was angry and more than that, offered to leave the jurisdiction of the court and not testify for the sum of $15.00. However, the jury found the defendants guilty under this testimony, and there is nothing showing that they were biased or prejudiced, further than they might have been influenced by the evidence.

But the error is that the defendants having taken the stand and testified in their own behalf, neither was asked anything about being a bootlegger. But other witnesses were brought in by the state, and two'of them were asked if they knew defendants’ character on the subject of bootlegging, and answered ‘no.’ Two others were brought in and to this question they answered yes, ‘ and that their character was bad.

Upon the decisions of this court, this is reversible error. Kirk v. State, 11th Okla. Cr. 203, 145 Pac. 307; Sims v. State, 11th Okla. Cr. 382, 146 Pac. 914.”

Upon a careful examination of the record it is our opinion that the confession of error is well taken. The judgment herein is therefore reversed and the cause remanded.


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    ED GRAYSON v. STATE.
    No. A-2056.
    Opinion Filed January 15, 1916.
    (154 Pac. 334.)
    1. INDICTMENT AND INFORMATION — Names of Additional Witnesses — Indorsement. In felony eases, other than capital, the names of additional witnesses may be indorsed on an information after the filing of the same, at sueh time as the court may by rule prescribe. Procedure Criminal, section 5694, Rev. Laws.
    2. APPEAL — Discretionary Ruling — Names of Additional Witnesses —Indorsement on Information. Under the statute permission to indorse the names of additional witnesses on an information during the trial is a matter within the judicial discretion of the trial court, and unless an abuse of this discretion appears ■ prejudicial to the substantial rights of the. defendant, its ruling will not be reviewed.
    3. EVIDENCE — Photographic Copy of Deed. A photographic copy of a deed, the signature to which was. alleged to be forged, is admissible in evidence upon preliminary proof showing that such deed was in the possession of the defendant.
    4. EVIDENCE — Certified Copy of Recorded Instrument. On a trial for the forgery of a deed, where it is shown that the alleged forged deed was duly recorded in the office of the Register of Deeds, a copy of the same duly certified, is admissible in evidence under the provisions of sections 1170, 5099, and 5115, Rev. Laws.
    5. CONSPIRACY — Criminal Responsibility. When a conspiracy is entered into to cheat and defraud any person of any property, all persons who engage therein are responsible for all that is done in pursuance thereof, by any of their co-conspirators until the object for which the conspiracy was entered into is fully accomplished.
    6. EVIDENCE — .Acts and Declarations of Co-conspirators. Where the evidence tended to , prove that certain persons entered into a conspiracy to.forge a deed for the purpose of defrauding another person of the land therein described, the profits to be a division of the land or a division of the proceeds, anything said or done in furtherance of the conspiracy by any of said conspirators, between the execution of the deed and the accomplishment of the further purpose of the conspiracy, is admissible in evidence against a co-conspirator on a prosecution for the forgery.

      Appeal from District Court, Muskogee County; R. C. Allen, Judge.

      Ed Grayson, was convicted of forgery and appeals.
    Affirmed.

      Crump, Crump & Garrett and Baton & Cowley of counsel, for plaintiff in error.

      W. E. Disney, Co. Atty., W. W. Cotton and Francis Stewart, Asst. Co. Attys., for the State.
   DOYLE, P. J.

The plaintiff in error, Ed Grayson, was convicted of forgery in the first degree, and in accordance with the verdict of the jury was sentenced to imprisonment in the state penitentiary for the term of seven years. The information charged him with the forging of a general warranty deed to the southwest quarter of section 20, township 14 north, range 13 east, situated in the county of Okmulgee. The deed purported to be executed by Jordon Thompson to one W. R. Rogers, consideration named twelve hundred dollars. It bears date of the 25th day of October, 1912, and acknowledged before E. Cleo Hoover, a notary public in and for Muskogee county on said date.

The evidence for the state tends to show that the legal title to the land at the date of the deed was in Jordon Thompson, a Creek Freedman, twenty-one years old at that time. That about two weeks before the date of the purported deed the defendant met Jordon Thompson in Okmulgee city, and asked Thompson to take a trip with him to the Dallas fair; that a few days later he asked Thompson where his land was and said to him, “I want you to go up to some office and identify me as Ed Grayson by so doing I can beat some fellow out of a lot of money,” and Thompson declined to go; that the next day the.defendant called at Thompson’s house with Elnora Davis and Gracie Jones, and wanted the defendant to go hunting and then down to see the girls that night. On the 24th of October, the defendant called at Thompson’s house with Ethel Thompson, Jordan was not at home and he left a letter for him to come to town and take a girl to the show, and to write an answer at once. That for a week the defendant made repeated efforts to obtain the signature of Jordan Thompson and made statements that if he got his signature he could get some money for it. An accomplice testified that the defendant was present when the deed was forged. Í-Ie was corroborated by another witness, who was an innocent tool of the forgers. He admitted to another witness that he was in Muskogee and helped in the forgery, described how it was done and the notary’s office. The deed was received through the mail on the 26th day of October, 1912, by the register of deeds of Okmulgee county to be recorded; was duly recorded and returned as directed to W. R. Rogers, Iola, Kansas. On the 28th day of said month Grace R. McClory delivered to the register of deeds a purported deed to said land from W. R. Rogers to Melvin Thomason, which deed was duly recorded and delivered to her. That Steve Grayson, a 'brother of the defendant Melvin Thomason and Grace R. McClory conspired with the defendant to defraud Jordon Thompson, and were present when the deed was forged.

The testimony tending to show the circumstances of the forgery was. substantially as follows:

Nippie Brown testified that he met the defendant October 25th, in McRae’s office, on South Second street, Muskogee, and that the defendant asked him if he would like to make some money. He said, “Yes.” The' defendant brought a white man over, who asked him if he could read or write, and he said, “No.” Steve Grayson, the defendant’s brother, was present; heard them talk about the Jordon Thompson land; they went in another room. When they came back Steve Grayson gave the white man a deed. The white man wrote Jordon Thompson’s name on it and asked the others if it was all right. They then went down to Mrs. Josephine Hill’s and then went to another white man’s house and came on to the Barnes building. The first white man didn’t come up stairs, the other with the defendant and witness went to the notary’s office; saw a white lady; the white man gave a card to the lady and the lady looked at the card and he gave her the papers and the lady took the acknowledgment. The first white man called himself Rogers, but he was Melvin Thomason. Saw the defendant and his brother Steve and the white man that called himself Rogers at the depot that evening. Steve Grayson in the defendant’s presence told witness that he “better not ever testify against him,” saying: “You never done us no good and you never done us no harm. Here is a dollar, go and get you something to drink.”

R. O. Wipperman, testified that he knows Melvin Thomason and Nippie Brown, not prepared to say whether the defendant was the other man or not. Melvin Thomason came to his home on the evening of October 25th with Nippie Brown and another negro. Thomason asked for witness’s father; had seen Thomason before in his father’s office. Thomason wanted a notary. After some conversation witness went with Thomason to find a notary thinking Thomason was a client of his father. Thomason gave the name of Wallace. Thomason left them at Fourth street and Okmulgee avenue, saying that he had some parties to see and handed witness the deed and a silver dollar, and saying: “You go on with these negroes and find a notary and I will meet you at Third and Broadway. The negro, Nippie Brown was introduced to him as Jordon Thompson; that he went to the Turner hotel and found Cleo Hoover’s name in the directory, and went to her office in the Barnes building. The deed was signed with an indelible pencil. ' Nippie Brown acknowledged, signing the deed. The real Jordon Thompson was not with them.

On behalf of the defendant, A. C. McRae testified that he was a lawyer; that Steve Grayson was in his office in Muskogee on October 25, 1912, and made a contract for the purchase of the Luvanda Powell allotment; that neither Melvin Thomason, Nippie Brown, nor Fd Grayson were in his office that day.

Steve Grayson testified that he was a brother of the defendant, and was at McRae’s office on the 25th; that neither Nippie Brown, Melvin Thomason, nor Ed Grayson called at ’ McRae’s office that day. That he went home with Ed Grayson that night on the train.

Grace R. McClory testified that she and Melvin Thomason were in Okmulgee October 25th; that she took the deed; W. R. Rogers to Melvin Thomason, and had it recorded. That she did not make any erasures on a deed.

The defendant as a witness on his own behalf testified that he went out to Jordon Thompson’s home three times, once with Elnora Davis and Grace Jones and again later with Ethel Thompson. He denied telling them about wanting Jordon Thompson’s signature. Was in Muskogee October 25th on a pleasure trip, and met a fellow representing himself to be Rogers, who wanted him to help get Jordon Thompson’s land; that Rogers went away and later came back with Nippie Brown. He denied that he had ever admitted that he was connected with the forgery.

In rebuttal, Geo. H. Eessley and C. A. Ballantyne, expert stenographers and typewriters testified that it was their opinion that the deed in question and the contract between McRae and Steve Grayson were written on the same typewriter.

The action of the court below in permitting the county attorney to indorse the names of additional witnesses • on the information after the same was filed, is assigned as error.

It appears from the record that the information was filed January 27, 1913, -and that the trial of the .case commenced on the 24th day of February; that the-names of the following witnesses, R. O. Wipperman, Grace Jones, Elnora Davis, Ethel Thompson, C. H. Condon, and E. B. Bayes, were indorsed at least three days before the commencement of the trial, and a written notice containing such names was duly served upon the defendant.

Our statute provides that the county attorney shall indorse on the information, “the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the name of such other witnesses as may afterwards become known to him, at such time as the court may by rule prescribe.” (Section 5694 Rev. Laws.) It' follows that there was no error in the action of the court.

It is also contended that the court erred in permitting the county attorney to indorse the names of additional witnesses on the indictment at the trial of the case. It appears that the following additional witnesses were permitted to be indorsed during the trial, Josephine Hill, Benj amine Martin, and R. E. Disney. The last two witnesses did not testify to anything that affected the substantial rights of the defendant. Their testimony related merely to the possession of the alleged forged deed by the defendant’s counsel, and that the county attorney had been unable to procure it. In other words, it was merely preliminary proof made by the county attorney before he offered photographic and certified copies of the deed in evidence. It was not evidence in chief. The existence or location of an instrument is a preliminary question for the court to be decided before secondary evidence is admissible. Their testimony merely concerned the admissibility of evidence, and was not the evidence itself. Under the statute permission to indorse the names of additional witnesses on the information at the trial is a matter resting entirely within the sound discretion of the trial court, and, unless it clearly appears that it was an abuse of discretion, and that it was prejudicial to the substantial rights of the defendant, it will not be held to be reversible error.

Colbert v. The State, 4th Okla. Cr. 500, 113 Pac. 588;

Starr v. The State, 9th Okla. Cr. 210, 131 Pac. 542.

In our opinion there was no error in permitting the indorsement of the names of the witnesses on the information.

Error is assigned on the action of the court below in admitting photographic copies of the deed in question and of the signature upon said deed, and in admitting certified copies of the deed and of a deed purporting to be from the grantee named in the alleged forged deed to Melvin Thomason.

Both the photographs and the certified copies were secondary evidence. They were, therefore, upon any view, admissible as such if .the best or primary evidence was satisfactorily shown to be unavailable to the state. It was shown by the preliminary proof that the state did not have possession of the deed in question and never had possession of it and was unable to procure it. The deed was traced to the possession of counsel for the defendant. It was therefore in the possession of the defendant, áince it was in the possession of his counsel, when the state last had trace of it. Upon the question of introduction of certified copies of deeds, our statute provides as follows:

“All instruments affecting real estate and executed and acknowledged in substantial compliance herewith, shall be received in evidence in all courts without further proof of their execution.; and in all cases where copies or other instruments might lawfully be used in evidence, copies of the same, duly certified from the records by the' register of deeds may be received in evidence; and if the same need not be recorded to be valid for the purpose for which such evidence is offered, a copy duly verified by oath or affidavit of any person knowing the same to be a true copy, may be received in evidence.”

Section 1170 Rev. Raws.

“The books and records required by law to be kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the District Court, justice of the peace, police judge or other public officers, may be received in evidence in any court; and when any such record is of a paper, document, or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original; but no public officer herein named or other custodian of public records, shall be compelled to attend any court, officer or tribunal sitting more than one mile from his office with any record or records belonging to his office or in his custody as such officer.”

Section 5115 Rev. Laws.-

“Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his official seal, if he have one, may be received in evidence with the same effect as the original when such original is not in the possession or under the control of the party desiring to use the same.”

Section 5099 Rev. Laws.

Section 5882 reads in part as follows:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also to criminal cases.”

See Crump v. The State, 7th Okla. Cr. 535; 124 Pac. 632, holding admissible certified copies of deeds duly recorded.

See Luco v. U. S., 64. U. S. 515, 16 Law Ed. 545, holding admissible photographic, copies of records.

In our opinion the photographic copy and the duly certified copies of the deeds duly recorded in the office of the register of deeds, were properly admitted.

It is next insisted that the court erred in admitting the testimony of Josephine Hill, as to statements made to her by Melvin Thomason; Steve Grayson, and Grace R. McClory, in the absence of the defendant, and made after the date of the forged deed.

Josephine Hill testified that Melvin Thomason and Grace R. McClory called at her home in Muskogee on October 25th and that evening Melvin Thomason and Nippie Brown called at her home and asked her to show them where a notary public lived, and she told them to go to Mr. Wipperman. That the following week Melvin Thomason told her not to say anything about their being at her house about this business; and wanted to know if she could find him some erasing acid, and she gave him some, and he said that Mrs. McClory had the signature of Jordon Thompson, which she had taken from the affidavit that Jordon Thompson made and filed in his civil suit to set aside the forged deed. Also that Steve Grayson told her he was going to swear that-he was in the Barnes building when they went up to Miss Hoover’s office, and that it was Jordon Thompson who went up there with them. 'Also that Grace R. McClory told her that she had traced the name of Jordon Thompson on the deed with ink and had put the, “J” on before it was dry and it blotted, and that Melvin Thomason signed the name of Rogers and mailed the deéds back to her to be recorded. It appears that the testimony objected to was admitted by the court under the theory of the state that the defendant had conspired with these parties to procure by forgery and fraud Jordon Thompson’s land. It is insisted by counsel for the defendant that the conspiracy, if any, in this case ended on the 25th day of October, the date of the alleged forgery, and therefore the testimony objected tp was inadmissible. In support of their contention they cite the case of Wells v. The State, 5th Okla. Cr. 22, 113 Pac. 210. We think the doctrine of that case has no application here.

Our penal code defines a criminal conspiracy as follows:

“If two or more persons conspire, either:’
First_,
Second_,
Third_

Fourth. To cheat and defraud any person of any property by any means which are in themselves criminal, or by any means which, if executed, would amount to a cheat or to obtaining money or property by false pretenses.” (Section 2232 Rev. Taws.)

In the case at bar the conspiracy was to obtain the property of Jordon Thompson, not merely by one criminal act, but by a series of criminal acts. The first criminal act was the alleged forgery; then came the utterance of the alleged deed, the filing of it for record; then the second forgery to get the title of £he land in the name of Melvin Thomason, and the utttering and filing of that forgery. The forgery of the letters regarding the deeds and false personation. The evidence tended to prove that the fruits of that conspiracy had never been divided. The conspiracy extended so far as the record in this case is concerned up to the time of the trial, for two of the conspirators at least were defending their alleged title to Thompson’s land, in a civil suit in the District Court of Okmulgee county. When a conspiracy is entered into to cheat and defraud any person of any property, all persons who engage therein are responsible for all that is done in pursuance thereof by any of their co-conspirators until the object for which the conspiracy was entered into is fully accomplished. And where a conspiracy embraces not merely a series of unlawful acts, but also extends to a division of the fruits and profits of such acts among the conspirators, anything.said or done by them, although after the commission of the unlawful acts, but before a division of the profits of such acts, is admissible against all other conspirators.

Holmes v. State, 6th Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300;

Wishard v. The State, 5th Okla. Cr. 610, 115 Pac. 796;

And see State v. Pratt, 121 Mo. 566, 26 S. W. 556;

Scott v. State, 30 Ala. 503.

The theory upon which such evidence is admissible is that the conspiracy does not terminate until there has been a division of its fruits and spoils.

See People v. O’Pie 123 Cal. 294, 55 Pac. 989;

And Wharton Cr. Ev. 9th Ed. 698.

In our opinion the evidence objected to was competent and was properly admitted.

Finally it is insisted that the court erred in refusing the application of the defendant for a continuance when the state had rested its case.

This assignment is based on the action and rulings of the court hereinbefore considered, in permitting the indorsement of the names of additional witnesses.

We think this assignment is without substantial merit. The record in this case is very voluminous, but we have examined it with a purpose to discover whether the defendant has been deprived of that fair and impartial trial to which he is entitled-under the law, and have been unable to find any reversible error in the record, and have reached the conclusion that the evidence in the case fully warranted the verdict of the jury. The judgment herein is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    WILLIAM C. CARTER v. STATE.
    No. A-2140.
    Opinion Filed January — , 1916.
    (154 Pac. 337.)
    1. DYING DECLARATION — Predicate—Evidence. Proof that the deceased died within four hours after he was shot; that his wounds were necessarily fatal, that he stated when he was shot “he has killed me,” and that he expressed no hope of recovery, sufficiently shows that the deceased was conscious of impending death, and is, in itself a sufficient predicate for the admission of a written statement made by the deceased shortly after he was shot, purporting to be his dying declaration.
    2. ADMONITIONS TO JURY — Absence of Defendant. The fact that the trial judge went to the court room where the jury were deliberating and cautioned the bailiffs against permitting the jury to separate, and the jury that they should speak to nobody either concerning the case or on any other subject, and that they must keep themselves together as a body of jurors, and not communicate to the outside world, except through their bailiffs or by permission of the court. That this was in the absence of the defendant and his counsel and was not in open court, is no ground for a reversal where it affirmatively appears that the judge did not speak about the case, and that it was not discussed or referred to by him.

      Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge.

    William C. Carter, convicted of manslaughter in the first degree, appeals.
    Affirmed.

      Crump, Crump & Garrett and Baton & Cowley, for plaintiff in error.

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

William C. Carter, plaintiff in error was informed against for the crime of murder, alleged to have been committed by killing A. Leavitt, by shooting him with a pistol. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree and assessing his punishment at imprisonment in the penitentiary for the term of four years. From the judgment rendered upon the verdict he appeals.

The evidence shows that A. Leavitt, the deceased was engaged in the mercantile business in the town of Henryetta. On the day of the homicide, the defendant, accompanied by a friend went into the store .of the deceased about seven o’clock in the morning for the purpose of buying a pair of shoes. He selected a pair of shoes, price four dollars, but which the clerk in the store with the consent of the deceased agreed to sell for three dollars. He put the shoes on, gave .the clerk a ten dollar bill in payment and received the change. He then decided that he did not want the shoes. The clerk or the deceased then returned to him three dollars. The defendant left the store and went to his boarding place. Between twelve and one o’clock that day he returned to the store armed with a 32 caliber Smith & Wesson revolver. The deceased was alone in his store at the time.

One witness for the state, George Morey, testified that he was standing across the street from the defendant’s place of business, and that he heard the first shot and looked across the street and the deceased was several feet in front of the defendant coming towards the front door when the second shot was fired. That he stepped inside of a stairway and heard two more shots fired. The evidence further shows, that as the defendant and the deceased came out of the front door of the store the deceased was in front of the defendant. The defendant had the pistol, but the deceased held the muzzle. As they came out the deceased fell on his knees. The defendant then flourished the gun around and struck the deceased and turned and walked away. The deceased hollowed “There he is, catch him, he has killed me.” .

Dr. Moony testified that he was called to attend the deceased and found four gun shot wounds on his body; one entered below the sternum and passed through the liver directly towards the spine; this was a fatal wound; one in the right leg above the knee and one in the palm of the hand. The deceased asked him how bad he was hurt, and he told him he had a fatal wound; and suggested that the defendant better make a statement if he had any to make. The deceased then made a sworn statement which omitting situs and verification is as follows:

“A. Leavitt, being first duly sworn according to law states upon oath that on July 15th, 1913, a man came into his store during the morning and bought a pair of shoes. He brought them back and he gave back to him his money. He said that I short-changed liim and he then shot me. Nothing further was said or done by me to provoke him. I make this statement fully realizing that I am dangerously -wounded and with the expectation that death will ensue from the wounds I now have.”

He then stated to Dr. Mooney that he wanted him to take him to a hospital for the purpose of having an operation regardless of what his condition was. He was then taken on a special train to Muskogee, where he died at four o’clock that afternoon while undergoing an operation.

The defendant .testifying in his own behalf, stated substantially as follows:

That he had $10.85 when he went into Leavitt’s store; that he afterwards spent $3.50 for a pair of shoes; $0.30 at a drug store; $0.30 at a pool hall and $0.10 for drinks and at noon he paid for his board $5.50, making $9.50. On paying his board he discovered that he had only $0.35 left; that after figuring the amount paid he decided that Leavitt the deceased had lacked one dollar of returning the proper change. That he started to go to work. His hours being from 13:30' P. M. to 13:30 A. M. It was raining and he went to his room to get his coat; that his pistol was in his coat pocket. That on his way to work he stopped at the store and Mr. Leavitt was the only person there. That he said to him, “I have stopped by and I wish to tell you that you made a mistake in my change this morning of one dollar.” And he said, “Why didn’t you call my attention to it then.” That the deceased was behind the counter near the cash register and the defendant was outside. The deceased said, “You don’t mean to accuse me of stealing a dollar,” and the defendant answered, “No sir, I would not accuse any one of stealing a dollar,” and the deceased reached over from behind the counter and commenced to choke him, saying: “I will have you arrested.” That as he tried to get the pistol out of his pocket it went off and from that time on it was a running fight, “And I shot him, I guess I shot him, I would not say whether I did or not. It was just simply a running fight.”

In rebuttal the state proved by two witnesses that the defendant was immediately arrested and he then had $1.35, a silver dollar, a quarter, and a ten cent piece.

A number- of alleged errors committed ” at the trial are assigned. One of which is that the court erred in admitting in evidence the affidavit purporting to be the dying declaration of the deceased. In order that a dying declaration may be admissible in evidence it should be made to clearly appear that such statement was made under a well founded apprehension of immediate or impending dissolution and that all hope of recovery was gone. This may be made to appear from what the injured person said, or where from the nature and extent of his injuries it is evident that he must have known that he could not survive.

Morris v. The State, 6th Okla. Cr. 29, 115 Pac. 1030;

Addington v. The State, 8th Okla. Cr. 703, 130 Pac. 311;

Updike v. The State, 9th Okla. Cr. 124, 130 Pac. 1107;

Hawkins v. The State, 11th Okla. Cr. 73, 142 Pac. 1093.

In the last case it was held:

“Proof that decedent died within twelve hours after he was shot, that his wounds were necessarily fatal, and that he stated to persons after he was shot that he was dying, and that he expressed no hope of recovery, sufficiently shows that decedent was conscious of impending death, and is in itself a sufficient predicate for the admission of his statements of the circumstances of the homicide as ‘dying declarations.’ ”

These authorities abundantly show that the court committed no error in admitting in evidence the dying declaration of the deceased.

It is also contended that the court committed error hr admonishing the jury in the absence of the defendant and his counsel. The record as to this is as follows:

“By the Court: In overruling the motion for a new trial, the Court observes that the sixth ground is in substance an exception to the admonition by the court to the jurors and bailiffs having in charge the jury in this case, on Sunday in the absence of the defendant; let the record show that certain alleged conduct was brought to the attention of the Court which the Court deemed wise to check in the interest of justice, and that the Judge came to the Court room where the jury were and in the presence of the jury and bailiffs cautioned the jury and bailiffs against permitting the jury to separate, and that they should speak to nobody either concerning this case nor on any other subject, and that they must keep themselves together as a body of jurors and not communicate to the outside world, to nobody except through their bailiffs or by permission of the court, and that this was in the absence of the defendant and his counsel, and was not in open court, and the court not being convened.
Mr. Crump. The defendant agrees that that may be the record in the case as to the sixth assignment.”

It is the duty of the court to prevent, if possible, any misconduct of the part of the jury, and it is the duty of the officer in charge to see that jurors properly conduct themselves and observe the requirements of law, and that they do nothing that would prevent a full and fair consideration of the case. It is true also that it is the duty of the court to communicate with the jury only in open court, in the presence of the defendant and his counsel. But this is far from saying that every irregularity will work a reversal of the judgment. No injury was alleged by 'this conduct, nor was any attempted to be proved, and while the burden would be on the state to show no prejudice to the substantial rights of the defendant, we think the record shows that burden has been fully met. The language used by the court could not injure the defendant. The case of Horton v. The State, 10th Okla. Cr. 294, 136 Pac. 177, is in point. There this court held:

“Where, after the" jury had retired for deliberation, the judge noticed some of the jurors in the open windows of the jury room. and directed the sheriff to tell the jurors to keep out of the windows, and the sheriff told the jurors to ‘get out of the windows and get together and reach a verdict/ held, that the words spoken were not of such a nature that prejudice to the defendant will be presumed.”

We have examined the other matters discussed by counsel and have arrived at the conclusion that there is no merit in this appeal.

It would seem that the demands of justice and the protection of society clearly required in this case that the penalty prescribed by law for the punishment of the crime of murder should have been imposed upon the defendant, and the only basis for the verdict of a less grade of crime is the testimony of the defendant himself, “swearing his own neck out of the halter.” No one can read the evidence without being abundantly satisfied and impressed that the defendant has not been adjudged the degree of punishment he so richly deserves. Juries frequently render such verdicts, and this can only be accounted for upon the theory that the verdict was the result of a compromise of opinion. The judgment of the District Court of Okmulgee county is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    BILL BROWN v. STATE.
    No. A-2440.
    Opinion Filed January 20, 1916.
    (154 Pac. 339.)
    FORGERY — Sufficiency of Evidence. In a prosecution for uttering a forged cheek, the record reviewed, and held that the evidence is sufficient to support the verdict, and that no reversible error was committed on the trial.

      Appeal from District Court, Johnston County; Robt. M. Rainey, Judge.

    Bill Brown, convicted of forgery in the second degree, appeals.
    Affirmed.

      Cornelius Hardy, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Bill Brown, was convicted of the crime of forgery in the second degree and sentenced to serve a term of four and one-half years in the penitentiary. The judgment was rendered on the 15th day of October, 1914. From the judgment an appeal was taken by filing in this court on April 3, 1915, a petition in error with case-made.

On the part of the state the evidence tended to establish the following facts: On the 20th day of March, 1914, Bill Brown presented a forged check for $38.00 dollars to the First National Bank of Milburn, and received therefor said amount; that said check purported to have been drawn by Ben Cravat in favor of Jim Abram, and indorsed by the said Jim Abram. That both names were forged. The defendant offered no testimony.

No briefs have been filed and we are not advised as to what plaintiff in error relies upon for a reversal.

We have examined the information, the evidence, the instructions of the court and the judgment and sentence, and have been unable to find any reversible error in the record. The judgment of the District Court of Johnston county is therefore affimed, and the cause remanded with direction that the same be carried into execution.

FURMAN and ARMSTRONG, JJ., concur.


text:
      In re JOSEPH H. BIRMINGHAM.
    (154 Pac. 499.)
    No. A-2618.
    Opinion Filed January 31, 1916.
    1. BAIL — Criminal Prosecutions — Burden of Proof- — Capital Offense. On the hearing of an application for admission to bail after commitment for a capital offense, to determine, whether or not the proof of guilt is evident or the presumption thereof great, the burden of proof is on the petitioner.
    2. ADMISSION TO BAIL — Sufficiency of Evidence — Capital Offense. Evidence reviewed, and held sufficient to show that petitioner is entitled to be admitted to bail.

      The Criminal Court of Appeals of Oklahoma.

    Application of Joseph H. Birmingham for writ of habeas corpus, to the end that he be let to bail.
    Bail allowed.

      Pruiett, Sniggs and Tripp, for petitioner.

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

This is an application by Joseph PI. Birmingham for a writ of habeas corpus by which he seeks to be let to bail pending the final hearing and determination of a charge of murder filed against him in Payne county, wherein upon his preliminary examination he was held to answer for the murder of one Guy Phillips by shooting him with a pistol on the 14th day of October, 1915.

The petitioner avers that he is now unlawfully imprisoned and restrained in the common jail of Payne county, by Henry Townsend, sheriff of Payne county, and that he is not guilty of the crime of murder charged; that the proof of his guilt is not evident, nor the presumption thereof great.

Attached to said petition and made a part thereof is a duly-certified transcript of the evidence taken on his application to the District Court of Payne county for admission to bail in said case. Which application was denied.

The evidence for the state is somewhat weak and uncertain, although it appears several persons, both male and female, were eye witnesses to the tragedy.

The testimony taken on the part of the defendant is substantially as follows:

Harry E. Stege testified that he is the superintendent of the bureau of identification of the police department of Tulsa; that he had formerly conducted a private detective agency at Oklahoma City and knows the general reputation of the deceased there as to being a dangerous and quarrelsome and turbulent character, and that it is t)ad; that his reputation at Tulsa was the same, and that at Tulsa about a' year ago upon his conviction in the police court he took his Bertillion measurements.

E. B. McMillen testified that he was present at the road house east of Cushing, near ’the county line of Creek county at the time of the shooting. That the deceased walked up to Birmingham and said, “Now is a good time to settle our troubles;” that he had a long spring back knife in his hand and Birmingham backed up against the wall and as the deceased attempted to strike with the knife he shot him. That witness then grabbed the pistol; that there was present at the time John Phillips, Eon Anderson, Cecil Messenger, Ruby Bowen, and Ruth Bradley. That the shooting occurred about 11:30 that night.

The petitioner as a witness in his own behalf testified that he had known the deceased about three years and knew his general reputation in Oklahoma City and Tulsa as to being a bad and dangerous character. That he was generally known as a holdup man, and all around tough character' who hung around houses of prostitution; that petitioner was in the oil country at the time as an employee of a law and order enforcement league to get data on the transportation and selling of whisky and to take photographs of the joints.

That he had been there several days and went from Perneta to this road'house that night; that he went in and asked for a glass of water; that as he reached for the glass the deceased said, “We will cut his throat now,” and pushed him and kicked him; that he backed up against the wall and the deceased came towards him with a long spring back knife in his hand and struck at him and he drew a pistol and shot him in his necessary self-defense; that some one took the pistol from him, and the deceased struck at him again with a knife and he pulled a second pistol just then the knife fell from his hand as he dropped to the floor.

By numerous decisions of this court it is held that upon an application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle-him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution.

Ex parte Dykes, 6th Okla. Cr. 162; 117 Pac. 724;

In re Fraley, 3rd Okla. Cr. 719, 109 Pac. 295, 139 Am. St. Rep. 988.

However, where the facts and circumstances in evidence reasonably support the issue that the accused acted in his necessary self-defense in taking the life of the deceased, the ^petitioner should be admitted to bail.

Upon a consideration of the testimony we are of the opinion that the petitioner herein is entitled to be admitted to bail. It is therefore ordered that said petitioner be admitted to bail upon the charge of murder now pending against him, and' that his bail be and the same is hereby fixed in the sum of ten thousand dollars. Bond to be conditioned as required by law and the same to be approved by the clerk of said county.