Volume 1 — Oklahoma Criminal Reports

<p> Error from the District Court, Logan County; before John H. Burford, Judge. </p> <p>N. D. McGinley was convicted of embezzlement, and he brings error.</p>

<p>Application of Lewis C. Grimes and L. C. Grimes, Jr. for a writ of habeas corpus.</p> <p>On April, 11, 1905, on petition and affidavits duly filed in the office of the clerk of the district court of Oklahoma county, Hon. B. F. Burwell, judge of said court, granted an order, entitled “Restraining Order” against- Lewis C. Grimes and L. C. Grimes, Jr., et al., which was in words and figures as follows, to wit:</p> <p>“Now on this nth day of April, 1905, the above entitled matter comes on to be heard before the undersigned, B. F. Burwell, judge of the above-entitled court, the said plaintiff appearing by his attorneys, J. H. Everest and C. F. Smith, and the court having examined the petition duly verified by the plaintiff and the supplementary affidavit sworn to by said plaintiff and filed herein, finds that said petition and affidavit has been duly filed in the office of the clerk of this court, and that said petition and affidavit show the said plaintiff to be entitled to a temporary restraining order, pending the hearing upon the application for a temporary injunction herein, upon the execution of a good and sufficient bond in the sum of one thousand dollars, to be approved by the clerk of this court and filed with said clerk.</p> <p>“It is therefore ordered by the court that the said defendants, Lewis C. Grimes, L. C. Grimes, Jr., Frank Curry and Roe Curry, and each of them, are hereby forbidden and restrained from going upon, trespassing upon, or in any way interfering with the said plaintiff in the use and possession of the land described in said plaintiff’s petition, to wit, the east one-half (E.J^) of the northwest quarter (N. W. 14), and the west half (W. %) of the northwest quarter (N. W. %), and the west one-half (W. Jf>) of the northeast quarter (N. E. %)> all in section twenty-four (24),. township twelve (12) north, of range (1) east, in Oklahoma county, territory of Oklahoma, until the further orders of this court, and that the hearing upon the application of said plaintiff for a temporary order herein be and hereby is set for April 22, 1905, at 9 o’clock a. m., before the above-entitled court, at Oklahoma City, said county and territory, and the said Lewis C. Grimes is hereby restrained and forbidden either by himself or through his agents,servants, employes, tenants and any and all other persons acting by, through, 01 under his authority, from plowing up and cultivating any portion of said lands, or from destroying or harvesting any of the crops now growing on said lands, and from in any way interfering with the plaintiff Levi J. Pipher, in the quiet use and enjoyment of the said lands and premises until the further orders of this court or the judge thereof, and the hearing upon said application for a temporary injunction herein, provided, however, that this order shall not take effect until said plaintiff shall have executed and filed with the clerk of this court a good and sufficient bond with sureties, to be approved by the clerk of this court, in the sum of one thousand & no-ioo dollars, conditioned that he will pay to the said defendants any and all damages which they.may sustain if this order shall have been wrongfully obtained and issued.</p> <p>“And the said defendants and each of th.em are hereby commanded to appear before the undersigned judge of the above-entitled court at 9 o’clock a. m. 'of the 22nd day of April, 1965, and then and there show cause, if any, why a temporary in junction shall not issue herein against them, pending the final hearing and disposition of this cause. B. F. Bur well,</p> <p>“Judge, Third Judicial District.”</p> <p>The bond given as required by the order was approved by the clerk, .but» at the time, the 22d day of April, 1905, when the hearing was ordered to take place as provided for in the order, no action of any kind was taken by the parties or the court. On .the 21st day of June, 1905, the defendants filed a verified motion and answer to vacate and set aside and declare for naught the said restraining order. Reply was filed in this case, but no further action was'taken until on January 7, 1908, when the plaintiff Levi J. Pipher, filed his affidavit in the office of the clerk of the district court of Oklahoma county setting up a violation of the restraining order, and Hon. George W. Clark, judge of the district court of Oklahoma County, issued an- order to Lewis C. Grimes, and L. C. Grimes, Jr., citing them to appear before him on -the 10th day of January, 1908, or as soon as counsel could be -heard to show cause, if any, why they should not be punished for contempt by reason of then disregard and violation of the order of the court above set out. On this citation, such things were had and done and such action taken that on the 8th day of February, 1908, the said court,Hon. Joseph G. Lowe, presiding judge, entered judgment against the said parties holding them guilty of contempt, and committing them to the custody of the sheriff of Oklahoma county until a fine assessed and the costs of the proceeding were paid, and until they made restitution of the premises in question, and made bond in the sum of one thousand dollars ($1,000) to obey the restraining order which they were charged with violating.</p>

<p>Application by Annie Bailey for writ of habeas corpus.</p> <p>On the 16th day or January, 1908, the relator herein was apprehended by G. W. Harrison, sheriff of Oklahoma county, upon a bench warrant issued by virtue of an indictment returned against her on the same date by the grand jury of Oklahoma county, state of Oklahoma, charging that on the 27th day of \ugust, A. D. 1907, the said relator, Annie Bailey, and Judge Peters, did then and there unlawfully, purposely, willfully, feloniously, and with malice aforethought, and without authority of law, and with a premeditated design then existing in the minds of. the said defendents, and each of them, to effect the death of one Lillian Ray, with certain drugs and deadly poisons, the kind and character of said poisons being unknown to the grand jury, then and there given and administered by the said defendants, Annie Bailey and Judge Peters, to the said Lillian Ray, make an assault upon the said Lillian Ray, with the unlawful and felonious intent on the part of the said defendants, and each of them, then and there to take the life of her, the said Lillian Ray, and they, the said defendants, Annie Bailey and Judge Peters, did then and there, by administering said poisons aforesaid, unlawfully, purposely, willfully, knowingly, and feloniously poison her, the said Lillian Ray, from the effects of said poisons she, the said Lillian Ray, did languish, and languishing, did then and there die, on the 27th day of August, 1907, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the then territory of' Oklahoma, now state of Oklahoma. The venue was also alleged to have been in said county.</p> <p>On the 2d day of January, 1908, the relator filed in this court her petition for writ of habeas corpus, alleging that she was unlawfully restrained by said sheriff of her liberty; further alleging that the offense for which she stood indicted was committed, if at all, on the 27th day of August, 1907, in Oklahoma county, territory of Oklahoma; that no affidavit, information, indictment, warrant, or process of any character whatsoever had been filed or 'issued against her or any other person charging her or them with the commission of such offense prior to the returning into said district court of said Oklahoma county said indictment; that no rights, actions, suits, proceedings, contracts, or claims existed or were pending up to the time of the returning into court of said indictment whereby or whereunder this said defendant was or could of right be charged with said offense; further alleging that the government of the United States of America had not given its consent to the state of Oklahoma or any consent whereby or .whereunder she could be indicted or prosecuted by and under the authority of the state of Oklahoma for the said act, if committed, and, further, that the said state of Oklahoma had not consented to receive and had not accepted or assumed the jurisdiction or right to so prosecute her for such acts as alleged in said indictment, the same being committed under the jurisdiction of the laws of the United States and of the territory of Oklahoma, and, further, that the grand jury of said county, state, and district had no jurisdiction to prosecute said action nor to investigate the said acts or return and present an indictment therefor.</p> <p>A writ of habeas corpus was properly issued on said petition on the 22d day of January, A. D. 1908, and made returnable on the 25th day of said month, and service, on said writ being acknowledged and accepted by the said G. W. Garrison as sheriff of said court on the 23d day of January, 1908, and the said sheriff made return showing that he held said relator in his custody as such sheriff by virtue of a bench warrant issued on said indictment hereinbefore referred to and detained her in the jail of said county under a commitment issued by said court. The relator demurred to said return.</p>

<p>Application of-L. L. Ellis for writ of habeas corpus.</p> <p>On the 15th day of November, A. D. 1907, just prior to the admission of the state into the Union, the grand jtiry for the Western District of the Indian Territory returned an indictment into the United States court in said district at Muskogee against the relator, charging him with having committed the crime of larceny and receiving stolen property in said district on the, 13th day of said month. On the same date relator -was apprehended by virtue of a bench warrant issued on said indictment, and incarcerated in the federal jail at Muskogee. And thereafter, on the 3rd day of December, A. D. 1908, the relator made application for a writ of habeas corpus before the judge of the district Court of the United States for the Eastern District of the state of Oklahoma, at Muskogee. Said relator on the 4th day of December, 1907, was brought before said judge by the marshal of sid district , and as a return to said writ showed that he held the relator by virtue of a commitment duly issued on said indictment. Said judge held that the United States court for said district (1) had no jurisdiction to finally determine said cause; (2) that relator was charged with a crime, and should not be released; (3) that the district court for the county of Muskogee of the Third judicial district of the state of Oklahoma had jurisdiction to hear and try and finally determine the charge against relator; (4) that-the marshal should deliver him to said district trial court, etc.</p> <p>On the 5th day of said month relator was delivered to the sheriff of said county, and on the same date his petition for writ of habeas corpus was filed with said state court praying that, if said state court should take jurisdiction, bail should be allowed, but, if said court should not take jurisdiction for such purpose, it should direct the sheriff of said county to release the prisoner. After hearing said petition, said court entered an order refusing bail, and dismissed said petition, and refused to order his release. To all of which relator excepted.</p> <p>Thereafter, on the 17th day of December, A. D. 1907, said relator filed application in this court for writ of habeas corpus, at the same time praying for a writ of certorari directing the clerk of said district court for Muskogee cojunty to certify up to this court the record of said proceedings. On January 2, 1908, the clerk of said county having duly certified up the record of said proceedings, and the sheriff making return to said writ to the effect that he held said prisoner under said indictment by virtue of an order from the judge of the United States District Court for the Eastern District of Oklahoma, the relator demurred to said return.</p>

Application of Thomas Patman for writ of habeas corpus. Prior to the admission of the state of Oklahoma into the Union the relator, Thomas Patman, was jointly indicted with Ben Titsworth and Eugene Titsworth by a grand jury in the United States Court for the Western District of the Indian Territory, at Muskogee, charging them with the crime of murder.

Application of J. W. Curlee for a writ of habeas corpus. On the 26th day of December, 1907, relator filed his petition with the clerk of this court praying for a writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty by George B. Noble, sheriff of Le Flore county, Okla. The writ was issued returnable on the nth day of January, A. D. 1908.

Will Johnson pleaded guilty to an indictment for murder, and the trial judge certified a statement of the proceedings, conviction and judgment to the Governor, who submits the same to the Supreme Court for its opinion.

<p>Application by the state, on the relation of James Stevenson, for writ of mandamus to S. H. Russell, judge of the district court of Carter county.</p>

<p>Appeal from the United States Court for the Southern District of the Indian Territory, at Pauls Valley;</p> <p>J. T. Dickerson, Judge.</p> <p>B. F. Driggers was convicted of murder, and brings error.</p> <p>October 3, 1903, the grand jury of the United States Court for the Southern District of Indian Territory returned its indictment, charging B. F. Driggers, Tom McCarter, John Underwood, and Ted Bennett, with the murder of Robert G. Brady, and .L. W. Goff as a principal, in the second degree as to each of them. Goff was paced on trial at Ada; and after 'his conviction, the venue was changed, for the trial of the other defendants, to Pauls Valley, at which place the appellant in this case was placed on trial, in June, 1905, and the jury returned a verdict finding him guilty in the manner and form charged, without capital punishment. A motion for a new trial was filed and overruled, the defendant saving his exception, and the case was taken to the United States Court of Appeals of Indian Territory by writ of error. On September 26, 1905, that court affirmed the judgment of the lower court. Driggers v. U. S. 104 S. W. 1166. A petition for rehearing was filed, which was pending at the time Indian Territory was admitted as a state, and the case is in this court by virtue of the terms of the enabling act.</p> <p>On the consideration of the petition for rehearing this court granted it, and on the hearing on the merits of the case the Attorney General, represented by Hon. W. A. Ledbetter, filed his answer to the contentions of the appellant, and admitted error in the record sufficient to require us to reverse' the prior decision rendered herein. He admitted that the admission of the testimony of the witnesses Rhea and Saddler was erroneous, and then said: “There are other errors in the case, which will doubtless receive the attention of the court.” In view of the fact that we concur in the conclusion reached by .the Attorney General’s office, it will be unnecessary for us to discuss in detail and at length many of the propositions urged upon .the attention and considered by Mr. Justice Clayton, who wrote the opinion for the United States Court of. Appeals of Indian Territory, but will confine our discussion to those matters which, at the trial of the case anew, will probably arise again.</p> <p>The scene of the homicide was a farm, located near the little town of Jesse, in the Chickasaw Nation in Indian Territory, An Indian woman by the name of Colbert owned this land, which she had leased to a merchant by the name of McNeal. He, in turn, had rented the place, for the year 1902, to one of the defendants named in the indictment (Goff) and a man by the name of Riley. A crop of cotton had been raised on one part of the land, and a crop of corn on the other, the two crops joining, but without any fence or other division between them. Driggers, the defendant, who lived in that neighborhood, some time in the month of October, 1902, bought the right to run his stock in the cornfield after the corn was gathered, paying therefor the sum of $50. Riley and Goff had not picked their entire crop of cotton; and, there being no fence between the cornfield and the unpicked cotton, the defendant Driggers did not turn his cattle in, under an agreement with his vendors that they would protect him and see that he was permitted to turn in after the cotton crop was. gathered. Goff claimed that he had rented the land from McNeal for the year 1903, and it was under this asserted right of his that he agreed that Driggers might have the benefit of the stock field, notwithstanding the fact that the cotton crop was not all gathered at the end of December, 1902. McNeal testified that he had not rented to Goff, but the evidence shows that if lie had, he changed his mind, and rented the land to Robert G. Brady, the deceased, who was living in that neighborhood, running cattle, and who, desiring to use the stock field, the day before the homicide, started to run a fence across the land dividing the cotton field from the stock field, so that his cattle might run therein without interfering with the unpicked cotton crop. While he w^s engaged with his hands in the construction of this fence, Goff came to him in the afternoon, and, according to the testimony of Kelley, said to Brady:</p> <p>“ ‘What the hell are you doing here? This is my land.’ I told him McNeal had rented the place to Brady. I walked on down the line a piece, and walked on up to where Brady was. Goff, it seems to me, stayed there a while, and went back and came back with an Indian, Tom Me Carter [who was a son-in-law of the woman who owned the land.] Q. What was then said? A. Well, there wasn’t a great deal said, more than Brady told him. He says he didn’t want to hear any more of his noise. He [Goff] said: ‘If you put any cattle in here’ — I understood him to say he would kill the cattle As we started away, he said: ‘If you put any cattle in here, I will kill you.’ He stood there and talked, and he says: ‘Put them in, and I will be with you, God damn you.’ Brady didn’t seem to pay any attention to him.”</p> <p>This testimony was offered on the theory that a conspiracy had been formed between Goff and the defendant McCarter, which was subsequently joined by Driggers, and that it was admissible, as against Driggers by virtue of this fact. It was objected to on the part of the defendant, and its admission is assigned as one of the errors. Goff immediately went down to where Driggers lived for the purpose of informing him of the presence of Brady on the land, of the adverse claim, and the building of the fence. Driggers was not at home, but returned that night about 10 or ij o’clock, and thén learned that Brady was going to turn cattle in the cornfield.. During the rest of that evening, and that night, the defendants here gathered together Winchesters and shotguns and ammunition, and arming themselves with them, appeared next morning inside the field, along the highway where it was expected Brady would drive his cattle near to turn them in. Driggers testified that he and Kelley were enemies, and that he expected that he would accompany Brady when he came with the cattle; that he expected to drive them out if they were turned in; that his presence and purpose in going to the field with the parties named, armed as they were, was that he believed that when Brady saw they were there, he would not come up; that he supposes that he was there to resist any trouble that Kelly would bring about, and that he thought he would keep the cattle out. On the morning of the difficulty a man by the name of French Curtiss came down, ahead of the Brady party, in a wagon, with some wire and posts for the purpose of completing the wire fence; and on arriving at a point in the road near where Driggers and Goff and the other parties stood inside the field, and on the south side of the cross-fence, Goff told him to go back, and to get back quick. Curtiss testified that Driggers told him to go back and to tell them not to bring the cattle there. A short time after Curtiss turned back, the cattle were driven down the road by Brady, Kelley, and two brothers by the name of Saddler. Across the road, and nearly opposite the place where the defendants stood on the inside of the field, was a farm inclosed in a wire fence, the gate to which was either open or down, and when the cattle came opposite this point, some of them ran into the inclosure. The deceased, turning his horse out of the highway, ran in and drove these cattle out, crossed the road, and stopped near the Driggers party, got down from his horse, and, according to the evidence of the prosecution, began to arrange his saddle blanket, or at least handle his saddle, and it is at this time, it is asserted, without any overt act on his part, he was fired upon by the party with which defendant was connected, fell to the ground,arose, staggered or ran across the highway, and fell lifeless. Kelley, who had not dismounted, was also fired upon, receiving wounds, and his horse was killed. The Saddler boys both retreated. According to the testimony of the defendant, Brady rode up within four or five feet of the fence near where Driggers stood, got down off his horse, pulled up the knee wire of the wire fence about 2% feet, took hold of the post, when defendant said: “Brady, don’t you pull that fence down.” He jerked the fence down and ran backwards, grabbed for his gun and jerked at the fence all at the same time, and ran backwards, trying to get his gun; pulled it out, so that defendant saw it, who told him not to pull it. That he then shot him, or shot at him, with a No. 12 shotgun, loaded with B. B. shot, when he was about 12 or 15 feet from the fence. That he then shot at Kelley, whose horse fell with him across the road near the other fence.</p> <p>The witness Tom McCarter, who was jointly indicted with Driggers, but who was offered as a witness on. the part of the government, testified that at the time Brady got on the ground, and about the time the shooting commenced, he heard Driggers say to him: “Brady, don’t you do that.” Kelley, who was placed on the stand as a witness for the government, testified:</p> <p>“When Brady came out of the gate with those cattle, he rode in a northwest direction in the middle of the lane, and got off •of his horse in the neighborhood of the middle of the lane. I liad stopped, was simply moving a little at this time, on the right •of Brady. I was watching to see what he was doing, and to see what these parties were doing. And he kind of put his hand on the saddle, just as though he was going to pull the saddle up, and raised his head to look. That was the first time he looked towards them. And Driggers shot.”</p> <p>Contradicting and impeaching Kelley and the testimony which he gave in reference to what Brady was doing at the time the shooting was done, the defendant introduced a witness by the name of Boatright, who testified that, on the same day of the shooting, at his home Kelley stated that Brady got off his horse, and went over and took hold of the fence post, and that Driggers shot him. The government then, for the purpose of supporting Kelley and his testimony, and to show that the statement which he had made on the witness stand was in consonance with previous statements which he had made concerning the same matter, consistent with his evidence, introduced witness Rhea, who had a talk with Kelley, the Defendant, after he was wounded, concerning these matters. He testified that: “Kelley at the time did not say anything about the fence any more than Brady went inside the fence and drove some cattle out, came out, and got down off his horse, pulled his saddle up, and as he turned his head, the shooting commenced.” To this testimony of Rhea the defendant objected and excepted, and that it is error is most strenuously insisted.</p> <p>On the preliminary examination which took place before a United States Commissioner, Jim Saddler, one of the parties who accompanied Brady to the scene of the homicide, testified concerning the affray. It is not necessary for the purpose of this case to recite his testimony here, but it was most material, and in many ways in conflict with the' evidence of the defendant. On the trial of the cause he was not present, but the government introduced his written evidence as transcribed by the commissioner, upon a showing that by general report Saddler was dead, one witness testifying that his wife told him that her husband was dead; and the return of the subpoena, which was issued for him, made by the marshal who sought to serve it, while not appearing in the record, is conceded to have been by both parties, returned that he was dead. The record is voluminous, a great unmber of witnesses being introduced, and a great amount of evidence being offered, but the foregoing statement of facts is sufficient for the purpose of this opinion.</p>

<p> Error from the United States Court for the Central District of the Indian Territory, at Atoka; Thomas C. Humphrey, Judge. </p> <p>Emmett Rutherford was convicted of grand larceny, and appeals.</p> <p>On the 14th day of November, 1905, the grand jury for the United States Court in Indian Territory, Central District, sitting at Durant, returned its indictment into open court charging Emmett Rutherford and Charles Jones with having on the 12th day of June, 1905, within that jurisdiction; committed the crime of grand larceny of certain saddles and harness belonging to E. R. Benson of the value of $62. Jones fled and was not caught. The defendant, Rutherford, on arraignment, pleaded not guilty.</p> <p>The evidence connecting Rutherford with the offense was entirely circumstantial. The facts are briefly as follows: Benson, the prosecuting witness, lived on a farm near the little town of Utica. On the night of the 12th of June, 1905, there' was taken from his barn and harness house the goods mentioned in the indictment. He went to town the next morning, secured the services of one Dobbs, who, on going to the place where Rutherford lived and where two Jones brothers were stopping, found a borrowed buggy in the yard in which was a whip, part of the goods which had been stolen from Benson. On going into the house and calling for the defendant, who lived there, he, being upstairs, came down, and observing Dobbs, ran back again. Dobbs, having no warrant for his arrest, went to town to procure it, and coming back, found that the Jones boys, who had been there when he first went to the place Were gone, and after a search the defendant was found concealed or partially concealed about half a mile from his home. Tracks of two of the parties led toward the place where the stolen property was afterwards found. The searching party was led to the place of its concealment, which was about 3J2 miles from defendant’s home, by the defendant, and while he did not take the stand, it developed from cross-examination of members of the searching party that they, were informed by him that the Jones boys had told where the property was located, and in this manner he was able to disclose it.</p> <p>The case was tried to a jury, which returned a verdict finding the defendant guilty as charged, and the court sentenced him to serve two years in the United States penitentiary. Motion for new trial was filed and overruled, and the case was taken by writ of error to the United States Court of Appeals for the Indian Territory at South McAlester, and was pending there on the passing of that court with the organization of the state of Oklahoma, and is before us by virtue of the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267).</p>

<p> Error from District Court, Caddo County; Frank E. Gillette, Judge. </p> <p>Thomas Gibbons was convicted of murder, and brings error.</p> <p>At the November term, 1905, of the district court for the Seventh judicial district of the territory of Oklahoma, at Anadarko, Thomas Gibbons, plaintiff in error, defendant below, together with one M. C. Reddington, were jointly indicted for the murder of one T, C. Renfro, by shooting, alleged to have been committed in the county of Caddo on July 13th of that year. On November 27, 1905, defendant was arranged, pleaded not guilty, asked for and was .granted-a severance, was tried by a jury, found guilty, and was sentenced to imprisonment for life, from which judgment and sentence he appealed to the Supreme Court of the territory of Oklahoma, and the case is now before us, as successoi of that court, for review.</p>

<p>Error from the _ United States Court for the Western District of the Indian Territory, at Okmulgee; Louis Sulsbacher Trial Judge.</p> <p>Louis Bruner was convicted of manslaughter, and he brings error.</p>

<p>Habeas corpus on petition of Richard Thomas.</p>

<p>Application by William Clendenning for writ of habeas corpus.</p>

On certificate from the Criminal Court of Appeals. William Schwedes was convicted of conveying intoxicating liquor from one place in the state to another, such liquor not having been lawfully purchased as authorized by the Constitution of the state, and he brought error to the Criminal Court of Appeals which court certifies the question to the Supreme Court as involving the construction of Const., art. i, § 9 (Bunn’s Ed. § 499), prohibiting the shipment or conveyance of…

<p> Certified Questions from Criminal Court of Appeals. </p> <p>Nick Arie was convicted of an unlawful sale of liquor, and he brought error to the Criminal Court of Appeals, which court certifies to the Supreme Court questions involving the construction of the prohibition articles of the Constitution. Questions answered.</p> <p>On the 14th day of December, A. D. 1908, the Criminal Court of Appeals certified to this court two questions, as will hereinafter appear in the body of the opinion, in which the construction of the prohibition article óf the Constitution of- the state is brought into question.</p>

Application by George W. McNaught for a writ of habeas corpus. On the nth day o.f January, A. D. 1909, the relator filed his petition in this court, alleging that on the 28th day of September, A. D. 1908, at a regular term of the district court of Kingfisher county, state of Oklahoma, the county attorney of said county filed in said court a certain information in two counts, charging him with the crime of murder and manslaughter.

Appeal .from the United States Court for the Central District of the Indian Territory; T. C. Humphrey, Trial Judge. Thomas Slater was convicted, in the United States Court for the Central District of the Indian Territory, of larceny. An appeal was prosecuted to the United States Court of Appeals for the Indian Territory and transferred to the Supreme Court of Oklahoma under the enabling act (Act.

<p>Application of B. M. Johnson for writ of habeas corpus.</p> <p>On the question of former jeopardy: Bell v. State, 44 Ala. 393; Scott v. State, no Ala. 48; People v. Cades, 48 Cal. 323; . Morgan v. State, 13 Ind. 215; Boswell v. State, in Ind. 47; In re McClosky, 2 Okla. 577; Williams v. State, 42 Ark. 35; Lee v. State, 26 Ark. 260; People v. Taylor, 117 Mich. 583; Mixon v. State, 55 Ala. 129.</p> <p>On the question of whether habeas corpus is the proper remedy: Neilson, petitioner, 131 U. S. 176; In re Snow, 120 U. S. 274; People v. Stevens, 79 Cal. 428; 31 Kan. 511.</p> <p>On the question of the'court’s power to issue order of commitment: Wilson’s Rev. & Ann. St. 1903, § 5508. Habeas corpus cannot be resorted to for the purpose of discharging defendant on ground of former jeopardy: Miller v. Case, (Kan. App.) 51 Pac. 922; In re Terrell (Kan.) 49 Pac. 458, State v. Klock, (La.) 12 South. 307; Pitner v. State, 44 Tex. 578; Ex parte Crofford, (Tex. Court Crim. App.) 47 S. W. 533; In re Barton, (Utah) 21 Pac. 998; Steiner v. Nerton, (Wash.) 32 Pac. 1063.</p>

Gill, Judge. Dan and Ed Price were, on the 20th day of January, A. D. 1903, in the United States Court, for the Northern District of the Indian Territory, indicted for the crime of murder, and jointly tried in said court, and by a jury, on the 5th day of October, A. D. 1904, found guilty of the crime of manslaughter, and on the 22d day of October, A. D. 1905, by said court sentenced to imprisonment in the United States penitentiary at Fort Leavenworth, Kan., for the period…

<p>In the matter of the application of E. S. McClellan for writ of habeas corpus.</p> <p>This is a proceeding in this court for a writ of habeas corpus. The petition was filed, and a writ of habeas corpus was properly issued on said petition the 6th day of October, 1908, and made returnable on the 13th day of the same month, service of said writ being acknowledged and accepted by respondent R. M. Connell, sheriff of Choctaw county, Okla. The petition alleges that said petitioner is unlawfully imprisoned at Hugo, Choctaw county, by R M. Connell, sheriff of said county; that petitioner has been charged with illegally selling whiskey; that his bail is fixed at the excessive and unreasonable amount of $1,000 each in four cases; that he has applied to the Hon. W. T. Glenn, county judge of said county, for writ of habeas corpus that said bail be reduced; and that said application was by said judge dented ; that he is a poor man, and unable to make bond in the excessive amount fixed by the county court, and that by reason thereof he is denied his constitutional rights.</p> <p>It appears from the return that there is an agreed statement of facts, as follows:</p> <p>Agreed Statement of Facts.</p> <p>“It is hereby agreed that the personal attendance- of the petitioner herein, E. S. McClellan, before the Criminal Court of Appeals on the hearing on petition for writ of habeas corpus, is waived. The. personal attendance and appearance of the sheriff of Choctaw county, Okla., R. M. Connell, is also waived. It is agreed that the petitioner herein is held by R. M. Connell, sheriff of Choctaw county, Okla., by virtue of commitments issued to him out of the county court of said county, which commitments are regular on their face, commanding that said sheriff hold the said petitioner in default of bail in the following cases:</p> <p>“No. 94. Keeping bawdy house, bond $1,000.</p> <p>“No. 182. Unlawfully having in possession intoxicating liquor, bond $500.</p> <p>“No. 183. Selling intoxicating liquor, bond $500.</p> <p>“No. 186. Selling intoxicating liquor, bond $500.</p> <p>‘No. 206. Selling intoxicating liquor, bond $500.</p> <p>“No. 264 Assault and battery, bond $50..</p> <p>“No. 278. Resisting arrest, bond $1,000.</p> <p>“No. 290. Carrying a pistol, bond $250.</p> <p>“Witness our hands this 10th day of October, 1908.</p> <p>“R. M. Connell, Sheriff Choctaw County.'</p> <p>“J. M. Willis, Co. Atty., Choctaw County.</p> <p>“F. M. Brook, Attorney for Petitioner.”</p>

<p>Application of Ed. Houghton for writ of habeas corpus.</p> <p>This is an original proceeding in this court for a writ of habeas corpus. The petition was filed, and the writ of habeas corpus was properly issued on said petition, on the 6th day of October, 1908, and made returnable on the 13th day of October, 1908, service of said writ being acknowledged, and accepted by the sheriff of Choctaw county; and the said sheriff made return, which is set forth in an agreed statement of facts, which is as follows:</p> <p>Agreed Statement of Facts.</p> <p>. “It is hereby agreed that the personal attendance of the petitioner herein, Ed Houghton, before the Criminal Court of Appeals on the hearing on petition for writ of habeas corpus herein, is waived. The personal attendance • and appearance of the sheriff of Choctaw county, Okla., R. M. Connell, is also waived. It is agreed that the petitioner herein is held by R. M. Connell, sheriff of Choctaw county. Okla., by virtue of commitments issued to him out of the county court of said county, which commitments are regular on their face, commanding that said sheriff' hold the said petitioner in default of bail, in the following cases:</p> <p>‘No. 185. $ Selling whiskey, bail, 500</p> <p>“No. 189. Selling whiskey, bail, 500</p> <p>“No. 193. Selling whiskey, bail, 500</p> <p>“No. 194. Selling whiskey, bail, 500</p> <p>“No. 265. Selling whiskey, bail 500</p> <p>“No. 266. Selling whiskey, bail, 1.000</p> <p>“No. 268. Selling whiskey, bail 1.000</p> <p>“No. 275. Selling whiskey, bail, 1.000</p> <p>“No. 279. Resisting arrest, bail, 500</p> <p>“No. 289. Carrying pistol, bail, 250</p> <p>‘Witness our hands this the 10th day of October, 1908.</p> <p>“R. M. Connell, Sheriff Choctaw County.</p> <p>“J. M. Willis, County Attorney Choctaw County.</p> <p>“Gross & Jordan, Attorneys for Petitioner.”</p> <p>Petitioner alleges that he is charged, by informations, with illegally selling whiskey, in nine different cases, and that the bond in the three last cases has 'been put at $1,000 each, and in the othir cases at $500 each; that he made application to the Hon. W. T. Glenn, county judge of Choctaw county, for a reduction on all of said bonds, and that said application was refused; that petitioner’s restraint is illegal and unauthorized, because the amount fixed as bail, in each case, is excessive; that petitioner is a poor man, and can give bail in the sum of $250 only, in each case, and p~ays this court to reduce said bail in each case to a reasonable amount.</p> <p>On the question of excessive bail: 3 Am. & Eng. Encyc. of Law 680, and notes; United States v. Lawrence, 14 Cranch (C. C.) 518; United States v. Browner, 7 Fed. Rep. 86; West v. Colquit, 71 Ga. 559.</p>

Error from the United States Court for the Central District of the Indian Territory, at Durant; Thomas C. Humphrey, Judge. Campbell George was convicted of larceny, and brings error. Appealed to the United States Circuit Court.

Error from District Court, Pottawatomie County; B. B. Blakeney, Special Judge. William Johnson was convicted of murder, and he brings error. On the 26th day of March, 1908, William Johnson (who will hereafter be called “the defendant”) was indicted in the district court of Pottawatomie county for the murder of Mrs. Mary Cuppy. On the 6th day of April thereafter, the case was reached ■ for trial.

F. Irwin, Judge. William P. Price was convicted of manslaughter in the second degree and appealed. On the 5th day of May, 1904, the,grand jury of Roger Mills county returned an, indictment!, against Wm. P. Price (hereafter called defendant), in which defendant was charged with the murder of James Yandell, on the 18th day September, 1903.

Error from the United States Court for the Central District of the Indian Territory; before Justice Thomas C. Humphrey. Arthur Hinsley was convicted of manslaughter, and appeals.

T. Wilson, Judge. Henry Weston was convicted of violation of the liquor law and appeals. On the 13th day of July, 1905, the following information was filed in the probate court of Woods county, Olcla. T., against Henry Weston, hereinafter called defendant, and Thomas Fox, viz.: 'Territory of Oklahoma, Plaintiff v. Henry Weston and Thomas Fox, Defendants. Amended information.

Original application by Charles Johnson for habeas corpus and for certiorari in aid thereof. This is an original proceeding in this court for a writ of habeas corpus and for a writ of certiorari in aid thereof.

<p>Original action in mandamus by the state, on the relation of Bunner Sims, against John Caruthers, judge of the Ninth judicial district.</p> <p>This is an original action in mandamus, brought in this court under the provisions of section 12, art. 1, c. 28, p. 283, of the Session Laws of the state of Oklahoma passed in the year 1908 (Laws 1907-08), and article 33, c. 66, Wilson’s Rev. &. Ann. St. Okla. 1903.</p> <p>Relator was indicted by the grand jury of the United States District Court in and for the Western District of Indian Territory, at the February, 1907, term of said court, sitting at Okmulgee, in three cases, charging him with the crime of assault with intent to kill. Under the terms of the enabling act and the Constitution of the state of Oklahoma, the district'court of Okmulgee county became the successor of the United States District Court of the Western District of Indian Territory for the -trial of all criminal cases then pending in said United States Court for the Western District of Indian Territory at Okmulgee.</p> <p>The relator, by his attorneys, Messrs. Stanford & Cochran, on the 5th day of October, 1908, filed his petition and motion for a writ of mandamus in this court, alleging that, at the Feb: ruary, 1907, term of the United States Court in and for the Western District of Indian Territory, sitting at Okmulgee, three separate indictments were found and returned against the relator by the grand jury of said court, charging the relator with the crime of assault with intent to kill, and being numbered in said court, respectively, Nos. 993, 994, and 995; the first, charging an assault with intent to kill Lucy Yahola; the second, assault with intent to kill Peggie Scott; and the third, assault with intent to kill John Tiger. That since said February, 1907, term of said court, two other and subsequent terms of said United States Court for the Western District of Indian Territory have been holden at Okmulgee, in said district; that is to say, the May, 1907,, term, and the November, 1907, term. That since the 17th day of November, 1907, there have also been holden three terms of the district court in and for the Ninth judicial district of the state of Oklahoma, for Okmulgee county, to wit: The December, 1907, term; the January, 1908, term; and the April, 1908, term. Said terms were regularly fixed by order of the Supreme Court of this state. That relator was, at the February, 1907, term of the United States Court for the Western District of Indian Territory, admitted to bail; and that since said term of court he has been, and now is at liberty, upon bond for his appearance at the district court for the Ninth judicial district of the state of Oklahoma ; that five separate terms of court have been held since the said February, 1907, term of said United States Court for said district, at any of which terms the relator might have been placed upon trial for any and all of the offenses charged against him in said indictments. That no effort of any kind was made by the prosecution to bring either, or all, of said cases to trial; and that relator has been present at each and every term of said courts. That at the April term of said district court of the Ninth judicial district of the state of Oklahoma, for said county, the relator- filed in open court his motion in writing praying that he be given a trial upon all of said indictments against him, or that, failing to bring said cases to trial, the court enter an order dismissing each of said cases, and that he be discharged. That this motion was heard in open court, before the defendant herein as presiding judge of said court. That the county attorney of said Okmulgee county made no showing whatever as to the reasons for the delay in bringing said charges against relator to trial at said term, or any term prior thereto, and, that no evidence was introduced showing cause for delay in bringing the relator to trial upon said indictments. That the criminal calendar for the September, 1908, term of said district court has been set, and there appears on said calendar all of the cases above enumerated against relator, and that said cases are set down for trial in said court. That none of the delays in the trial of said cases were caused by the relator. That he has, at all times, been ready for trial, and that none of the delays have been at the request of either the'relator or his attorneys. That none of the delays have been occasioned by want of time on the part of the court to try said cases, or either of them; and that at each of said terms of said courts other and less important business has been disposed of, including the trial of many civil cases. Relator prays that a peremptory writ of mandamus issue from this court, directed against the Honorable John Caruthers, judge of the district court of the Ninth judicial district of the state of Oklahoma, commanding him to dismiss the three separate cases pending in said court against the relator. Relator filed in this court, in support of his petition and motion, the affidavit of the Honorable H. E. P. Stanford, one of his attorneys, in which he swears the facts stated in the petition herein are true.</p> <p>To this petition the defendant, on the 5th day of October, 1908, filed his answer, under oath, in substance as follows: That he admits as true that said-relator was indicted, as averred in his petition herein, and that two terms of said United States Court for the Western District of Indian Territory had been held in said district prior to the admission of this state into the Union; that by operation of law the district court of the Ninth judicial district, state of Oklahoma, became .the successor of the United States Court for the Western District of Indian Territory, in so far as the cases of the United States against the relator are concerned; and that three terms of the district court of the Ninth judicial district of the state of Oklahoma have been held at Okmulgee since the admission of the state into the Union. And', further answering, defendant says: That while three terms of said last-named district court had been fixed and set id: said county, only two terms were held wherein it would have been possible for relator’s cases to have been tried for the reason that the first term of said court, which was set for December, 1907, was for the purpose of getting the machinery of the state courts in said county in operation, and that at this term no jury was summoned, nor wa's the relator present. That at the January, ■ 1908, term of said court, there was pending on the docket of said court, in said county, a large number of criminal and civil cases, amounting to several hundred of each. That it was a physical impossibility, and beyond the power of mental achievement, to have disposed of all such cases which were then pending in said court at Okmulgee, including the relator’s cases, during the time allotted by order of the Supreme Court for said term in said county. That the records of said court show that the witnesses on behalf of the state were subpoenaed in relator’s cases to be present at said court at Okmulgee on February 10, 1908, being the day on which relator’s cases were set for trial in said court. That on February 10, 1908, the petit jury, which had been summoned to serve for said term, was discharged by order of said court on account of an epidemic of smallpox at that time prevailing in the town of Okmulgee ; that it was deemed necessary to preserve the public health and safety for said jury to be so discharged. That the records do not show that relator was present at said term, ready and demanding trial of his cases; nor does it show that he objected to the discharge of the jury. That at the January, 1908, term, relator’s attorney, Pión. H. E. P. Stanford, was a member of the Senate of the State of Oklahoma, and was only present at said term of court one or two days,.and was not present on February 10,' 1908, the day relator’s cases were set down for trial, and that neither said attorney nor relator wanted a trial, or were ready for trial on said date. Respondent denies that at the April, 1908, term of said district court, the motion demanding a trial by relator was argued in said court, or that said court refused to enter an order of record, either dismissing him or overruling said motion. That, under a rule of said court, the hearings of motions were held on Saturdays and Tuesdays of each week during the term of said court. That the filing of all motions is noted by the clerk on the appearance or motion docket of said court, and the party desiring to have the same considered by the court must give notice to the opposing party iti writing not later than 12 o’clock noon the day preceding the motion day upon which such motion is to be heard. That on the day relator’s motion was filed the said court was engaged in the trial of a murder case, and that said case consumed about nine days of said term. That, there are pending on the docket of said court for Okmulgee county hundreds of criminal and civil cases; that, in addition to Okmulgee county, there are three other counties within said judicial district; that in all of said counties the business of said court is very heavy; that he is the only judge presiding for said judicial district, and that as much business has been disposed of in said court as was possible; that relator’s cases have not been disposed of for want of necessary time to do so, that his cases are set down upon the trial docket of said court for Tuesday, October 7, 1908; that relator can then get a trial of said cases if he so wishes; and that the relator has not been prejudiced.</p> <p>In support of respondent’s answer herein is offered a certified copy of the record of said courts pertaining to the action of said courts in the cases of the relator, also the verified statement of Joe Eaton, county attorney of Okmulgee county, and the certificate of U. T. Whitmpr, district clerk, certifying that at the opening of the September, 1908, term, there was pending in said court 419 criminal cases and 499 civil cases, and that there was filed in said court since the 16th day of November, 1907, more cases, both civil and criminal, than it has been possible to try</p> <p>To the answer of respondent, relator files reply, in substance, as follows: He admits that no jury was summoned at the December, 1907, term, but urges that the relator should not be prejudiced in his rights,- because the Supreme Court of the state had designated said December term as a regular term of said court, and a jury could have been summoned. He admits that the fourth paragraph of respondent’s answer sets forth the facts concerning the number of -civil .and criminal cases pending in said court at that time,- ,but says that among the cases disposed of at said term were many of more recent date and less important than the cases of the relator; admits that the jury was discharged, as set forth in paragraph 5 of respondent’s answer, but alleges that at said term many cases of later date and less importance were disposed of than those pending against relator; that ample time was had for the trial of relator’s cases before the jury was discharged. That the motions of relator were not separately argued, but that a similar motion was argueu in said court in a case pending against one Joe Hill, and that by; agreement the argument made in the Hill Case was to apply to the cases of relator, and that upon the same record proof the cause against- said Hill was dismissed; but that the said court failed and refused to dismiss relator’s cases.</p> <p>Exhaustive briefs were filed by both parties, and the case was fully and ably argued by counsel on both sides.</p> <p>Before deciding this case, we desire to call attention to the title thereof. This action is entitled “The State of Oklahoma ex rel. Bunner Sims vj John Caruthers, Judge of the Ninth Judicial District of the State of Oklahoma.” Section 4224Í Wilson’s Rev. & Ann. St. Okla. 1903, provides that all actions must be prosecuted in the name of the real party in interest, unless otherwise provided, but this case does not come within the exceptions named in the statutes. Therefore, in a mandamus proceeding to enforce a private right, the real party in interest should be named as plaintiff, and such proceedings should not be entitled in the name of the state on the relation of such party.</p> <p>Mandamus as the proper remedy: Ex parte Cole, 28 Ala. 50; Palmer v. Jackson, Judge, (Mich.) 50 N. W. 1086; State v. Johnson, Judge, (Wis.) 80 N. W. 1184; Schwartz v. Berry, Judge, (Mich.) 51 N. W. 279; Ex parte Scott, 19 Ohio St. 581;' State v. Burgoyne, 7 Ohio St. 153; Gordon v. Longest, 16 Peters (U. S.) 97; Watson v. Judge, 40 Mich. 729.</p> <p>On the .question of what constitutes a “speedy trial”: Mansfield’s Digest of the Statutes of Arkansas, c. 46, §§ 2191, 2192, 2193; People v. Marino (Cal.) 24 Pac. 892; State v. Kuhn, 154 Ind. 450; Newland v. People, 221 111. 166;Van Burén v: People, 7, Colo. App. 136; State v. Sims, 1 Overt. (Term.) 253; United States v. Fox; 3 Mont. 512.</p> <p>Mandamus not the proper remedy: Wilson Rev. and Ann. St. Okla. 1903, § 4885.</p> <p>On what constitutes a “speedy trial”: Stewart v. State, 13 Ark. 720; Nixon v. State, 2 Smedes & M. (Miss.) 497, 41 Am. Dec. 601; State v. Huting, 21 Mo. 469; Ex parte Stanley, 4 Nev, 113; State v. Endsley, 19 Utah, 478; Commonwealth v. Adcock, 8 Grat. 661; In re Edwards, 35 Kan. 99, 10 Pac. 539; People v. Ruloff, 5 Parker .C R. 47; 12 Cyc. 500; Clark v. Commonwealth, 29 Pa. St. 129; Beavers v. Haubert, 198 U. S. 86, 49 L. Ed. 950; Com. v. lailer, 7 Watts (Pa.) 366; People v. Vosale, 120 Cal. 168, 52 Pac. 305; State v. Euke, 85 Iowa, 35; Patterson v. State, 49 N. J. Law, 326; Ex parte Turman, 26 Tex. 708, 84 Am. Dec. 598.</p>

Lawrence, Judge. Joe Vickers was convicted of rape, and brought error to the United States Court of Appeals for the Indian Territory, whence the case was transferred under the enabling act to ttie Supreme Court of Oklahoma’, and from that court to the Criminal Court of Appeals.

Error from District Court, Payne County; J. H. Burford, Judge. Moses Wells was convicted of forgery, and brings error. Plaintiff in error, Moses Wells, hereinafter referred to as “the defendant,” was. prosecuted by indictment for the crime of forgery, in the district court of Payne county, Okla. T., at the April term, 1906, which indictment, omitting the formal parts, reads as follows: “Territory of Oklahoma v. Moses Wells. Indictment.

H. Burford, Judge. Bryan Reed was convicted of selling intoxicating liquor without a license, and appealed to the Supreme Court of Oklahoma Territory, whence the cause was transferred under the Constitution of Oklahoma and the enabling act to the Supreme Court of that state, and from that court to the Criminal Court of Appeals.

Error from District Cowrt, Pottawatomie County; B. F. Bur-well, Judge. S. C. Cavett was convicted of manslaughter in the second degree, and he brings error. The accused was by the grand jury of Pottawatomie county, Okla., at the September, 1904, term of the district court of said county,.indicted for the crime of murder. Upon being arraigned, he asked for and was given time in which to plead to said indictment.

Error from District Court, Pottawatomie County; B. F. Burwell, Judge. J. P. Price was convicted of Shooting with intent to kill, and brings error. On the 17th day of March, 1906, the grand jury of Pottawatomie county, Okla., returned an indictment against the accused, J. P. Price, charging him with the crime of shooting with intent to kill.

L. Pancoast, Judge. Frank Buck was convicted of larceny, and appeals. On the 5th day of December, 1906, Frank-Buck (hereinafter called defendant) was found guilty in the district court of Woods county, Okla., upon an indictment wherein defendant was charged with the larceny of domestic animals, and was sentenced by the court to six years’ imprisonment in the territorial prison.

Original application by George W. McNaught for a writ of habeas corpus. The petitioner, George W. McNaught, was convicted in the district court of Kingfisher county of manslaughter in the first degree, and he was sentenced to life imprisonment in the state penitentiary under an information filed by the county attorney of said county.

<p>Appeal from District Court, Kay County; B. T. Hainer, Judge.</p> <p>George Alderman was convicted of larceny, and appeals.</p> <p>At the March term of the district court of Kay county, 1906, an indictment was returned into court by the grand jury against George Alderman (hereafter called defendant) in which he was charged with grand larceny for taking two hogs, on or about the 28th day of January, 1906, from one C. H. Van Fassen. The defendant pleaded not guilty to this charge. On the 21st of April the jury found the defendant guilty, and he was sentenced by the court to four )rears’ imprisonment in the territorial prison. Defendant filed a motion for a new trial. This being overruled, defendant brought this case by appeal to the Supreme Court of Oklahoma Territory. Upon the admission of the state of Oklahoma into the Union, this case, under the terms of the Constitution of the state and the Enabling Act was transferred to the Supreme Court of the state of Oklahoma (Act June 16, 1906, c. 3335; § 17) 34 Stat. 276). Upon the creation of the Criminal Court of Appeals, as directed by statute, the Supreme Court of the state transferred the case to this court.</p>

Error from District Court, Comanche County, Oklahoma Territory; F. E. Gillette, Judge. J. M. Bilton was convicted of manslaughter in the first degree, and he brings error.

E. Gillette, J%idge. A1 Douglas was convicted of manslaughter, and appeals. On the 9th day of March, 1906, A1 Douglas, hereinafter called defendant, was indicted by the grand jury of Comanche county for the offense of murder, alleged to have been committed on the 4th-day of November, 1905. Defendant was arraigned, and pleaded not guilty.

' Willie Harjo was convicted of murder, and he appeals. On the 14th day of April, 1905, Willie Harjo, hereinafter called defendant, was indicted in the United States Court for the Western District of the Indian Territory, sitting at Wewoka, for the offense of murder. The defendant was arraigned and pleaded not guilty. The defendant was placed on trial on said indictment, and on the nth day of April, 1906, was, by the jury found guilty of murder without capital punishment.

Original petition by C. H. Watson for a writ of habeas corpus to be directed to A. S. Hamilton, sheriff of Bryan county.

Error from District Court, Blaine County; M. C. Garber, Judge. John Cannon was convicted of manslaughter in the first degree, and brought error to the Supreme Court of Oklahoma, whence the cause was transferred to the Criminal Court of Appeals. John Cannon, plaintiff in error (hereinafter referred to as the defendant), was indicted in the district court of Garfield county, on December 15, 1906, charged with having murdered one Thomas A. Radford on January 10, 1906.

Burford, Judge. Woodson H. Morris was convicted of murder, and he appealed to the Supreme Court of Oklahoma Territory, whence the cause was transferred under the enabling- act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution of Oklahoma to the Supreme Court of the state, whence it was transferred to the Criminal Court of Appeals. At the March, 1906, term of the district court of Kay county, an indictment was returned b3r the grand jury against Woodson FI.

<p>INTOXICATING LIQUORS — Interstate Commejrce. Under subdivision 3, sec. 8, art. 1, of the Constitution of the United States, commonly referred to as the “interstate commerce clause” of the Constitution, a resident of one state has the right to have shipped to him from another state alcoholic liquors, when ordered by him\for his and his family’s use, and to keep the same for such use; and the state cannot, under its police power, enact laws so as to substantially hamper or burden such constitutional right to have such shipment made and to receive and retain the same for personal use.</p> <p>(Syllabus by the Supreme Court )</p>

<p>Error from County Court, Comanche County; James H. Wolverton, Judge.</p>

Error from District Court, Comanche County; F. E. Gillette,Judge. A. N. Byers was convicted of manslaughter, and he brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals.

<p> Appeal from the United States Court for the Central District of Indian Territory; T. C. Humphrey, Judge. </p> <p>On motion for rehearing.</p>