Volume 15 — Oklahoma Criminal Reports

<p> Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>G. A. Lewis was convicted of assault with intent to kill, and he appeals.</p>

M. M. Brantley was convicted.of manslaughter in the first degree, and he appeals. . M. M. Brantley was tried in the court below upon an information alleging that in said county on or about the 30th day of November, 1914, he did kill and murder one J. J. Ferguson by shooting him with a shotgun. The jury by their verdict found him guilty of manslaughter in the first degree, and assessed his punishment at imprison- ment in the penitentiary for the term of'28 years.

<p>1. APPEAL AND ERROR — Review—Discretion of Trial Court-Ruling on Motion. Where a motion is presented to the trial court which involves the exercise' of the court's discretion, and the evidence in support of and in opposition to said motion is conflicting, and apparently equally positive on each side of the controversy, the ruling on such motion by the trial court, denying said motion, will not be disturbed by this court, as in such an instance there cannot be said to be a showing of flagrant abuse of discretion by the trial court.</p> <p>2. INDICTMENT AND INFORMATION — Venue—Information. Information examined, and held, allegations are sufficient to show venue of the action to be in Muskogee county, Okla.</p> <p>3. EVIDENCE — Bank Books. Certain records and entries in hooks of account kept by certain banks, and other written evidence, were 'admitted in evidence over the objection and exception of the defendant. Held, properly admitted in this case.</p> <p>4. EVIDENCE — Means of Procuring. The admissibility of evidence is not affected by reason of the illegality of the means through which it may have been obtained.</p> <p>5. EMBEZZLEMENT — Sufficiency of Evidence. Evidence examined, and held sufficient to support the judgment.</p> <p>6. INDICTMENT AND INFORMATION — Charge of Distinct Felonies — Election. It is only when distinct felonies, not of the same character, are charged in different counts of the same indictment or information, that 'the state may be required to elect upon which count it will claim a conviction.</p>

M. Gustin, Judge, C. J. Crilley was convicted of simple assault, and his punishment fixed at a fine of $50 and costs, and he appeals.

<p> Appeal from District Court, 'Jackson County; Frank Mathews, Judge. </p> <p>B. W. Garrett was convicted of manslaughter in the first degree, and appeals.</p>

<p>Appeal from District Court, Cotton County; ' Cham Jones, Judge.</p> <p>Eldridge Boles and Pollard Howard were convicted of larceny, and appeal.</p>

<p> Appeal from District Court, Roger Mills County; T. P. Clay, Judge. </p> <p>D. J. Clark was convicted of grand larceny, and appeals.</p>

<p> Appeal from County Court, Noble County; A. Duff Tillery, Judge. </p> <p>James Tague was convicted of violating the liquor law, and appeals.</p>

<p> Appeal from County Court, Caddo■ County; . C. R. Johnston, Judge. </p> <p>George Childs was convicted of a violation of the prohibitory law, and he appeals.</p>

<p> Appeal from County Court, Carter County; Thos. W. Champion, Judge. </p> <p>Tom Ward was convicted of having illegal possession of intoxicating liquors, and appeals.</p>

Crump, Judge. Jess Brown was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years in the penitentiary, .and he appeals. Statement of the Case. J. B. Eaton was shot and killed by the defendant, Jess Brown, in Hughes county, Oklahoma, at the defendant’s home, on September 12, 1916. The shooting took place at the south side of the defendant’s house. Only one shot was fired.

W. Marshall, Judge. Arthur McAlester was convicted of the crime of unlawful possession of intoxicating liquors and his punishment fixed at a fine of $100 and imprisonment in the county jail for 60 days, and he appeals.

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

Appeal from District Court, Carter County; W. F. Freeman, Judge. Steve Talkington and Gus Talkington were convicted of violation of the prohibitory law, and appeal. Abated as to Steve Talkington, and dismissed as to Gus Talkington.

<p>1. EVIDENCE — Good Character — Reasonable Doubt. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and, when the proof lends to overthrow this presumption and to fix upon such defendant the presumption of guilt. he is permitted to support the original presumption of innocence by proof of good character. Such good character, when proven, is a circumstance tending in a greater or lesser degree to establish his innocence. It is of value, not only in doubtful eases, but also when the testimony tends strongly to establish the guilt of the defendant. When proven, it is a fact in the case, and it is not do be put aside by the jury in order to ascertain if the other facts and circumstances considered in themselves do not establish the defendant’s guilt beyond a reasonable doubt; but such good character, if proven, should be considered by the jury in connection with all the other testimony in the case, and the jury should acquit if the evidence of good character, alone or with tiie otlier evidence, creates a reasonable doubt as to the defendant’s guilt.</p> <p>Z. APPEAL AND ERROR — Reduction of Sentence. Under section 0008, Rev. Laws 1010, this court has the Rower, in the further- , anee of justice, to modify any judgment appealed from by reducing the sentence.</p>

<p>1. JURY — Challenge to Panel — Grounds. Remarks of the trial judge addressed to persons- summoned as petit jurors at the beginning of the term of court at which defendant was tried and convicted, form no ground of challenge to the entire panel of jurors. A ohal-lenge to the entire panel of petit jurors can be founded, in a criminal case, only on the grounds stated in section 5842, Rev. Laws 1910.</p> <p>2. TRIAL — Remarks of -Trial Judge. Remarks of the trial judge to the panel of jurors summoned at the beginning of the term at which defendant was convicted examined, and held not to be prejudicial to this defendant, but properly .within the scope of the trial court’s duties.</p> <p>3. APPEAL AND ERROR — Admission of Evidence — Harmless Error. In this slate the burden is upon the defendant on appeal, not only to show that the court erred in the admission of evidence, but also, in addition thereto, to satisfy this court that the admission of such evidence injured the defendant substantially.</p>

<p>1. CONTINUANCE — Discretion of Court — Absent Witnesses. An application for a continuance on account of absent witnesses is addressed to tbe discretion of the trial court, and a judgment of conviction will not lie disturbed because the trial court overruled such a motion, unless there appears to have been a manifest abuse • of discretion.</p> <p>2. SAME. Application and motion for a continuance and evidence in support thereof examined, and held, no abuse of discretion shown in overruling the same.</p> <p>8. JURY — Excusing Juror — Bias—Review on Appeal. Where the trial court on challenge by the state excuses a juror because of bias in favor of one of the defendants jointly on trial, and also because of his intimate acquaintance with the family of such defendant, his action in so doing was a matter of discretion, and unless there appears to hare been an abuse of discretion oil tbe part of the trial court, which operated to (lie prejudice and injury of the appellant, tbe judgment of conviction will not lie set aside.</p> <p>4. APPEAL AND' ERROR — Prejudice—Burden of Proof. Before this court is authorized to reverse a judgment of conviction, the burden is upon the appellant to show that error was committed in the trial prejudicial to his substantial rights.</p> <p>5. WITNESSES — Competency—Discretion of Court. The question of the competency of a witness under ten years of age is a matter addressed peculiarly to the discretion of the trial court.</p> <p>6. SAME — Testimony of Infant. Where no abuse of discretion appears in permitting a witness under ten years of age to testify in behalf of the state, this court is not authorized to reverse a judgment of conviction upon that ground.</p> <p>'¡. EVIDENCE — Expression of Opinion. Upon the trial, a deputy sheriff, who arrested this defendant some five or six hours after the alleged crime had been committed, was permitted to testify that at the time of such arrest, the defendant was intoxicated. Held, that an objection to such testimony upon the ground that it was error to permit the said officer to express his opinion as to the intoxicated condition of the defendant is not well founded.</p> <p>8. APPEAL AND ERROR — Objections by Codefendant. Where two or more persons are being jointly tried and certain evidence applicable to only one of such defendants is admitted without objection or exception by either of the other defendants, it is too late, after conviction, for one of said defendants to whom such evidence was not applicable to first urge that the court erred in admitting such testimony as to him.</p> <p>9. EVIDENCE — Expert Evidence — Firearms. The. subject of firearms and the size of bullets shot by different kinds of pistols is a proper subject upon which to permit a qualified person to express an opinion, where such opinion is material to the issues involved in the trial.</p> <p>10. APPEAL AND ERROR — Remarks of Prosecuting Attorney— Failure to Object — Review. Where certain remarks of the county attorney in argument to the jury are not such as are made grounds for reversal by statute, and there was no motion.to exclude such remarks from the consideration of the jury, nor any ruling of the trial court adverse to the defendant to which an exception was saved at the time, there is no question presented for this court to consider.</p> <p>11. EVIDENCE — Proof of Motive. Proof of motive, while not indispensable, is always permissible where the intent of the defendant in the commission of the 'act is at issue.</p> <p>12. HOMICIDE — Indictment and Information — Conspiracy—Instructions — “Principals.” In a prosecution for homicide alleged to have been committed by two or more persons, it is not necessary for the indictment, or information, to charge a conspiracy to commit murder. All persons concerned in the commission of crime in this state, whether they directly committed the act, or aid and abet in its commission, though not present, are “principals,” and they may be indicted, or informed against, and tried as such. Under such an indictment, or information, where the proof would tend to sustain the inference that a conspiracy existed between the said principals to commit the alleged crime, it was appropriate for the trial court to give an instruction upon the subject of conspiracy to murder.</p> <p>13. APPEAL AND ERROR — Instructions—Harmless Error. Instruction on conspiracy to murder examined, and held clearly harmless as to this defendant under the facts of the case.</p>

<p>E. T. Butler brings writ of habeas corpus to be admitted to bail.</p>

<p>APPEAL AND ERROR — Affirmance. 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.</p>

<p> Appeal from County Court, Cotton County; J. C. Norman, Judge. </p> <p>G. H. Jones, convicted of a violation of the prohibitory law, appeals.</p>

<p>1. TRIAL — Instructions—Insanity. An instruction upon tlie issue of insanity, when that issue is properly raised, should be given in compliance with the rule laid down in Adair v. State, G Okla. Cr. 284, 118 Pac. 410, 44 L. It. A. (X. S.) 119.</p> <p>2. SAME — Insanity—Instructions—Burden of Proof. An instruction given in the following language: ‘‘You are instructed that the defendant has interposed as one of his defenses in this case the plea of insanity. When that defense is interposed the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity at the time of the alleged offense; and if from all the evidence in the case there is a reasonable doubt in your minds as to the sanity of the defendant at. the time it is charged that he committed the offense, you will return a verdict of not guilty” — is unfair to the accused, in that it fails to say that if he meets the burden of introducing sufficient proof to raise a reasonable doubt as to his sanity, the law imposes on the state the burden of establishing the sanity of the accused, the same as any other material fact, to warrant a conviction. The law requires the state in this class ot-eases, if sufficient proof has been introduced to raise a reasonable doubt as to the insanity of the accused, to meet that issue by introducing sufficient competent proof to establish the sanity of the accused beyond a reasonable doubt.</p> <p>, 3. APPEAL AND ERROR — Instructions—Harmless Error. When a person is tried upon a criminal charge, interposes a plea of insanity as a defense, and fails to introduce competent proof suf- ■' ficient to establish the issue or raise a reasonable doubt thereof, the giving of an instruction which would have been prejudicial if the issue had been properly raised becomes harmless.</p>

<p>APPEAL AND ERROR — Harmless Error — Instructions. The letter and spii'it 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 erroneous instructions were harmless, for the reason that the defendant by his testimony admitted the facts necessary to a conviction.</p>

<p> Appeal from District Court, Pontotoc County; Thos. D. McKeown, Judge. </p> <p>Wallace Daggs was convicted of mayhem, and he appeals.</p>

<p> Appeal from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>W. F. Lloyd was convicted of assault, and he appeals.</p>

<p>J. TRIAL — 'Demurrer to Evidence. A demurrer to the evidence is properly overruled, when there is competent evidence from which a deduction of guilt can be reasonably drawn.</p> <p>2. LARCENY — Proof—Possession of Stolen Property. Proof of the possession of stolen property is alone not sufficient to warrant conviction, but where there is other proof supporting the inference sufficient to warrant submission of the issue to the jury, this court will not disturb their findings thereon.</p> <p>3. TRIAL — Private Prosecuting Attorney. The assistance of private counsel in the trial of a criminal cause in this jurisdiction is not prohibited by law, and when the county attorney in the county 'in which the cause is pending institutes the proceeding and controls the trial of the ease, there is no error in permitting other counsel to appear, examine the witnesses, or assist in any other manner in a due and orderly conduct of the trial.</p> <p>4. APPEAL AND ERROR — Reversal—Instruction. A reversal of a judgment of conviction will not be granted in this court on the ground that an instruction in the following language: “When the fact of tlie theft lias been shown, and the question is whether or not the defendant committed it, his possession of the stolen property at a time not too long after the stealing is a circumstance for the .-jury to consider and weigh in connection with all the other evidence, acts, and circumstances in the case. Its significance will vary with its special facts and with the other facts of the case, among which are the nearness or remoteness of the proven possession of the larceny, the nature of the property as passing readily from hand to hand or not, together with such other facts and circumstances as would reasonably influence the opinion of the jurors as to the guilt or innocence of the defendant” — does not have coupled with it a specific instruction to the effect that the possession of the stolen property alone would not warrant a conviction.</p> <p>5. SAME — Evidence—Sufficiency. When there is competent proof offered tending to establish the fact that the property alleged to have been stolen in a grand larceny case exceeded $20.00 in value, tiiis court will not disturb the findings of the jury on that ground, although a different conclusion could also have been reached.</p>

C. Norman, Judge. Lester Keeter was convicted of the crime of unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days, and he appeals.

Appeals from District Court, Coal County; J. H. Linebaugh, Judge. Vincent Kernel was convicted of manslaughter in the first degree on two separate .informations, and from the judgments he appeals.

<p> Appeal from District Court, Mayes County; Preston S. Davis, Judge. </p> <p>Cull Swimmer was convicted of felonious assault, and he appeals.</p>

<p>ABATEMENT OF PROSECUTION — Death of Accused. After appeal from a conviction, and on the state’s motion to abate proceedings, supported by proof of the death of appellant, it will be ordered that all proceedings abate, with direction to the trial court to enter an order to that effect.</p>

<p>CRIMINAL LAW — Production of Incriminating Evidence. Where tlie trial court orders tile defendant to produce in open court the original deed which the defendant is charged with having forged, and where, because of said order, defendant’s counsel, objecting and- excepting to the court’s action, produce said original deed theretofore obtained from the defendant, and where the trial court subsequently permits the state over the objection and exception of defendant to introduce said original deed in evidence against him, section 21, art. 2, Constitution, providing. “No perso'u shall lie compelled to give, evidence tending to incriminate him,” is violated.</p> <p>SAME — Immunity from Prosecution. Por reasons holding that the trial court did not err in overruling defendant’s plea of immunity against prosecution, see body of opinion.</p>

W. Woodford, Judge. Dan Ward was convicted of the offense of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $250 and imprisonment, in the county jail for 90 days, and he appeals.

<p>1. INDICTMENT AND INFORMATION — Commencement of Prosecution. Prosecutions for crime in courts of record must be either by indictment or information.</p> <p>2. SAME — Verified , Complaint — Sufficiency—Plea of Not Guilty. While a verified complaint filed in the court of record may be sufficient to authorize the issuance of a warrant of arrest for the person accused, it is not sufficient as an accusation upon which a criminal trial may be based in courts of record. A pica of not guilty to a verified complaint in a court of record presents no issue for the court to'try. .</p> <p>3. TRIAL — Defective Information — Joinder of Issue. Where it is apparent from the record that, after the defendant has been arrested on a verified complaint in a court of record and has pleaded not guilty thereto, the county attorney subsequently files with the papers in the case an information charging the offense, without the knowledge of the defendant and without notice to him or his counsel that same had been filed and without any filing mark having been placed thereon, and without any plea having been entered by the defendant to said accusation, it is error for the trial court to proceed, over the objection and exception of the defendant, to try him upon such an accusation without any issue having been first lawfully joined.</p>

<p>1. JURY — Challenge for Cause. — Formed Opinion — Question of Law. Tlio issue raised upon a challenge for .cause lo a juror in u criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he lias expressed an opinion, is one of mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.</p> <p>2. SAME — Expression of Opinion — Statute. The mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief.' is not a legal ground of challenge for cause. In order to disqualify the juror there, must be “the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the, party challenging.” Section f)8i)8, Itcv. Laws 19'iO.</p> <p>3. EVIDENCE — Self-Serving Declarations — Res Gestae. In a prosecution for murder, self-serving declarations of the defendant, made about three minutes after the homicide and in reference to it. held properly excluded as self-serving and as no part of (he res gestae.</p> <p>4. WITNESSES — Cross-Examination—Character Witness — Reports. A witness to good character may he, asked on cross-examination whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove. This is admissible, not for tiie purpose of establishing the truth of such reports, but .to tost the credibility of the witness and to determine the weight of his evidence: However.' such reports, to be admissible, must be confined to a time.previous to the commission of the crime charged.</p> <p>5. APPEAL AND ERROR — Argument of Prosecuting Attorneys— Review — Affidavits. Improper remarks made 1 by the prosecut-’ ing attorney in his argument to the jury must be incorporated in the case-made by transcript or bill of exceptions allowed and signed by the trial judge before they can be considered oil appeal. Such remarks cannot be presented by affidavit unless it appears from the record that, the trial judge refused to have such remarks taken down by the stenographer.</p> <p>6. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the first degree.</p>

H. Lineb'augh, Judge. C. A. Temple was convicted oí cattle theft, and he appeals. The plaintiff in error, Temple, and Ben Jordon were jointly informed against for the theft of two steers, the property of C. C. Stewart. A severance was granted and the state elected to first try the defendant Jordon. He was tried, convicted, and sentenced to the penitentiary for a term of ten years.

<p>1. ESCAPE — Information—Sufficiency. Information examined and held, allegations thereof are insufficient to charge an offense under section 2198, Revised Laws 1910.</p> <p>2. FORMER JEOPARDY — Demurrer. Section 5795. Revised Laws 1910. construed, and held, where the trial court sustains a demurrer to an information in a criminal case, and fails to order or direct that a new information bo filed charging the sanie offense, the judgment sustaining the demurrer to the information is final, and the accused may not be subjected to another prosecution for the same offense.</p>

<p>ABATEMENT OF PROSECUTION — Death of Accused. Where pending writ of error in a criminal proceeding, plaintiff in error dies in the penitentiary, the proceeding abates.</p>

<p>ABATEMENT OF PROSECUTION — Death of Accused ’ In a criminal prosecution, the purpose of the proceeding being 'to punish the defendant in person, the action must necessarily abate upon liis death; and where it is made to appear to the court that a plaintiff in error has died, pending the determination of ids appeal, the cause will 1)0 abated.</p>

<p>APPEAL AND ERROR — Failure to Prosecute Appeal — Affirmance. Where appeal from conviction had been pending since May 14, 1917, and cause was submitted On November 12. 1918. Attorney (reneral's motion to affirm for failure to prosecute would lie granted, where an examination of record, in the absence of defendant’s brief or appearance for oral argument, convinced court that appeal was without merit.</p>

Appeal from County Court, Wagoner County; J. C. Pinson, Judge. V. T. Tittle and Newton Fields were convicted for unlawful possession of intoxicating liquors, and they appeal.

<p> Appeal from County Court, Pushmataha County; A. W. Risen, Judge. </p> <p>Otto Childers was convicted of a violation of the prohibition law, and he appeals.</p>

<p> Appeal from County Court, Seminole County; D. G. Hart, Judge. </p> <p>Hale Armstrong was convicted of an unlawful sale of intoxicating liquor, and he appeals on á case-made.</p>

F. Freeman, Judge. Dave Slate was convicted of manslaughter in the first degree, his motion for new trial was overruled, and he appeals.

<p> Appeal from County Court, Pittsburg County; S. F. Brown, Judge. </p> <p>Belle Venters was convicted of a violation of the prohibition law, and she appeals.</p>

County Court, Pittsburg County; S. F. Brown, Judge. Joe Duca was convicted in the county court of Pitts-burg county of the crime of unlawful possession of intoxicating liquors, and he appeals.

<p> Appeal from County Court, Tulsa County; H. L. Standeven, Judge. </p> <p>J. M. Harris and Carl Burton were convicted of a violation of the prohibitory law, and they appeal.</p>

<p> Appeal from County Court, Grady County; R. E. Davenport, Judge. </p> <p>R. D. Fletcher was convicted of a violation of the prohibition law, and he appeals.</p>

<p> Appeal from, County Court, Okmulgee County; Dudley C. Monk, Judge. </p> <p>R. L. Cotton was convicted of the crime of conducting a disorderly house, and he appeals.</p>

<p> Appeal from District 'Court, Carter County; W. M. Freeman, Judge. </p> <p>Billy Kliensmith was convicted of conducting a gambling game, and he appeals.</p>

T. Johnson, Judge. Bud Foster was convicted of the crime of false pretenses and sentenced to be imprisoned in the state penitentiary at McAlester for a period of six months, and he appeals.

<p>APPEAL AND ERROR — Conviction—Affirmance. On defendant’s appeal by filing a petition in error with ease-made, where, no brief was filed or oral argument made, and where an examination of record disclosed that appeal was without merit, it would be affirmed on motion of Attorney General.</p>

L. Standeven, Judge. Sam Harris was convicted of the crime of unlawfully selling intoxicating liquor, his punishment fixed at a fine of $50 and thirty days’ imprisonment, and he appeals. Affirmed.

Appeal from County Court, Carter County; Thomas W. Champion, Judge. J. C. Boggess was convicted of the crime of vagrancy and sentenced to pay a fine of $50, and he appeals.

<p> Appeal from County Court, Choctaw County; W. T. Glenn, Judge. </p> <p>Samuel Arnold, convicted of a violation of the prohibitory law, appeals.</p>

<p> Appeal from District Court, Grady County; Will Linn, Judge. </p> <p>Fred Hardeman was convicted of burglary in the first degree, his motion for a new trial was overruled, and he brings error.</p>

Edwards, Judge. Elmer Albert Dunn was convicted of perjury, his motion for new trial was overruled, and he brings error.

<p>1. INDICTMENT AND INFORMATION — Time of Offense — Demurrer, Whan time is not the essence of the offense charged, an indictment or information which alleges that the offense was „ committed during the months of July and August, 1916, is not subject to demurrer on the ground that the same is too indefinite as to time.</p> <p>2. SAME — Place of Offense. An indictment which avers that, the offense was commuted by permitting a dwelling on the west side of Main street in the town of Commerce, in the county of Ottawa and state of Oklahoma, to be used as a place for y 'rsons to visit for the purpose of unlawful sexual intercourse, sufficiently avers the place where the offense is charged to have been committed.</p> <p>3. DISORDERLY HOUSE — Offense—Sufficiency of Indictment. Au indictment, which alleges that during the months of July and August, 1916, the defendant owned and controlled a house in the town of Commerce, in Ottawa county, Okla., and let sa:.d building, knowing that it was to be used for the purpose of persons to visit for unlawful sexual intercourse, charges an offense under s 'ction 2469, Rev. Laws 1910.</p> <p>4. SAME — Offense—Sufficiency of Evidence. Where the uncontra-clicted evidence shows that the own'n- of n building, controlled by him, rented same by the week to persons engaged in prostitution, and after the expiration of the first week of such renting was informed that said building was being used by its occupants for the purpose of prostitution, and the accused continued to rent said building to the same tenants, against the protests and objections of persons living adjacent to said house, the evidence sufficiently supports a judgment of conviction for permitting a building to be used for the purpose of unlawful sexual intercourse.</p>

<p> Appeal from County Court, Okmulgee County; Dudley C. Monk, Judge. </p> <p>Arthur Barnes was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p>1. LARCENY — Corpus Delicti — Sufficiency of Evidence. Evidence examined, and held .sufficient to establish the corpus delicti of the crime of grand larceny.</p> <p>2. APPEAL AND ERROR — Evidence—Voluntary Confessions — Burden of Proof — Burden of Establishing Error. Voluntary confessions made by the defendant are admissible in evidence. Where confessions of defendant are admitted in evidence, the burden is upon the appellant in this court to show affirmatively that any such confession was obtained by compulsion or duress, and in such a manner as to violate the defendant’s constitutional privilege against self-incrimination. Where there is a conflict between the evidence for the state and that for the defendant as to whether or not a confession was voluntarily made, and the trial court admits evidence of such confession without objection or exception thereto, the burden upon appellant of affirmatively establishing error is not sustained.</p>

<p> Appeal from Superior -Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Jones Cantrell was convicted of a violation of the prohibitory law, and he appeals.</p>

Appeal from County Court, Grady County; R. E. Davenport, Judge. W. G. Dobbs and Joe Bennett were convicted of violating the prohibitory liquor law, and they appeal.

<p>CRIMINAL LAW — Habitual Criminal — Insufficiency of Evidence— Former Conviction. In a prosecution under tbe Habitual Criminal Act, held evidence insufficient to support the verdict and >judgment of conviction, in that no proper or competent proof of a former conviction was introduced in evidence.</p>

<p>EVIDENCE — Accomplice Testimony — Sufficiency of Coito oration. In a prosecution for assault with intent to kill, the evidence considered, and held, that the testimony of an accomplice was suf-iiciently corroborated by testimony tending to connect the defendant with the commission of the offense.</p>

Pittman, Judge. Loren Johnson and Ed Wilder were jointly tried and convicted in the superior court of Pottawatomie county of the crime of conjoint robbery, and punishment fixed at imprisonment in the state penitentiary for a term of ten years each, and each appeals. Loren Johnson and Ed Wilder were jointly charged and convicted of the crime of conjoint robbery committed in Pottawatomie county on or about the 29th day of January, 1916.

<p>CRIMINAL LAW — Instruction—Reasona le Doubt. An instruction in the following language: “The court instructs the jury that if, after •hearing ail the evidence introduced, you entertain a reasonable doubt as to the guilt ‘or innocence’ of the defendants, you must give defendants the benefit of the doubt and acquit them” — is error.</p>

A. Brown, Judge. Nathan Byars was convicted of selling whisky to a minor, his motion for new trial was overruled, and he appeals.

<p> Appeal from District Court, Pittsburg County; Mark L. Bozarth, Judge. </p> <p>Will Ervin was convicted of manslaughter in the first degree, and he appeals.</p>

<p>WITNESSES — Credibility—Cross-Examination. It. is prejudicial error for the court, on cross-examination of a witness, to sustain objections to any question as to the witness’ social connections and manner of living, or any question which tends to explain, contradict, or discredit any testimony given by the witness in chief, or to show that the witness has been convicted of crime, for the purpose of affecting the credibility of the witness.</p>

<p> Appeal from District Court, Creek County; Ernest B. Hughes, Judge. </p> <p>William S. McCray was charged by information with the crime of unlawfully and maliciously destroying a written instrument, the property of another. Demurrer to amended information sustained, and the state appeals.</p>

Appeal from District Court, Grady County; Will Linn, Judge. Fender Polk was convicted of assault with a dangerous weapon, his motion for new trial was overruled, and he appeals.

Pitchford, Judge. Frank Anthony was convicted of larceny of live stock and sentenced to serve a term of two years in the penitentiary, and he appeals.

<p>PRELIMINARY EXAMINATION — County Judge — Jurisdiction—Change of Venue. A county court or judge exercising jurisdiction as an examining magistrate loses jurisdiction of a cause when the defendant, or some one for him, files an affidavit; that he lias reason to believe and does believe that he. cannot have1 a fair and impartial examination before said county judge. Ilis duty in the canse thereafter is purely ministerial, and he can only enter a proper order transferring the cause to another r .agistrato as I he statute provides.</p>

W. Clark, Judge. Cecil Proctor was convicted of keeping a place with intent and for the purpose of unlawfully selling, bartering, and giving away intoxicating liquors, and he appeals.

<p>1. RECEIVING STOLEN GOODS — Conviction — Knowledge. To sustain a conviction of receiving property recently stolen, knowing it to have been stolen, it must be shown by direct or circumstantial evidence, beyond a reasonable doubt, that at the time defendant received such property he knew it had been stolen.</p> <p>3. TRIAL — Proof of Elements of Crime — Directed Verdict. When ■the evidence fails to show every essential element of a crime charged, the court, on proper motion, should direct a verdict for defendant.</p>

Crump, Assigned Judge. ' Syl Klein was convicted of larceny of live stock and sentenced to serve a term of two years in the state penitentiary, and appeals.

<p> Appeal from District Court, Custer County; James R. Tolbert, Jugde. </p> <p>Wes Cole was convicted of harboring fugitives from justice, and he appeals.</p>

<p>1. ASSAULT AND BATTERY — Construction of Verdict — Sentence— Jurisdiction. A verdict finding the defendant “guilty of assault with intent to do bodily harm” is in law only a finding of an assault, and did not give the trial court jurisdiction to sentence the defendant to seiu/e a term in the penitentiary.</p> <p>2. JUDGMENT AND SENTENCE — Verdict. All judgments and sentences must follow and be based upon the verdict of the jury.</p>

E. Dudley, Judge. Sam Harris was convicted of the crime of assault with intent to kill and sentenced to serve a term of three years in the state penitentiary, and he appeals.

Hughes, Judge. Information' by the State against William S. McCray, charging the crime of grand larceny. From a judgment sustaining a demurrer to the information, the State appeals.

<p> Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge. </p> <p>Clyde Salyers was convicted of manslaughter in the first degree, and he appeals.</p>

H. Huston, Judge. Frank Tatum was convicted of keeping a place for unlawful sale, etc., of intoxicating liquor, and he appeals.

<p>1. PERJURY — Falsity of Statement — Knowledge of Falsity. To constitute perjury, the statement made must not only lie false, hut the party making it must know it to be so.</p> <p>%. SAME — Requisites of Offense. Perjury consists in swearing willfully and corruptly, contrary to the belief of the witness, and not. in swearing rashly and inconsiderately according .to his belief.</p> <p>3. EVIDENCE — Explanation of Defendant’s Intent — Perjury. Upon a trial for perjury, it is reversible error for the. court to refuse to permit the defendant to testify as to his intent and purpose to swear falsely as to the facts sworn to by him upon which perjury charged is based.</p>

<p>INDICTMENT AND INFORMATION — Sufficiency. Where the information avers every element of the offense charged, and fully informs the defendant of the charge he is called upon to meet, it is sufficient.</p> <p>APPEAL AND ERROR — Admission of Immaterial Evidence— Prejudice. The admission of evidence not germane to the issue involved, but which in no wise tends to show the guilt of the defendant, while not approved, is not prejudicial error.</p> <p>EVIDENCE — Preliminary Evidence — Transcript—Signature by Witness. Upon the examining trial of the defendant, I. C., a witness, was examined and cross-examined by the defendant, and the evidence of said witness taken down in shorthand, and a transcript thereof made, without being signed by said witness, and in the absence of proof that the stenographer who took such evidence was an official stenographer, or as to who filed the transcript in said trial court. On the trial of the case, and preliminary to the admission of said transcript of the evidence of said witness, it was proven that a subpoena had duly issued for said witness, and had been returned not found, and that the officer in whose hands said subpoena was placed made diligent search for said witness in the county in which said subpoena issued, and in several other counties in the state, and could not find him, and that said officer had been informed that said witness I. O. had left the state and gone to Kentucky. Held, (1) that the law does not designate who at an examining trial may take “in shorthand'’ ’the evidence of a witness, and any stenographer may do so, and a transcript of such evidence, without being signed by the witness, upon a proper predicate being laid therefor, may be legally admitted in evidence; (2) that, in the absence of evidence to the contrary, a transcript of the evidence of a witness taken at an examining trial and filed in a district court must be presumed to have been filed by the examining magistrate, as provided by section 6623, Comp. Laws 1909 (section 5674, Rev. Laws 1910), as amended by chapter 6S, Session Laws 1913: (3) that the transcript of the evidence of the witness taken at¡ the examining trial of the defendant was properly admitted in evidence in this case.</p> <p>4. EVIDENCE — Hypothetical Question — Inclusion of Matters Not in Testimony — Exclusion of Material Testimony. Hypothetical questions propounded to expert witnesses, which do not include all of the material testimony, or which include matters not in testimony in the case, are properly not permitted to be answered.</p> <p>5. HOMICIDE — Mutual Combat — Degree of Offense. When the defendant voluntarily and willfully enters into a mutual combat in which he intentionally takes the life of his adversary, such killing will be none the less murder or manslaughter because the difficulty arose suddenly, or because the defendant may have been reduced to imminent peril during the progress of said difficulty.</p> <p>6. TRIAL — Directed Acquittal — Sufficiency of Evidence. When there is sufficient evidence, though the evidence be in conflict, to establish the guilt of the defendant beyond a reasonable doubt of the offense charged in the information, or of any off .'use included in the offense charged therein, a request for a verdict, of acquittal is properly denied.</p> <p>7. HOMICIDE — Manslaughter in First Degree — Sufficiency of Evidence. The entire record in this case, carefully read and considered and found free from prejudicial error, and that there is sufficient evidence to fully sustain the verdict, in finding the. defendant guilty of manslaughter in the first degree.</p> <p>8. WITNESSES — Credibility—Conviction of Crime. To test the-credibility of a witness he may be asked on cross-examination as to his having been convicted of any crime.</p> <p>9. TRIAL — Instructions — Request—Necessity. If the instructions given as to defendant’s aggression or his bringing on the difficulty and as to his right, of self-defense were not sufficiently plain and correct, instructions further explanatory thereof should have been requested.</p> <p>10. SAME — Requested Instructions — Given Instructions. Requested instructions are properly refused where fully covered by the instructions given.</p> <p>11. APPEAL AND ERROR — Harmless Error — Announcement of Penalty. That the court, announced the penalty upon the return of the verdict was not prejudicial to defendant where the sentence, as shown by the record, was not imposed until after the time provided by law in which it should be done.</p>

W. Clark, Judge. Fred Cameron was convicted of keeping a place with the intention and for the purpose of selling intoxicating liquors, and he appeals.

<p>KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Syllabus tlie same as in No. A-2331, Protctor v. State, 15 Olcla. Or. 33'8, 17(5 Pae. 771.</p>

H. Hmton, Judge. Claud Goodpasture was convicted of keeping- a place for the purpose of selling intoxicating liquors, and he appeals.

H. Huston, Judge. Chris L. Glacken was convicted of keeping a place for the unlawful sale, etc., of intoxicating liquor, and he appeals.

H. Huston, Judge. John Pinchback and Albert Stephens were convicted of keeping a place with the intent and for the purpose of selling intoxicating liquors, and they appeal.

<p>KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Syllabus the same as in No. A-2381, Proctor v. State, 15 Okla. Or. 838, 176 Pac. 771.</p>

L. Swigert, Judge. W. T. Boyd and Guy Smith were convicted of having unlawful possession of intoxicating liquors with intent to sell same, and they appeal.

<p> Appeal from District Court, Tulsa County; W. J. Campbell, Assigned Judge. </p> <p>Louis Jacobs was convicted of keeping a place for sale of intoxicating liquors, and appeals.</p>

Appeal from District Court, Garfield County; James B. Cullison, Judge. E. M. Bond was convicted of keeping a place for the sale of intoxicating liquors, and appeals.

<p>KEEPING PLACE FOR SALE OF INTOXICATING LIQUOR. Sylla- ■ bus the same as in No. A-2331, Prcctor v. State, 15 Okla. Cr. 338, 176 Pac. 771.</p>

<p> Appeal from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Charles McKnight was convicted of keeping a place for the sale of intoxicating liquors, and appeals.</p>

County; R. B. Forrest, Judge. George Fortner was convicted of having unlawful possession of intoxicating liquors with the intention of violating the prohibitory liquor laws of this state, and he appeals.

<p> Appeal from District CouH, Oklahoma County; Frank Mathews, Assigned Judge. </p> <p>Earl Thayer was convicted of stealing an automobile, and anneals.</p>

<p> Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>Ed Hartwell was convicted of larceny of live stock, and sentenced to serve two years in the state penitentiary, and appeals.</p>

<p> Appeal from District Court, Pushmataha County; C. E. Dudley, Judge. </p> <p>Edward Hembree was convicted of murder, and appeals.</p>

<p>1-7. INDICTMENT AND INFORMATION — Homicide — Companion Case. The syllabus in this case is the same syllabus as that in its companion case of Joe Davis v. State, No. 2619, ante. p. 386, 177 Pac. 621, recently affirmed by this court, with the addition of the following paragraph. ■></p> <p>8. WITNESSES — Testimony—Variance. Where a witness was ex-examined and cross-examined by the defendant at a preliminary examination, and at a subsequent mistrial of the case, but is absent at the final trial of the case and without the jurisdiction of the trial court, upon a proper predicate having been laid therefor, the state may legally introduce the transcript of such witness’ testimony given at the preliminary trial, and if the defendant desires to attack the credibility of such witness, because of a material variance between his evidence at the preliminary trial and that at the mistrial, he may introduce such parts of such evidence given at the mistrial as show variant statements from those given at the preliminary trial.</p>

<p>1. HOMICIDE — .Manslaughter in First Degree — Sufficiency of Evidence. In a homicide case the evidence considered, and held sufficient to support the verdict of manslaughter in the first degree, and that no reversible error was committed on the trial.</p> <p>2. ARREST — Homicide—Commission of Offense — Resistance—Degrees. A peace officer has the right without a warrant to arrest a person who is committing 'a public offense in his presence, and a person so arrested has no lawful right to resist. The officer being in the right, and in the discharge of his duty, the person resisting arrest does so at his peril, and in so doing if he kills the officer, he is guilty of murder, if he knew that the person attempting to make the arrest was an officer, and guilty of manslaughter in the first degree if he did not know it.</p>

<p>1. APPEAL AND ERROR — Assignment of Error — Sufficiency—Instructions. Where counsel for plaintiff in error incorporate in their brief only detached parts of a paragraph of the court's instructions as alleged error, and do not present the entire paragraph of the court’s instructions, and treat it in its relation to the entire charge, this court will not review such an alleged assignment of error, as the charge of the court must be considered as a whole and not piecemeal.</p> <p>2.' SAME — Consideration of Assignment of Error. Unless an inspection of the entire record shows some fundamental error not assigned, only such errors as are argued in defendant’s brief will be considered, as errors not argued will be regarded as abandoned.</p> <p>3. HOMICIDE — Instructions—Sufficiency of Evidence. The instructions given by the court in this ease are free from prejudicial error, and the evidence fully supports the verdict of the jury* and all the errors argued in defendant’s brief are without merit.</p>

<p>1. CONTINUANCE — Cumulative Evidence. When a motion for continuance is interposed upon the ground of the absence of material witnesses, and the record discloses the fact that the testimony of such witnesses would be cumulative, this court, as a general rule, will not interfere with the order of the trial court overruling such motion.</p> <p>2. APPEAL AND ERROR — Sufficiency of Evidence. Where there is competent evidence in the record from which the jury could rationally conclude that the crime has been committed as alleged, ancl that the defendant is guilty thereof, a verdict will not be dis turbed upon the ground that it is contrary to the evidence.</p> <p>3. APPEAL AND ERROR — Harmless Error — Remarks of County Attorney. Where objection was made to the argument of the county attorney, and the court promptly sustained said objection, and there was no request to withdraw such remarks from the consideration of the jury, and the remarks of the county attorney are not made statutory grounds for reversal, but are apparently improper, this court will not reverse or modify a judgment of conviction therefor, where it is apparent from a consideration of the entire record that the defendant was in no wise prejudiced thereby.</p> <p>4. JUDGMENT AND SENTENCE — Place of Imprisonment. All persons convicted of a felony in this state may be sentenced by the trial judge to serve the term for which the jury has convicted either in the state penitentiary, located at McAlester, or in the state reformatory, located at Granite, in the discretion of the trial judge passing sentence.</p> <p>5. APPEAL AND ERROR — Assignments of Error — Citation of Authorities — Review. It is necessary for counsel for plaintiffs in error not only to assert error, but to support their contentions by both argument and the citation of authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that the trial court has erred.</p>

<p> Appeal from District Court, Okfuskee County; George C. Crump, Judge. </p> <p>Horace Simmons was convicted of assault with intent to kill, and brings error.</p>

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

<p> Appeal from District Court, Greer County; R. W. Higgins, Assigned Judge. </p> <p>T. S. Wilcox was convicted of crime, and he appeals.</p>

<p>1. HOMICIDE — Conviction—Degree—Complaint. Where a defendant is placed on trial for murder and convicted .of manslaughter in the second degree, lie cannot legally complain because convicted of a less crime than the evidence shows him to have, been guilty of.</p> <p>2. APPEAL AND ERROR — Failure to Argue — Assignments—Consideration. Errors assigned in the petition in error, but not argued in defendant’s brief, will be regarded as abandoned, and will not be considered, unless such errors as are not argued in ' defendant’s brief present fundamental error.</p> <p>3. HOMICIDE — Prejudicial Error. Upon a full consideration of errors argued in defendant’s brief, it is found that no prejudicial error intervened in his trial.</p> <p>4. SAME — Manslaughter in Second Degree — Sufficiency of Evidence. Evidence held to sustain a conviction of manslaughter in the second degree.</p>

M. Threadgill, Judge. G. A. Johnson was acquitted in the county court of Coal county of the offense of setting up and operating a slot machine in violation of law, and the State appeals on a reserved question of law. Question decided in favor of the State.

<p>1. OBSTRUCTING JUSTICE — Prosecution—Conviction. To sustain- a prosecution under section 2258. Rev. Laws 1910. for tlie suppression of evidence in tlie nature of a written instrument, such instrument must be an instrument. which can be legally used as evidence, as alleged in the information.</p> <p>2. SAME — Sufficiency of Evidence. The evidence in this case carefully considered, and found insufficient to support the conviction of the plaintiff in error.</p>

<p>1. CONTINUANCE — Absence of Witness — Ruling. Where application is -made for continuance by the defendant at the October, 1916, term of court on account of the absence of a witness who is a nonresident of the state, and again at the February, 1917, term of court, tbe application is again presented on account of the, absence of tbe same witness, wbo is still a nonresident of the state, and no effort was made between tbe October, 1916, and February, 1917, term to take the deposition of such witness, tbe continuance was properly denied.</p> <p>2. SAME — Denial of Continuance — Prejudice,. Where a continuance is asked in a rape case on account of the absence of a witness by whom it is intended to impeach the prosecutrix, and the prosecutrix admitted, on the trial, the making of all the-material statements desired to be proven by such absent witness,, it is clear from tbe record that no prejudice resulted to defendant by reason of the absence of such witness from the trial.</p> <p>3. APPEAL AND ERROR — Verdict—Review. Where the evidence-reasonably supports the verdict, a judgment of conviction rendered thereon will be sustained. It is the exclusive province of the jury to decide controverted questions of fact, and to determine the inferences properly to be drawn from the evidenca</p>

<p> Appeal from Superior Court, Creek County; Gaylor R. Wilcox, Judge. </p> <p>A. Zackie was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p>INTOXICATING LIQUORS — Unlawful Conveyance — Sufficiency of Evidence. In tlie prosecution for conveying intoxicating liquor^ the evidence considered, and held sufficient to sustain the conviction, and that no material error was committed on the trial.</p>

<p> Appeal from District Court, Pushmataha County; C. E. Dudley, Judge. </p> <p>T. E. Clingan was convicted of manslaughter in the first degree, and he appeals.</p>

F. Freeman, Judge. William Tubby was convicted of murder, and his punishment fixed at death, and he appeals. William Tubby, a Mississippi Choctaw Indian, together with one Jim Stribbling, another such Indian, were jointly informed against in the district court of Carter ccrunty, charged with the murder of one Matt Hooper, which was alleged to have occurred in that county on or about the 15th day of February, 1918.

<p>1. CRIMINAL LAW — Habitual Criminal Ate&wkey;Instruction — First Conviction Occurring- Before. Passage of Act. The act of the Legislature providing that, upon a second or subsequent co’nviction of the prohibitory liquor laws, a greater iranishment may be imposed than is permissible for a first conviction, is enforceable against an accused whose first conviction occurred before the passage of such law.</p> <p>2. SAME — Possession of Liquors — Evidence. Evidence of general reputation of the place where intoxicating liquors wore found held not to be reversible error in this case.</p> <p>S. APPEAL AND ERROR — Conflicting Evidence — Reversal. Where the evidence is conflicting, but facts and circumstances in evidence are sufficient (o authorize the jury reasonably to infer that defendant is guilty of the crime charged, the judgment will not be reversed because of insufficient evidence.</p> <p>4. SAME — Erroneous Instructions. Where instructions given as a whole sufficiently cover the law of the. case, and are not prejudicial to tlie defendant, judgment will not be reversed because of alleged errors in certain paragraphs of the 'Court’s charge.</p> <p>5. JUDGMENT AND SENTENCE — Reversal—Verdict. The judgment and sentence must conform to the verdict. Where the law provides both fine and imprisonment as punishment for an offense, the trial court, on a general verdict of guilty, must sentence the defendant to both fine and imprisonment. Where, in such a case, only a sentence of imprisonment is imposed, the judgment will be reversed, with instructions to the trial court to re-sentence the defendant on the verdict returned in accordance with the law.</p>

Hatchett, Judge. L. F. Southerland was convicted of rape in the second degree, and sentenced to serve a term of three and one-half years in the state penitentiary, and he appeals.

Appeal frori District Court, Wagoner County; R. P. de Graffenried, Judge. Tom Brown was convicted of rape in the first degree, and sentenced to serve a term of 24 years in the penitentiary, and appeals.

<p> Appeal from District Court, Pontotoc County; George C. Crump, Assigned Judge. . ■ </p> <p>Roscoe Arnold was convicted of forgery in the first degree, and appeals.</p>

Zwick, Judge. Ed Conley and Charles Clift were each convicted of unlawfully conspiring to commit the crime of unlawfully selling intoxicating liquors, their motion for new trial was overruled, and they appeal.

<p>1. CONTINUANCE — Surprise. An application for a continuance on the ground of surprise, because the court granted leave to indorse on the indictment the name of the complaining witness, held properly overruled.</p> <p>2. APPEAL AND ERROR — Discretion—Continuance. Applications for continuance are addressed lo the sound discretion of the court under all the circumstances of the case, and unless an abuse of such discretion is shown its judgment will not be .reversed on appeal.</p>

<p>INTOXICATING LIQCOKS — l'illawful Transportation — Sufficiency of Evidence. In a prosecution for unlawfully transporting intoxicating liquor, the evidence considered .and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.</p>

<p>APPEAL AND ERROR — Approved Verdict — Review. Where the jury renders a verdict of guilty which is approved hv the trial court, and Hiere is evidence in the record ro sustain rite verdict, it will not he set aside in the absence of prejudicial error.</p>

Hughes, Judge. Montgomery Jones was convicted of manslaughter in the first degree, and sentenced to serve a term of 30 years in the penitentiary, and he appeals. Montgomery Jones, plaintiff in error, was jointly informed against with one Rochester Scott, charged with the murder of one Zealous Wilson, in Okmulgee county, Okla., on or about the 22nd day of January, 1916.

<p>1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. In a prosecution for having possession of intoxicating liquor with intent to sell the same, the evidence considered, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.</p> <p>2. ' EVIDENCE — Guilt of Third Party. A defendant on trial on a criminal charge cannot introduce evidence to show the jury that some other person has confessed that he committed the crime and that defendant had nothing to do therewith.</p>

Clark, Judge. Mrs. J. W. Dix was convicted of the crime of murder, and sentenced to serve a term of life imprisonment in the state penitentiary, and she appeals. The defendant, Mrs. J. W. Dix, and Mrs. Mossie Baustert were' jointly informed against in the district court of Canadian county, Okla., charged with the murder of the latter’s husband, Henry Baustert. A severance was granted, and‘the state elected to try this defendant first.

<p>INTOXICATING LIQUORS — Unlawful Possession with Intent to Sell— Sufficiency of Evidence. The evidence in a prosecution for the possession of intoxicating liquors with intent to sell the same considered, and held sufficient to sustain the conviction, and that no material error was committed.</p>

<p>APPEAL AND ERROR — Pardon Pending Determination of Appeal — Dismissal. When the pardoning power extends clemency and the same is accepted pending the determination of an appeal, the appeal will be dismissed.</p>

Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. - Jess Roberts and George Culbertson were convicted of a violation of the prohibitory liquor law, and they appeal.

<p> Appeal from District Court, Cleveland County; F. B. Swank, Judge. </p> <p>W. T. Hensley and A. R. Croxton were convicted of grand larceny, and they appeal.</p>

<p>1. INDICTMENT AND INFORMATION — Statutory Crime — Sufficiency. Where the information charges a statutory crime, it is sufficient if it charges the offense substantially in the language of the statute.</p> <p>2. INDICTMENT AND INFORMATION — Duplicity—Waiver of Effect. Alleged duplicity in an information or indictment constitutes grounds for demurrer thereto,' but if the information or indictment is not demurred to upon this ground in the trial court, the objection that the indictment or information is duplici--tous Is waived in this court.</p> <p>8. APPEAL AND ERROR — Instructions—Exceptions. Instructions of the court to the jury which are not excepted to will not be reviewed unless fundamentally erroneous.</p> <p>4. APPEAL AND ERROR — Discretion—Motion for New Trial. Before overruling a motion for a new trial can be held to be reversible error, it must affirmatively appear that the court in overruling such motion abused its discretion.</p> <p>5. CONTINUANCE — Discretion of Trial Court. The overruling of a motion for a continuance to secure witnesses to impeach the veracity of a defendant jointly indicted, named as a witness by tlie state, was not an abuse of discretion, where defendant had moved that such other defendant be tried first because defendant desired to use him as a witness.</p> <p>6. CONTINUANCE — Withdrawal of Attorney. That a former attorney has withdrawn from the defense and that the attorney thereafter representing defendant has no time to prepare for trial is not ground for a continuance.</p> <p>7. APPEAL AND ERROR — Review—Motion for Continuance — Discretion of Court. An application for a continuance is addressed to the trial court’s sound discretion, and, unless an abuse of such discretion is shown, a judgment will not bo reversed on appeal.</p> <p>8. SUFFICIENCY OF EVIDENCE — Error. The entire record in this case carefully examined, found free from error, and that the verdict returned, and the judgment rendered thereon, are supported by the evidence beyond a reasonable doubt.</p>

<p> Appeal from District Court, Jefferson County; Cham Jones, Judge. </p> <p>A. R. Barber and Effie Bailey were convicted of open and notorious adultery, and they appeal.</p>

<p>1. APPEAL AND ERROR — Appeal by Certified Transcript of Record — Errors Considered. On an appeal taken by a certified transcript of the record, this court is at liberty to consider only such alleged errors as are based upon a consideration of the record proper as defined by section 5960, Rev. Laws 1910.</p> <p>2. SAME — Remarks of Trial Judge on Overruling Motion for New Trial. A discourse made by the trial judge, expressing his opinion of the case at the time of overruling a motion for new trial and pronouncing judgment and sentence against defendant, does ■ not constitute a part of the transcript of the record proper, and should not be incorporated into the same.</p> <p>3. APPEAL AND ERROR — Failure to Appear or File Brief — Af-firmance. Where no appearance is made for plaintiff in error, either by submission of a brief or oral argument, this court will examine the record, and, where no prejudicial error appears, will . affirm the judgment.</p>

<p> Appeal from County Court, Tulsa County; H. L. Standeven, Judge. </p> <p>James Cruthers was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p> Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Jones Cantrell was convicted of a violation of the appeals.</p>

L. Standeven, Judge. Tom Jones was convicted of unlawfully conveying intoxicating liquors, and sentenced to pay a fine of one hundred fifty dollars, and to serve a term of thirty days imprisonment in the county jail, and appeals.

<p>1. ABATEMENT OF PROSECUTION — Death of Accused. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.</p> <p>2. SAME — Death Pending Appeal — Collection of Fine. When- the defendant, after having 'neon convicted, appeals from the judgment imposing a line and imprisonment, and dies pending his appeal from the judgment, the proceedings abate, and the line cannot lie enforced against his estate.</p>

Edwards, Judge. Plaintiff in error was convicted of the crime of larceny of domestic fowls, and sentenced to pay a fine of $30 and to serve a term of thirty days in the county jail, and appeals.

<p> Appeal from County Court, Ottcnoa County; ^ N. C. Barry, Judge. </p> <p>Nelle Sharpe was convicted of the crime of unlawful possession of intoxicating liquor, and appeals. Judgment</p>

L. Standeven, Judge. Carl Burton and J. M. Harris were each convicted of having unlawful possession of intoxicating liquors, and punishment fixed' as to Burton at a fine of S50 and imprisonment in the county jail for 30 days, and as to Harris at a fine of $300 and imprisonment in the county jail for a period of 60 days, and each appeals.

<p>Appeal from Oounty Court, Woods County; Gus Hadwiger, Judge.</p> <p>Appeal by the state from judgment sustaining demurrer to information.</p>

<p> Appeal from County Court, Atoka County; W. M. Rainey, Judge. </p> <p>W. N. Hines and Virgil Deck, convicted of manufacturing intoxicating liquors, appeal. ■</p>

<p> Appeal from District Court, Craig County; Preston S. Davis, Judge. </p> <p>Watt Adair was convicted of larceny of live stock, and he appeals.</p>

<p> Appeal from County Court, Tulsa County; H. L. Standeven, Judge. </p> <p>Jim Johns was eonvicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p> Appeal from County Court, Garvin County; J. D. Mitchell, Judge. </p> <p>W. C. Gilliland was convicted of violating the prohibitory liquor laws, and he appeals.</p>

<p> Appeal from District Court, McIntosh County; T. P. Clay, Assigned Judge. </p> <p>Henry McNeal was convicted of a second violation of the prohibitory liquor laws, and he appeals.</p>

<p> Appeal from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Jeff Ballew was convicted of murder, and he appeals</p>

<p>ABATEMENT OK PROSECUTION — Death of Accused. In n cmuiiwl proseeiition. the purpose of the proceeding being to punish the accused, tile action mnsi necessarily abate upon liis death, and. where il is made to appear that the plaintiff in error has died pending the determination of his appeal, the canse (yil-l be abated.</p>

<p>1.' FALSE PRETENSES — Sufficiency of Information — Obtaining Money by Bogus Check. For information held sufficient to charge the crime of obtaining money by means of a false or bogus check, as defined by chapter 72, Session Laws of Oklahoma, 1913. see body of opinion.</p> <p>2 SAME — Statutes. Obtaining money by means and use of a check upon a bank, in which the drawer at the time had no funds or credit with which to meet the same, and which he had no reason to believe would honor such check upon presentation at said bank for payment, is within the meaning of chapter 72, Session Laws of Oklahoma 1913, making it a felony to obtain money/hr property by means and use of a “false or bogus check.”</p>

<p>1. APPEAL AND ERROR — Review—Questions of Fact. This court will not substitute its judgment on disputed questions of fact for that of the jury which tried the case. Where then' is competent and legal evidence establishing the corpus delicti of the crime and connecting defendant with it, the evidence will be hold sufficient on appeal, although there may be a conflict between the testimony of the witnesses for the state and those for the defendant.</p> <p>2. TRIAL — Kefiu-al to Instruct — Circumstantial Evidence. Where the state does not rely alone on circumstantial evidence for a conviction, it is not error for the trial court to refuse to give an instruction on the law applicable to circumstantial Evidence.</p>

Appeal from County Court, Tulsa County; H. L. Standeven, Judge. MÍollie Stubblefield was convicted of a violation of the prohibitory liquor law, and she appeals.

<p> Appeal from County Court, Tulsa County; IT. L. Standeven, Judge. </p> <p>.Mollie Stubblefield was convicted of a violation of the prohibitory liquor law, and appeals.</p>

<p>APPEAL AND ERROR — Time of Filing. Under the statute the Criminal Court of Appeals lias no jurisdiction to entertain an appeal from a judgment of conviction for a violation of the prohibitory liquor law, filed on a day later than the 120th day after rendition of judgment.</p>

<p> Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Odas W. Davis was convicted of having unlawful possession of intoxicating liquor with intent to sell the same, and appeals.</p>

<p>Application by Emmett Muleare for writ of habeas corpus to be let to bail.</p>

<p>Application for writ of habeas corpus by William Toothaker to be admitted to bail.</p>

<p>Appeal from District Court. Muskogee County; Malcolm 10. Rosser, Special Judge.</p> <p>Robert .1. Boone was convicted of the crime, of embezzlement, and appeals.</p>

<p>Appeal from County Court. Canadian County: R. B. Forrest, Judge.</p> <p>Lem Hill, convicted of assault and battery, appeals.</p>

<p>Appeal from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Gyrus Pyeatt was convicted of an unlawful sale of intoxicating-liquors, and appeals.</p>

<p>Appeal from County Court; Canadian County; R. B. Forrest, Judge.</p> <p>Lem I-Iill was convicted of assault and battery, and he appeals.</p>

<p>Appeal from County Court, Canadian County; R. B. Forrest, Judge.</p> <p>Joe Farrar and Hugli McClure were convicted of violating the prohibitory law, and appeal.</p>

<p>Appeal from County Court, Stephens County; J. W. Marshall, Judge.</p> <p>Oscar Leming, convicted of a violation of the prohibitory law, appeals.</p>

<p>Appeal from County Court, Oklahoma County; William H. Zwick, Judge. ■</p> <p>Harvey Wyneoop was convicted of violation of the prohibitory-liquor laws, and appeals.</p>

<p>Application of .1. W. Mack for writ of habeas corpus,</p>

<p>Application of Isaac Wilkinson for writ of habeas corpus to be released on bail.</p>

<p>Appeal from County Court. Oklahoma County; William H. Zwick, Judge.</p> <p>Roy Peel, was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p>Appeal from District Court, Carter County; W. F. Freeman, Judge.</p> <p>• George Gordon was convicted of keeping a place for the sale of intoxicating liquors, and appeals.</p>

F. Freeman, Judge. Jack Kathary was convicted of keeping a place with intent to violate provisions of the prohibitory liquor law, and he appeals.

<p>Appeal from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Archibald Clark was convicted of keeping a place with intent to sell „ intoxicating liquors, anjl he appeals.</p>

Cullison, Judge. Berry Janes and Sarah Trieber were convicted of keeping a place with intent of selling intoxicating liquors, and they appeal.

<p>Appeal from District Court, Muskogee County; R. P. de Graffenried, Judge.</p> <p>George White was convicted of keejung a place with intent to violate provisions of the prohibitory law, and he appeals.</p>

<p>Petition for writ of habeas corpus by Willie Hutchinson, by his next friend, Mrs. Florence M. Paige.</p>

<p>Appeal from District Court, Garfield. County; James B. Cullison, Judge.</p> <p>Bill Boyd was convicted of a felony, and lie appeals.</p>

<p>Appeal from District Court, Love County; W. F. Freeman, Judge.</p> <p>J. P. Porter was convicted of a felony, and he appeals.</p>

<p>Appeal from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>E. L. Long, F.' J. Norris and W. H. Mosby, were convicted of a violation of the prohibitory law, and they appeal.</p>

<p>Appeal from the District Court, Muskogee county.</p> <p>W. M. Kelly was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and he appeals.</p>

<p>Appeal from District Court, Beckham County; Frank Mathews, Assigned Judge.</p> <p>Claud Bonds was convicted of. grand larceny, and he appeals.</p>

D. G. Hart, Judge. Tom Keller and Will Keller were each convicted of having unlawful possession of intoxicating liquors, Tom Keller being sentenced to pay a fine of $50 and to serve 90 days’ imprisonment in the county jail, and Will Keller being sentenced to pay a fine of (TO and to serve 30 days in the county jail, and both appeal.

M. Threadgill, Judge. Angelo Golpi was convicted of the crime of unlawful possession of intoxicating liquors, and sentenced to pay a fine of $300 and to serve 30 days in the county jail, and he appeals.

Zwick,1 Judge. Joe Taggart and Dick Taggart were each convicted of the crime of unlawfully conveying intoxicating liquors, and each sentenced to pay a fine of $250 and to serve 90 days in the county jail, and both appeal,

<p>Appeal from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>Billy Miles was convicted of a violation of the prohibitory law, and he appeals.</p>

F. Brown, Judge. Wilse Sherwood was convicted for having possession of intoxicating liquor with intent to sell it, and he appeals.

<p>Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.</p> <p>■ W. O. Shinn was convicted of a misdemeanor, and appeals.</p>

<p>Appeal from County Court, Tulsa County; H. L. Standeven, Judge'.</p> <p>H. E. Bousman was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

<p>Appeal from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>Lindsey Coleman was convicted of a violation of the prohibitory liquor law, and he appeals.</p>

F. Freeman, Judge. Frank Jones was convicted of keeping a place with a felonious intent to sell intoxicating liquors, and appeals.

<p>Appeal from District Court, Canadian County; Geo. W. Clark, Judge.</p> <p>G. Rhoades was convicted -of a violation of the prohibitory law, and appeals.</p>

<p>Appeals from District Court, Payne County; John P. Hiekam, Judge.</p>

F. Freeman, Judge. Ernest Key was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and appeals.

<p>Appeal from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Jim Kyle was' convicted of a felony, and appeals.</p>

<p>Appeal from District Court, Garfield County; James B. Cullison, Judge.</p> <p>B. M. Billings .and George Billings, convicted of keeping a place with the felonious intent to violate provisions of the prohibitory liquor law, appeal.</p>

<p>Appeal from District Court, Garfield County; J. C. Robberts, Judge.</p> <p>Tim and Mary Hawkins were convicted of a violation of the prohibitory law, and appeal.</p>

<p>Appeal from District Court, Muskogee County; R. P. deGraffenried, Judge.</p> <p>Homer Mathews was convicted of assault with intent to kill, and appeals.</p>

C. Robberts, Judge. Sam Blank was convicted of keeping a place with the felonious intent to sell intoxicating liquors, and he appeals.

C. Thurman, Judge. Henry Williams was found guilty of the unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $50 and imprisonment for thirty days, and he appeals.

Monk, Judge. Lucile Dumas and Jessie McBride were convicted of the crime of unlawful possession of intoxicating liquors, and each sentenced to pay a fine of $50 and to serve thirty days in the county jail, and both appeal.

<p>Appeal from County Court, Coal County; C. M. Threadgill, Judge.</p> <p>Charley Evans, convicted of a violation of the prohibitory liquor law, appeals.</p>

<p>Appeal from District Court, Garfield County; J. C. Robberts, Judge.</p>

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

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

<p>Appeal-from County Court, Coal County; C. M. Threadgill, Judge.</p> <p>Wilson Phillips, convicted of a violation of the prohibitory liquor law, appeals.</p>

M. Threadgill, Judge. Willie Mann was convicted of .the crime of selling intoxicating liquor, and sentenced to pay a fine of $50 and to serve thirty days confinement in the county jail, and appeals.

<p>Appeal from District Court, Carter County; W. F. Freeman, Judge. ¿</p> <p>Bert Elliott, convicted of a felony, appeals.</p>

<p>Appeal from County Court, Pittsburg County; S. E. Brown, Judge.</p> <p>Belle Venters, convicted of a violation of the prohibitory liquor law, appeals.</p>

Henry Grader was convicted of the crime of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and to serve thirty days’ confinement in the county jail, and appeals.

<p>Appeal from County Court. Pittsburg County; S. P. Brown, Judge.</p> <p>Red Harris, convicted of a violation of the prohibitory liquor lawr appeals.</p>

<p>Appeal from District Court, Garfield County; J. C. Robberts, Judge.</p> <p>E. G. Goldsmith, convicted of Seeping a place with intent to sell' intoxicating liquors, appeals.</p>

<p>Appeal from District Court, Logan County; John P. Hickam, Judge.</p> <p>Enoc McGill, convicted of keeping ■ a place with felonious intent to sell intoxicating liquor, appeals.</p>

<p>Appeal from District Court, Payne County; John P. Hickam, Judge.</p> <p>Robert P. Porter, convicted of a felony, .appeals.</p>

M. Rainey, Judge. Roy Rose was convicted of the crime of conveying intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of sixty days, and he appeals.

<p>Appeal from District Court, Garfield County; J. C. Robberts, Judge.</p> <p>J. H. Cook and E. J. Brown were convicted of a felony, and they appeal.</p>