Volume 13 — Oklahoma Criminal Reports

<p>EVIDENCE — Other Offenses. On a trial for unlawfully selling intoxicating liquor, evidence thait the defendant on the same day,- at .the same plaice, made sales other -than the one charged, to the same party, is admissible as tending to connect the defendant with the commission of the offense charged.</p>

<p>HOMICIDE — Trial—Instructions—Self-Defense. Where the only eyewitness to- a homicide testified that the deceased attempted to bribe the accused to swear falsely, and the accused resented the offer by using very violent and insulting language tovyar(3-the deceased, and that .the deceased thereupon became enraged and attacked the accused with an open knife, and the accused then shot the deceased in defense of his person, and where the evidence showed no previous hostility, but, on the contrary, that prior to the fatal difficulty the men had been friends, held, that it was prejudicial error for the court to instruct the jury, under this state of facts, to the effect that, if the accused addressed the insulting language towards the deceased for the purpose of provoking a difficulty, and doing the deceased bodily harm, he thereby forfeited his right of self-defense, for the reason that the accused had the right to resent this offer to bribe him, and to resent it in no uncertain language, and this instruction suggests a purpose on 'the part of the accused for using the insulting language which is neither sug-ested by nor borne out by the evidence, and in effect denies to the accused the plea and right of self-defense which 'the evidence on behalf of .the accused tended to establish.</p>

<p>Ex parte application by Arthur Rowe for habeas corpus to compel admission to bail.</p>

<p>1- PROSTITUTION — Pandering — Information. An infoaunation charring a person with, the crime of pandering which only pleads the general terms of the statute, and alleges 'that the accused “did by promise and device and scheme persuade and encourage” a female named to become an inmate of a house of prostitution, is insufficient, when properly challenged by demurrer, for the reason that it is impossible for the accused, under the information, to know what kind of promise the state intends to prove, whether a promise of employment or remuneration, gift or forbearance, or which one of the almost innumerable and inconceivable devices and schemes named in the statute the state intends to rely upon, and ignores the constitutional and statutory safeguard and guaranty that an indictment or information must contain a statement of the acts constituting the órense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.</p> <p>2. SAME — Nature of Offense. The gist of the offense of pandering is not that a woman is in a house of prostitution, but that she has been procured or induced by some of the means named in the statute tt'o enter or remain in a house of prostitution. Hence a state of facts must be pleaded .that will show that the person charged did in reality, by some one or more of rtSbte means named in the statute, procure or induce ’the female to enter or remain in such house.</p> <p>3. INDICTMENT AND INFORMATION — Presumption of Innocence. Since every person is presumed to be innocent until proved guilty, it logically follows that he must be presumed also to be ignorant of what is intended tp be proved against him, except as he is informed by the indictment or information.</p> <p>4. SAMÉ — Sufficiency—Language of Statute. Where words or terms used in the statute have no technical or precise meaning which of themselves imply or define the offense, then the indictment or information must set forth the particular things or acts charged to have been done with reasonable certainty and distinctness.</p> <p>5. SAME. — Nature of Offense — Cei’tainty. It is not a technical, but a sound and fundamental rule of criminal procedure that the accused'must be apprised aB the outset by the indictment or information with reasonable certainty of the nature and cause of the accusation against him.</p>

<p> Appeal from County Court, Beaver County; John A. Spohn, Judge. </p> <p>Charles E. Casteel, Mary R. Harris, and Harry B. Wright were convicted of riot, and they appeal.</p>

Duff Tillery, Judge. Earnest Cooper was convicted of contempt; and appealed, pending which he was enlarged on bail and filed petition for mandamus, pending which he moved to dismiss his appeal.

<p> Error from District Court, Comanche County; Cham Jones, Judge. </p> <p>George Abrams was convicted of violating the pandering statute, and appeals.</p>

<p>1. FORGER'S — Information—Sufficiency—Variance; Where an information charged that the defendant uittered, and passed a forged check, but did not plead the names of the indorsers on the back of the check, held, that it was error for the trial court to hold that the information was defectiye because it did not plead the names indorsed on the back of 'the check. This was error, for the reason that these names did not constátate any. essential of the crime charged. Also held that, when this check was introduced in evidence, it was error for .the court to hold that, because the names indorsed on the back of iit were not pleaded in the information, there was a fatal variance between itttxe proof and the allegations of the information. This was error because the crime charged was that the forged check had been uttered and passed, and the only function that the names of the indorsers on the back of the check performed was to furnish evidence as to 'the identity of the parties who uttered and passed the check.</p> <p>2. APPEAL AND ERROR — Decisions Revievvable — Grant of New Trial. The state is not allowed to appeal from an order of the trial court granting the defendant in a 'Criminal action a new trial. The granting of a new ‘trial in such cases is largely a matter of sound judicial discretion, and usually involves questions of both law and fact; and when such discretion has been exercised in favor of the defendant it is very much like the verdict of a jury in his favor, and the state should have no right to appeal from it, unless such right is unquestionably given by the statute.</p>

<p>Application • by Tom J. Johnson for writ of habeas »corpus.</p> <p>On behalf of Tom J. Johnson, a duly verified petition for writ of habeas corpus was presented to the Presiding Judge of this court representing that he is illegally restrained of his liberty by the officers of the city of Oklahoma City, and is now compelled to work on the highways near the city of Edmond in Oklahoma county by some contract arrangement existing between the officers of the city of Oklahoma City and the officers of the county of Oklahoma.</p> <p>It is further averred in said petition:</p> <p>“That the cause of said restraint, according to the best of the knowledge and belief of the petitioner is* that the said Tom J. Johnson, petitioner herein, was convicted of the crime of vagrancy on the 8th day of July, 1916, in the municipal court of the city of Oklahoma City, Oklahoma, and was, by said court on said 8th day of July, 1916, fined in the sum of ninety-nine dollars ($99.00) and imprisonment in the city jail of Oklahoma City for a period of ninety (90) days. Your petitioner alleges and states that said restraint is illegal and void in this: That the municipal court of Oklahoma City, State of Oklahoma, had no jurisdiction to fine your petitioner in the sum of ninety-nine dollars and imprison him for a period of ninety days in the city jail of Oklahoma City, Oklahoma. That said judgment is illegal and void and in violation of the Constitution of the State of Oklahoma, the general laws of said state and the charter of said city of Oklahoma City. Your petitioner further says that he is illegally restrained of his liberty and illegally and unlawfully compelled to work Math convicts upon the highways of Oklahoma county, State of Oklahoma, under and by virtue of some contract or arrangement between the said Oklahoma City and the authorities of Oklahoma county, Oklahoma, and that said contract or arrangement whereby he is compelled to work upon the public highways of Oklahoma county, Oklahoma, is in violation of section 2, article 23, of the Constitution of the State of Oklahoma, and is unlawful, unconstitutional and void. Wherefore your petitioner prays the honorable court to grant a writ of habeas corpus, and that he be discharged, without delay, from such unlawful imprisonment.”</p> <p>A writ of habeas corpus was issued, and in response thereto the officers to whom it was directed produced the petitioner in court, and at the same time filed their answer and return duly verified, which, omitting formal parts, is as follows:</p> <p>“Return of Cpiief of Police and Sheriff.</p> <p>“Comes now W. B. Nichols, chief of police of Oklahoma City, and M. C. Binion, sheriff of Oklahoma county, Oklahoma, and for return of the writ of habeas corpus issued herein on the 12th day of July, A. D. 1916, shows to the court that said Tom J. Johnson is in custody by reason of the following facts: That heretofore, to wit, on July 8th, 1916, a complaint was filed in the municipal court of the city of Oklahoma City charging the said Tom J. Johnson with vagrancy, as is shown by the copy of the complaint hereto attached, marked Exhibit A, and made a part hereof'. That thereafter, on the 8th day of July, A. D. 1916, the said Tom J. Johnson was duly arraigned in the municipal court of the city of Oklahoma City, entered a plea of not guilty, and after trial duly had before said court the said Tom J. Johnson was found guilty of beiñg a Vagrant as defined by section 702 of the Revised Ordinance of the city of Oklahoma City, and was duly adjudged to pay a fine of ninety-nine ($99) dollars and costs in said case, and to be confined in the city jail of the city of Oklahoma City for a period of ninety (90) days. That at the time' said judgment and sentence was imposed upon the said Tom J. Johnson, he was notified of his right of appeal, and that no appeal from said judgment and sentence has been taken, and that thereafter on the 8th day of July, 1916, the said Tom J. •Johnson was duly committed to the city jail of Oklahoma City by virtue of a mittimus duly issued and by said municipal judge, a copy of which is hereto attached, marked Exhibit B and made a part hereof. That thereafter on the-day of July, 1916, by virtue of an agreement existing between the board of county commissioners and the board of city commissioners of the said city of Oklahoma City, and said Tom J. Johnson was turned over to and was received by said board of county commissioners for the purpose of working the said Tom J. Johnson upon the public highways of Oklahoma county. That prior, to the turning , of said Tom J. Johnson over to the board of county commissioners, the said Tom J. Johnson had been sentenced, to the city jail for the offense of vagrancy and had not paid the fine and costs assessed against him. That said county commissioners have not and will not pay for the services of the said Tom J. Johnson, except the cost of his maintenance. Wherefore, respondent having duly answered said writ prays that said writ of habeas corpus be denied and that the said Tom J. Johnson be returned to the custody of your respondents.</p> <p>“W. B. Nichols, M. C. Binion, Respondents.”</p> <p>On July 15, 1916, petitioner being present in court in person and by his counsel it was agreed that the case should be submitted to the court on the facts stated in the petition and the answer thereto. Upon the conclusion of the arguments and after a consideration of the same the decision and opinion of the court were delivered by the Presiding Judge, holding that the petitioner is unlawfully restrained of his liberty as averred, and it was ordered that he be discharged from further custody and go hence without day.</p>

<p>Petition by Sylvia Kenney, on behalf of Lee Kenney, for a writ of habeas corpus directed against M. C. Binion, Sheriff.</p>

<p>In the matter of the application of Dorothy McAles-ter for a writ of habeas corpus.</p>

<p>Application by J. E. Bartos for writ of habeas corpus.</p>

<p>Application of Anna Burleson for writ of habeas corpus.</p>

<p>Application by Joe King for writ of habeas corpus.</p>

<p> Appeal from County Court, Comanche County; R. J. Ray, Judge. </p> <p>George Ledgerwood was convicted of violating the prohibitory law, and appeals.</p>

<p> Appeal from District Court, Canadian County; John J. Carney, Judge. </p> <p>Edward B. Justus was convicted of the larceny of domestic animals, and appeals.</p>

<p> Appeal from County Court, Blaine County; Ed. Baker. Judge. </p> <p>John Cannon was convicted of a violation of the prohibitory law, and he appeals.</p>

<p> Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge. </p> <p>T. I. Sharp was convicted of a violation of the prohibitory law, and he appeals.</p>

<p> Appeal from- County Court, Coal County; P. E. Wilhelm, Judge. </p> <p>R. Piazzi, was convicted of a violation of the prohibitory law, and appeals.</p>

<p>Application of T. J. Monroe for writ of habeas corpus.</p>

E. Merritt, Judge. Charles Cruzan, Sarah Johnston, and W. M. Simon-son were jointly convicted of the unlawful possession of intoxicating liquors, and they appeal.

<p> Appeal from County Court, Pottawatomie County; Hal Johnson, Judge. </p> <p>Perry White and Jack Knapp were jointly convicted of conveying intoxicating liquor, and they appeal.</p>

<p>Application by Bud Nelson for admission to bail.</p>

<p> Error from County Couri, Pottawatomie Cpunty; Hal Johnson, Judge. </p> <p>George Ward was convicted of •■illegally selling intoxicating liquor, and he appeals.</p>

<p>Appeal from County Court, = Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Ed. Gunter was convicted of a violation of the prohibitory law, and he appeals.</p>

<p>APPEAL AND .ERROR — Dismissal. Where the case-made failed to show that the trial court had extended the time within which to perfect: an appeal, the appeal in a misdemeanor case must be dismissed, it not having been taken within the 60 days allowed by statute.</p>

<p> Appeal from County Court, Okmulgee County.; Mark L. Bozarth, Judge. </p> <p>George Rhodes was convicted of violating the prohibitory law,, and he appeals.</p>

<p>Application of Herbert Adams for writ of habeas corpus.</p>

<p>Error from County Court, Oklahoma County; ' Wm.- H. Zwick, Judge.</p> <p>Proceeding by the State of Oklahoma against Ed. Snelson and others. The action' was dismissed,' and the State appeals.</p>

W. Clark, Judge. P. H. Weathers was convicted in the district court of Oklahoma county on a charge of bribery. From an' order’ granting a new trial, the State appeals.

<p>Appeal from County Court, Comanche County; . R. J. Ray, Judge.</p> <p>Leo' Turner, convicted of a violation of the prohibitory law, appeals.</p>

<p> Appeal from County Court, Nowata County; F. A. Calvert, Judge. </p> <p>Joe Baker and H. Petty were convicted of unlawfully transporting intoxicating liquors, and they appeal.</p>

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

<p> Appeal from County Court, Pittsburg County; S. F. Brown, Judge. </p> <p>Joe Magnetti was. convicted of a violation of the prohibitory law, and he appeals.</p>

<p>APPEAL AND ERROR — Conviction. Where the briefs and record are examined, and no question of merit is raised by the appeal, tlie case will simply be affirmed.</p>

<p>APPEAL AND ERROR — Affirmance. Wliere there is conflicting evidence, it is the duty of the jury to pass upon such issues of fact ; and where .there is any evidence which reasonably 'tends to support the verdict, this court will not disturb it.</p>

<p>APPEAL AND ERROR — Determination. Wlien a petition in error and case-made are .filed in this, pourt, it is the duty of counsel to prepare and file briefs or appear and orally argue any assignments of error relied upon for reversal. When this is not done, the appeal is treated as abandoned, and in the absence of fundamental error, the judgment of the lower court will be affirmed for want of prosecution.</p>

<p> Appeal from County Court, Garvin County; W. R. Wallace, Judge. </p> <p>H. B. Ward was convicted of violating the prohibitory law, and he appeals.</p>

<p>Appeal from County Court, Garvin County; ' W. R. ¡Wallace. Judge.</p> <p>Red Ward was. convicted of violating the .prohibitory-law, and he appeals.</p>

<p>1. LARCENY — Evidence—Sufficiency. In a prosecution for larceny of a domestic animal, circumstantial evidence may be resorted to for the purpose of proving the corpus delicti, in the same way and to the same extent that it may he for the purpose of connecting (the accused with the commission of the offense.</p> <p>2. SAME. In a prosecution for the larceny of a domestic animal, the evidence examined, and held sufficient to sustain the verdict.</p>

<p> Error from County • Court, Canadian County; R. B. Forrest, Judge. </p> <p>T. M. Holmes was convicted of having possession of intoxicating liquor with intent to violate the law, and he brings error.</p>

<p> Appeal from District Court, Okfuskee County; Geo. C. Crump, Judge. </p> <p>Homer Gordon was convicted of stealing a cow, and he appeals.</p>

Error from County Court, Tulsa County'; J. W. Woodford, Judge. John Rambo was convicted of having possession of intoxicating liquor with intent to violate the prohibitory law, and he brings error.

<p>1. TRIAL — Conduct of Trial. It is the duty of a trial court to re- ' .fraiii from any act or word that would indicate to the jury . that a verdict of guilty should be returned in any case on trial 'before it.</p> <p>A trial 'court is not to be criticized for placing the jury in. charge of the bailiff, and retiring the same from the courtroom, and thereafter -committing a witness who has testified in the case into ’the custody of the sheriff to be held for investigation on a perjury charge when the court is convinced that the said witness is guilty of perjury, or has reason to believe that he is guilty of giving perjured testimony in such case.</p> <p>2. EVIDENCE — Conviction. When all the evidence introduced in the trial of a criminal case 'fails, as to any defendant, to establish guilt of the crime charged beyond a reasonable doubt, a verdict of guilty is not warranted.</p>

<p>1. INTOXICxlTING LIQUORS — Instructions. On a trial for the unlawful possession of intoxicating liquor, the court gave the jury the following instruction: “You are instructed that if you find from the evidence that the defendant had the barrel of beer testified to by the witnesses in her possession for her own personal use and with no intention of selling the same, you should find the defendant not guilty.” Held, prejudicial error, as tending to shift the burden of proof.</p> <p>2. TRIAL — Instructions—Presumptions. An instruction in the following language: “The defendant is presumed to be innocent of the crime charged until the contrary is made to appear by competent evidence to the satisfaction of the jury beyond a reasonable doubt; and, if you entertain a reasonable doubt of the guilt or innocence of the defendant, iit is your duty to return a verdict of not guilty” — is error.</p>

<p> Appeal from County Court, Garvin County; W. R. Wallace, Judge. </p> <p>E. F. Gist was convicted of violating the prohibitory law, and he appeals.</p>

L. Brown, Judge. J. T. Johnson was charged with perjury, and, a demurrer being sustained to the information, the State appeals.

<p>1. INDICTMENT AND INFORMATION — Assault With Intent to Kill — Included Offenses. An information which charges assault with intent to kill includes all other felonious assaults defined in the statute and the misdemeanors, assault and battery and assault.</p> <p>2. SAME — Conviction of Included Offense. The jury is authorized to return a verdict convicting (the person on trial of any crime included in the information which is submitted to them by the trial (Count.</p> <p>3. TRIAL — Verdict—Sufficiency. The veulic.t of a jury must lie sufficient in itself to clearly disclose the crime of which the 'defendant is convicted, and for -which he is to be punished.</p> <p>4. ASSAULT AND BATTERY — Verdict—Construction. A verdict, by a jury which reads, “We, the jury, duly impaneled and sworn to try tlie above-entitled cause, do upon our oaths find ithe defendant guilty as 'charged in the information, of the crime of aggravated assault and the punishment for the court to fix,” finds the defendant guilty of assault only. The court is therefore without authority to impose punishment by imprisonment in the penitentiary, for the reason that the statute fixes the maximum penalty at a fine of $100 and costs and 30 days’ imprisonment in the. county jail.</p> <p>5. APPEAL AND ERROR — Modification of Verdict. When the trial court fails to impose punishment in keeping with the verdict of the jury, when the legal effect of the verdict of the jury is dear, this court will modify the judgment to 'Conform /to the verdict, and, as modified, affirm the same.</p>

<p>Application, of Charles Rankin for a writ of habeas corpus to reduce bail.</p>

<p> Error from District Court, Atoka County; Jesse M. Hatchett, Judge. </p> <p>T. M. Yarbrough was convicted of manslaughter in the first degree, and he brings error.</p>

<p>1. EVIDENCE — Evidence on Former Trial — Witness—Identification Indorsement on Information. Where the testimony of a witness was given at a preliminary bearing; where the defendant had .an opportunity to eross-examine him, and such testimony is properly preserved, held thait, if the witness is not present at the final trial, and the state shows it has, used due diligence to ascertain his whereabouts, and has .been unable to ascertain the same, or serve him with subpoena, to all intents and purposes he is beyond the jurisdiction of the court, and his former testimony may be 'read to the jury.</p> <p>And held, further, that it is immaterial that the names of the-witnesses' used by the state to identify the former testimony, to prove the -defendant'had been confronted by Ithe witness, and that the witness was then beyond the jurisdiction of the court, were not indorsed upon the information.</p> <p>:2. APPEAL AND ERROR — Harmless Error — Instructions. When ithe linimpeached evidence of a number of eyewitnesses and the testimony of the • defendant himself sustains the verdict, and proves the defendant's guilt beyond a question of doubt, this court will not reverse the case because of a technical defect in an instruction upon an immaterial issue.</p> <p>3. SAME — Verdict—Forms. The jury have a right to formulate their own verdict, or to return into 'court and request other forms, if ■ •they so desire; and, where they sentence the defendant to four years in the penitentiary, there is no merit in the contention that the defendant was prejudiced because the court did not furnish the jury with a form of verdict by which they could hav*. sentenced him to one year in the county jail.</p>

<p> Appeal from, District Court, Haskell County; W. H. Brown, Judge. </p> <p>C. H. Victor was convicted of rape, and he appeals.</p>

<p>Application of Eva Sweitzer for writ of habeas corpus.</p>

<p>Application by Harry Newby for a writ of habeas corpus to be let to bail.</p>

<p>HABEAS CORPUS — Erroneous Sentence. A judgment and sentence of imprisonment for an offense for whicfL tire statute provides that the punishment must be both fine and imprisonment, -there being no other defect, is merely erroneous, not void, and a person imprisoned under such a judgment' is not entitled to release upon habeas corpus.</p>

<p> Appeal from District Court, Garvin County; R. McMillan, Judge. </p> <p>White M. Waide was convicted of embezzlement, and he appeals.</p>

Fred P. Branson, Judge. Charlie Miller was convicted of robbery, and he appeals. The plaintiff in error, Charlie Miller, was tried and convicted on an information charging him with having robbed one W. J. Orall of 42 cents, and he was sentenced to imprisonment in the penitentiary for the term of ten years. He appealed by filing in this court on February 9, 1915, a petition in error with case-made.

<p> Error from District Court, Muskogee County; R. P. deGraffenried, Judge. </p> <p>Willie Williams was convicted of murder, and he brings error.</p>

<p>1. CRIMINAL. LAW — Capacity to Commit Crime — Insanity—Test. The true test of criminal responsibility, where the defense of insanity is interposed, is whether- the defendant had sufficient reason to know the nature and quality of his act, and whether he had sufficient reason to know right from wrong.</p> <p>2. NEW TRIAL — Bias—Expressed Opinion of Jurors — Affidavit— Knowledge. ■'When affidavits charging jurors with, having expressed opinions as to ithe guilt of the defendant prior to their being called as jurors are relied upon to annul the verdict and obtain a new 'trial, it must.be clearly shown ¡that neither the defendant! nor counsel for the defendant knew the facts averred in such affidavits at the time the jury -was impaneled.</p> <p>3. APPEAL AND ERROR — Question of Fact — Finding. As a general rule, fee finding of fee trial court upon an1 issue of fact arising upon affidavits and evidence adduced on a motion for a new trial will not be disturbed where fee evidence reasonably tends to support such finding.</p> <p>4. APPEAL AND ERROR — Modification of Sentence. Under Procedure Criminal (section 6003, Rev. Laws 19101), this court in the furtherance of justice has the power to modify any judgment appealed from by reducing the sentence.</p> <p>5. CONTINUANCE — Affidavit—Absent Witnesses — Admission. The record shows feat on September 4, 1916, fee defendant was arraigned, and on September 6th he filed a motion for continuaiK-e based on the absence of material witnesses, one of whom was a nonresident of ithe state. On the same day the motion, was overruled by the court, and fee defendant was put upon trial. Held, feat fee affidavit for continuance is insufficient, because it fails to show that the defendant could procure the attendance of such nonresident witness, and fails to state that he intends to take-the deposition of such nonresident witness. However, technical objections should not ordinarily prevent the granting of a eon-tinuan'ce, and in this ease the county attorney should have ad- ■ mitted feat said witness, if present, would testify-as stated in the defendant’s affidavit, and that said affidavit might be read and treated as fee deposition of fee absent ■wttnés's, and for this reason ithe judgment and sentence of death is modified to imprisonment for life 'at hard labor.</p>

<p> Error from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Guy Huber was convicted of murder, and he brings error.</p>

<p> Error from District Court, Kiowa County; . James R. Tolbert, Judge. </p> <p>Frank Nash was convicted of murder, and he brings, error.</p>

<p>Habeas corpus by Eb. Daniels, Henderson Leopard, and James Blue against M. C. Binion, Sheriff of Oklahoma County.</p>

<p> Appeal from County Court, Comanche County; R. J. Ray, Judge. </p> <p>William Freely was convicted of violating the prohibitory law, and he appeals.</p>

<p> Appeal from County Court, Pottawatomie County; Hal Johnson, Judge. </p> <p>George Ward- was convicted of violating the prohibitory law, and he appeals.</p>

<p> Error from District Court, McIntosh County; T. P. Clay, Assigned Judge. </p> <p>Will Towery was convicted of .murder, and he brings error.</p>

<p>1 PERJURY — Oath—Violation. A witness, sworn to tell the Ibruth, and the whole truth, violates his oath if he knowingly, willfully, and corruptly conceals any part of the truth, material to the issue concerning which he is questioned. Far a half truth does not fulfill the' requirements of his oath, and constitutes perjury of the most dangerous character.</p> <p>2. SAME — Evidence—Sufficiency. The evidence examined, and held that the appellant’s own testimony is tantamounto to a plea of guilty.</p>

T. Johnson, Judge. T. J. Scott and Annie E. Scott were tried on a charge of murder and convicted of manslaughter in the second degree, and bring error.

<p> Error from District Court, Tillman County; ■ Frank Mathews, Judge. </p> <p>Henry Huffine was convicted of perjury, and he brings error.</p>

L. Marshall, Judge. L. B. Peyton was convicted of maintaining and operating a public pool hall in an incorporated town without first securing a license issued by the county judge, a misdemeanor, and he brings error.

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

<p> Appeal from County Court, Canadian County; R. B. Forrest, Judge. </p> <p>James Hulse was convicted of violating the prohibitory law, and appeals.</p>

<p>APPEAL AND ERROR — Briefs and Argument — Affirmance. Where an appeal from a judgment of conviction is taken to this court and no briefs are filed or argument presented, this court will examine the record, and, if no error is apparent, the judgment will be affirmed.</p>

<p> Error from District Court, Stevens County; Frank M. Bailey, Judge. </p> <p>Oma Leseney was convicted of manslaughter in the first degree, and she brings error.</p>

<p>INTOXICATING LIQUORS — Sale—Sufficiency of Evidence. In a prosecution for unlawful sale of intoxicating liquor, tbe evidence as detailed in tbe opinion held insufficient to sustain a conviction.</p>

<p> Appeal from County Court, Oklahoma County; William H. Zwick, Judge. </p> <p>Dave Myers was convicted of unlawfully setting up and conducting a gambling game, and he appeals.</p>

<p> Appeal from District Court, Sequoyah County'; John H. Pitchford, Judge. </p> <p>William Holmes was convicted of manslaughter in the first degree, and he appeals.</p>

Error from County Court,, Blaine County; Ed Baker, Judge. John Cannon was convicted of destroying certain spirituous liquors about to be produced in court as evidence, and he brings error.

<p> Appeal from County Court, Cotton County; J. C. Norman, Judge. </p> <p>Dan Groves was convicted of unlawfully selling whisky, and brings error.</p>

<p> Appeal from County Court, Garfield County; E. L. Swigert, Judge. </p> <p>John Mullikin was convicted of a violation of a prohibitory law, and he appeals.</p>

<p> Appeal from District Court, Johnston County; J. H. Linebaugh, Judge. </p> <p>Happy Anderson and Babe Anderson were convicted of assault with intent to kill, and they appeal.</p>

<p>1. INDICTMENT AND INFORMATION — Sufficiency. An information .is sufficient, if it pleads every element essential to charge the crime pleaded, in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to meet.</p> <p>2. TRIAL — Instructions. A court is not required to charge the jury upon a theory entirely foreign to and different fi'om.the theory of the defendant in the case on trial.</p> <p>3. TRIAL — Demurrer to Evidence. Where there is any eonxpetent evidence reasonably tending to sustain the allegations of the information, the court should not sustain a demurrer to the evidence.</p> <p>4." APPEAL AND ERROR- — Harmless Error — Admission of Evidence. The admission of incompetent and immaterial evidence, as to a fact already admitted by the defendant, will be deemed harmless.</p> <p>5. PERJURY — Evidence—Testimony in Former Case. Where a person charged with perjury objects to the introduction of a transcript of his testimony in a former ease, upon which the charge of perjury- is based, upon (he ground that the transcript shows that in certain parts of his -testimony he was interrupted, and his answers to certain questions were incomplete,'held, that where the transcript shows no interruptions in -that part of his testimony which is material and upon which the charge of perjury is based, it is immaterial that, he was not allowed to answer fully some questions entirely foreign to the matter upon which the charge of perjury is based. But if the transcript had shown that the answers upon which the .charge of perjury was based were incomplete, and that it. might have put -the defendant in a different light, had he been allowed to complete the answers, then there would be merit in the objection.</p>

<p> Error from District Court, Pawnee County; Conn Linn, Judge. </p> <p>James Spess was convicted of murder and sentenced to life imprisonment, and he brings error.</p>

<p>Habeas corpus by Joe Burton against the Sheriff of Greer County.</p>

<p>1. CONTEMPT — Punishment—Jurisdiction. A 'contempt being an offense against the dignity and authority oí the particular court to which -the affront was offered, if the court has jurisdiction of the parties and the subject-matter out of which the contempt grows, it has jurisdiction to try and punish the contemnor, regardless of where or in what state the acts constituting the contempt may have been committed.</p> <p>2. SAME — Jury—Indirect Contempt — Question for Jury — Jury Trial. A party charged with indirect contempt is entitled to have a jury pass upon the question of his guilt or innocence, 'before penalty or punishment is imposed. But the jury’s province is limited solely to the question of guilt or innocence, and they have nothing to do with the penalty to be imposed.</p> <p>3. SAME — Violation of Injunction Order — Information. Where an information charging contempt for violating an injunction order is attacked upon the ground that it did not specifically plead that an injunction bond had been given, it is held that, since it did plead that the injunction order was “duly and legally issued,” it was sufficient as against demum-er, since the essentials of the legality of ail injunction order are so well understood and so thoroughly established.</p>

<p>Application of Owen Doza for writ of habeas corpus..</p>

<p>OBSTRUCTING JUSTICE — Information—Demurrer. An information in a criminal case should plead sufficient facts to constitute an offense against the laws of the state, and when such facts a>re not pleaded and a demurrer is seasonably filed, the same should be sustained by the trial court.</p>

Petition for bail by Mrs. J. W. Dix, held on preliminary examination to appear on a complaint charging her with murder. Petitioner admitted to bail, fixed at $15,000.

Application by O. F. Foster for- writ of habeas corpus. Writ issued, directed to sheriff of Texas county, Okla., returnable to the district court of that county.

<p>Petition by George Gownlock for writ of habeas corpus.</p>

<p>Application of Freeman Mitchell for writ of habeas corpus.</p>

<p>HABEAS CORPUS — Discharge—Sufficiency of Petition. Where the facts averred in a petition for a writ of habeas corpus,- if. established, will not warrant the discharge of the prisoner, the writ will be denied.</p>

<p>Habeas corpus by A. L. Beal and by Sam Ivers against W. B. Nichols, Chief of Police of Oklahoma City.</p>

<p>Petition by John M. Couch for writs of - habeas corpus.</p>

Appeal from County Court, Coal County; P. E. Wilhelm, Judge. Vincent Kerriel and Mary Kerriel were convicted of a violation of the prohibitory law, and they bring error.

Application of Grover Blum for writ of habeas corpus. Sheriff of Tulsa county directed to take petitioner into custody and to commit him to county jail subject to further orders of superior court of Tulsa county.

<p>Application by W. G. Cox for a writ of habeas corpus to be let to bail.</p>

<p>Prohibition by Bert Files against the District Judge and District Court of Garfield County.</p>

<p>1. TRIAL — Instruction—Assumption as to Provocation of Difficulty. The court instructed the jury as follows: “You are further instructed, gentlemen of the jury, that while the law permits a person to defend himself or his wife against real or aioparent danger, such is defensive and not offensive; and therefore you are instructed that a person under -the law cannot arm himself and invite and provoke a difficulty, and thereupon assault and slay his adversary, and invoke the right of self-defense. And you are instructed, gentlemen of the jury, if you believe from the evidence in this case beyond a reasonable doubt that, this defendant armed himself with a rifle and sought the deceased, either acting alone or in conjunction with his wife, for the purpose of provoking or engaging in a difficulty with the deceased, and in furtherance of any such design between husband and wife either husband or wife invoke, and provoke a difficulty with the deceased, and thereupon the defendant shot and killed the deceased, then the defendant cannot invoke the right of self-defense.” Held, that the-foregoing instruction does not assume that the appellant invited or provoked a difficulty with tire deceased.</p> <p>2. HOMICIDE — Instruction—Self-Defense—Provocation of Difficulty —Evidence. Evidence examined, and held sufficient to authorize the trial court to give the aforesaid instruction in this case.</p> <p>3. APPEAL AND ERROR — Harmless Error — Instruction. Where no objection is made or exception taken to the giving of an instruction at the time it is given, and said instruction is partially erroneous, the giving of said instruction ,is not reversible error, unless some constitutional or express statutory right of the defendant has been invaded.</p>

<p>1. WITNESSES — Competency—Wife Against Husband. In a prosecution against a husband for willful and corrupt perjury in making a false affidavit in a suit for divorce against his -wife in order to obtain service of summons by publication as required by the statutes of this state, the wife is a competent witness for the state on the trial pf such criminal prosecution.</p> <p>2. APPEAL AND ERROR — Harmless Error — Instructions—Penalty. Where the statute fixes the maximum punishment for a crime, but fails to provide a definite minimum punishment therefor, and the 'court instructs the jury as to punishment practically in the. language of the statute, and no more' definite instruction as to the minimum term of imprisonment is requested by counsel for the defendant, the giving of such instruction in the absence of such request is not prejudicial error.</p> <p>3. SAMS. Mere technical objections to the wording of the court’s instructions do not meet with the favor of this court. The judgment of conviction will not be reversed on the ground of misdirection of the jury unless in the opinion of this court, after the examination of the entire' record, it ’ appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right of the defendant.</p>

<p>1. APPEAL AND ERROR — Conflicting Evidence — Conviction. Questions of fact are for the jury to determine. Where there is direct conflict between the evidence for the state and that of the defendant, and the evidence for the state is sufficient to justify a verdict of guilty, the judgment of conviction will not be reversed because of such conflict in the evidence.</p> <p>2. . INTOXICATING LIQUORS — Unlawful Sale — Instruction. Where the evidence on the part of the state will support either the inference that the unlawful sale was entirely consummated by the appellant, or by him and another, it was not improper for the court to instruct the jury as follows: “You are instructed that under the laws of Oklahoma any person who in any way knowingly fakes part in the sale of intoxioating liquor illegally, whether the act is completed by himself alone, or in conjunction with another, is guilty of violating the law the same as if he had completed the whole illegal act himself.”</p>

Samuel Moody was convicted of murder, and he appeals. The appellant, Samuel Moody, and the deceased, W. P. Rausin, were farmers and had lived, prior to the date of the alleged homicide on January 1, 1914, for many years on adjoining farms in Lincoln county, Okla.

<p> Appeal from District Court, Choctaw County; A. Eddleman, Assigned Judge. </p> <p>John Crittenden was convicted of the larceny of live stock and he brings error.</p>

<p> Appeal from District Court, Sequoyah County; John H. Pitchford, Judge. </p> <p>Lafayette It. Horn was convicted of manslaughter in the first degree, and he brings error.</p>

A. Brown, Judge. Isaac Penn was convicted of the crime of statutory rape, and sentenced to imprisonment for five years, and he brings error.

<p>1. APPEAL AND ERROR — Discretion of Trial Court — New Trial— Prejudice of Juror. Where, in a motion for new trial on the j ground that one of the jurors who sat in the case- was prejudiced against the defendant, evidence is introduced both in support of and in opposition thereto, a question of fact is presented to be determined by the trial court. In the absence of a showing of abuse of discretion in this matter the judge’s determination of this question of fact will not be disturbed by the court on appeal.</p> <p>2. SAME. Where the evidence in support of a motion for a new trial, on account of the prejudice of a juror within the definition of actual bias, is clear and convincing, and the rebuttal evidence is doubtful and evasive, the refusal of the trial court to grant a new trial under such circumstances amounts to an abuse of discretion such as will authorize this court to reverse the judgment of conviction.</p>

<p> Error from District Court, McCurtain County; Summers Hardy, Judge. </p> <p>Ellie Pierson was tried upon a charge of murder,, convicted of manslaughter, and he brings error.</p>

Error from Superior Court, Oklahoma County; - Edward Dewes Oldfield, Judge. Robert Allen was convicted of murder and sentenced to imprisonment for life, and he brings error.

<p>TRIAL — Severance—Discretion of Court — Review. Under Procedure Criminal, sec. 5878, Rev. Laws 1910, when two or more defendants are jointly prosecuted for a misdemeanor, the granting or refusal of a severance rests in the discretion of the court. The exercise of such discretion is reviewable; but, to be reviewed, the case-made or bill of exceptions must show' an application for severance setting out sufficient grounds therefor, and supported' by affidavits or oral testimony.</p>

<p>APPEAL AND ERROR — Conviction—Reversal. When all of the evidence introduced at the trial of a criminal case, considered together, is sufficient to authorize a legitimate conclusion of guilt by the jury, a judgment. of conviction will not be reversed on appeal.</p>

<p>1. APPEAL AND ERROR — Verdict on Conflicting Evidence — Conclusiveness. The jury is the exclusive judge of the weight of the evidence and credit to be given to the witnesses. Where there is a direct -conflict in 'the evidence, or it is such that different infer- ■ enees may be properly drawn from it, the jury’s determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction, where there is competent evidence from which the jury could rationally conclude that the appellant was guilty.</p> <p>2. HOMICIDE — Evidence—Dying Declaration. The deceased, as part of his dying declaration, made the statement, “Those negroes shot and robbed me.” Held, that such statement was admissible-in a dying declaration.</p> <p>■3. . TRIAL — Requested Instruction. Whore an instruction requested by the defendant is not in proper form, but pertains to a material issue in the case, made by the evidence, the court should give a correct instruction, if he has not otherwise instructed upon that issue. After suc-h request, it is error for the court to refuse to instruct upon such issue.</p> <p>4. EVIDENCE — Contradictory Statements by Codefendant. Contra- ' dictory statements made by a codefendant after the commission of the crime, not shown to have been made in the presence or hearing of the defendant being separately tried, are in no sense original evidence against the latter. Where such statements relate to material matters and proper foundation is laid, they may be shown and may be considered by the jury only for the purpose of affecting the credibility of the witness making them. And when requested it is the duty of the court to clearly inform the jury that such statements cannot be considered as independent substantive evidence againslt or in favor of the defendant, but only for the purpose of affecting the credibility of the witness.. Refusal of the court to instruct upon this issue after such re-' quest is error.</p> <p>5. NEW TRIAL — Grounds—Receiving Evidence Out of Court — Statute. Where evidence introduced at the trial consists in part of the testimony of witnesses given at the preliminary examination and reduced to writing, and such evidence is attached. to other written evidence of witnesses examined at the preliminary examination and not produced at the trial, and after retiring to deliberate upon its verdict the jury makes a demand for that portion of such evidence introduced at the trial, the court should see that such evidence is detached from that not introduced before permitting the jury to have it. Where this is not done, and the jury is permitted to have access to that evidence given at the preliminary examination not introduced at the trial, and such evidence is damaging to the defendant, the substantial rights of the defendant have not been properly safeguarded. It is a ground for new trial for the jury to receive evidence out of court other than that resulting from a view of the premises.. Section 5937, Rev. Laws 1910.</p>

<p> Appeal from District Court, ■ Atoka County; R. W. Higgins, Judge. </p> <p>Joe Lancaster was convicted of larceny of domestic animals, and appeals.</p>

<p> Error from District Court, Caddo County; Will Linn, Judge. </p> <p>Olin Glaze was convicted of larceny, and he brings error.</p>

<p>APPEAL AND ERROR — Conclusiveness of Verdict. When tlie facte disclosed by tbe proof in a criminal case clearly warrant a verdict of conviction, a reversal will not be granted by this court on the ground that the verdict and- judgment are contrary to the evidence.</p>

<p> Appeal from County Court, Pottawatomie County; Hal Johnson, Judge. ■ </p> <p>Ben Beaubein was convicted of selling intoxicating liquor, and he brings error.</p>

<p> Appeal from, County Court, Woods County; Gus Hadwiger, Judge. </p> <p>M. G. Collingwood was convicted of selling . whisky, and he brings error.</p>

Error from County Court, Woods County; Gus Hadwiger, Judge. John Scofield was convicted of selling one pint of whisky to one Ralph McAfee, and sentenced to pay a fine of $50, and to imprisonment for 30 days, and he brings •error.

H. Zwick, Judge. R. W. Waller was convicted of selling a half pint of ■whisky, to one Glen Cowden, and sentenced to pay a fine of $100 and imprisonment in the county jail for 60 days, and appeals.

Error from District Court, Sequoyah County; John H. Pitchford, Judge. E. L. Lemley was convicted of an assault with a dangerous weapon with intent to do bodily harm, without justifiable cause, and he brings error.

<p>Petition of L. B. Campbell for writ of habeas corpus.</p>

<p>Habeas corpus by T. J. Monroe against W. B. Nichols, Chief of Police of Oklahma City.</p>

<p> Appeal from District Court, Garvin County; R. McMillan, Judge. </p> <p>C. A. Belvin and Arthur Inman were convicted of assault and battery, and they appeal.</p>

<p> Appeal from, District Court, Marshall County; George C. Crump, Assigned Judge. </p> <p>Harry Parker was convicted of burglary, and appeals.</p>

<p>1. TRIAL — Argument of Prosecuting Attorney — New Trial. A prosecuting attorney should confine his argument before the jury to a •fair discussion of the issues in the case, and improper remarks objected to at the time will be considered -and construed in reference to the evidence. If it appears that the improper argument may have determined the verdict, a new trial should be granted.</p> <p>2. SAME. In his argument to the jury, the assistant county attorney said, “The county attorney of this county knew tills defendant was guilty before he filed this information, or this case would never have been brought.” Evidence considered, and held, that such statement was prejudicial to- the. substantial, rights of the defendant, for which a new trial should be granted. „</p>

<p>APPEAL AND ERROR — 'Reduction of Sentence. Under Broc. Crim., section 6003, Rev. Laws 1910, this court in the furtherance of justice' has the power to modify, any judgment appealed from by reducing the sentence.</p>

<p>1. INDICTMENT AND INFORMATION — Variance—Preliminary Complaint — Time of Offense. A prosecution in a felony charge is begun with the filing of 'the preliminary complaint before the committing magistrate. The proof introduced by the state must therefore establish the commission of the offense prior to the filing of this preliminary complaint. Proof tending to show the commission of the offense subsequent to the filing of the same would not be admissible. It therefore follows, that a criminal action begun on the 25th day of June by filing the charges before the committing magistrate cannot be sustained by proof that the offense was committed on the 25th day of July thereafter.</p> <p>2. PRELIMINARY EXAMINATION — Information — Jurisdiction. Under the law, the accused is entitled to an examining trial before a committing magistrate; and an information thereafter filed in the district court must be based upon thié’ examining trial; otherwise the district court acquires no jurisdiction.</p>

<p>APPEAL AND ERROR — Conflicting Evidence. When there is a clear conflict of testimony introduced in the trial court by the state and the accused, an appeal to this court on the ground that the verdict is contrary to the evidence is useless. It is the duty of this court to uphold the judgment of the .trial court when the evidence tends reasonably to support the verdict of the jury and the judgment rendered.</p>

Habeas corpus by Sarah Hightower, mother of Raymond Hightower, a minor, against the Warden of the State Prison.

H. Brown, Judge. Bob Hisaw was convicted of murder and sentenced to imprisonment for life, and appeals. On the 13th of February, 1912, Virgil (commonly called Rex) Ray and his wife, Lizzie Ray, who had been married about a month previous to that date, separated. They had been living in a little one-room log house in the Hisaw neighborhood of Haskell county.

<p> Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge. </p> <p>Earl Watkins was convicted of unlawfully conveying intoxicating liquors, and he appeals.</p>

<p>1. LARCENY — Evidence—Possession of Recently Stolen Property— Effect. The possession of recently stolen personal property is a . circumstance to be considered in connection - with, other competent evidence in the trial of a larceny case; but such possession alone is not sufficient proof of ithe crime to warrant a conviction, when a reasonable explanation of the possession of same is made and the circumstances tend to support the explanation.</p> <p>2. SAME — Sufficiency of Evidence. When the whole evidence fails to establish the commission of the offense charged, a verdict and judgment of guilty are contrary to the evidence.</p>

<p> Appeal from- District Court, Wagoner County; George C. Crump, Assigned Judge. </p> <p>William Brewer was convicted of manslaughter in the first degree, an‘d appeals.</p>

<p>INTOXICATING LIQUORS — Unlawful Conveyance — Evidence—Identity —Sufficiency. When a person is charged with unlawfully conveying intoxicating liquors from one place within the jurisdiction of the trial court to another place therein, and the proof fails to identify the defendant as the person committing the offense, by positive evidence or by circumstances which exclude every other reasonable hypothesis than that of guilt, a judgment of conviction cannot be sustained.</p>

<p>MANDAMUS — Jurisdiction of Criminal Court of Appeals — Acts of Inferior Court. The Criminal Court of Appeals has jurisdiction to issue the writ of mandamus directed to an inferior court, in the exercise or in aid of its appellate jurisdiction, when the same is a proper proceeding in a •criminal case.</p>

<p>1. TRIAL — Reception of Verdict — Delegation—Statute—Consent to-Discharge of Jury. Where, during the trial of a homicide case, the jury having retired to deliberate on their verdict, the judge was incapacitated from further proceeding with the trial on account of sickness, and by agreement of the parties he designated an attorney of the court to receive the verdict of the jury;</p> <p>Held, that the reception of the verdict in a criminal case is a judicial act, which cannot be delegated, and a verdict so received is a nullity, and that no judgment of conviction could be lawfully pronounced upon such verdict.</p> <p>Held, further, that the discharge of the jury under such circumstances must be deemed to have been with the consent of' the defendant.</p> <p>2. SAME — Illness of Judge Preventing Return of Verdict — Retrial. Where a jury impaneled and sworn in a criminal case is prevented from returning a verdict by reason of illness of the presiding judge, incapacitating him from attending to the duties of' the trial,'the case may be again tried.</p> <p>3. SAME — Former Jeopardy — Acquittal—Hlegal Verdict — New Trial —Constitutional Provisions. A judgment of conviction based on. an illegal verdicts,will not operate as an acquittal, either before or after reversal on appeal, and a new trial in such a case after reversal of such judgment, on defendant’s appeal, is no infringement of the clause of the Constitution which declares that “Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” Const, art. 2, sec. 21.’</p>

<p>Habeas corpus by Minnie Allen.</p>

<p> Appeal from District Court, Stephens County; Cham Jones, Judge. </p> <p>Denny Swan was convicted of manslaughter in the second degree, and appeals.</p>

<p> Appeal from County Court, Tulsa County; Conn Linn, Judge. </p> <p>Dud Moore, convicted of a violation of the prohibitory law, appeals.</p>

<p> Appeal from County Court, Custer County. </p> <p>Bob Fletcher was convicted of unlawfully selling in-' toxicating liquor, and he brings error.</p>

<p>Error from District Court, Woodward County-; James B. Cullison, Judge. -</p> <p>Roy Munson was convicted of the crime of burglary, and he brings error.</p>

<p>APPEAL AND ERROR — Question of Fact. Where there is evidence in the record to support the verdict, and the verdict has been approved liy the trial court, this court will not review the evidence to determine its weight or sufficiency.</p>

<p> Appeal from County Court, Carter County; Thomas W. Champion, Judge. </p> <p>Steve Talkington, convicted of unlawfully conveying intoxicating liquors, appeals.</p>

<p>1. APPEAL AND ERROR — Presumption of Regularity. In tbe absence of any affirmative showing to the contrary, it will be presumed on appeal that all proceedings in the lower court were regular, and that all persons appearing in the role of public officers were duly authorized so to do as provided by law.</p> <p>2. BURGLARY — Burglary in the Nighttime — Information. An information which charges the burglarious breaking and entry of a dwelling in the nighttime with intent to commit larceny therein is good as against demurrer.</p> <p>3. APPEAL AND ERROR — Sufficiency of Evidence. When the evidence tends reasonably to support a finding of the jury, a judgment of guilty will not be reversed by this court on the ground that the same is contrary to the evidence.</p> <p>4. APPEAL AND ERR OK — Assignment of Error. An assignment of error based upon a proposition not properly preserved' in the trial court and not supported by any legal showing cannot avail on appeal, and will not be considered by this court.</p>

<p>1. HOMICIDE — Dying Declaration — Admissibility. When all the facts and circumstances disclosed by the record establish the fact that a dying declaration was made at a time when deceased realized that death was impending, it is entitled to 'be admitted in evidence.</p> <p>2. APPEAL AND ERROR — Reversal—Instructions. A judgment of conviction will not be reversed by 'this court on account of inaccuracies in the instructions, when it clearly appears that no hai m did result or could have resulted to the accused by reason thereof.</p>

<p>1. INDICTMENT AND INFORMATION — Language of Statute-Elements of Offense. Tbe information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particular circumstances of the offense charged are necessary to constitute a complete offense.</p> <p>2. SAME — Sufficiency of Information — Motion to Arrest. The information charged that defendant “then and there willfully, unlawfully, knowingly, feloniously, and without justifiable and excusable cause, and with the intent then and there on the part of him the said S. W. to do great bodily harm to another, to wit, tbe said T. S., with a dangerous weapon, to wit, a 'claw hammer, contrary to,” etc. Held, that the information was insufficient to charge defendant with assault with a dangerous weapon with intent to do bodily harm, as against the motion in arrest of judgment.</p> <p>3. ASSAULT AND BATTERY — “Dangerous Weapon” — Claw Hammer. A claw hammer cannot be said as a matter of law to be a “dangerous weapon” without reference to the manner of its use.</p>

<p>Ex parte application by S. Wilcox for writ of habeas corpus to C. D. Webber, Sheriff of Pawnee County.</p>

<p> Appeal from County Court, Bryan County; J. L. Rappolee, Judge. </p> <p>T. J. Estes was convicted of violating the prohibitory law, and appeals.</p>

<p>INTOXICATING LIQUORS — Unlawful Possession — Evidence. The unloading by a public drayman of a barrel of whiskey on a vacant lot is not sufficient proof, against the owner of the lot, of the unlawful possession with intent to sell whisky, to warrant a conviction of the owner of such lot, in the absence of proof that the whisky belonged to him, or that acts of ownership were exercised by him over the. whisky.</p>

<p> Appeal from District Court, Harmon County; F. B. Swank, Assigned Judge. </p> <p>R. P. Ford was convicted of burglary, and appeals.</p>

<p>Ex parte application by'Ed Hand, for writ of habeas corpus directed to the Sheriff of Dewey County.</p>

Appeal from, District Court, Wagoner County; Fred P. Branson, Judge. Charles Smith was convicted of embezzlement, and sentenced to 18 months’ imprisonment in the penitentiary, and he appeals.

<p> Appeal from District Court, Custer County; T. A. Edwards, Judge. </p> <p>Alva Sights was convicted of assault with intent to "kill, and he appeals.</p>

G. Croio, Judge. Daniel D. Gracy was convicted of the crime of rape in the second degree and sentenced to imprisonment in the pénitentiary for a term of five years, and appeals.

<p>1. APPEAL AND ERROR — Record—Incriminating Evidence — Docu- . mentary Evidence. Where it is contended that the accused was compelled in violation of section 21, art. 2, Constitution, to give evidence which tended to incriminate him by reason of the production of the original copy of an alleged forged deed which formed the basis of the charge against him, pursuant' to an order of court to produce same, it must affirmatively appear from the record • that the accused himself was compelled to produce or give such evidence.</p> <p>2. SAME — Estoppel. Where the accused takes the witness stand in his own behalf and testifies that he never had in his possession the original copy of the alleged forged deed, which had theretofore been produced, he will not be permitted in this court to assert a claim that he was compelled to produce it.</p> <p>3. CRIMINAL LAW — Incriminating Evidence — Personal Privilege. Where defendant demanded a severance and was separately tried, the production of an alleged forged deed by one of his co-defendants not upon trial was not in violation of the constitutional privilege (section 21, art. 2, Const.) of the defendant on trial not to be compelled to give evidence tending to incriminate him. The privilege of noneompulsion is a personal one.</p> <p>4. EVIDENCE — Other Offenses — Guilty Knowledge or Intent— Scheme or Plan. Evidence of the forgery of another deed by the accused in connection with his co-defendants is admissible when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged, also when it tends to establish a single scheme or plan embracing the commission of two similar offenses so related to each other that proof of one tends to connect the defendant with the commission of the other.</p>

<p> Appeal from District Court, Okmulgee County; Ernest B. Hughes, Judge. </p> <p>Dug Crosby was convicted of the crime of burglary, and appeals.</p>

L. Brown, Judge. William Bell was prosecuted on information for attempt to commit rape upon a female under 16, and from an order setting aside the information and discharging defendant, the State brings error.

<p>APPEAL AND ERROR — Conviction—Evidence—Reversal. When an accomplice testifies in the trial of a criminal case to facts which establish the guilt of the defendant, and when other testimony-in the record clearly connects the defendant with the commission of the crime, and no proof is offered in defense tending to explain the incriminating facts, and a judgment of conviction results in the trial court, it will not be disturbed on appeal..</p>

<p> Error from District Court, Texas County; R. McMillan, Assigned Judge. </p> <p>• Israel L. Ennis was convicted of larceny, and he brings error.</p>

Error from County Court, Washington County; Robert D. Waddill, Judge. C. W. Neal was convicted of having possession of intoxicating liquor with intent to violate the law, and he brings error. .

<p>1. INTOXICATING LIQUORS — Nuisance—Sufficiency »f Evidence. Evidence examined, and held sufficient to sustain a judgment of' conviction for maintaining a liquor nuisance.</p> <p>2. EVIDENCE — Reputation—Liquor Nuisance. Where defendants are charged with maintaining a liquor nuisance, evidence of the-general reputation of the place, as to its being a place where intoxicating liquors were kept for sale, and where people congregated to drink the same, is admissible.</p> <p>3. INTOXICATING LIQUORS — Liquor Nuisance — Evidence. For other evidence held properly admitted, see body of opinion.</p>

<p>APPEAL AND ERROR — Escape from Custody — Dismissal. Where a defendant lias been convicted and sentenced, and perfects an appeal, this court will not consider liis appeal, uuless 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> Appeal from District Court, Pawnee County; L. M. Poe, Judge, </p> <p>W. W. Willis was convicted of manslaughter, and he appeals.</p> <p>This is an appeal from an action instituted in the dis- ' trict court of Pawnee county, State of Oklahoma, wherein W. W. Willis was convicted of the crime of manslaughter •and sentenced to imprisonment in the state penitentiary for a period of 15 years. The evidence discloses that H. E. Green, the deceased, was a man between 45 and 50 years of age, who weighed about 200 pounds, and who ■came to Oklahoma about the time of the opening of the strip and purchased a homestead, the land whereupon he met his death on the 23d day of August, 1913. The deceased had had considerable trouble with his neighbors. He had previously been adjudged insane and sent to the •asylum at Ft. Supply, Okla., and there remained for several years. His general reputation in the vicinity wherein he resided as to being quarrelsome, dangerous, and violent was bad. The defendant in the case became acquainted with Green prior to his being sent to the asylum. At that time the defendant and his family, which consisted of his wife and some five or six small children by his second wife, together with a couple of boys by a former marriage, resided on Green’s place in a small log cabin and picked cotton. The parties got along very well, and no trouble was encountered. The defendant had lived in that vicinity since that time, some seven or eight years prior to the death of Green. The defendant was about 54 years of age, and his physical condition, according to the testimony of an attending physician, was “below par.” The defendant was a man without means, and he and his family farmed with different people in that vicinity, the landlord furnishing the horses and the implements and sharing the crop. During the fall or winter of 1912, the deceased Green came to the defendant, who was living close to the Green farm, and desired to rent him his place, to furnish the horses and to make provisions for the defendant to care for certain stock to be left on the place by Green. Green said that he expected to leave, and was looking either for a position at Ft. Supply at the asylum or at an insane asylum in Kansas.</p> <p>The defendant rented the place where Green lived. The house, together wifh the other improvements, consisting of bams and outbuildings surrounding the same, was located almost in the center of the 160 acres of land. Green boarded with the defendant for some time in the •month of December, 1912, and continued to live in the same house with defendant and his family. Green failed to obtain a position, but stayed on and lived with defendant until about the month of April, 1913, at which time defendant was called to Springfield, Mo., as a witness. Up to that time no trouble had ever occurred. While the defendant was away, he left at the place Green, and defendant’s wife, and five or six small children, the oldest being a boy 12 or 13 years of age. immediately after the defendant went to Missouri, trouble arose between Green and the defendant’s wife, a scufflle occurred, and considerable difficulty arose over the same. The woman phoned ■to the officers at Pawnee, and an officer went down to the place and brought Mrs. Willis, and Green to Pawnee.</p> <p>Mrs. Willis conversed with the county attorney, related her facts, and was advised as to Green’s mental condition, going over the situation that he had been once adjudged crazy, and the w'oman, although not satisfied with the advice received, returned to Mannford. On the afternoon, as they returned to Mannford, the closest station to the home where these parties resided, the defendant, having arrived at Mannford from Missouri something like an hour or two before his wife and Green arrived from Pawnee, and being advised of the circumstances of the trouble between his wife and Green, went to the depot to meet his wife. From there they went to the hardware store of Walter Clifford, the defendant having ordered a team to take his wife and baby to their home, and Green appeared in front of the hardware store and called the defendant out. Some words were spoken and a fist fight occurred, in which the woman also engaged. Both Green and the defendant were arrested, and the defendant pleaded guilty and paid his fine, but Green pleaded not guilty. Some parties interceded for Green the next day for the reason they claimed Green had been once adjudged insane. The defendant Willis was sent for the next day and the differences settled, and it was agreed that Green should go back to the house, and there stay until a certain portion of work was done or the crop which he was planting could be attended to, and then he was to leave the place.</p> <p>Prior to leaving the place some trouble again occurred between Green and the defendant’s wife; Green having undressed himself one day out in the yard before-the woman and the little girl. Green left the place some time in May. The defendant came to the county attorney upon two occasions to consult him regarding the facts in the case, stating that he did not desire to have trouble, but that all he had of this world’s goods w<as his interest in the crop. He desired only the protection of himself and family from the indignities and abuse of Green. Several letters were passed. He made two visits to the county attorney’s office. He was advised of the abnormal-condition of Green, and he also advised the county attorney that there had never been any trouble between Green and himself; that the trouble all arose between Green and the family. Nothing was done during this visit to the county attorney. Green was not then on the place, but the defendant anticipated that he would return at any time, and that perhaps trouble might ensue. Green returned home some time in July. After he returned, it was not long until trouble again ensued.</p> <p>The defendant, although having the place leased, and supposed to have the use and occupancy of the house and the use of the team, finding that he was unable to agree or get along with Green, and Green insisting upon staying on the place, the defendant decided that he would move, and he went to Mannford and made arrangements with Walter Clifford, the owner of the hardware store, to purchase a tent and to move onto the 40 acres owned by the said Walter Clifford adjoining the.Green land. On or about the 13th day of August, 1913, he moved his wife and six children from the house on Green’s place and began living in a tent on Clifford’s place. At -the time of moving from the place to the tent, Green again had trouble with the family, and on that occasion assaulted a little boy about 13 years of age, and had a difficulty with Mrs. Willis, wjhile the defendant was away from the house moving the belongings to the tent. A day or two afterwards the defendant again came to the county attorney and informed him ■ of the trouble, and informed him that he had just moved and taken his family from the house to a tent, and had moved into the tent for the purpose of avoiding trouble. After talking it over with the county, attorney, he stated that as far as he was concerned he had always got along with Greén, but the trouble always arose between Green and his family, and that he and Green had agreed on a division of the crop. No action was taken at that time, as it was thought further trouble might be avoided because of the separation of the parties.</p> <p>The defendant and Green did not see each other, or there is no evidence that they ever met, from the day the Willises left until the day Green met his death. • The evidence discloses that upon that Saturday afternoon the defendant, with his son Brooks Willis (a son of his first wife, and about 19 years of age) and Marion Clifford, an old gentleman who was staying with Willis, took a bucket, a half bushel, and a gunny sack or two and started to the Green home for the purpose of gathering some vegetables •that belonged to the defendant; a sufficient amount to last them over Sunday. As they went across to ■ the Green place, which was adjoining the place where the tent was located, the defendant, with his son Brooks and the old gentleman, Marion Clifford, started across the place through the woods and pasture to the garden. In going o the place very close to the house they met Mr. Green, viho was then plowing. They stopped and talked in a friendly way with Green. Green suggested that he had some cider at the house; that he would drive up and they could all have a drink. He drove his team to the north of the house, and they all walked across the plowed ground to a large tree located some 20 or 30 feet from the house, where there was a keg partly filled with cider. They all seated themselves around the keg, and Green poured out some apple cider, and they drank; after taking a drink they sat down and again talked about the crops and general conditions, and Green poured out some more cider, and some of them took a second drink. Willis got up and suggested they had better go and get their vegetables, as he had expected to go up and look after some corn on the Green place. Apparently no quarrel arose and nothing was said. The old man Clifford, who had lived in that vicinity for many years and knew the mental condition Df Green, a few moments before the tragedy occurred got up and started home, and when the defendant got up and started around the tree Green got up and jerked a knife out of his pocket and told him he. was going to cut his heart out. The boy, Brooks, ran around the tree. Green also ran around to the south side of the tree where the old man was standing. Brooks stepped in between Green and defendant and pushed Green back, and Green immediately knocked him out of the way, and started for the old man Willis, and was only a few feet from him. Willis told him to stop, but Green refused and kept rushing at him with a knife in his hands; the defendant pulled the gun and shot. Four shots were fired, and Green fell im-nediately south of the tree. The defendant and his son got up, and after talking a little, the defendant suggested to the boy that he go to a neighbor’s and phone for the doctor and the sheriff, and the defendant started home. This the boy did not do, but followed his father home.</p> <p>After the defendant arrived home he went to a neighbor’s himself and told him the conditions and trouble, told what he had done, and asked the neighbor to phone for the doctor and for the sheriff. This, was done. The neighbors took care of Green. The defendant met the deputy sheriff of Creek county, went with him to Mann-ford, and came on the next day to Pawnee, and was placed in jail.</p> <p>The foregoing account of the facts and circumstances is necessarily taken from the statement of the defendant ■and his witnesses. There was no eyewitness to this tragedy favorable to the state. After mistrial the case was again set for trial, and in February, 1914, the jury returned a verdict finding Willis guilty of manslaughter in the first degree, and fixing his punishment at 15 years in the state penitentiary.</p>

<p>1. APPEAL AND ERROR — Procedure. An appeal may ■ be taken by tbe defendant, as a matter of right, from a judgment of conviction, but tbe manner of taking and perfecting sucb appeal is a proper matter of legislative control.</p> <p>2. SAME — Costs. Tbe plaintiff in error having failed to pay to tbe clerk tbe statutory $15 advance fees, and having failed and refused to file tbe proper affidavit showing that be is without means, and by reason of bis poverty unable to pay tbe costs of tbe appeal, a motion to dismiss will be sustained.</p>

<p>1. APPEAL AND ERROR — Costs of Transcript — Right of Accused When Poor Person. Iñ a criminal prosecution, where the defendant has been . convicted and desires to appeal, upon a proper showing made 'to the trial court that be is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an ox-der directing that this be done without expense to the defendant. ' ‘ •</p> <p>2. SAME — Reversal.- On appeal by transcript from a conviction for murder, it appearing from the record that the plaintiff in error was denied his constitutional and statutory right to perfect an appeal by case-made as a poor person, by reason of the refusal of the court to order the court reporter to furnish him with a transcript of the proceedings, and the testimony taken upon the trial, the judgment is reversed and a new trial awarded.</p>

<p> Appeal from District Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Durling S. Craddock was convicted of manslaughter-in the first degree, and he appeals.</p>

<p>INTOXICATING LIQUORS — Unlawful Sale — Evidence. In a prosecution for the unlawful sale of intoxicating liquor, the evidence considered, and held -sufficient to sustain the conviction.</p>

<p>EVIDENCE — Res Gestae. Circumstances and declarations contemporaneous with the main fact under consideration, or so nearly related to it as to illustrate its character, are admissible as parts of the res gestae.</p>

<p> Appeal from, County Court, Logan Coimtu; J. C. Strange, Judge. </p> <p>Paul Levy was convicted of gaming and appeals.</p>

<p>Petition of Jolin T. Johns and others,for writ of mandamus against Oonn Linn, District Judge. Case dismissed by .consent.</p>

<p>Appeal from County Court, Kiowa County; J. S. Carpenter, Judge. '</p> <p>Tom Trammell was convicted of violating the prohibitory law, and anneals.</p>

<p> Appeal from County Court, Beaver County; John A. Spohn. Judge. </p> <p>Walter Morris was convicted of petty larceny, and appeals.</p>

<p> Appeal from Superior Court, Olclahoma County; M. D. Oldfield, Judge. </p> <p>James Yowell was convicted of assault and battery, and appeals.</p>

<p> Appeal from County Court, Woodward County; Clyde S. Wyand, Judge. </p> <p>George Akins was convicted of petty larceny, and appeals.</p>

L. Buriyert. Judge. Action by the City of Enid against W. F. Austin and another. Judgment for the former, and the latter bring error.

<p> Appeal from County Court, Harmon County; B. C. Abernathy, Judge. </p> <p>R. M. Audas was convicted of torturing and killing an animal, and</p> <p>lie brings error.</p>

<p> Appeal from County Court, Oklahoma County; Win. II. hoick, Judge. </p> <p>Fred Cameron and Frank Pence were convicted of maintaining a liquor nuisance, and appeal.</p>