Volume 12 — Oklahoma Criminal Reports

<p> Appeal from District Court, Roger Mills County; C. A. Brown, Judge. </p> <p>L. A. Love, convicted of felonious assault, appeals.</p>

<p>1. BAIL — Capital Offense — Bill óf Bights. Under section 8, Bill of Bights, providing that: "All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,” on habeas corpus, or motion for bail, where a capital offense is charged, the burden of proof, after commitment, is on the accused to show that the proof of guilt is not evident.</p> <p>2. BAIL — Admission to Bail — Presumption and Burden of Proof. On habeas corpus to be let to bail, the petitioner is required to show facts sufficient to entitle him to bail when those facts do not appear from the evidence adduced on the part of the state. And where the homicide is proven or admitted, the burden is on the petitioner to show the presence of facts tending to justify, excuse, or mitigate the offense. The court will not presume them merely because the state fails to show their absence.</p> <p>3. BAIL — Admission to Bail — Sufficiency of Evidence. A mere conflict of testimony even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail. The evideneee must be considered as a whole; and when so considered, unless a well founded doubt of the prisoner’s guilt of murder is generated, bail will be denied.</p>

<p> Appeal from County Court, Lincoln County; H. M. Jarrett, Judge. </p>

<p>1. APPEAL — Verdict. A verdict of guilty by a jury and judgment imposed accordingly by a trial court cannot be upheld in the Criminal Court of Appeals when the record fails to disclose competent evidence tending reasonably to support such verdict and judgment.</p> <p>2. APPEAL- — -Discussion of Case. When a discussion of errors assigned can serve no good purpose, this Court will ordinarily decline to review them.</p> <p>(Syllabus by the Court.</p>

<p>1. EVIDENCE — Sufficiency. In cases of circumstantial evidence it is necessary that all the facts and circumstances essential to a conviction be proved beyond a reasonable doubt.</p> <p>2. LARCENY — Proseution—Evidence. In a prosecution for larceny, the evidence in the ease examined and found sufficient to sustain the verdict of the jury.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from County Court, Okmulgee County; ■ Mark L. Bozarih, Judge. </p> <p>W. T. Hall was convicted of having unlawful possession of intoxicating liquor, with intent to sell the same, and he appeals.</p>

<p> Appeal from County Court, Coal County; P. B. Wilhelm, Judge. </p>

<p>1. HOMICIDE — Trial—Instruction. On a trial for assault with intent to kill, when the evidence tends to show justification in self-defense, it is the duty of the court to submit instructions properly embracing the law of self-defense, and it is reversible error to refuse to instruct the jury upon the law applicable to the case.</p> <p>2. HOMICIDE — Trial—Instructions—Submission of Issue. Where the evidence is clearly insufficient to sustain the major offense charged in an information for assault with intent to kill, and there is evidence tending to prove the commission of the offense which is necessarily included within the offense charged, it is the duty of the trial court to instruct the jury of their right to convict of the lesser offense.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Verdict—Evidence. When issues of fact are determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment in the place of that of the jury, or to usurp its legitimate functions.</p>

<p>1. HOMICIDE — Evidence'—Sufficiency. In a prosecution for murder, the evidence reviewed and held sufficient to sustain the conviction with imprisonment for life as the punishment.</p> <p>2. HOMICIDE — -Evidence—Dying Declarations. The rule is universal that before dying declarations can be admitted in evidence it must appear that they were made under a sense of impending death, but it is not essential that the declarant state that they are so made, sit 'is sufficient if it satisfacorily appears in any manner that they were made under that sanction.</p> <p>3. HOMICIDE — Dying Declarations. Dying declarations may be made by signs as well as by words, and where the declarant is in a dying condition, and so injured as to be unable to speak, the fact that in response to questions her answers were indicated by nodding and shaking her head, and pointing her finger, forms no objection to the competency and admissibility of such declarations.</p> <p>4. EVIDENCE — Res Gestae. Declarations by a person whose throat was cut, and windpipe severed, and therefore speechless, made by signs in the presence of the defendant a few minutes after the wound was inflicted under circumstances that excluded the presumption that they were the result of premeditation and design are admissible as a part of the res gestae.</p> <p>5. REVIEW — Instructions. Instructions given by the court and not excepted to by the defendant at the trial or before the trial court, will not he reviewed on appeal, unless fundamental error is apparent.</p> <p>6. MISCONDUCT OF JURY. The mere fact that in response to an inquiry of the court as to how the jury stood numerically, the foreman answered: “Bight for conviction and Four — •” is no ground for a new trial, where it does not appear that the defendant was prejudiced by such misconduct.</p>

<p> Appeal from District Court, Creek County; Chas. B. Wilson, Jr., Judge. </p> <p>Allen Williams, was convicted of murder and appeals.</p>

<p>Where it does not appear in the case-made that the notices of appeal required by the statute to be served upon the clerk of the trial court and upon the county attorney, and no answer or response is made to a motion to dismiss on said ground, the motion to dismiss the appeal will be sustained.</p>

<p> Appeal from County Court, Coal County; P. B. Wilhelm, Judge. </p> <p>Albert Williford was convicted of a violation of the prohibitory law and appeals.</p>

<p>In the matter of the application of John Davis, for an order reducing bail.</p>

W. Higgins, Judge. Henry Bookman was convicted of murder and appeals. The plaintiff in error in this case was convicted of murder in the District Court of McIntosh county, and his punishment fixed at death, upon an information filed in said court April 21, 1915, charging him with the murder of one Rich Hardin, and in pursuance of the verdict of the jury he was sentenced to suffer the punishment of death by electrocution as provided by law.

<p>Appeal from District Court, Kiowa County; . Thomas A. Bdwards, Judge..</p> <p>R. C. Morefiead was convicted of murder and appeals.</p>

<p>APPEAL — ¡Record—¡Dismissal. Where an appeal is taken from an alleged judgment of conviction, and the transcript of the record or ease-made contains no copy of the judgment of the trial court, this court does not acquire jurisdiction of the appeal and such an appeal will be dismissed.</p>

<p>1. VERDICT — Evidence—New Trial. It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only the province, but the duty of the court to set aside such verdict when it is contrary to the evidence, or when there is no evidence to support it.</p> <p>2. LARCENY — Possession of Stolen Property — Effect as Evidence. The possession of stolen property recently after the larceny, may or may not be an incriminating circumstance, whether it is or not depends upon the facts and circumstances connected with such possession; and where the testimony for the state standing alone raises a presumption of fact in favor of an innocent possession and there is nothing in it from which the jury may legitimately infer a felonious talcing, the evidence is insufficient to sustain a conviction. And where the defendant’s explanation that he bought the cattle is undisputed, and is supplemented by the testimony of as many witnesses as the court would permit to testify as to his good character and honesty, the law will presume in behalf of innocence. It supposes legality rather than crime.</p>

C. Allen, Judge. Melvin Stephens, convicted • of cattle theft, appeals. The statement of facts as set forth in the attorney general’s brief in this case is as follows: “Melvin Stephens, an unmarried negro, at the time of this larceny, was living in the city of Muskogee. His father, George Stephens, was living on a farm in McIntosh county, about fifteen miles south of Muskogee. On Saturday, the 3rd day of May, 1913, George Stephens came to Muskogee.

<p>APPEAL — Verdict—Evidence. Where the jury find a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set aside in the absence of prejudicial error.</p>

<p> Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge. </p> <p>Ed McGaugh, convicted of assault with intent to do bodily harm, appeals.</p>

<p> Appeal from District Court, Ottawa County; Preston S. Davis, Judge. </p> <p>W. E. Doan, convicted of crime, appeals.</p>

<p>INTOXICATING- LIQUOK.S — Unlawful Possession — Evidence. In a prosecution for having possession of intoxicating liquors with intent to violate provisions of the prohibitory law, where the evidence shows that the amount of such liquors in the defendant’s possession at his home was less than the amount prescribed by section 6, ch. 26, Session Laws 1913, declaring that the keeping in excess of a certain amount of intoxicating liquors ‘ ‘ shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors,” and where there is a total absence of direct or presumptive evidence to sustain the charge, the judgment of conviction will be reversed.</p>

<p>APPEAL — Dismissal. In felony cases the appeal must be taken within six months after the judgment is rendered. Section 5991, Eev. Laws. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by the statute, this court docs not acquire jurisdiction of the appeal, and such an appeal will be dismissed.</p>

<p> Appeal from- District Court, LePlore County; W. H. Brown, Judge. </p> <p>Walsey Clark, was convicted of murder and appeals.</p>

<p>1. PRESENTATION BELOW — Instruction. Instructions given by the court and not excepted to by the defendant at the trial or before the trial court will not be reviewed on appeal, unless fundamental error is apparent.</p> <p>2. APPEAL — Decision. Where after an examination of the entire record it appears that the defendant has had a fair and impartial trial, and that no material error has been committed by the trial court, and the verdict seems to be amply sustained by the evidence, this court will not disturb the verdict or judgment of the trial court.</p>

<p> Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Ben May was convicted of violating the prohibitory law, and appeals.</p>

<p>LARCENY — Ground for Reversal — Evidence, Evidence in a prosecution for the theft of hogs considered and held sufficient to support a conviction, and that no reversible error was committed on the trial.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from County Court., Oklahoma County; ■ John W. Hayson, Judge. </p> <p>A. J. Bemis was convicted of unlawfully coercing laborers, and appeals.</p>

<p>1. SEVERANCE — Right. When two or more persons are placed upon trial charged jointly with an allray, and any of them asks a severance in due time and according to law, the diversity of interests, hostility between the parties and common fairness are sufficient warrant for a fair'and impartial trial judge to award separate trjals to the belligerents. Only when the piublic welfare demands, should a joint trial be required.</p> <p>2. WITNESS — -Impeachment of Co-defendant — Right. A co-defendant who is hostile to another co-defendant, who does not call him as a witness, has the same right to impeach such co-defendant, if he becomes a witness and gives adverse testimony, as he would any other witness testifying in the case.</p>

<p>1. PROSECUTIONS — Instruction—Evidence. Under section 6, Cb. 26, Sess. Laws 1913, providing that: “the keeping in excess of one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation thereof, or substitute therefor * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” it is error to charge: “If you find from the evidence in this ease beyond a reasonable doubt that the defendant had in his possession more than one gallon of spirituous liquors then and in that event the state has introduced that amount of evidence which would be sufficient to counterbalance the general presumption - of innocence and warrant a Conviction, in the absence of other proof raising a reasonable doubt as to the unlawful intent of the defendant,” because the language used invades the province of the jury and deprives the defendant of the presumption of innocence and is a comment on the weight of the evidence.</p> <p>2. INTOXICATING- LIQUORS — Prosecution — “Prima Facie Evidence” — Question for Jury. The term “prima facie evidence” as used in the statute, is such evidence as in the judgment of the law, is sufficient -to establish the fact, if it be credited by the jury, and unless rebutted, or the contrary proved remains sufficient for that purpose. Whether or not such evidence is sufficient to overcome the presumption of ipnoeenee of a defendant and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumption, are considered, is for the determination of the jury.</p>

<p> Appeal from County Court, Bryan County; J. L. Rappolee, Judge. </p> <p>W. A. Cooper, was convicted of a violation of the prohibitory law and appeals.</p>

<p>1. FORGERY — -Indians—Deed to Allotment — -Validity, (a) In order to constitute forgery under the statute in this state, it is not essential that the document alleged to have been forged is capable upon its face of deceiving a third party. It is sufficient if the instrument is or purports to be the act of another, by which any right or interest in real property is or purports to be transferred. (b.) De,eds conveying lands allotted to members of the Five Civilized Tribes are not void on their face because a recital is contained therein giving the roll number of the allottee, even though such allottee may in fact be a restricted member of the tribe, as that term is ordinarily used in Oklahoma.</p> <p>2. FORGERY — Sufficiency of Evidence — Testimony of Accomplice. A conviction cannot be based upon the uncorroborated testimony of an accomplice. For testimony sufficiently corroborative under the law of this state to support a conviction, see opinion.</p> <p>3. DOCUMENTARY EVIDENCE — Telegram. A telegram, the genuineness of which is admitted, is admissible in evidence, although it may not be in the handwriting of the accused.' Dunbar v. United States, 156 TT. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390.</p>

<p>1. INSTRUCTIONS — Proof. It is error for the trial, court to instruct the jury that, where the state makes out a prima facie ease, the defendant must prove the facts upon which he relies for an acquital by a preponderance of the evidence. It is only nee'essary for the defendant to raise a reasonable doubt of his guilt..</p> <p>2. GROUND FOR REVERSAL — Instructions. If, in the course of the trial, the court submits to the jury an instruction which has the effect of requiring the accused to establish his innocence or any other material fact beyond a reasonable doubt, and a conviction is had, a reversal will follow on appeal.</p> <p>3. INTOXICATING LIQUOR — Prosecution—Unlawful Intent — Prima Facie Evidence — Probative Effect. Under a provision of the act of 1913, eh. 26, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be “prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors," evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.</p>

<p> Appeal from Superior Court, Tulsa County; M. A. Breckinridge, Judge. </p> <p>John Bond was convicted of an attempt to commit rape and appeals.</p>

<p> Appeal from County Court, Pottawatomie County; Pial Johnson, Judge. </p> <p>Noah Sullins was convicted of violating the prohibitory law, and appeals.</p>

<p> Appeal from District Court, Payne County; A. H. Huston, Judge. </p> <p>George Woodland was convicted of a felony, and appeals.</p>

<p> Appeal from District Court, Stephens County; Prank M. Bailey, Judge. </p> <p>Charles Carter was convicted of assault with intent' to kill, and appeals.</p>

<p>1. INTOXICATING- LIQUORS — Illegal Sales — Evidence. Evidence held sufficient to warrant a conviction of selling intoxicating liquors in violation of the prohibitory law.</p> <p>2. APPEAL — Verdict. Where there is testimony in the record clearly tending to support the verdict, it will not be disturbed on appeal, on ground of insufficiency of the evidence.</p>

<p> Appeal from County Court, Garfield County; Winfield Scott, Judge. </p> <p>Laura Courtney was convicted of violating the prohibitory law, and appeals.</p>

<p>1. RAPE — Information—Sufficiency Against General Demurrer. An information which after alleging venue and time charges that the defendant did then and there com'mit the crime of statutory rape, in the manner and form as follows: “did wilfully, unlawfully, and feloniously have voluntary sexual intercourse with H. W., an unmarried female under thfe age of sixteen years and not the wife of the said J. W., he the said J. W. then and there being over the age of eighteen years at the time the alleged act of sexual intercourse was committed, contrary to, etc.,” sufficiently charges the crime of statutory rape and a demurrer thereto was properly overruled.</p> <p>2. SUFFICIENCY OF EVIDENCE. Evidence on a trial for statutory rape held sufficient to sustain the verdict and judgment of conviction, and that no material error was committed upon the trial.</p>

<p> Appeal from District Court, Haskell County; W. H. Brozvn, Judge. </p> <p>Joe McClatchey, was convicted of murder and appeals.</p>

Appeal from County Court, Kingfisher County; R. P. Shutter, Judge. Ed Alexander was convicted in the County Court on appeal from a judgment of the police court of tlie city of Kingfisher.

<p> Appeal from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Dotson Walker, was convicted of rape and appeals.</p> <p>An indictment, charging plaintiff in error ;with the crime of rape upon one Bessie Burgess, was presented in the District 'Court of Wagoner county, August 15, 1913. The crime of rape in the first degree is therein charged to have been committed by the defendant on the 15th day of September, 1911.’</p> <p>A statement of the case and the material testimony id as follows:</p> <p>“Q. How old are you, Bessie? A. . Nine.</p> <p>“Q. Where do you live, Bessie? A. With Mr. Cole.</p> <p>“Q. Where were you. brought from yesterday ? A. Brought from home ?</p> <p>“Q. The orphans home? A. Yes, sir.</p> <p>“Q. At Pryor? A. Yes, sir.</p> <p>“Q. Bessie, when you came in here awhile ago and held up your hand did you know what was meant when he asked you, told you that he was swearing you, did you know that he wad swearing you to tell the truth? A. Yes.</p> <p>“Q. Sis, now, don’t be scared, just answer the question. Did you ever go to Sunday school?- A. Yes, sir.</p> <p>“Q. You have gone to Sunday school, what do they teach you there at Sunday school? About who?</p> <p>“Objection overruled.</p> <p>“Q. Who do they teach you about? A. About God.</p> <p>“Q. And do they teach you about where you would go if you are a bad girl and tell stories? .A. Yes, sir.</p> <p>“Q. What would become of you if you would tell a story here and be a bad girl, where would you go when you died? A. Go to the Boogerman.</p> <p>“Q.. If you are a good girl and always tell the truth and be a good little girl, then when you die where will you go ? A. Go to God.</p> <p>“Mr. Robertson: I think she is qualified.</p> <p>“Mr. Reed: The defendant objects. Objection overruled.</p> <p>“EXAMINATION BY COUNSEE FOR DEFENDANT.</p> <p>“Mr. Reed:</p> <p>“Q. Bessie, did you know the meaning of an oath when you held up your hand and swore to tell the truth, do you know the meaning of that oath, do you know what it means? A. No, sir.</p> <p>“Q. Do you have any idea what it means, Bessie? A. No, sir.</p> <p>“Re-Direct Examination.</p> <p>“Mr. Dickey:</p> <p>“Q. You know that you should tell the truth, don’t you, when you hold up your hand? A. Yes, sir.</p> <p>“Mr. Reed: We object as being incompetent evidence.</p> <p>“The Court: I think she has qualified.</p> <p>“Q. Now, Bessie, do you know Dotson Walker? A. Yes, dir.</p> <p>“Q. How long have you known him? A. A long time.</p> <p>“Q. Did you ever live at his house ? A. Yes, sir.</p> <p>“Q. What did you call him when you lived there with him, what did you call Dotson Walker when you lived there; by what name? A. Daddy.</p> <p>“Q. Now, Bessie, do you remember any time that Dotson Walker ever did anything bad with you ?</p> <p>“Objection made and overruled.</p> <p>“Q. Do you know when he did bad things with you ? Just answer the question, you don’t want to be scared, you just want to answer those questions and tell the truth. Do you remember when Dotson Walker did bad things with you?</p> <p>“Same objection overruled.</p> <p>“Q. Judt answer that now? A. Yes, sir.</p> <p>“Q. Now tell us what he did? Where was that Bessie that he did these bad things with you ?</p> <p>“Objection overruled.</p> <p>“Q. Where was that Bessie? A. In the crib.</p> <p>“Q. In the crib there where he lived at his house? A. Yes, sir.</p> <p>“Q. Now when he did these bad things with you what would he do, just tell the jury now what did he do when he would take you down there to the crib, you just go on ahead and 'tell the jury what he would do when he would take you down there to the crib.</p> <p>“The Court: Don’t be afraid, just talk to the jury there and tell them what he would do.</p> <p>“Q. What would he do? A. Get on top of me.</p> <p>. “Q. Would he make you pull your clothes! up ? Just answer that. A. Yes, sir.</p> <p>“Q. He would and then after he would make you pull up your clothes what would he do, what would he do after he would make you pull up your clothes?</p> <p>“The Court: Just talk right out like you were at home. ,</p> <p>“A.' He would get on top of me.</p> <p>“Q. ■ He would get on top of you, would he unbutton his pants? A. Yes, sir.</p> <p>“Q. And then what would he do after he- got on top of you ?</p> <p>“The Court: Just answer it, what would he do then, just tell the man what he would do.</p> <p>“Q. You just talk right out now, don’t be afraid, all of these people here are your friends and they just want you to tell the truth, just tell what would he do after he would pull up your dress and after he would unbutton his) pants, he would get on you then would he?</p> <p>“Objection overruled and exception taken.</p> <p>“Q. And then would he put anything in you?< A. Yes, sir.</p> <p>“Q. Did that thing that he put in you go in you Honey? A. Yes, sir.”</p> <p>It is agreed that the defendant objects to every question and has his exceptions so as not to interfere with the witness here.</p> <p>“Q. When he put that in you and when he took that thing out of his pants did he put it in you? A. Yes, sir.</p> <p>“Q. Did it go clear in you? Did he make you bleed? A. Yesi, sir.</p> <p>“Q. Do you remember one day when you were down there in the crib? A. Yes, sir.</p> <p>“Q. And you were laying there and he was on top of you and you cried out to him not to do it? A. Yes, sir.</p> <p>“Q. Why did you do that Bessie, was it because he was hurting you? A. Yes, sir.</p> <p>“Q. When you cried out to him that way and told him not to do that, was that thing in you then? A. Yes, sir.</p> <p>“Q. You could feel it in there? A. Yes, sir.</p> <p>“Q. And then when you got up you were bleeding?</p> <p>“The Court: I think the objection ought to be'sustained to that, it is a little leading. The last three answers are stricken.</p> <p>“Q. When he was on top of you Honey what was he doing? Just tell these men what he was doing? A. I don’t know.</p> <p>“Q. You don’t know, was he hurting you? A. Yes, sir.</p> <p>“Q. And when you got through how were you then, did you look at yourself? A. Yes, sir.</p> <p>“Q. What did you see, did you see anything on yourself? A. Yed, sir.</p> <p>“Q. What was it Honey? A. Blood.</p> <p>“Q. What did you tell him? A. I told him to quit.</p> <p>“Q. Did you tell him anything else? A. No, sir.</p> <p>“Q. Did you hollar out, were you crying? A. Yes, sir.</p> <p>“Cross EXAMINATION.</p> <p>“Mr. Reed.:</p> <p>. “Q. Who told you to tell this story — tell this jury who told you to tell this story, tell it. A. This man right there.</p> <p>This man right here? Do you know Bill Brady? A. “Q. Yes, sir.</p> <p>You know Uncle Bill don’t you? A. Yes, sir. “Q.</p> <p>Did you know Uncle Ollie Walker? A, Yes, sir. "Q-</p> <p>Did Uncle Ollie Walker, tell you to tell this, story ? A. “Q- . Yed, sir.</p> <p>Did Bill Brady tell you to tell this story ? A. Yes, sir. “Q-</p> <p>“Q. Did Ollie Walker tell you he would buy you some new shoes if you would tell this story? A. Yes, sir. ,</p> <p>“Q. He did? A. Yes, sir.</p> <p>“Q. Did Bill Brady tell you he would buy you a new dress if you would tell this story? A. Yes, sir.</p> <p>“Re-Direct Examination.</p> <p>“Mr. Dickey:</p> <p>“Q. Everything you have told today is the truth, isfa’t it? A. . Yes, sir.</p> <p>“Q. And I never told you to tell anything, I just told you I wanted you to tell the truth, isn’t that right? A. Yes, sir.</p> <p>“Q. Then what you have told here is' the truth? A. Yes, •sir.</p> <p>“Re-Cross Examination.</p> <p>“Mr. Reed:</p> <p>“Q. You know Ollie Walker and you know Bill Brady? A. Yes, sir.</p> <p>“Q. Did you have a talk with either one or both of them Bessie when you came down here to testify before that body of men they'called the Grand Jury up stairs, did you see them then? A. Yes, sir.</p> <p>“Q. And you talked with both of them didn’t you?' A. When ?</p> <p>“Q. When you came down here from Pryor Creek to tell thigl story they told you to tell up stairs there to the Grand Jury to that body of men called the Grand Jury you talked to them then, didn’t you? A. Yes, sir.</p> <p>“Q. And they told you again that they would get you a new dress and a pair of shoes if you would tell the story on Daddy, didn’t they? A. Yes, sir.”</p> <p>William_ Brady, the second witness for the state testified that he was a citizen of the Creek Tribe of Indians, and had known Dotson Walker for twenty years; that he lived about a mile from him, and that he knew Bessie Burgesis since she was a little child. His further testimony was as follows:</p> <p>“Q. Do you remember the occasion of riding by Mr. Walker’s house in the fall of 1911 and hearing screams? A. Yes, sir.</p> <p>“Q. How were you riding? A. I was riding along the road, and I heard some one hollaring, says: ‘O, Daddy, you are killing me, Daddy you are hurting me.’ And I got it located, it was right in the old house and I got off my pony and 'peeped through the crack and he was* on top of her.</p> <p>“Q. Who was? A. Mr. Walker.</p> <p>“Q. All right, how was he dressed? A. Why I could not see on account of his overcoat.</p> <p>“Q. What were their positions? A. Why it seems to me like that he was on top of her and there was about that much of her legs sticking out on that side.</p> <p>“Q. I believe you stated that you peeped through the crack ? A. Yes, sir.</p> <p>“Q. Then what happened Mr. Brady? A. I then went back and got on my horse and rode up to the house, that was about a 120 steps, I suppose about that far, and got down and was sitting on the. end of a log — and the little girl came along with a little corn in her arms and I says, ‘What is the matter Bessie?’ and she says, ‘Daddy was doing it.’</p> <p>“Q. What else did she slay? A. I says, ‘Did he hurt you?’ She says, ‘Yes, made me bleed.’ I says, ‘Now go on be a good girl and try and not go with him down there.’ That is all I said.</p> <p>“Q. What county and state was that in? A. Wagoner County, Oklahoma.</p> <p>“Q. About what month was that Mr. Brady? A. I don’t exactly know the date of the month but it was either in September or October.</p> <p>“Q. Of what year? A. 1911.</p> <p>“Cross ExamiNation.</p> <p>"Mr. Reed:</p> <p>“Q. You talked to this little girl about this since that date? A. No, sir, I didn’t talk with her at all, I told her to' go on and be a good little girl.</p> <p>“Q. You didn’t talk with her Uncle Bill when she came down here and went before the grand jury? A. No, sir, I never seen her.</p> <p>“Q. If the little girl testifies that you told her you would buy her a new dress if she would tell this jury.on her daddy she is mistaken ain’t she, she is wrong about it, you didn’t promise her anything? A. No, sir, I never even talked with her, I never seen her.</p> <p>“Q. How does it come that you waited here two years after that time before you ever told anybody about this? A. Why, I didn’t know exactly how to get at it but the next thing I was afraid of the lynching.</p> <p>A Juror: Why didn’t you interfere when you saw that man with this little girl under him down in that crib, why didn’t you interfere right there and sftop it? A. Why I don’t know, I was afraid that I might get into trouble over it.</p> <p>“The state rests.</p> <p>“The defendant demurs to the evidence as not being sufficient to make a case.</p> <p>The Court: Demurrer overruled.</p> <p>“The Court: I think it is well to announce now Mr. Reed so that you will know how to meet the ruling of the court by the evidence in the case that it will be the holding of the court in this case, in view of the evidence that has been introduced, that the state is not confined to any particular day but that any day or date within three years) prior to the date the Grand Jury returned this indictment fixes this offense.</p> <p>“Mr. Reed: To which remarks of the Court and ruling of the Court and notice served on counsel for the defendant the defendant excepts.”</p> <p>Mrs. Sarah Walker called by the defendant testified as follows:</p> <p>“Q. Are you Grandmother Walker? A. Yes, sir.</p> <p>“Q. Is Dotson Walker, the defendant in this case, your son? A. Yes, dir.</p> <p>“Q. Grandmother, tell this jury where you live? A. I live out here about five miles west of the river.</p> <p>“Q. Do you know Bill Brady? A. Yes, sir.</p> <p>“Q. How long have you known him? A. O, I expect I have known him twenty odd years.</p> <p>“Q. You may tell the jury whether or not he has up until recently been a frequent visitor and friend of your family? A. He has.</p> <p>“Q. You may tell the jury whether or not he is such at this time and if not why not? A. Well, he stayed around our house and I got tired of him staying there, I was not able to feed him, and it made him mad and he don’t stay there now.</p> <p>“Q. Do you remember where you were on the 15th day of September, 1911 ?</p> <p>“Mr. Dickey: Objected to ad incompetent, irrelevant and immaterial.</p> <p>“The Court: Objection sustained.</p> <p>“Mr. Reed: If the court please, now I don’t want to be—</p> <p>“The Court: I have passed on it, and I don’t care to hear argument.</p> <p>“Mr. Reed: The defendant excepts for the reason it is denying the defendant a constitutional right of a fair and impartial trial.</p> <p>“The Court: T know what the law- is on this subject.</p> <p>“Mr. Reed: Does the Court hold that the .evidence of the defendant in a transaction of this kind without proving any time whatever or if having proved a different time from the time alleged in this indictment the State does not elect to take any specific time, that you could just generally vary from the indictment so that you could convict the defendant.</p> <p>“The Court: The State had announced that it rested its case upon the incident occurring the day that Brady testified that he was at the house.</p> <p>“Mr. Reed: That is the problem Your Honor what day?</p> <p>“The Court: Now he has not fixed the day, the girl has not fixed the day, the Grand Jury didn’t fix the day.</p> <p>“Mr. Reed: I submit the indictment.</p> <p>“The Court: The Grand Jury simply said it was on or about and that is the way all informations read and the law'holds that you can prove it was any day within the statutory period. That is the holding of the Court and where this witness was on the 15th is incompetent, irrelevant and immaterial, to any issue in this case.</p> <p>“Mr. Reed: I submit to the Court with all courtesy that it is the theory of the defendant at this time that if the court holds that we can’t prove where this prosecutrix was on the day as alleged in the indictment that the defendant is being denied the right of a trial by jury.</p> <p>“The Court: I do not want to hear any statements of that kind or argument of that character.</p> <p>“Mr. Reed: I can’t introduce evidence here in the behalf of the defendant then at all, I am forced to just quit in the case if the Court holds that is the law.</p> <p>“Mr. Reed: We will excuse this witness as far as we are concerned then. I will ask that Bill Brady be recalled to ask him one question.</p> <p>“Q. Are you the Bill Brady who testified in this case a moment ago? A. Yes, sir.</p> <p>“Q. Uncle Bill did you have a conversation with Sarah Watkins about a year ago this time in which you told her that you had promised this little girl a new dress to tell this story against her father. A. A year ago ?</p> <p>“Q. Yes, just about this time a year ago ? A. No, sir.”</p> <p>Sarah Watkins testified that about a year ago she lived out on Billy Creek on the same farm that Dotson AValker and his mother lived on and at that time Bill Brady told her that he had promised to get the. little girl, Bessie Burgests, a new dress and clothes if she would tell the story that her father had criminal intercourse with her.</p> <p>As a witness in his own behalf, the defendant Dotson Walker, testified that he had lived near Wagoner, in Wagoner county for about twenty-five years, and had known Bessie Burgess since she wad about a week old; that he married her mother when Bessie was about two years old; that his wife, Bessie’s mother died September 21, 1911; that at that time they were living with his mother Sarah Walker, and after her mother died Bessie remained with his mother. He denied all acts of improper conduct with the prosecutrix; that he supported his mother and his two1 children born of the marriage with Bessie’s mother, a boy now about seven years old and a girl four years' old. That Mr. Cole wanted Bessie and kept after him for her; that he told him that he could not do anything with her, and he said he would take her and try her a week and so he gave her to him; and then after-wards sent her off to the orphan’s home.</p> <p>The record shows that when the case was called for trial the defendant demanded a physical examination of the prosecutrix by a competent physician, which demand was denied by the court.</p> <p>P. E. Reed and E. L. Bolin,</p> <p> For -plaintiff in error. </p> <p>Chas. West, Atty. Gen., and</p> <p>Smith C. Matson, Asst. Atty. Gen.;</p> <p> For the State. </p>

<p>Appeal from District Court, Cherokee County; John H. Pitchford, Judge.</p> <p>Tom Souther, convicted of the larceny of a hog, appeals.</p>

<p> Appeal from District Court, Canadian County; John J. Carney, Judge. </p> <p>Tightfoot West, convicted of cattle theft, appeals.</p>

<p>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.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Garvin County; R. McMillan, District Judge. </p> <p>T. S. McFarland, was convicted of perjury and appeals.</p>

<p>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.</p> <p>(Syllabus by the Court.)</p>

A. Brown, Judge. W. R. Kelly, was convicted of forgery in the second degree and appeals.

<p> Appeal from County Court, Canadian County; W. A. Maurer, Judge. </p> <p>Ben Johnson, convicted of a violation of the prohibitory law, appeals.</p>

<p> Appeal from Superior Court, Oklahoma County; Edward Dezves Oldfield, Judge. </p> <p>Webb High, convicted of felony, appeals.</p>

<p> Appeal from County Court, Pontotoc County; I. M. King, Judge. </p> <p>Florence Brewer, convicted of- keeping a disorderly house, appeals.</p>

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

<p> Appeal from County Court, Harper County; A, H. Walker, Judge. </p>

<p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p>

<p> Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge. </p> <p>William C. Carter, convicted of manslaughter in the first degree, appeals.</p>

<p> Appeal from District Court, Johnston County; Robt. M. Rainey, Judge. </p> <p>Bill Brown, convicted of forgery in the second degree, appeals.</p>

<p>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.</p> <p>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.</p>

<p>1. FORGERY — “Principal” and Accessory. One who is present at the forgery of a deed, knowingly aiding, abetting or assisting such forgery, is guilty as a principal, although the act of signing the name with intent to forge the same was done by another person.</p> <p>2. TRIAL — Questions of Law and Pact. Where the evidence is conflicting as to whether a witness participated in committing the crime charged, the question as to whether or not such witness is an accomplice, is one of fact for the jury. But where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.</p> <p>3. TESTIMONY OF ACCOMPLICE — Corroboration. Under Procedure Criminal, see. 5884, Rev. Laws, “a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect tho' defendant with the commission of the offense,” and if two or more accomplices testify, the same corroboration is required as if there be but one. An accomplice can neither corroborate himself nor another. accomplice.</p> <p>4. FORGERY — Sufficiency of Evidence. Evidence in a prosecution for forgery, considered and held to be sufficient to sustain a conviction.</p>

<p> Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge. </p> <p>Clifford Rentie, convicted, of assault with intent to kill, appeals.</p>

<p>HARMLESS ERROR — Instructions. The letter and spirit of the law is that if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed. In this case the erroneous instruction was harmless for the reason that the evidence did not leave the guilt of the defendant in doubt. No defense was made and no prejudice could have resulted.</p>

<p> Appeal from District Court, Okmulgee County; Wade S. Stand field, Judge. </p> <p>Joe Jones was convicted of assault with intent to kill, and appeals.</p>

<p> Appeal from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Henry Johnson, convicted of assault with a dangerous weapon, appeals.</p>

<p>APPEAL — Verdict—Uncorroborated Testimony of Accomplice. In this jurisdiction a conviction for crime cannot be sustained upon the uncorroborated testimony of an accomplice.</p>

<p> Appeal from Superior Court, Oklahoma County; Bdzvard Dezues Oldfield, Judge. </p> <p>Andrew Rushing, was convicted of assault with intent to do bodily harm, and appeals.</p>

<p>LARCENY — Theft of Domestic Animals — Felonious Intent — Sufficiency of Evidence. In a prosecution for theft, where the taking was open, without fraud, or stealth, and there was no subsequent attempt to coneeal the property, and no denial, but an avowal of the taking, and the testimony for the state, standing alone, raises a presumption of fact in favor of an innocent taking, held, there being no evidence tending to prove a felonious intent, the evidence is insufficient to sustain the conviction.</p>

<p> Appeal from County Court, Blaine County; R. J. Puderbaugh, Special Judge. </p> <p>George H. Doud, convicted of pointing- a pistol, appeals.</p>

<p> Appeal from County Court, Canadian County; W. H. Maurer, Judge. </p> <p>A. J. Mitchell, convicted of violating the prohibitory law, appeals.</p>

<p>1. HOMICIDE — Degrees—Instructions—Evidence. While the jury has the right to determine the degree of crime committed in a homicide case, it is for the court to determine what degrees of homicide the evidence tends to establish, and it is the duty of the court to confine its charge to such degrees.</p> <p>2. HOMICIDE — Manslaughter in Second Degree. Where the killing with a deadly weapon is admitted, and there is no pretense that the killing was accidental, and where the defense is justifiable homicide in self-defense, there can be no issue of manslaughter in the second degree.</p> <p>3.’ REVIEW — Presentation Below — Instructions. A defendant who has been convicted of manslaughter in the second degree cannot complain that the court charged the law of manslaughter in the second degree, and that the evidence did not justify such a charge, where the record shows no objection was made or exception taken to this part of the charge in the court below.</p>

<p> Appeal from District Court, Beaver County in A-2194; R. H. Loofbourrow, Judge. </p> <p> Appeal from District Court, Harper County in A-2334; W. C. Crow, Judge. </p>

<p>1 APPEAL — Weight of Evidence — Reversal. The credibility of ■witnesses and the weight and value to be given their testimony is a question solely for the jury’s determination; and, to reverse a judgment on the ground that the verdict is contrary to law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.</p> <p>2. INTOXICATING LIQUORS — Unlawful Conveying — Sufficiency of Evidence. In a prosecution for the unlawful conveyance of intoxicating liquor, the evidence considered and held sufficient to sustain the eonvietion.</p>

<p>APPEAL — Dismissal—Fugitive. 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 or entered in the case, and where a defendant becomes a- fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal.</p>

McKeown, Judge. Crocket Daggs, was indicted for murder and convicted of manslaughter in the first degree; and he appeals.

H. Huston, Judge. E. W. Robbins was convicted of rape in the first degree, and appeals. The crime is charged to have been committed on the 27th day of July, 1914.

<p> Appeal from County Court, Greer County; C. M. Thacker, Judge. </p> <p>Bob Park, convicted of violating the prohibitory law, appeals.</p>

<p> Appeal from District Court, Muskogee County; Fred P. Branson, Judge. </p> <p>S. M. Smith was convicted of manslaughter in the first degree and appeals.</p>

<p>1. JURY — Selection of Jurors — Challenge for Cause — Information of Opinion — 'Question of Law and Fact — ¡Preliminary Showing. The issue raised upon a challenge for cause to a juror in a criminal ease on the ground that he has formed or expressed an opinion as to the issues to be tried, founded upon rumor, statements in public journals or common notoriety, is one of mixed law and fact to be determined by the court. Before the court can so determine, it must be shown by the examination of the juror upon his voir dire, not only that his opinion was formed solely in the manner stated, but in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. (Section 5861, Rev. Laws.)</p> <p>2. JURY — Discretionary Ruling — Challenge for Cause. The trial court’s refusal to sustain a challenge to a juror for cause will not be disturbed by the appellate court, where it appears from the examination of such juror that he had not talked with anyone who purported to know about the case of his own knowledge, but had heard neighborhood rumor about the ease, and that he had no opinion other than that derived from such rumor, and that he was positive that he could disregard that opinion, and try the ease solely upon the evidence, fairly and impartially.</p> <p>3. ADULTERY — -Right to Prosecute — -Husband and Wife. Under Penal Code (section 2431, Rev. Laws), "Prosecution for adultery can be commenced and carried on against either of the parties to the crime, only by his or her own husband or wife, as the ease may be, or by the husband or wife of the other party to the crime.’’ Held, that, by the provisions of this section, the spouse of either of the guilty parties is authorized to make complaint and carry on the prosecution against either or both of them.</p> <p>4. INDICTMENT AND INFORMATION — Objections —■ Fine for Making. Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea, before pleading to the merits.</p> <p>5. INDICTMENT AND INFORMATION — Objection—Sufficiency-Introduction of Evidence. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our code of criminal procedure (section 5791, Rev. Laws)'. Our code further provides: "When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” (Section 5799, Rev. Laws.) Under this provision if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.</p> <p>6. ADULTERY — 'Information—Allegations—Prosecuting Witnesses. • While it is not essential to the sufficiency of an information for adultery that it should allege that the prosecution was commenced on the complaint of the husband or wife, as the case may be, the better practice would be to allege the name of the spouse, and that he or she was the complaining and prosecuting witness in the ease.</p>

<p>1. APPEAL — Weight of Evidence. The credibility of witnesses, and the weight to be given their testimony, are matters for the determination of the jury, and to reverse a judgment on the ground that the verdict is contrary to the evidence, this court must find as a matter of law that the evidence was insufficient to warrant the jury in finding the defendant guilty.</p> <p>2. INTOXICATING LIQUORS — Prosecution—Evidence—Sufficiency. In a prosecution for the unlawful sale of intoxicating liquor, the evidence examined and held- sufficient to sustain the conviction.</p>

<p>APPEAL — Dismissal. Procedure Criminal, see. 5991, Rev. Laws, provides that: “'In misdemeanor eases the appeal must be taken within sixty days after the judgment is rendered; provided, however, the trial court or judge may for good cause shown extend the time in which such appeal may be taken not exceeding sixty days.” Held, that in such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by the statute, and when this is not done within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>In the matter of the application of Sam Hays for writ of habeas corpus.</p>

<p> Appeal from County Court, Pontotoc County; I. M. King, Judge. </p> <p>Jim Rogers, convicted of a violation of the prohibitory law appeals.</p>

<p> Appeal from County Court, Garfield County; E. L. Swigert, Judge. </p> <p>Walt Cook, convicted of a violation of the prohibitory law, appeals.</p>

<p> Appeal from District Court, Haskell County; J. H. Brown, Judge. </p> <p>Presley Hopper, convicted of cattle theft, appeals.</p>

<p> Appeal from District Court, Haskell County; . W. H. Brown, Judge. </p> <p>Silmon Thomas was convicted of manslaughter in the first degree and appeals.</p>

<p>HABEAS COBPTJS — Grounds for Belief — Sufficiency of Evidence. 'Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court by an •examining magistrate, is void and the petitioner will be discharged on habeas corpus.</p>

<p>1. HABEAS CORPUS — Matters Reviewable — Jurisdiction. The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subjeet-matter and of the person convicted? And, did the the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?</p> <p>2. HABEAS CORPUS — Right to Discharge — Defective Accusation. A discharge from imprisonment under a criminal conviction cannot be granted on habeas corpus, because the indictment or information was defective.</p>

<p>1. WEAPON — Pointing—Instruction. In a prosecution for pointing a pistol at another it was error for the court to refuse to instruct the jury upon the question of defendant’s right of self-defense, where the testimony for defendant tended to show that he was assaulted by the complaining witness with a dangerous weapon.</p> <p>2. ASSAULT AND BATTERY — Criminal Responsibility — Defense of Property. A man has the legal right to protect his property against trespass, opposing force to force.</p>

<p>INTOXICATING LIQUORS — Criminal Prosecution — Evidence. In a prosecution for selling intoxicating liquor, the evidence considered and held sufficient to ^sustain the verdict, and that no reversible error was committed on the trial.</p>

<p>EVIDENCE — Circumstantial Evidence — Sufficiency. “Where the evidence is wholly circumstantial, and thé facts and circumstances in evidence are of such a eharater as to fairly permit an inference consistent with innocence, it cannot he regarded as evidence sufficient to support a conviction.</p>

<p>Appeal from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>S. D. Hoffman, convicted of a violation of the prohibitory law, appeals.</p>

<p>1. EVIDENCE — 'Testimony of Accomplice — Question for Jury. "When a conviction is sought on the testimony of an accomplice there must he competent corroborative evidence tending to connect the defendant with the commission of the offense charged, and when there is such corroborative evidence its weight and effect is a matter for the jury to determine.</p> <p>.2. INTOXICATING^ LIQUOKS — Criminal Prosecution — Evidence— Sufficiency. In a prosecution for unlawfully conveying intoxicating liquors, the evidence reviewed and held sufficient to sustain the conviction.</p>

<p>• Appeal from District Court, Garvin County; Hon. R. McMillan, Judge.</p> <p>E. B. Stephenson was convicted of larceny and appeals.</p>

<p>NEW TRIAL — Grounds—Comment of Counsel. Proc. Crim. see. 5881, Rev. Laws, prohibits any comment by a prosecuting attorney in a criminal case on the failure of the accused to testify. The statute is in accordance with the constitutional guarantee against self-incrimination and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant, where the prosecuting attorney violates the prohibition of the statute.</p>

<p> Appeal from District Court, Carter County; W. F. Freeman, Judge. </p> <p>Charley Lewis, convicted of manslaughter in the first degree, appeals.</p>

<p> Appeal from District Court, Stephens County; Hon. Prank M. Bailey, Judge. </p> <p>Huse. Merchant was convicted of assault and appeals.</p>

<p>1. APPEAL — Review—Predjudice From Error. When evidence is introduced on behalf of the state against a defendant whether by improper cross-examination of the person charged, or other persons called as witnesses by him, or by direct examination of state’s own witnesses, which is reasonably calculated to arouse the passions of'the jury against the defendant, and prevent him from having a fair and impartial trial, a conviction resulting under such conditions will be reversed unless .it is made clearly to appear that no injury could have resulted or did result to the accused. . -</p> <p>2. HOMICIDE — Evidence—Admissibility. For testimony improperly admitted by the trial court over objections of plaintiff in error, see opinion.-</p> <p>3. HOMICIDE — Evidence—Admissibility. Upon the trial of a person charged with murder proof of the relationship existing between such person and his spouse is, as a general rule, inadmissible.</p> <p>4. FORMER, DECISION DISTINGUISHED. The doctrine in the case of Capíes v. State, 3 Oída. Or. 72, 104 Pae. 403, 26 L. R. A. (N. S.) 1103, reviewed- and distinguished from the rule declared in the case at bar.</p> <p>5. FORMER DECISION DISTINGUISHED. The doctrine in the ease of Goben v. State, 7 Oída. Cr. 190, Í26 Pae. 198, reviewed and distinguished from the rule declared in the case at bar.</p> <p>6. TRIAL — Conduct in General. The principal purpose of a criminal trial is to mete out justice and punish the guilty. The trial of one who is guilty must be conducted under such rules as would protect the innocent under like circumstances.</p>

<p> Appeal from County Court, Pontotoc County; Hon. I. M. King, Judge. </p> <p>S. D. Stokes was convicted of violating the bulk sales law, and appeals.</p>

<p>1. TRIAL — Argument of Counsel. Argument of counsel outside of the evidence which is highly improper and intended or calculated to excite the passions and influence the minds of the jury against the defendant, should he,, properly checked upon objection made, and where the trial court overrules the defendant’s objections and refuses to instruct the jury to disregard such statement, and it appears that such improper argument may have determined the verdict, a new trial will be granted.</p> <p>2. APPEAL — Review—'Discretion of Court. In the trial of a criminal case, the taking of a recess that the state might procure the ' attendance of an absent witness is a matter within the sound discretion of the court and such order of the court will not be reviewed unless an abuse of discretion appears.</p>

<p>1. HABEAS CORPUS — Proceedings—Burden of Proof. Upon an application for writ of habeas corpus to be let to bail 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.</p> <p>2. BAIL — Proceedings—Evidence—Sufficiency. If upon a consideration of all the evidence introduced on the application for bail the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused.</p> <p>3. HABEAS CORPUS — Proceedings — Evidence — Sufficiency. Evidence examined and held sufficient to justify a refusal of bail to petitioner in custody upon two separate charges of murder.</p>

<p> Appeal from District Court, Murray County; R. McMillan, Judge. </p> <p>Adolphus Butts was convicted of seduction, and appeals.</p>

<p>1. INDICTMENT AND INFORMATION — Objections—Demurrer-Objection to Evidence. Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure (section 5791, Rev. Laws 1910). Our code further provides: ""When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799, Rev. Laws 1910. Under .this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is insufficient to raise the question.</p> <p>2. POISONS — Prosecution for Sale — Evidence. In a prosecution for unlawfully selling cocaine the evidence reviewed, and held sufficient to sustain the conviction.</p>

<p>1. CONTINUANCE — Grounds—Absence of Witnesses. An application for continuance in a criminal case on account of the absence of witnesses which fails to show that due diligence has been used to secure the attendance of said witnesses and which does not show that the same facts cannot be proved by other witnesses is not sufficient.</p> <p>2. APPEAL — Discretion of Trial Court — Motion for New Trial. A motion for new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed, except for an abuse of this discretion, the presumption being that the discretion was properly exercised.</p> <p>3. HOMICIDE — Evidence—Weight—Sufficiency. In a homicide case the evidence examined and held to sustain a verdict of manslaughter in the first degree.</p>

<p>1. EVIDENCE — Relevancy—Flight. Evidence that the defendant escaped from custody and became a fugitive from justice is admissible as tending to show guilt, but the defendant may offer proof to show his reason or motive for such escape and flight.</p> <p>2. CORROBORATION — Statement Consistent With Testimony. Evidence of statements made previous to the trial by a witness consistent with his testimony is not admissible in support of his testimony.</p> <p>3. RAPE — Statutory Rape — Evidence. In a prosecution for statutory rape, evidence reviewed and held sufficient to support the verdict.</p>

<p>1. INTOXICATING LIQUORS — Prosecution — Information. An information charging an unlawful conveyance of intoxicating liquor must allege the place or point in the county from and to which such conveyance was made, if they are known, and if unknown, it must be so alleged.</p> <p>2. INTOXICATING LIQUORS — Prosecution — Information. The information after alleging venue and time charged that the defendant “did then and there unlawfully, knowingly and wil-fully in some manner, convey intoxicating liquor, to-wit: Whisky from some point in Beaver county to your informant unknown to the K. of P. lodge hall, a place then and there in Beaver county, Oklahoma. ’ ’ Held, not sufficiently direct and certain in not alleging the particular circumstances of the offense.</p> <p>3. INTOXICATING LIQUORS — Criminal Prosecution — Evidence. The evidence reviewed and held to be insufficient to justify & conviction, and the defendant entitled to be discharged, unless further incriminating facts can be proved.</p> <p>(Syllabus by the Court.)</p>

<p>Application of Archibald Clark for writ of habeas corpus.</p>

A. Brown, Judge. W. Ii. Gransden was convicted of manslaughter in the first degree, and appeals. The information charged the defendant with having, on the 2nd day of May, 1913, in Greer county, killed and murdered one J. K. Tytle, by shooting him with a pistol. Upon the trial of the case the defendant was convicted of manslaughter in the first degree, and was sentenced to be imprisoned in the penitentiary for the term of 10 years.

<p>Application for writ of habeas corpus by E. H. H. Gates.</p>

<p>1. BAIL — Habeas Corpus — Burden of Proof. Upon an application for writ of habeas corpus to be let to bail after commitment for a capital ofíense 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.</p> <p>2. BAIL — Habeas Corpus — Sufficiency of Evidence. Upon this application, the evidence considered and bail denied.</p>

<p>1. PARDON — Ciondictions—Acceptance. Before the terms and conditions of a parole can be made binding upon a party convicted, that party must consent to and accept the terms and conditions, thereof. He' is a party at interest and must be consulted, for he has the right to accept the parole with the conditions it imposes, or to reject it, as he sees fit.</p> <p>2. PUNISHMENT — Parole—Conditions. And where a parole is arbitrarily written into a judgment of sentence and conviction, by a court, imposing certain terms and conditions upon the person convicted, and it is not made to affirmatively appear that such convicted person accepted and consented to these terms and conditions, imprisonment based upon a breach of the terms of such parole cannot be upheld.</p>

<p> Error from County Court, Logan County; John D. Chappelle, Judge. </p> <p>Paul Levy was convicted of having possession of liquor with intent to violate the prohibitory law, and brings error.</p>

<p>1. WRIT OF ERROR — Review—Decision, of Trial Court. The affidavits in support of an application for a change of venue and the counter affidavits, together witn the examination of witnesses in support of the application, in open court, presents only a question of fact for the court to pass upon; and, unless it is clear that he has abused his discretion or committed error in his judgment, his finding and judgment will not be disturbed by this court.</p> <p>2. TRIAL — Separation of Jurors. Where a jury was permitted to separate in order that one of its members might attend the funeral of a member of his family, and the defendant made no objection and took no exceptions to this action at the time the separation was allowed, he cannot be heard to complain in this court.</p> <p>3. WRIT OF ERROR — Review—Affidavits. Where a party makes an aflidavit charging”misconduct on the part of certain jurors, and afterwards upon examination, in open court, repudiates his affidavit, such affidavit will not receive consideration in this court.</p> <p>• 4. LARCENY — Instructions—Request. It is not error to refuse requested instructions that are upon propositions which are fully covered by the instructions given by the court; and it is not error for the court to give the usual instruction on larceny, where the evidence raises a question of the defendant’s guilt.</p>

<p>EVIDENCE — Weight and Sufficiency. A judgment of conviction cannot be had upon testimony introduced for the state when that testimony eom.es wholly from two witnesses of equal credibility, one testifying to the guilt, and the other testifying to the innocence of the accused.</p>

<p> Appeal from County Court, Alfalfa County; F. M. Gustin, Judge. </p> <p>Lem Ratcliff, was convicted of obstructing an officer and: appeals.</p>

<p>FORGERY — Elements of Offense — Apparent Validity of Instrument— Evidence. Upon a trial of a person charged with forgery of a deed, it is necessary for the state to establish beyond a reason able doubt that the forged instrument, upon its face, complies with all the requirements of the law to constitute a document a deed. In legal contemplation, and as a general rule, a deed is not a deed until executed and delivered to some person capable in law of accepting the same. In the ease at bar the facts are examined and are held to be insufficient to establish the crime'of forgery.</p>

<p> Error from District Court, Kay County; Wm. M. Bowles, Judge. </p> <p>\Frank B. Rogers was convicted of manslaughter in the first degree, and brings error.</p>

<p> Appeal from District Court, Atoka County; J. H. Linebaugk, Judge. </p> <p>C. H. Norris was convicted of larceny, and appeals.</p>

<p>ABATEMENT — Grounds—Death of Party. In a criminal prosecution the. purpose of the proceeding being to punish the accused, the action must necessarily’ abate upon his death, and where it is made to appear that plaintiff in error has died, pending the determination of his appeal, the cause will be abated.</p>

<p> Error from District Court, Washita County; G. A. Brown, Judge. </p> <p>C. W. Maddox was convicted of manslaughter in the first degree, and brings error.</p>

<p>1. MARRIAGE — Requisites—Solemnization. Marriage in its legal sense is a civil contract, and where competent parties agree to become man and wife, it is not indispensable that a license issue and that a clergyman be present to authorize and confirm the •contract, In order to give validity to the marriage.</p> <p>2. MARRIAGE — Common-Law Marriage — Validity. Statutes regulating the mode of entering into the marriage contract do not confer the right that has existed ever since there were two human hearts, and such statutes are not within the principle that, where a statute creates a right and provides a remedy for its ■enforcement, that remedy is exclusive; hence common-law marriages in this state, although in derogation of the statutory directions as to formalities, are valid, since such marriages are riot expressly forbidden by our statutes.</p> <p>3. BIGAMY — Elements of Offense — Validity of Former Marriage. A common-law marriage in this state is valid, and if a party to such a marriage marries again, before the same has been dissolved by death or legal proceedings, he is guilty of bigamy.</p> <p>4. RAPE — Elements of Offense — Trick or Artifice. Subdivision 8 of section 2414, Revised Laws 1910, which provides that an act of sexual intercourse is rape when accomplished with a female not the wife of the perpetrator, “where she submits under the belief that the person committing the act is. her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused, or by the accused in collusion with her husband, with intent to induce such belief,” is intended to protect a married woman against any one who might by trick or artifice deceive her, and have intercourse with her under the belief, on her part, that such person is her husband. The artifice against which this statute is directed is such as deceives the woman as to the identity of the man with whom she is having intercourse, thus causing her to submit to intercourse with him, under the belief that he is her husband.</p>

<p>INTOXICATING- LIQUOB.S — Criminal Prosecutions — Verdict. Where the information charged that the defendant did have the possession of intoxicating liquors with intent to sell the same, a verdict of "guilty of unlawful possession of intoxicating liquors" is sufficient. The failure of the jury to make an express finding as to the intent to sell is not error requiring a reversal of the judgment.</p>

<p> Appeal from the County Court of Nowata County; F. A. Calvert, Judge. </p> <p>George Tolliver was convicted of a violation of the prohibitory law, and appeals.</p>

<p>1. INSTRUCTIONS — Burden of Proof. In a homicide ease where defendant denied firing the fatal shot and there was evidence tending to show that the homicide was justifiable on the ground of self defense, the court instructed the jury in part as follows: “If they believe from the evidence beyond a reasonable doubt that at the time the said shooting was done, it was done in self defense as defined and set out in the instructions herein, you should find the defendant not guilty.”</p> <p>“The court instructs the jury: That if they believe from the evidence in this case beyond a reasonable doubt, that the defendant and one Charles Williams were just immediately prior to the firing of the shots which' caused the death of the deceased, engaged in a difficulty, and that the deceased, armed with a deadly weapon voluntarily engaged in said difficulty and struck the defendant over the head and knocked him down, and that both the said Charles Williams and the deceased jumped or fell upon the defendant and all three while on the ground engaged in a scramble, and during the said scuffle or scramble the shots were fired which produced the death of the deceased; and shall further believe from the evidence, beyond a reasonable doubt, that defendant did not fire the shot that took deceased’s life, that then and in that event, they should find the defendant not guilty. ’ ’</p> <p>Held, prejudicial error, as placing the burden of proof upon the defendant, and requiring the jury before finding for acquittal to believe from the evidence beyond a reasonable doubt that the defendant was innocent.</p> <p>2. BURDEN OF PROOF — Degree of Offense. The burden does not rest upon the defendant, to establish even to a reasonable probability, the truth of an affirmative defense; if, upon the evidence both for the state and the defendant a .reasonable doubt is created as to the guilt of the defendant, he is entitled to the benefit of it, and where the crime charged is distinguished into degrees the defendant is entitled to the benefit of that doubt, as well with respect to the degree of the crime as to every essential element of that degree, and in these respects the burden'never shifts from the state to the defendant.</p>

<p>1. APPEAL — Review. In reviewing a capital conviction, this court not only acts in the capacity of an ordinary appellate tribunal, reviewing errors of law raised by exceptions duly taken, but it is the duty of the court to consider the entire record, including the evidence, for the purpose of determining whether any “error complained of has probably resulted in a miscarriage of justice. ’ ’ If upon such examination, the court is satisfied that the verdict is contrary to the evidence and the law, or if considerations of justice require a new trial, it is the duty of the court to grant it, whether any exception shall have been taken or not in the court below.</p> <p>2. APPEAL — Modification of Sentence. Under section 6003, Rev. Laws, this court, exercising its revisory jurisdiction, has the power to modify any judgment and sentence appealed from, in the furtherance of justice, by reducing the sentence.</p> <p>•3. APPEAL — Modification of Séntence. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.</p> <p>4. HOMICIDE — Punishment — Evidence—Sufficiency. Evidence reviewed, in a prosecution for murder, and held sufficient to justify a conviction for murder, but insufficient under the facts' and circumstances of the ease to warrant imposing the death penalty, and for this reason the judgment and sentence is modified to imprisonment in the penitentiary for life at hard labor.</p>

<p>1. DEFENSE — “Voluntary Intoxication.” The fact that one person gives another intoxicating liquor, which he voluntarily drinks, does not render his intoxication involuntary. Involuntary intoxication never exists where the person intoxicated knows what he is drinking-, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion.</p> <p>2. HOMICIDE — Defenses—-Intoxication. Involuntary intoxication is no defense or excuse for the commission of crime, but in a prosecution for murder may Be considered by the jury, only for the purpose of determining whether or not the accused, at the time of the homicide, was capable of forming and entertaining a premeditated design to effect death.</p> <p>3. TRIAL — Instructions. A court is not required to instruct the jury upon the defendant's theory of a case, unless there is some competent evidence tending reasonably to substantiate such theory.</p> <p>4. HOMICIDE — Offenses—Intoxication. Though one be voluntarily intoxicated, if he was so drunk that he did not have power, at the time of the homicide, to form and entertain a premeditated design to effect the death of the deceased, and there is no evidence of malice and premeditation prior to the intoxication, then in such a ease the accused is guilty of manslaughter in the first degree, and not murder.</p> <p>5. HOMICIDE — Defenses—Intoxication. Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness, does not destroy responsibility for crime. But to constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity eaused by chronic alcoholism, and not a mere temporary mental condition.</p>

<p>1. BASTARDS — Presumption of Legitimacy. The presumption in law is that where the husband had access to the wife, a child born in wedlock is legitimate. And the presumption of nature is, that no able-bodied husband will sleep with a stout, buxom young wife for five months, and during all that time "waive” intercourse.</p> <p>2. ADULTERY — Indictment — Sufficiency. An information which attempts to charge adultery, but wholly fails to allege in any way that the intercourse was voluntary, is fatally defective. That ingredient in the statutory definition of adultery is not accidental, but is one of the essential ingredients whieh distinguishes that offense from other sexual crimes, and cannot be supplied by presumption or intendment, for the presumption is greater that a woman will resist illicit sexual intercourse than it is that she will voluntarily submit.</p>

Error from County Court, Oklahoma County; Wm. H. Zwick, Judge. Jim Taggart was convicted of having possession of intoxicating liquors with intent to illegally dispose of same, and he brings error.

<p> Appeal from District Court, McCurtain Cotmty; C. B- Dudley> Judge. </p> <p>J. E. Martin was convicted of larceny of a domestic animal, and appeals.</p>

<p>1. CONTEMPT — Intoxicating Liquors — Abatement of Nuisances— Punishment for Contempt — Jurisdiction, (a) District courts have jurisdiction of injunction proceedings to abate as a nuisance places where persons congregate and resort for the purpose of drinking intoxicating liquor.</p> <p>(b) The court alone in which a contempt is commit! cd, or whose order or authority is defied, has power to punish it, or entertain proceedings to that end. Courts which have no criminal jurisdiction can punish for so-called criminal contempt, because the power to do so is inherent, and necessary to the efficiency and very existence of the court.</p> <p>2. INJUNCTION — Temporary Injunction — Nature of. There is a wide distinction between a temporary injunction and a temporary restraining order. The former embodies a restraint which continues, unless modified by the court, until the hearing of the cause, and then it is either made permanent or discharged altogether; while the. latter, strictly speaking, is not an injunction at all, but an order of the court, to compel parties to maintain the matters in controversy in statu quo, until the question of whether or not a temporary injunction ought to issue may be determined.</p> <p>3. FINES — Imprisonment—Credit on Fine. Where an offense was committed before section 1, e. 112, Sess. Laws 1913, went into effect, a defendant is allowed credit on his fine, if laid out in jail, as provided by the Revised Laws 1910.</p> <p>4. WITNESSES — Examination of Witnesses — Conduct of Counsel— Rebuke. There is no rule or reason why a trial judge should not ask a proper and pertinent question, for the purpose of eliciting competent and material testimony; yet it is improper for him to assume the role of prosecutor, and persistently examine and cross-examine witnesses. No matter what his motives may be, or what explanation or excuse he may offer for this course, it can have but one effect upon the jury; and that is to place the judge in a hostile attitude toward the defendant, and discredit any defense he might offer. No trial judge has a right to indicate to the jury, by word or action, his opinion as to the merits of a case being tried, or as to the credibility of any witness examined.</p> <p>If the conduct of counsel for defendant is improper, the court must excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt.</p>

<p> Appeal from County Court, Kiowa County; J. B. Carpenter, Judge. </p> <p>Bill Kindman was convicted of violating the prohibitory law, and he appeals.</p>

<p>1. INTOXICATING LIQUORS — Offenses — Prosecution — Evidence. Proof of possession of intoxicating liquors of any kind at a place where intoxicating liquors of the same or any other kind are kept and sold by the person owning or keeping the plaee is, in the , absence of a reasonable explanation, sufficient to support a judgment of conviction.</p> <p>2. INTOXICATING LIQUORS. — Offenses — Evidence — Sufficiency. Proof of possession of large quantities of intoxicating liquors and that the person in possession thereof has paid the tax required by the United States government of retail liquor dealers is sufficient, in the absence of any reasonable explanation, to support a conviction.</p>

<p>HOMICIDE — Appeal—Reversal. A person who is convicted of manslaughter cannot secure a reversal in this court, in the absence of errors of law, when the proof shows that the jury should have found a verdict for murder.</p>

<p>1. WITNESS — Trial—Examination of Witnesses. Counsel have no right under the law in this jurisdiction to inquire of a witness whether or not he has been arrested upon. a criminal charge. A witness can only be asked for the purpose of affecting his credibility jf he has been convicted of crime.</p> <p>(b) A county attorney has no right to ask the defendant at bar if he has not been arrested' on similar charges to the one upon which he is on trial. An examination of this character is prejudicial, and wheye permitted by the court, is reversible error.</p> <p>2. TRIAL — Report of Case, (a) It is the duty of the trial court to require the court reporter to take down all of the proceedings of every character from the beginning to the close of a criminal trial when a request therefor is made by counsel.</p> <p>(b) The failure or refusal upon the part of the trial court to require the reporter to take all or any part of the proceedings when requested by counsel for the accused, a judgment of conviction will be followed by reversal upon appeal.</p> <p>(c) It is only necessary for the proceedings to disclose the fact that counsel for the defendant made such request and that the court failed or refused to comply therewith.</p> <p>(d) When any controversy arises as to the demand by counsel for the defendant at bar that the proceedings be taken down by the reporter, the fact of such demand, and the failure or refusal of the court to comply therewith can be shown by affidavit of persons present who know the facts.</p> <p>3. TRIAL — Conduct of State’s Counsel. It is the duty of counsel for the state to introduce the testimony available to establish the charge against the defendant at the bar in the hearing in chief. The court should not permit a rehash of such testimony under the guise of rebuttal. Counsel for the state have no more right to reserve the principal testimony and introduce it under the guise of rebuttal, nor-to rehash testimony introduced in chief under the guise of rebuttal than the accused would have to re-iutroduee his testimony after the state has closed the rebuttal. In a strict sense, only such testimony which goes to contradict or rebut something proved by the defendant is entitled to be introduced in rebuttal. The discretion of the trial courts allowed by the law in this jurisdiction in this respect should always be exercised with these rules of fairness in view.</p>

<p> Hal Johnson, Judge. Appeal from the County Court of Pottawatomie County. </p> <p>George Butler, convicted of a violation of the prohibitory law, appeals.</p>

<p>INTOXICATING- LIQUORS — Offenses — -Evidence—Sufficiency. In a prosecution for having possession of intoxicating liquors with intent to sell same, evidence held sufficient to sustain a conviction.</p>

<p>1. EVIDENCE — Reputation. It is error prejudicial to the rights of the person on trial for the court to permit evidence of the general ' reputation of such person for the commission of the same or similar crimes to the one charged. The law is that the prisoner at the bar can be tried only for the crime charged against him, and not upon his reputation for having committed other crimes.</p> <p>2. NEW TRIAL — Newly Discovered Evidence. An application for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the court, and when a motion of this kind is made, upon a showing that strong evidence of this character has been discovered, the court should grant a new trial. The law contemplates that this discretion should be exercised in the interests of fairness and justice. A failure to properly exercise the same will warrant this court in reversing the judgment and ordering a new trial.</p>

<p>1. APPEAL — Affirmance—Want of Prosecution. When an appeal is filed in this-court and no briefs are filed on behalf of plaintiff-in error and no appearance made for oral argument, a motion interposed by the Attorney General in open court to affirm the judgment of the trial court on the ground that the aqjpeal has not been prosecuted as in'ovided by law, will be sustained.</p> <p>2. APPEAL — Briefs—Effect of Failure to File. The members of this court are not required to brief cases and search the record diligently for defects upon which to base a criticism of the judgment of the trial court. When counsel fail to file briefs as provided by the rules of the court and also fail to appear for oral argument when causes are assigned, this court will examine the record in felony eases for fundamental error only.</p>

<p>1. HOMICIDE — Evidence—Sufficiency. Where the evidence shows that a husband had virtually abandoned his wife and child, making-only occasional visits to them, and had courted and engaged himself to marry another woman, and was! arranging to marry her in September, 1913, and that on August .30, 1913, while he was on a visit to his family, the house in which they slept was burned, that he made no sort of effort to rescue the family from the flames, and refused to allow others to enter the house to rescue them, that no screams or cries for help came from the building, though the flames in the wife’s bedroom were scarcely noticeable when the first neighbors arrived, and the condition of the wife’s body showed she was dead before the body was burned, held, that these facts, in connection with other incriminating facts and circumstances, are sufficient to- sustain a verdict finding the husband guilty of murder.</p> <p>2. HOMICIDE — Evidence—Admissibility. Where the husband attempts to explain his unseemly relations with another woman, whom he was engaged to marry,' on the ground that he and his wife had for years! had a mutual agreement, that when his ehild reached the age of twelve, he should obtain a divorce, and that in anticipation of obtaining the divorce when the ehild was twelve, he courted this woman, and expected to marry her in September, held, that a letter written by the wife on August 3d, prior to her death on August 30th, which shows that she had no thought of a divorce proceeding, or even suspected that the time had come when she should surrender her place as a wife to another woman, is competent to show her frame of mind, and to rebut the husband’s statement as to the anticipated divorce.</p> <p>HOMICIDE — Evidence—Weight and Sufficiency. Where a father made no effort himself to rescue his child from a burning building, made no outcry for help, and even when a friend, at the peril of his own life, said, “By God! I am going in that building,” the father replied, “No, you can’t go in there,” and no cries from the ehild are heard, held, that the jury was warranted in believing that that child’s voice had been hushed and its form stilled before it was touched by the flames.</p> <p>CRIMINAL LAW — TRIAL—Conduct of Counsel. Counsel for the state must be fair. The state is as much interested in the vindication and acquittal of the innocent as it is in the conviction of the guilty; and nothing must be relied upon, or resorted to, to obtain a conviction, except the law and the evidence, and the ¡ reasonable deductions therefrom. But held, that the things eom-plained of in this case, as improper, do not appear in the record, and if they actually occurred, could not have prejudiced the defendant, in view of his own admissions.</p> <p>5. CRIMINAL LAW — Trial—Reception of Evidence — Order of Proof. Where the husband attempted to create the impression that his wife had committed suicide, held, that it was proper to admit in 1 rebuttal of his statements the evidence of a chemist that the stomach and lungs of the wife contained no poison.</p>

<p> Appeal from the District Court of Wagoner County. Hon. R. C. Allen, Judge. </p> <p>Harrie Blake was convicted of embezzlement, and appeals.</p>

<p> Appeal from the County Court of Garvin County. Hon. W. R. Wallace, Judge. </p> <p>Fred Gabbert was convicted of violating the prohibitory law and appealed.</p>

<p> Error from District Court, Garvin County R. McMillan, Judge. </p> <p>J. H. Choate was convicted of embezzlement, and brings error.</p>

<p>1. SUNDAY- — Statutory Provisions — Theory. Our Sabbath law proceeds upon the theory, entertained by most of those who' have investigated the subject, that the physical, intellectual, and moral welfare of mankind requires a periodical day of rest from labor, apd, as some particular day must be fixed, the one most naturally selected is that which is regarded as sacred by the greatest number of citizens, and which by custom is generally devoted to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.</p> <p>2. SUNDAY — Observance of Other Day. Our Legislature has wisely and properly, however, refrained from interfering with or coercing the conscience of those who uniformly, conscientiously, and religiously keep another than the first day of the week as holy time, by exempting them from the penalties of the law; provided they work on the first day of the week in such a manner as not to interrupt or disturb other persons in observing the first day of the week as holy time.</p> <p>3. SUNDAY — Observance of Other Day —“Servile .Labor.” In exempting persons who uniformly and conscientiously keep another than the first day of the week as holy time from the penalties of the statute, the Legislature intended to give them a substance and not a shadow; hence we hold the term “servile labor,” as used in our Sunday statutes, to be used as synonymous with the term, “secular labor.”</p> <p>4. SUNDAY — Observance of Other Day. Courts which hold that to require Sabbatarians to keep our Sunday does not prevent them from also keeping the seventh day overlook the fact that under the divine commandment, that these people are striving to obey, it is as imperative that they work six days as that they rest on the seventh and that if their conscience compels them to rest on day, and the law also forces them to rest another, they will thus be forced to violate the first provision of the commandment they ; are consciously attempting to keep.</p>

<p>APPEAR — Review—Questions of Fact. When a plea of former jeopardy is interposed and counsel elect to submit the question to the jury rather than insisting upon a determination of the proposition of law by the court, the finding of the jury will not be disturbed' on appeal.</p>

<p> Error from District Court, Pontotoc County. Tom D. McKeown, Judge. </p> <p>Raize Galbert was convicted of murder, sentenced to life imprisonment, and brings error.</p>

<p>FORMER “JEOPARDY” — Second Judgment., The constitutional provision, ‘ ‘ nor shall any person be twice put in jeopardy of life "or liberty for the same offense,” Section 21, Bill of Rights, and the common law principle therein declared is broad enough to mean that no one can be twice lawfully punished for the same offense. Hence, when a court has pronounced a judgment and sentence upon the verdict of a jury, and such judgment has been carried into execution, tEe power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same charge.</p>

<p> Appeal from the Couty Court of Clister County J. C. McKnight, Judge. </p> <p>C. J. Fessler, convicted of a misdemeanor, and appeals.</p>

<p>1. EMBEZZLEMENT — Trial — Direction of Verdict — Sufficiency of Evidence. When the evidence introduced upon the trial of a person indicted or informed against for crime, fails to disclose the commission of a public offense, the court should advise the jury to return a verdict of not guilty, for the reason that a verdict of guilty-would be contrary to both the law and the-evidence.</p> <p>2. EMBEZZLEMENT — Elements of Offense — Fraudulent Conversion. A fraudulent conversion is an essential element of the crime of embezzlement.</p>

<p> Appeal from the County Court of Garvin County; W. R. Wallace, Judge. </p> <p>E. R. Upton, convicted of a violation of the prohibitory law, appeals.</p>

<p>1. HABEAS CORPUS — Petition—Denial of Writ. Where the facts stated in the petition for a writ of habeas corpus, if established, will not warrant the discharge of the petitioner, the writ will be denied.</p> <p>2. SAME — Jurisdiction—Included Offense — Instruction. The offense set forth in the information is the one which fixes the jurisdiction of the court, and the court has jurisdiction over any included offense. It is the court’s duty to submit an included offense, when any phase of the testimony warrants, and especially so upon request of counsel.</p>

<p>Appeal from the Superior Court of Muskogee County; H. C. Thurman, Judge.</p>

<p>Appeal from the County Court of Kingfisher County, Jno. M. Graham, Judge.</p> <p>Ed Alexander was convicted of violating a eity ordinance of the city of Kingfisher, and appeals.</p>

<p>Appeal from the Superior Court of Muskogee County; H. C. Thurman, Judge.</p> <p>Ed Chambliss, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from County Court of Pawnee County; Geo. E. Merritt, Judge.</p> <p>Joe Conway, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from County Court of Custer County; J. C. McKnight, Judge.</p> <p>John Edmondson, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from County Court of Beckham County; E. G. McCommas, Trial Judge.</p> <p>L. T. Craft, convicted of a violation of the prohibitory law, appeals.</p>

<p>Original application for the writ of habeas corpus.</p>

<p>Appeal from County Court of Hughes County; J. Ross Bailey, Judge.</p> <p>Ed Lee was convicted of a violation of the prohobitory law and appeals.</p>

<p>Eugene Kile, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from District Court of Bryan County; Jesse M. Hatchett, Judgand</p> <p>J. R. Wood and Gidlow Wood were each convicted of assault and battery and they appeal.</p>

<p>Appeal from Superior Court of Muskogee County, H. C. Thurman, Judge.</p> <p>J. E. Smith, convicted of a violation of the prohibitory law, appeals.</p>

<p>Petition of Aaron Beshirs Jr., for writ of Habeas Corpus, to be let to bail.</p>

<p>Appeal from the county court of Ellis county, A. L. Squire, Judge.</p> <p>G. W. Brant, eonvieted of petit lareeny, appeals.</p>

<p>Mandamus by Ciarles S. Megginson against J. Boss Bailey, comity judge ol Hughes county, Oklahoma.</p>

<p>Appeal from the County Court of Nowata County; P. A. Calvert, Judge.</p> <p>Harve Bolen, convicted of a violation of the prohibitory law, appeals.</p>

Appeals from the County Court of Coal County; P. E. Wilhelm, Judge. M. E. Keller was convicted of violations of the prohibition law in two eases and appeals.

<p>In error from the County Court of’ Craig County; E. M. Probaseo, Judge.</p>

<p>Application of John Davis for reduction of bail.</p>

<p>Appeal from the County Court of Nowata County; F. A. Calbert, Judge. Judge.</p> <p>Harry Bolen, convicted of a violation of the prohibitory law, appeals.</p>

<p>Application of S. Q. Miller, P. H. Everts and J. H. Bonner for Writ of Mandamus against J. C. Norman, Judge of the County Court of Cotton County.</p>

<p>Appeal from the County Court of Nowata County; F.- A. Calvert, Judge.-</p> <p>John Noble Nave, convicted of violating the prohibitory law, appeals.</p>

<p>Appeal from the County Court of Pittsburg County; S. F. Brown, Judge.</p> <p>Charles Trione, convicted of violating the prohibitory law and appeals.</p>

<p>Application of Chas. Thomas Perry, for Writ of Habeas Corpus.</p>

<p>Appeal from the County Court of Coal County; P. E. Wilhelm, Judge.</p>

Appeals for the County Court of Garvin County; W. H. Wallace, Judge. John Ed Porter, was convicted of violating the prohibitory law in two cases and appeals.

<p>Appeal from the County'Court of Pottawatomie County; Hal Johnson, Judge.</p> <p>Clarence Squires, was convicted of violating' the prohibitory law, and appeals.</p>

<p>Appeal from County Court, Custer County; J. C. McKnight, Judge.</p> <p>I. Y. Anson was convicted of violating the medical practices act, and appeals.</p>

<p>Petition of Earnest Eenstermaclier for writ" of habeas corpus.</p>

<p>Appeal from County Court, Cleveland County; P. B. Swank, Judge. O. E. Pauli was convicted of trespassing and he appeals.</p>

<p>Appeal from County Court, Woodward County; Clyde H. Wyand, Judge.</p> <p>J. E. Whiteworth and another were convicted of criminal conspiracy, and appeal.</p>

H. Huston, Judge. A demurrer to an indictment against Will H. Chappell, for burglary with intent to mutilate election certificates, was sustained, and the State attempts to appeal.

<p>Application of Richard I. Jackson for Writ of Habeas Corpus.</p>

<p>Appeal from the County Court of Nowata County; Hon. P. A. Calvert, Judge.</p> <p>John Coker was convicted of violating the prohibitory law and appeals.</p>

<p>Petition of Bob Young for writ of habeas corpus.</p>

<p>Application of Ralph Arnold for Writ of Habeas Corpus to be let to bail.</p>

<p>Appeal from the County Court of Nowata County; E. A. Calvert, Judge.</p> <p>Buster Holland, convicted of violating the prohibitory law, appeals.</p>

<p>Application of Jim Smith for release upon bail by Writ of Habeas Corpus.</p>

<p>Application of Herbert Irby for Writ of Habeas Corpus to be let to hail.</p>

<p>Appeal from the County Court of Kiowa County; J. S. Carpenter, Judge.</p> <p>Bill Kindman, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from the County Court of Garvin County; W. R. Wallace, Judge.</p> <p>J. S. Stevenson, eonvieted of a violation of tlie prohibitory law, appeals.</p>

<p>Appeal from the County Court of Canadian County; E. B. Forrest, Judge.</p> <p>Sherman Mocabee, convicted of a violation of the prohibitory law, 'appeals.</p>

<p>Applications for writs of habeas corpus.</p>

<p>Appeal from the District Court of Nowata county; Hon. W. J. Campbell, Judge.</p> <p>George Shoemaker was convicted of violating the prohibitory law and appealed.</p>

<p>Appeal from the Superior Court of Pottowatomie County; Leander G. Pitman, Judge.</p> <p>Steve Walters, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from the Superior Court of Pottawatomie county; Leander G. Pitman, Judge.</p> <p>Oscar Cofer, convicted of a violation of the prohibitory law, appeals.</p>