Volume 2 — Oklahoma Criminal Reports

Error from District Court, Logan Countyj A. II. Huston, Judge. John T. Taylor was convicted of obtaining money by false pretenses and he brings error. On sufficiency of indictment: Hughes’ Criminal Law, § 635; Redmond v. State, 35 Ohio St. 81; Wharton’s Criminal Law_ § 1215; Com. v. Strain, 10 Mete. 522; State v. Orbis, 13 Ind. 569; State v. PUTbriclc, 31 Me. 401; Slate v. Green, 7 Wis. 676. On question of variance: Briscoe v. Stale, 4 Tex. App. 221; Bishop’s Grim.

Error from the United Btates Court for the Western District of the Indian Territory; Louis Sulzbacher, Judge. Monroe Johnson was convicted of larceny, and brings error.

Original application by Jeff D. Smith for a writ of habeas corpus to be admitted to bail. Prisoner admitted to bail. On the 15th day of November, 1908, Jeff D. Smith (hereinafter called defendant) shot and killed John Tabner in Wetumka, in Hughes county. The defendant waived a preliminary examination, and was committed to jail without bail, to await trial upon the charge of murder.

Sebe Bennefield was convicted of manslaughter and appealed to the United States Court of Appeals for the Indian Territory, whence the cause was transferred under the Enabling Act, and the Constitution of the state of Oklahoma to the Supreme Court of the state which court transferred the cause to the Criminal Court of Appeals.

On petition for rehearing. The appellant, George W. Green, was indicted for the murder of Martin Liston within the 'Central District of the Indian Territory. The trial was had in the United States District Court at Atoka, Indian Territory, and on October 20, 1904, he was found guilty of murder without capital punishment. On October 24, 1904, defendant filed a motion for a new trial, which motion was overruled.

On rehearing. On the 6th day of November, 1903, the grand jury of the United States Court for the Central District of the Indian Territory, sitting at Durant, returned an indictment against appellant, G-. W. Green, charging him with the murder of one Martin Liston. The defendant entered his plea of not guilty, and, on the 9th day of March, 1904;, the venue of the cause was changed to the United States Court for the Central District, sitting at Atoka.

Bur-ford, Judge. Lee Stewart was convicted of an assault and battery with a deadly' weapon, and he ajipeals. The defendant was found guilty of an assault and battery with a deadly weapon, and his punishment was assessed at six months’ confinement in the penitentiary. He prosecuted an appeal, and the case is regularly before us.

Burford, Judge. C. B. Herrick *was convicted of an attempt to commit rape, and he appeals. On the 4th clay of December, 1906, C. E. Herrick (hereinafter called defendant) was indicted in the district court of Logan county for an attempt to commit rape. Upon the trial of said cause defendant was found guilty by the jury, and sentenced by the court to two years’ confinement in the penitentiary. An appeal was taken, and the case is regularly before this court for review.

<p> Error from, District Court, Caddo County. </p> <p>Adolpho Arispi was convicted of forgery, and brings error..</p>

<p>INSTRUCTIONS — Reasonable Doubt. It is error for the court to instruct the jury: “A doubt to justify an acquittal must be a reasonable one — a doubt for which you can give 'a reason — and it must arise from a careful and candid investigation and consideration of all the evidence in the case, or for want of evidence; unless the 'doubt does so arise, it will not be sufficient in law to authorize a verdict of not guilty.”</p> <p>(Syllabus by the Court.)</p>

H. II. Clayton, Judge. Ed Bartelle and Bertha MeCoy-Bartelle were convicted of 'fornication, and they appeal. On the 2nd day of October, 1906, the grand jury of the United States court, sitting at Wilburton, returned an indictment for fornication against Ed Bartelle and Bertha McCoy-Bartelle, who will hereinafter be called defendants.

Burford, Jiidge. James H. Puller was convicted of obtaining money by false pretenses, and he appeals.. On the 5th day of November, 1906, James H. Puller (hereinafter called defendant) was indicted in the district court of Logan county for the offense of obtaining money under false pretenses. Being found guilty by the- jury, and sentenced by the court to imprisonment in the penitentiary for the period of one year, the defendant prosecuted this appeal. .

'Error from District Court, Custer County; James B. Tolbert, Judge. C. N. Shires was convicted of stealing mules, and he brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals. • C. N. Shires, plaintiff in error (hereinafter designated as defendant), was indicted at the October term, 1908, of the district court in and for Custer county, Oírla.

Original petition lor habeas corpus by M. J. Wade. On the 20th of February, 1909, M. J. Wade (hereinafter called defendant) filed in this court the following petition for a writ of habeas corpus-. “Your petitioner, ,M. J. Wade, a resident and citizen of Wagoner county, Okla., respectfully represents to this honorable court: That sbe is restrained of her liberty and is unlawfully imprisoned in the county jail of Wagoner county, Okla., by Luther Opry, sheriff of Wagoner…

<p>1. WITNESSES — Privilege of Witness — Answer Tending to Inorimi-npte Self. Under section 21 of the Bill of Rights (Bunn’s Ed. sec. 30), which declares that “no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided,” and section 27 of the Bill of Rights (Bunn’s Ed. see. 36), which provides that “any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may so testify or produce evidence” — where a person is under examina-' tion before a county judge in an investigation into supposed violations of the prohibitory law, otherwise known as the “Enforcement Act” (Laws 1907-08, p. 601, c. 69), under the provisions of section '4 of said act. he is not obliged to answer questions where his answers will tend to incriminate him, unless the inquisition is held for the purpose of inquiring into a complaint made, supported by affidavit, charging an offense against the . provisions of the prohibitory law.</p> <p>2. SAME. .Section 27 of the Bill of Rights (Bunn’s Ed. sec. 36) removes the protection of ithe constitutional privilege as set forth by section 21 of the Bill of Rights (Bunn’s Ed. sec. 30), and said section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall ■ be given in evidence or in any manner used against him or his property or estate, in any court of the state, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided, that on an inquisition held under section 4, art. 3, c 69, p. 604, Sess. Laws 1907-08, otherwise known as the “Enforcement Act,” the proceeding so held shall be predicated upon a complaint made, supported by affidavit, that there has been a violation of the penal provisions, or some one of them, of said act, charging some person or persons with said violation.</p> <p>3. SAME. The manifest purpose of the constitutional provisions, both of the United States and of this state, is to prohibit the compelling- of testimony of a self-criminating kind from a party or witness.</p> <p>4. INTOXICATING LIQUORS — Offenses—Proceedings—Presumption of Jurisdiction. An inquisition under the provisions of section 4 of said enforcement act (Laws 1907-08, p. 604, c. 69) is a proceeding- special in its nature, and no presumption can attach in favor of its jurisdiction.</p> <p>5. WITNESSES — 'Privilege of Witness — Answer Tending to Incriminate. No statute, which leaves a party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution. To be valid the statute must afford absolute immunity against future prosecution for the offense to1 which the question relates.</p> <p>6. CONTEMPT — Direct and Indirect Contempt — “Civil Contempt”— “Criminal Contempt.” 'Contempts of court are divided into direct and indirect contempts, and are classified as civil and criminal. The distinction between “civil” and “criminal” contempts is plainly drawn. The former consists in disobeying some judicial order made in the interest of another party to the proceeding; the latter, of acts disrespectful to the court or obstructive to the administration of justice, or calculated to 'bring the court into disrepute.</p> <p>7. SAME — Witnesses—Power to Punish. The power of courts to punish for contempt is inherent. 'Refusal to answer questions in a criminal proceeding is a criminal contempt, and the punishment therefor is governed by the provisions of the Criminal Code, and where the statute limits the duration of the punishment the punishment may conform to such limitation, but cannot exceed it.</p> <p>8. HABEAS CORPUS — Grounds of Relief — Want of Jurisdiction. Where the court or judge thereof was without jurisdiction or power to render the judgment or issue process for the imprisonment -of a party, the imprisonment is illegal, and this court will grant relief by habeas corpus.</p> <p>9. SAME — Grounds of Relief — Want of Jurisdiction — Contempt. Jurisdiction of the person and of • the subject-matter are not alone conclusive, but the jurisdiction of the court or judge thereof to render the particular judgment is a proper subject of inquiry, and if, upon the whole record, it appears that the judgment was unwarranted by law, the contemnor will-be released on the hearing of a writ of habeas corpus.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Writ of Error — Duty to Point Out Error. The Criminal Court of -Appeals, where no briefs have been filed on behalf of the plaintiff in error, will not diligently search the record to discover errors, and the judgment of the trial court will be affirmed where no prejudicial error appears upon the face of the record.</p> <p>2. SAMiE. Where an appeal is taken in a criminal case, and no briefs are filed, this court will examine the information, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if error is not apparent the judgment will be affirmed.</p> <p>3. SAME. In criminal cases appealed by the defendant, where no brief is filed by the plaintiff in error, this court will look only to the jurisdiction of the court, the sufficiency of'the information, and the regularity of the judgment.</p> <p>4. SAME. Where the plaintiff in error was convicted upon a trial by jury with violating the prohibitory law and appeals from the judgment of conviction, and no briefs are filed or argument presented, it is not the duty of this court to go into an examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony, or determine the sufficiency of the evidence to sustain the conviction.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McLain County; B. McMillan, Judge,. </p> <p>George Buchanan, was convicted of crime, and brings error.</p> <p>At the 'March, 1908, term of the district court of McLain county, Okla., George Buchanan, who will hereinafter be referred to as the “accused,” was indicted for rape, upon the person of •Estella Boberts. On the 17th day of April, 1908, the accused was placed on trial for said offense, and on the following day the jury returned a verdict of guilty and assessed his punishment at 10 years in the penitentiary. Motion for new trial was presented in due time, and was overruled by the court, from which ruling and the judgment the accused prosecuted error to the Supreme Court of this state. Said court, as required by law, upon the creation of this court, duly transferred the case to this court.</p>

IF. Higgins, Judge. John Petitti was convicted of selling intoxicating liquors, and appeals. On the 18th day of December, 1907, an information was filed in the county court of Pittsburg county against John Petitti (hereinafter called “defendant”), charging him with the crime of selling intoxicating liquors to various persons whose names were to the county attorney unknown.

C. A. Marshall was convicted of rape of a female under 18 and over 16, of previous chaste and virtuous character, and he appeals. March 7, 1906, plaintiff in error was indicted by a grand jury of Noble county in the then territory of Oklahoma, for the crime of rape by having sexual intercourse with Miss Leota Barnard, she being at the time a female under the age of 18 years and over the age of 16 years, and of previous chaste and virtuous character.

<p> Appeal from the. United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge. </p> <p>Dan Askew was convicted of larceny, and appeals.</p> <p>On the 11th day of January, 1903, Dan Askew (hereinafter called defendant) ivas indicted by the grand jury of the United States Court for the Southern District of the Indián Territory, sitting at Ardmore, for the offense of the larceny of three horses, the property of Hogan Keel, and one horse, the property of Tip Graham, who was not then and there a member of any Indian tribe or nation. On the 20th day of December, 1903, the case was transferred upon motion of the defendant to the United States Court sitting at Ada. Defendant was tried and found guilty of the offense charged, and has prosecuted an appeal which is now before this court 'for determination.</p>

<p>1. EVIDENCE — Presumption of Innocence — Sufficiency of Evidence. The presumption of innocence of one on trial for a crime is one of fact and of law, and no person can be convicted,' even under a joint information, without proof of his individual guilt.</p> <p>2. TIRilAL — Presumptions and Burden of Proof — Directing Verdict. Where a defendant pleads not guilty and admits nothing against himself, the burden of proof is on the state to make a case against him which will entitle it to go to a jury; and, where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to warrant a conviction, and the court should direct a verdict of acquittal, when requested by defendant.</p> <p>3. INTOXICATING LI'QUOIRiS — Interstate Commerce — Conveyance to Home. Under subdivision 3 oü section 8, art. 1, of the Constitution of the United -States, a resident of this state has' a lawful right to order and receive a shipment of whisky by interstate commerce from another state, and to convey the same from the depot at which the shipment may arrive, in the original package to his home.</p> <p>4. SAME — The clause in the prohibition ordinance of the Constitution of the state of Oklahoma (section 4á9, Bunn’s Ed.), while prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, has no application to interstate shipments until there has been a delivery of an interstate shipment of said liquors.</p> <p>5. SAME. Carrying or conveying intoxicating- liquors from the railroad station to the home of the consignee is a part of the interstate commerce transportation, when they were shipped from another state, and is not a violation of the constitutional clause making the conveyance of such liquors from one place within this state to another place therein • an offense.</p> <p>6. SAME. The constitutional clause prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, in the absence of prohibitory legislation by the state, is not within the scope and operation of the act of Congress of August 8, 1890, c. 728, 26 Stat. 313 (IT. S. Comp. St. 1901, p. 3177), commonly 'known as the “Wilson Act.”</p> <p>(Syllabus by the Court.)</p>

Error from Love County Court; G. H. Montgomery, Judge. Houston Hudson was convicted of unlawfully transporting liquor from one place in the state to another place therein, and he brings error. ■ The plaintiff in error, who will be herein referred to as the accused, was prosecuted in Love county, in this state, upon complaint of the county attorney of said county, charging him with unlawfully transporting intoxicating liquor from one place within the said state of Oklahoma to…

Error from, Goal County Court; B. II. Wells, Judge. Henry Clifton was indicted for _ unlawful sale of liquors From an order of dismissal, the state brings err.or.

<p>1. LARCENY — Instructions—Weight of Evidence. It is prejudicial error in a larceny ease for the court to instruct the jury that “the laiw presumes, where a party who is in possession of stolen property soon after the property is stolen, that he is the person who took the property. That is the presumption of the law, and in the absence of. any proof whatever the jury would be justified in finding- the defendant guilty of stealing it, if stolen property should be found in his possession soon after it is stolen.”</p> <p>2. RECEIVING STOLEN GOODS — Instructions. It is prejudicial error, in a case charging the defendant with receiving stolen property, for the court to instruct the jury that: “If, however, you do not find from the testimony in this case, beyond a reasonable doubt, or the evidence rather, that he stole these mules, or'either of them, but that he did receive these mules soon after they were stolen with the knowledge that the property was stolen, or under such facts or circumstances as would cause a reasonably prudent man to believe they were stolen — that is, under such facts as would put a reasonably prudent man upon inquiry before he too]:: the property — then, in that state of the case, if 'the evidence justifies it beyond a reasonable doubt, you should find him guilty of having received stolen propert3'.”</p> <p>3. SAME — Elements- of Offense — Intent. To constitute the crime of receiving stolen property knowing the same to have been stolen, the act of receiving or concealing the same must be accompanied by a criminal intent of the accused to aid the thief, or hope to obtain some gain or reward for restoring the stolen property to the owner, or in some way to derive a benefit or profit therefrom. The evidence must show beyond a-reasonable doubt the fraudulent intent of the accused concomitant with receiving the stolen property, and the question of intent must be submitted to the jury for determination.</p> <p>(Syllabus by the Court.)</p>

Error from Grady County Court; N. M. Williams, Judge. Ear] Howard was convicted of selling liquor, and brings error. The plaintiff in error, who will for convenience be hereinafter referred to as the accused, was prosecuted on information in the county court of Grady county, charging him with the crime of furnishing intoxicating liquor to an unknown person.

Error from• Grady County Court; N. M. Williams, Judge. Josh McCord was convicted of unlawfully selling intoxicating liquor, and he brings error.

Error from Grady Gouniy Court; N. M. Williams, Judge. Josh McCord was convicted of having in his possession intoxicating liquor with intent to sell the same in violation of the prohibition law, and he brings error.

Error from, Grady ..County Court: N. M. Williams, Judge. Fred Bolman was convicted of violation of a liquor law, and brings error. The plaintiff in error (hereinafter .designated as defendant) was on the 4th day of March, 1908, found guilty of selling intoxicating liquors, as charged in an information filed in said county court on the 2d day of January, 1908, wherein said defendant was charged with selling intoxicating liquors to Joe Earl and Milas Beddingfield.

<p>Error from Kiowa County Court; J. TP. Mamell, Judge.</p> <p>C. E. Moreland was convicted of having intoxicating liquors in his possession for sale, and brings error.</p> <p>The plaintiff in error, C. E. Moreland (hereinafter designated as defendant), was at the June term, 1908, of the county court of Kiowa county, convicted of the offense of having intoxicating liquor in his possession for an unlawful purpose. The information contained two counts, wherein the defendant and one Walter Davenport were jointly charged in the first count with having intoxicating liquor in their possession for an unlawful purpose, and in the second count with unlawfully conveying said intoxicating liquor. The case was tried to a jury and a verdict of not guilty returned as to the eodefendant Davenport. Defendant Moreland was found guilty upon the first count and acquitted of the second.</p> <p>Two witnesses testified on behalf of the prosecution, in substance, as follows: D. C. Griffin testified that he was the deputy sheriff of Kiowa county, residing at Snyder; that on the 11th day of April, 1908, he was at the Frisco freight depot in Snyder with one Frank Taylor, looking for whisky that was coming to Moreland, and found two barrels standing on the platform; that shortly afterwards he stopped the defendant about 100 yards from the depot on the road to Snyder, riding in defendant Davenport’s hack, which was loaded with three barrels of whisky; that; he took possession of said barrels and arrested the defendants; that, when opened, said barrels were found to contain about 100 pints of whisky each. The arrests and seizure was without any .warrant or other process, said officer asserting his right to do so under the provisions of the prohibition law. Frank Taylor testified that he lived at Snyder and 'was deputy constable at that time, and- that he assisted Deputy Sheriff Griffin to make the arrests and seizure, and that they then took the whisky to Mr. Griffin’s house and unloaded it. Defendant testified on his own behalf, stating that about the 10th or 15th of March he ordered said whiskey from Louisville, Ky.; that he hired his codefendant, Davenport, to haul said whisky from the depot to his house: that said whisky was for his own use, and that he thought the “Bill-ups Bill” was going into effect and he would not be able to get whisky after that, so he gave a large order; that he was at the depot, and Davenport invited him to ride to his home. Defendant Davenport testified that he lived at Snyder and was a licensed drayman; that on said day he was hired by defendant Moreland to haul some freight for him from the Frisco depot to his house; that defendant Moreland was at the depot and he invited him to ride home with him; that after they had proceeded about 100 yards from the depot towards town, they were arrested, and the barrels seized by Deputy Sheriff Griffin.</p> <p>The defendant filed his motion for a new trial, which was overruled. On the 16th day' of June, 1908, the court proceeded to pass sentence, and sentenced him to pay a fine of $50 and costs, and that he be imprisoned in the county jail of Kiowa county for a period of 30 days. To all of this defendant excepted. Defendant duly served his notice of appeal on J. W. Mansell, county judge, and H. L. Standeven, county attorney of Kiowa county. On August 27, 1908, he perfected his appeal to the Supreme Court. Dpon the organization of the Criminal Court of Appeals said cause was duly transferred, as by law provided. At the March term, 1909, said cause was submitted, and is now before this court for review.</p>

<p> Error from the United States Court for the Central District of the Indian Territory; Thomas G. Humphrey, Judge. </p> <p>John Hendrix was convicted of larceny and brought error to the United States Court of Appeals, whence the cause was transferred to the Supreme Court of the State of Oklahoma and by that court to the Criminal Court of Appeals.</p> <p>John Hendrix, who will hereafter be referred to as the accused, was indicted in the United States Court for the Central District of Indian Territory, sitting at Atoka, on the 3d day of October, 1906, charged with having on the 19th day of August, 1906, committed the crime of larceny, by stealing one head of cattle, of the value of $10, from D. N. Eobb. On the 21st day of January, 1907, the accused was tried before a jury, which trial resulted in a verdict of guil'ty being returned. On February 1, 1907, being the same term of said court in which the verdict was rendered, the accused filed his motion for a new trial, which was, by the court on said date, overruled, to which the accused excepted. Whereupon he was sentenced to imprisonment for a period of two years. From said sentence and judgment he prosecuted error to the United States Court of Appeals, in which court this case was pending at the time of the creation of the state of Oklahoma, when the same was transferred to the Supreme Court of this state, and by the Supreme Court, upon the creation of this court, duly transferred to this court.</p> <p>On question of limiting time for argument: Dille v. Stale, 34 Ohio St. 61; Williams v. State (Ga.) 27 Am. Rep. 412'; Meredeth v. People, 84 111. 480; Hunt v. State, 15 Am. Rep. 677.</p>

<p> Error from the United States Court for the Northern District of the Indian Territory; William B. Lawrence, Judge. </p> <p>W. T. Cave was convicted of larceny, and brings error.</p> <p>On October 25, 1904, the plaintiff in error, W. T. Cave, hereinafter designated as the accused, was indicted on two counts, the first charging the larceny of a horse, on July 18, 1904, alleged to be the property o>f W. L. Lowry. The second count charges him. with receiving and concealing the' horse, knowing the same was stolen. On October 25,. 1904, the accused was arraigned and entered his plea of ffiiot guilty." On the issues thus joined this case came on for trial before a jury on the 31st of October, 1905, said trial resulting in a verdict of guilty as charged in the second count. In proper time the accused filed his motion for a new trial, which was overruled and exceptions duly saved. The accused was sentenced to a term of two years’ imprisonment in the United States penitentiary^ at Ft. Leavenworth, Kan. On December £'3-, 1905, the accused prosecuted his appeal to the United States Court of Appeals in the Indian Territory, where the same was pending when this state was formed. By operation of law at the commencement of statehood this case was pending in the Supreme Court of this state, from which court it was transferred to the Criminal Court of Appeals upon the creation thereof.</p> <p>The motion for a new trial sets forth four grounds, as follows :</p> <p>(1) “That the verdict of the jury upon said second count of the indictment was decided by lot; was a compromise verdict, arrived at under a mistaken belief as to the extent of punishment thereunder.”</p> <p>(2) “That the court erroneously instructed the jury as to the law applicable to said second count of the indictment, which instructions were properly excepted to by the defendant, and failed to instruct the jury upon all the essential elements and ingredients constituting the offense charged in said second count.”</p> <p>(3) “That the verdict is against the law applicable to said offense charged in said second count of the indictment herein.”</p> <p>(4) “That said verdict of the jury upon the second count of the indictment is not sustained and warranted by the evidence in this case, and is against the evidence adduced upon the trial.”</p>

Eugene Titsworth was convicted of a violation of the liquor law, and appeals. On the 27th of June, 1908,' the county attorney of Muskogee-county filed in the county court of said county the following information against the appellant, Eugene Titsworth, who will here-, inafter be called the defendant: “In the County Court of Muskogee County, Okla. State of Oklahoma v. Eugene Titsworth, Defendant.

Error from Kioiuci County Court; J. W. Mansell, Judge. M. W. Mask was convicted of having possession illegally of intoxicating liquors and brings error, The plaintiff in error, M. W. Mask (hereinafter designated defendant) was, on the 21st day of July, 1908, found guilty of having unlawfully in his possession intoxicating liquor, with the intention of selling the same, contrary to law, as charged in an information filed in said county court on the 10th day of July, -1908.

Error from Creek County Court; Josiah G. Davis. Judge. C. P. Smythe was convicted of illegally selling intoxicating liquors, and he brings error. Tbe plaintiff in error, who will, for convenience’s sake, be hereinafter referred to as the accused, was, on the 27th day of June, 1908, found guilty of unlawfully selling one pint of whisky to Stanley Seymour.

C. Jackson, Judge. Charley Fletcher was convicted of an illegal sale of liquors, and appeals. On the 19th of June, 1908, an information was filed against Charley Fletcher (hereinafter called the defendant) charging him with unlawfully selling intoxicating liquor. The defeudant demurred to the information upon the ground- that it did not state facts sufficient to constitute a public offense. This demurrer was 'by the court overruled, and the defendant reserved an exception.

Error from Comanche County Court; James II. Wolver ton, Judge. C. H. Markinson was convicted of violating the liquor law, and brings error. C. II.

Error from. Creek County Court; Josiah G. Davis, Judge. Frank Weber was convicted for sale of liquor, and brings error.

<p>Appeal from Muskogee County Court; W. C. Jackson, Judge.</p> <p>Joe M. Lightle was convicted of violating the liquor law, and appeals.</p> <p>The charging part of the information is as follows:</p> <p>“That the said Joe M. Lightle in the county of Muskogee, state of Oklahoma, on the .29th day of August, 1908, did knowingly and unlawfully sell and furnish intoxicating liquors, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”</p> <p>The defendant demurred to the information upon the following ground: “Because said information does not. state the name or names of the party or parties to whom said defendant sold or furnished intoxicating liquor.” This demurrer was by the court overruled, to which the defendant reserved an exception. The defendant was found guilty, and his punishment was assessed by the jury at a fine of $300 and imprisonment in the county jail for 30 days. Motion in arrest of judgment and for a new trial were filed by the defendant, and overruled by the court, and the defendant was sentenced, as provided for .in the verdict, to all oí which the defendant excepted, and the case is now before us on, appeal.</p>

<p> Appeal from Muskogee County Court; W. C. Jackson, Judge. </p> <p>Bud Banks was convicted of an illegal sale of liquor, ana appeals.</p> <p>The charging part of the information is as follows:</p> <p>“That the said Bud Banks in the county óf Muskogee, state of Oklahoma, on the 29th day of August, 1908, did knowingly and unlawfully sell and furnish intoxicating liquors contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”</p> <p>The defendant demurred to the information upon the ground that it did not state the name of the person or persons to whom the intoxicating liquors were sold. This demurrer was overruled by the court, to which the defendant excepted.</p> <p>TJpon the trial the court instructed the jury as follows:</p> <p>“No. 3. The court instructs the jury that the defendant in this case is a competent witness in this case, and you must consider his testimony in arriving at a verdict; but in determining what weight and credibility you must give to his testimony in making up your verdict you may take into consideration the fact that he is the defendant in this case and on trial, his interest in the result of the trial, together with any other fact'or circumstance of the trial affecting the credit to be given the testimony of any of the witnesses in the case.”</p> <p>To this instruction the defendant excepted.</p> <p>The court instructed the jury as follows:</p> <p>“The court instructs the jury: That the defendant is charged with the crime of selling intoxicating liquor; -that, if the jury believe from the testimony beyond a reasonable doubt that the defendant did, at any time since the 24th day of March, 1908, within the county of Muskogee, state of Oklahoma, sell intoxicating liquors of any kind, including beer, ale, and wine, it is your duty to find the defendant guilty as charged in the information.”</p> <p>To this instruction the defendant reserved an exception.</p> <p>The defendant was found guilty by the jury. Motions in arrest of judgment and for a new trial were filed by the defendant and overruled by the court, to which the defendant excepted. The defendant was then sentenced by the court to pay a -fine of $50, and the costs of the prosecution, and-to 30 days’ confinement in the county jail of Muskogee county. The case is regularly before us upon appeal.</p>

Error from Goal County Court; B. E. Wells, Judge. Ed. McLaughlin was convicted of an unlawful sale of whisky, and appeals.

<p>1. COURTS — Territorial Courts — Admission as State — Transfer of Causes. Section 19, of the Enabling Act (Act Cong. June 16, 1906, 34 Stait. 277, e. 3335), and section 3 of the amendments to the Enabling Act (Act March 4, 1907., 34 Stat. 1287, c. 2911) in connection with section 497, Bunn’s Const.. Okla., are self-executing, and together transferred ail cases pending in all courts of original jurisdiction in Oklahoma Territory and in Indian Territory to similar courts of original jurisdiction of the state.</p> <p>2. INDICTMENT AND INFORMATION — Transfer from Territorial Courts — Form. It is not necessary for indictments or informa-tions transferred from territorial courts to state courts to show upon their faces that they are prosecuted in the name and by the authority of the state of Oklahoma or to conclude “against the peace and dignity of the state.”</p> <p>3. APPEAL — Questions Not Presented In Briefs — Harmless Error. (a) Questions not fully presented in the briefs of counsel will not be considered upon appeal, unless they relate to fundamental matters, (b) It is the duty of counsel upon appeal to this court, who complain of errors in the proceedings of trial courts, to place their fingers upon the place that hurts, and clearly point out the errors complained of. (c) We are prohibited by statute from reversing a conviction upon any technicality or exception wihich does not .affect the substantial rights of a defendant. It is not enough to show that an error has been committed, but the complaining party must go further and show that such error did injuriously affect some of his substantial . rights. If this is not done, a conviction will not be reversed.</p> <p>4. RAPE — Evidence. Por facts which did not make it proper for the defendant to introduce testimony as to his engagement to marry another girl than the prosecutrix, see opinion.</p> <p>5. INSTRUCTIONS — Reasonable Doubt. An instruction upon reasonable doulbt substantially in the language of the statute is all that the court is required to give upon this subject. It is not necessary to go further and define the meaning of the words.</p> <p>é. RAiPE — Necessity of Corroboration — Evidence. In prosecutions for rape, the court should not instruct the jury that the defendant cannot be convicted unless the testimony of the prosecutrix is corroborated. The want of such corroboration goes only tc> the weight and credibility of her testimony.</p> <p>(Syllabus by the Court.)</p>

J. Qubser, Judge. Norman Sturgis was convicted under an information charging the selling of intoxicating liquor and the conveying of intoxicating liquor from one place to another in the state, and appeals.

Error from Ellis County Court; A. E. Williams, Judge. R. J. Rayburn was arrested upon a complaint filed in the county court charging him with wilfully failing or refusing to perform road work as required by Wilson’s Rev. & Ann. St. Olda. 1903, .§ 6090. The complaint was dismissed on motion of accused, and the state brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals.

Error from Pushmataha County Court; L. P. Davenport, Judge. Walter Washington was convicted of an unlawful sale of intoxicating liquor, and brought error to the Supreme Court, whence the cause was transferred to the Criminal Court of Appeals.

Original petition by Arthur Flowers for a writ of habea's corpus.

Application of W._ L. Walton for writ of habeas corpus. On April 1, 1909, a petition, duly verified by petitioner, W. L. Walton, praying that a writ of habeas corpus be issued, was filed with the clerk of the Criminal Court of Appeals, and ’ said petition was on said date presented to Hon. H. G. Baker, one of the judges of this court, and the writ was allowed by said judge as prayed for in said petition and made returnable to this court on the 15th day of April, 1909, at…

Error from Muskogee County Court; W. C. Jackson, Judge. J. G. Mitchell was convicted for unlawfully selling intoxicating liquor, and he brings error.

Error from, Muskogee County Court; W. G. Jackson, Judge. M. C. Simmons was convicted of an unlawful sale of intoxicating liquors, and appeals.

Central District of the Indian Territory; T. C. Humphñes, Judge. Dan Price was convicted of murder, and appeals. On November 13, 1906, Dan Price (hereinafter called the defendant) was indicted by the grand jury of the Central District of the United States Court for the Indian Territory, sitting at Atoka, for the murder of one Naith Dillingham, alleged to have been committed on the 3rd day of July, 1906. The defendant was arraigned, and pleaded not guilty.

Original petition by P. F. Tyler for a writ of habeas corpus. Belief allowed in part.

Error from, Garter County Court; I. B. Mason, Judge. N. J. ■ (Doc.) Salter was convicted of a violation of the pro The plaintiff in error, N. J. (Doc.) Salter (hereinafter designated defendant) was, at the January, 1908, term; of the county court of Carter county, tried and convicted of violating a provision of the prohibition ordinance, and sentenced to pay a fine of $100, and that he be imprisoned in the county jail of Carter county for a period of 60 days.

Error from Logan County Court; J. C. Strang, Judge. G. L. Byars was convicted of a violation of Eight-Hour Labor Law (Sess. Laws 1908, p. 517, c. 53, art. 4), and he brings error. Plaintiff in error, Gr. L. Byars (hereinafter designated as defendant), was by information filed in the county court of Logan county charged with a violation of the provisions of article 4. c. 53, p. 517, Sess.

F. Burwell, Judge. D. C. Stout was convicted of a violation of Wilson’s Eev. & Ann. St. 1903, § 2616, making an innkeeper, or person licensed to sell intoxicating liquor, who shall sell on Sunday, guilty of a misdemeanor, and he appealed to the Supreme Court of Oklahoma Territory, whence the cause tvas transferred to the Supreme Court of the state of Oklahoma, and from thence .to the Criminal Court of Appeals.

King, Judge. lvetch Canard and Joe Whitmire were convicted of forgery, and they appeal. This is a prosecution by information, filed by the county attorney in the district court in Muskogee county, charging' the plaintiffs in error (herein referred to as the defendants) with the crime of forgery. To this information the defendant interposed a demurrer. This demurrer was overruled. Trial was had, which resulted in a verdict of guilty.

Petition by William Westmoreland for writ of habeas corpus. Petitioner admitted, to bail.

<p> Error from McClain County Court; E. E. Glaseo, Judge. </p> <p>Hamp Snapp was convicted of unlawfully selling liquor, and brings error to the Supreme Court. ’Cause transferred to Criminal Court of Appeals.</p> <p>This conviction was had on an unverified information filed in the county court of McClain county, by the county attorney of said county, which information, omitting the formal part, reads as follows:</p> <p>“Comes now Ben Franklin, the duly qualified and acting county attorney, in and for McClain county, and state of Oklahoma, and on his official oath gives the county court in and for said MoClain county and state of Oklahoma, to know and be informed that the above-named defendant Hamp Snapp, did, in McClain county, and in the state of Oklahoma, on the 24th day of December, in the year of our Lord A. D. 1907, commit the crime of selling intoxicating liquors in manner and form as follows. The defendant aforesaid at the time and place aforesaid did sell baider and deliver to one Zeb White, and others whose names are to this informant unknown, a quantity, the amount of which is to this informant unknown, of intoxicating liquor; namely, whisky, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma. Ben Franklin, County Altorney, McClain County.” . '</p> <p>To which information a demurrer was filed, which demurrer the court overruled, exception allowed. Whereupon the defendant was duly arraigned and entered a plea of “not guilty.” On Jan-nary 15, 1908, a trial was had, which resulted in a verdict of guilty. On said day a motion for a new trial was filed. On January 1?, 1909, a motion in arrest of judgment was filed, which motions were by the court overruled, and exception allowed. Whereupon the court sentenced defendant to pay a fine of $2'50 and to be confined six months in the county jail. On April 29, 1908, defendant filed his petition in error and case-made in the Supreme Court. Upon the organization of the Criminal Court of Appeals, the Supreme Court transferred, as provided by law, said cause to this court. At the May term, 1909, of this court, said cause was submitted.</p>

D. lleasor, Judge. 1. J. De Graif was. convicted for violation of -the liquor law, and ho appeals. On the ?th day of October, 1908, an information was filed in the county court, of Pottawatomie county, Olda., against T. J. De Graff, -hereinafter called “defendant,” which information is as follows: “Information. In the County Court in and for Pottawatomie County, State of Oklahoma, Before E. D. Reasor, County Judge-State of Oklahoma, Plaintiff, v. I. J. De Graff, Defendant.

E. Gillette, Judge. Jim Wilkins was convicted of murder, and appeals. Jim Wilkins, hereinafter called the “-defendant,” was indicted by the grand jury of Comanche county at the September term, A- D. 1906, for murder of Jim Wilson, on the 30th day of March, 1906. The defendant was duly arraigned and pleaded not guilty. The case was tried at the same term of court, and the defendant was found guilty, and his punishment assessed at death.

Application of Earl Howard for a writ of hateas corpus. This is a petition, for writ of habeas corpus, presented to this court on behalf of Earl Howard, who alleges that he is unlawfully imprisoned and restrained of his liberty, at Chickasha, by M. B. Louthan, sheriff of Grady count}', Olda., by virtue of a certain pretended commitment issued by Hon. N. M. Williams, county judge of G-rady county, which commitment is based upon a pretended judgment against petitioner, and…

Error from District Court, Noble County; W. M. Bowles, Judge. Henry T. Armstrong was convicted of murder, and he brings error. Henry T. Armstrong, plaintiff in error, hereinafter designated “defendant,” was convicted of murder, and his punishment assessed at death. This conviction was had on an information filed by Charles R. Bostick, county attorney of Noble county, in the district court of said county, on the 15th day of February, 1909.

<p>APPEAL — Dismissal. In a criminal case, where the defendant appeals from a judgment of conviction and no briefs are filed or argument presented, and where a dismissal of appeal is filed by the defendant, this court will not examine the record as presented, but will maike an order dismissing the appeal.</p> <p>(Syllabus by the Court.)</p>

Petition of Buster Holland for a writ of habeas corpus. Petitioner admitted to bail.

B. A. Mason ivas convicted of unlawfully keeping intoxicating liquors, and appeals. B. A. Mason, was convicted of the offense of unlawfully keeping intoxicating liquors in and about his pharmacy in the city of Ada.

<p>Application oí Fred Bollman for a writ of habeas corpus.</p>

Error from the United States Court for the. Northern District of the Indian Territoryj William E. Lawrence, Judge. M. V. McDaniels was convicted of introducing intoxicating liquor into the Indian Territory, and appealed to the United States Court of Appeals for .the Indian Territory, whence the cause was transferred 'to the Supreme Court of Oklahoma, and from, thence to the Criminal Court of Appeals.

<p>INSTRUCTIONS — Presumption of Innocence. The trial court instructed the jury that “if you believe from the evidence that the defendant did not, on or about the date and in the county and state aforesaid, deliver or assist in delivering to the said S. W. Barnhill any whisky, or if you believe that the said defendant did not receive or expect to receive, before, at or after the" delivery thereof as aforesaid, either for the benefit or use of the defendant or any one else, any money in exchange therefor,” etc. Held error, because it in effect required the jury, before finding for acquittal, to believe from the evidence adduced that the defendant was innocent, and substantially instructed against the presumption of innocence until guilt was established by evidence beyond a reasonable doubt. '</p> <p><Syllabus by the Court.)</p>

Error from District Court, Kiowa County; James R. Tolbert, Judge. Waiter Reed was convicted of manslaughter, and lie brings error. Walter Reed, hereinafter designated “defendant,” was indicted in the district court of Kiowa county, at the January, 1908, term. The indictment charged that on the 18th dajr of September, 1907, the defendant did with malice aforethought kill and murder one Elmer Emmons, by shooting him with a Winchester rifle.

. Bert Hicks was convicted of larcemg and appeals. On the 5th day of October, 1906, Bert Hicks (hereinafter called defendant) was indicted for the oifense of larceny of a steer. Defendant was arraigned and pleaded not guilty.

<p>Appeal from District Court, Pittsburg County; Preslie, B. Cole, Judge.</p> <p>On May 7, 1907, Tom Phillips (hereinafter called the defendant) was indicted by the grand jury of the Central district of the Indian Territory, sitting at South McAlester, for assault to kill. The case was transferred to the district court of Pittsburg county upon the incoming of statehood. The defendant was tried and convicted on said indictment in said state court, and the case is regularly before us on appeal.</p> <p>On offense of shooting into crowd: 'Wharton on Criminal Law (10th Bid.) §§ 319, 608; Jennings v. U. S. (Ind. T.) 53 S. W. 456.</p>

T. Glenn, Judge. E. S. McLellan was convicted of conspiracy to resist legal process, and appeals. An information was filed against E. S. McLellan (hereinafter ■ called defendant), on the 17th day of November, 1908, in the county court of Choctaw county charging him with having- en-terecl into a conspiracy to resist the execution of certain legal process, which said information is as follows: “In the County Court of Choctaw County, Oklahoma.

<p> Appeal from the United tí lates Court for the Western District vf the Indian TeiWilory; Wm. JR. Lawrence, Judge. </p> <p>Nat Hines was convicted of larceny, and bo appeals.</p>

<p> Appeal friorn Qrady County Court; N. W. William,s, Judge. </p> <p>Earl Howard was convicted of violating the prohibitory law, and appeals.</p>

<p> Appeal from Creek County Court; Josiah C. Davis, Judge. </p> <p>E. L! Drake was convicted of extortion, and lie appeals.</p> <p>On the 19th day of December, 1907, an information was filed in the county court of Creek county, Okla., against E. L. Drake (hereinafter called defendant), which 'information is as follows:</p> <p>“The State of Oklahoma v. E. L. Drake, Defendant. In the County 'Court of Creek County. In the name and by the authority of the state of Oklahoma now comes L. B. Jackson, the duly qualified and acting county attorney in and for Creek county, state of Oklahoma, and gives the county court of Creek county and state of Oklahoma to know and be informed that E. L. Drake did, in Creek county and in the state of Oklahoma, on or about the 14th day of December in the year of our Lord one thousand nine hundred "and seven, and anterior to the presentment hereof, commit the crime of extortion in the manner and form as follows, to wit: That the said E. L. Drake did on or about the 14th day of December, 1907, in the county of Creek and state of Okla-.homia, extort the sum of $35.00 from one B. F. Henderson, by then and there falsely and fraudulently representing to the said Henderson that he, the said Drake, as the agent of L. B. Jackson, then county attorney of said Creek couiitjq would grant the said Henderson immunity to violate .the liquor laws of the state of Oklahoma, and by such false and fraudulent representation the said Drake did then and there obtain from the said Henderson, with his consent, the said sum of $35.00, and there did commit-extortion, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. L. B. JACKSON, County Attorney.</p> <p>“State of Oklahoma, Creek -County — ss.:</p> <p>“1, L. B. Jackson, being duly sworn, on oath state that I have read the above and foregoing information and know the contents thereof, and that the facts stated therein are true to the best of my information and belief. L. B. Jackson.</p> <p>“Subscribed and sworn to before me at Sapulpa, this 19th day of December, 1907. Josiaii O. Davis, Judge.”</p> <p>. The defendant filed a motion to set aside the information, which was overruled by the court, and the defendant reserved an exception. Upon the trial the defendant was found guilty, and the case is regularly before us on appeal.</p> <p>— On essentials to constitute offense of extortion: 19 Cyc., pages 38, 41, and 43, and cases4 cited; 12 A. & E. Enc. Law, pages 578 and 582', and cases cited.</p>

<p>1. LARCENY — Unbranded Horses — “Cattle.” The word “cattle,” as used in section 1655 'Of M-ansfleld’s Digest of the Statutes of Arkansas (Ind.- T. Ann. St. 1899, sec. 998), does not include horses.</p> <p>2. WITNESSES — Cross-Examination. It is not proper to ask a witness, on cross-examination, if he has been in jail.</p> <p>('Syllabus by the Court.)</p>

Cole, Judge. Jesse Eeed was convicted of murder, and appeals. The defendant below was tried separately on indictment, charging him, jointly with William Frazier, with the crime o£ murder. He was convicted and sentenced to imprisonment in the penitentiary for life. A motion for new trial was filed, overruled, and no exceptions saved to the order of the court overruling the same. The case is before this court on case-made.

<p> Appeal from District Court, Pittsbwg County; Preside B. Cole, Judge. </p> <p>William Frazier was convicted of murder, and appeals.</p> <p>Tlie defendant below was tried separately on an indictment charging him, jointly with Jesse Reed, with the crime of murder, was -convicted, and sentenced to imprisonment in the penitentiary for life. A motion for new trial was filed, overruled, and no exceptions saved to the order of the court overruling the motion. The case is before this court on case-made. The Attorney General files motion to dismiss the appeal and affirm the judgment of the lower court, for the reason no exception was saved to the order of the court overruling motion for new trial.</p> <p>— On instructions on corpus deilicli: Hughes’ Or. Law, §§ 3089-3092; Wills on Or. Ev. pp. 206, 694; People v. Tarbo>x, 115 Cal. 57; U. S. v. Boese, 46 Fed. 917; Slate v. Brown, 1 Mo. App. 86.</p>

<p>1. APPEAL — Sufficiency of Evidence. Where a defendant has been properly indicted and fairly tried and convicted, this court will not reverse the conviction, upon the ground that the evidence does not sustain the verdict, if there is in the record any evidence from which the jury could legitimately draw the conclusion that the defendant was guilty.</p> <p>2. ROBBERY — Evidence. Por facts sustaining a conviction of robbery, see opinion.</p> <p>3. APPEAL — Presumption. Every presumption must be indulged in favor of the regularity of proceedings in courts of record. .</p> <p>(Syllabus by the Court.)</p> <p>(a) APPEAL — Doctrine of Harmless Error. This court did not originate the doctrine of harmless error. It is simply enforcing a principle of law as old as the American systerri of criminal jurisprudence, which is recognized in theory by all appellate courts, but not enforced by mans'- of them.</p> <p>(b) 'ROBBERY — Evidence—Identification of Money. The character of the money described in an indictment in a ease of robbery may be proven by circumstances as well as by positive identification, and where the circumstances of the trial show that no issue was made before the jury on this question, and the defendant’s counsel tacitly admitted that the money- with reference to which the witnesses were testifying was the kind described in the indictment, and the circumstances of the trial clearly show, from evidence admitted without objections, that the jury and the witnesses understood that the' testimony was with reference to this kind of money, and the evidence sustains the verdict, a conviction will not be reversed on account of purely technical defects in the identification of the money described in the indictment.</p> <p>(c) APPEAL — Review—Harmless Error. Appellate courts, in reviewing the action of trial courts upon questions of practice, should base their decisions upon substance rather than upon shadows, upon justice rather than upon i^chnicalities, and when there is undisputed testimony in a record from which the jury could legitimately draw the conclusion that the defendant is guilty, the verdict should not be disturbed, because all purely technical rules were not rigidly complied with, when it does not appear from the record that the defendant was thereby deprived of some substantial right.</p> <p>(Syllabus by the Court.)</p>

Walter Cox was convicted of stealing a horse, and he appeals. This is an appeal from a judgment and sentence of the district court of Pawnee county. The plaintiff in error, Walter Cox, was tried and convicted in November, 1906, on an indictment drawn under section 248.0, Wilson’s iiev. & Ann. St. 1903, charging him with stealing a horse.

Ollie Lancaster and Luke Jenkins were convicted of viola-ing the prohibition laws, and they appeal. The defendants were prosecuted by information for violating the prohibition laws. They were found guilty by the jury and the punishment of the defendant Luke Jenkins was assessed at a fine of $250 and imprisonment in the county jail for 60 days, and the punishment of the defendant Ollie Lancaster was assessed at a fine -of $500 and imprisonment in the county jail for 60 days.

<p>COURTS — -'Records—Amendment—Power of Court. The failure of the cleric or recording- officer to make a correct record does not vitiate the proceedings in a court of record. The court may, at any time during the term at which the procee,dings are had, correct, amend, or supply omissions, to make the record speak the truth. Such records, when so corrected, relate to the time when the proceedings were in fact had.</p> <p>(Syllabus by the Court.)</p>

<p>Habeas corpus by B. E. P. Messall against S. C. Campbell, Sheriff of Garfield County, and another.</p>

Error from the United States Court for the Northern District of the Indian Territory: Joseph A. Qitl, Judge. ■ Frayser Tyner was convicted of assault with intent to kill, and he brings error.

<p>Appeal from Comanche County Court; James-II. Wolverton, Judge.</p> <p>W. H. Stack was convicted of violating the prohibitory law, and he appeals.</p>

<p>APPEAL — Briefs—¡Failure to File — Scope of Review. When no briefs are filed on behalf of the appellant, this court will confine its investigations to the information or indictment, the evidence in ■ ’ the case, the instructions to the jury, and the judgment, and if it appears that the evidence is sufficient to sustain the verdict, and 'that the information or indictment is regular, and that no material error was committed in the instructions, and that the judgment is in proper form, the conviction will be affirmed.</p> <p>(Syllabus .by the Court.)</p>

<p>INTOXICATING LIQUORS — Violation of Enforcement Act — Information. In an information for having prohibited liquors in one’s possession with the intent to violate the provisions of the enforcement act, the information must state the provision of the act which, .the defendant intended to violate.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Briefs—Failure to File — Scope of 'Review. When no briefs are filed, this court will only examine the record for fundamental errors, and, if the information is correctly drawn, the evidence is sufficient, if the instructions are free from error, and the judgment is regular, it will be affirmed.</p> <p>(.Syllabus by the Court.)</p>

<p>GAMING — ‘Indictment—Sufficiency. An indictment, which charges that the defendant “did unlawfully play at a game of cards, played for money, and commonly known as poker, contrary to the form of .the statutes,” etc., charges the defendant with the commission of a crime, and is sufficient under sections 2617 and 2618, Wil' son’s Rev. & Ann. St. 1903.</p> <p>(.Syllabus by the Court.)</p>

<p>1. HABEAS CORPUS — Nature of Writ — Constitutional Guaranty. ■Section 10 of the Bill of Rights provides: “The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” Held, that the writ of habeas corpus is a writ of righ.t, and cannot be abrogated or its efficiency impaired by statute, and the casos within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.</p> <p>2. CONSTITUTIONAL LAW — Deprivation of Liberty — Imprisonment Pending Appeal from 'Life Sentence. The act of criminal procedure of Oklahoma (Wilson’s Rev. & Ann. St. 1903, sec. 5771; Sess. Laws 1905, p. 334, e. 29, art. 2, see. 1) provides that upon conviction and sentence for a crime punishable by death or imprisonment for life the crime is not bailable, and that in all cases where the sentence is for a crime not bailable the appeal shall suspend execution, until the matter is determined and the defendant in the meantime shall be confined to the state prison. Held, upon petitioner’s demurrer to respondent’s answer -and return showing conviction and sentence to imprisonment for life, commitment issued, and appeal taken, that said provision do.es not disparage any substantial rights or constitutional guaranty, and is not repugnant to or inconsistent with the Constitution of Oklahoma.</p> <p>3. HABEAS CORPUS — Scope of Writ — Irregular Conviction — Jurisdiction. If the judgment and sentence or commitment under which a defendant is restrained is irregular or erroneous merely, and the court rendering the judgment and issuing -the commitment * had jurisdiction to render such judgment and issue the commitment, the Criminal Court of Appeals will not interfere by writ of habeas corpus.</p> <p>4. TRIAL — Absence of Judge. Upon an agreed statement of facts ■ showing that during the progress of the trial the trial judge at divers times during adjournments before the final submission of the case to the jury left Oklahoma county and went to Canadian county, but was present the entire time the jury were deliberating of their verdict, held, that the absence of the trial judge during the adjournments could in no way affect the legality of the proceedings, and did not deprive the court of the power or jurisdiction to render judgment and issue process for the imprisonment of the defendant. In re Patswald, 5 Otete. 789, 50 Pac. 139, distinguished.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Necessity of Petition in Error. To perfect an appeal to this court the case-made or transcript of the record must be attached to, and accompanied by, a petition in error. If this is not done, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Garter County Gourl; 1. B. Mason, Judge. </p> <p>Kelly Baker was convicted of violating the prohibition law and he appeals.</p>

<p> Appeal from Musk,ogee Counly Court; W. C. Jackson, Judge. </p> <p>O. B. McCullough was convicted of violating the prohibition law, and he appeals.</p>

Error from Oherolcee County Court, Bitting at Tahlequah; J. T. Paries, Judge. Joe Thurman and another were convicted of reckless shooting, and they appeal.