Volume 3 — Oklahoma Criminal Reports

Error from, District Court, Oklahoma County; Joseph Q. Dowe, Judge. Victoria Hayes was convicted of assault with intent to kill, and appealed.. Case transferred to the Criminal'Court of Appeals. Victoria Hayes, plaintiff in error (hereinafter designated defendant), was indicted for the crime of assault with intent to kill one A. M. Jones, alleged to have been committed on the 5th day of November, 1907.

<p>1. APPEAL AND ERROR — Reversal — Evidence — Sufficiency. This court will not reverse the judgment of the triad court for lack of evidence where there is competent evidence in the record reasonably tending to sustain the judgment.</p> <p>2 INDICTMENT AND INFORMATION — Amendment—Prejudice. An information may be amended by leave of court after the defendant has pleaded, if it in no manner alters the condition of the case to his injury.</p> <p>(Syllabus by the Court.)</p>

<p>1. INTOXICATING LIQUORS — Wrongful Sale — Issues and Proof. Under an information charging a sale of intoxicating liquors, a conviction cannot be had where the evidence shows that the defendant had no interest in the liquor sold nor in the money paid for it, but acted only as the agent or friend of the purchaser in procuring the liquor.</p> <p>2 INSTRUCTIONS — Applicability to Evidence. The instructions should cover the whole case. The defendant is entitled to an instruction defining the law as applicable to his defense, if there is any competent evidence reasonably tending to substantiate that defense.</p> <p>(Syllabus by the Court.)</p>

Error from Goal County Court, Sitting at Coalgate; R. II. Wells, Judge. The plaintiff in error here, and defendant below, was indicted by the grand jury in the district court of Coal county, on the 4th day of April, 1908, on a charge of selling and furnishing intoxicating liquors. On the 11th day of April, 1908, on a motion of the county attorney, the district court made an order transferring the case to the county court of Coal county.

<p>Error from District Court, Adair County; B. Y. Nance, Judge.</p> <p>John W. Sharp was convicted of manslaughter, and he brings error.</p> <p>John W. Sharp, the plaintiff in error in this case, was indicted for the crime of murder by a grand jury in the United States court for the Northern district of the Indian Territorjr, the indictment being filed in open court on the presentment of the grand jury at Sallisaw, in the Northern district of the Indian Territory, on December 12, 1906, and accusing him of having committed the crime of murder ivithin the Northern district of the Indian Territory on the 28th day of November, A. D. 1906, by shooting and killing one William Powell. The case against the plaintiff in error, defendant below, was pending and undetermined in the United States court for the Northern district of the Indian Territory at the time the territory of Oklahoma and the Indian Territory were admitted into the Union as the state of Oklahoma. Under the Constitution of the state of Oklahoma and the enabling act the case was duly transferred and docketed in the district court of Cherokee county, state of Oklahoma, the crime having been alleged to have been committed within the town of Tahlequah, which said town is located within the geographical limits of what was the Northern district of the Indian Territory, and is now Cherokee county, state of Oklahoma. That on April 20, 1908, the said John W. Sharp filed his application for a change of venue in the district court of Cherokee county, state of Oklahoma, which said application was duly allowed, and said cause transferred for trial to the district court of Adair county, state of Oklahoma. That thereafter, and on the 8th day of May, 1908, the cause proceeded to trial, and the defendant was convicted of the crime of manslaughter, and, his motions for a new trial and in arrest of judgment having been overruled by the court, the defendant was on May 16, 1908, sentenced to be confined in the state penitentiary at Lansing for the term of 10 years, sentence to begin from said date, and that in addition to said sentence the defendant pay a fine of $500. The defendant prayed an appeal, and his bond was fixed at $5,000. The bond having been approved, the defendant was released pending appeal, and this case is now before this court for review upon petition in error and case-made.</p> <p>Thomas H. Owen, being of counsel for the defendant in the trial of this cause below, was disqualified to sit in this case in this court, and, the fact having been duly certified to the Governor as provided for by law, Preston S. Davis, of Yinita, Okla., was duly commissioned by the Governor to sit in this case as special judge.</p>

<p>1. ASSAULT AND BATTERY — Assault With Deadly Weapon — Sufficiency of Evidence. Upon the trial of an indictment charging an assault with a deadly weapon, to wit, a knife, without any description of the knife, and where the proof fails to show the kind or character of the knife, or that the wounds inflicted thereby would likely produce death, and where the evidence that was offered in regard to the weapon repels the idea that the knife was a deadly weapon, a new trial should be granted on the motion of the defendant alleging the insufficiency of the evidence to sustain the verdict of the jury.</p> <p>2. ASSAULT AND BATTERY — Assault With Deadly Weapon-Statutes. Sess. Laws 1901, p. 108. c. 13, art. 1, entitled “Assault with intent to kill,” embraces several species of offense, all punishable alike, yet different in description and degrees, as in some of the offenses denounced therein a conviction may be had of a lesser degree or misdemeanor, while under the last offense denounced therein there are.no lesser degrees.</p> <p>3. APPEAL AND ERROR — Review—Questions of Fact. Where the evidence in a case to sustain a verdict of guilty is of such a weak and uncertain character that the court cannot say that the jury was not influenced by prejudice, passion, or irrelevant and incompetent testimony, a great deal of such testimony appearing in the record, this court will order a new trial.</p> <p>(Syllabus by the Court.)</p>

<p>1. GRAND JURY — Preservation of Evidence — Necessity. Section 5333, Wilson’s Rev. & Ann. St. 1903, provides: “The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the evidence given before them.” Held, that this statute does not require that evidence before the grand jury be preserved. At most it means minutes of the evidence, which would be merely a memorandum.</p> <p>2. WITNESSES — Testimony of Grand Jurors — Competency. Section 5347, Wilson’s Rev. & Ann. St. 1903, provides: “A member of the grand jury may, however, be required bv any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disdlose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony or upon his trial therefor.” Held, that this statute affirmatively ■ establishes the competency of grand jurors as witnesses testifying orally as to the statements of defendant, made as a witness before the grand jury in a prosecution of said witness for perjury.</p> <p>3. PEIRJURY — Admissibility of Evidence — Address of Judge. On a prosecution for perjury, consisting of testimony by defendant before a grand jury, which was investigating crimes committed in connection with the unlawful mutilation and alteration of election returns, it was error to admit in evidence, and have read from the record, an address made by the presiding judge at the convening of the first term of the district court of the county; such evidence being irrelevant and calculated to mislead the jury as to the proper grounds and consideration upon which they should found their verdict, and therefore prejudicial to the defendant. 3 Cr. — 4</p> <p>4. PERJURY — Intent. Section 2081, Wilson’s Rev. & Ann. St. 1903, which declares that: “An unqualified statement of that which one does not know to he true is equivalent to a statement of that which one knows to be false” — should be construed with section 2071. Wilson’s Rev. & Ann. St. 1903, which provides that: “Every person who, having taken an oath that he will testify, declare, depose or certify truly before any cpmpe-tent tribunal, officer, or person, in anv of the oases in which such an oath may bv law be administered, willfully and contrary to such oath, states anv material matter which he knows to be false, is guilty of perjury.”</p> <p>5. SAME. Perjury consists in swearing' willfully and corruptly, contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief.</p> <p>G. SAME. (Corrupt motive is indispensable to perjury; and one having knowledge respecting the fact, who testified, however positively, only what he believes to be true, can be guilty of no crime, although he was "mistaken.”</p> <p>7. TRIAL' — Direction of Acquittal. A motion on the part of the defendant to direct a verdict of acquittal should be sustained, where the evidence is insufficient to show the commission of the oifense charged.</p> <p>8. PERJURY — Sufficiency of Evidence. See opinion for evidence stated, which is held to be insufficient to sustain a conviction for perjury.</p> <p>(Syllabus by the Court.)</p>

County; John Carwthers, J udge. Ií. E. Bridges was convicted of the larceny of a steer, and he appeals. The defendant was tried in the district court of Creek county for the offense of larceny of a steer. The indictment was transferred from the United States Court of the Western District of the Indian Territory upon the incoming of statehood. The defendant was found guilty by the jury, and the case is properly before this court on appeal.

<p>Original application by Frank Haikey for writ of habeas corpus.</p> <p>This is an original application for writ of habeas corpus filed by the petitioner, Frank Haikey, in this court on July 6, 1909. On November 10, 1908, the petitioner was convicted in the district court of Creek county, Okla., of murder and sentenced to life imprisonment in the penitentiary, and thereafter prosecuted his appeal to this court where the same is now pending undetermined as case No. A-238. He was removed from the county jail of Creek county to the state penitentiary, and is now confined therein for safe-keeping, by the respondent R. W. Dick, warden. The petition herein is not verified, but petitioner asks that he be remanded to the county jail of Creek county pending the decision of this court in review of the judgment appealed from.</p>

Williams, Judge. A. B. Harmon was convicted of practicing medicine without a license, and, his motion in arrest of judgment having been thereafter sustained, the state appeals.

<p> Appeal from District Court, Carter County; Btilwell H. Bussell, Judge. </p> <p>W. T. Caples was convicted of assault with intent to kill, and he appeals.</p> <p>The defendant was convicted in the district court of Carter county of the offense of assault with intent to kill, and his punishment was assessed at confinement in the penitentiary for the period of five years. The facts of the case are sufficiently stated in the opinion. The court instructed the jury as follows:</p> <p>“Gentlemen of the Jury:</p> <p>“(1) The court instructs you that in this case the defendant, Will Capíes, now on trial before you, is being prosecuted by the state of Oklahoma, upon an information duly and legally presented in this court, charging him on or about the 24th day ot April, 1908, at and rvithin the county of Carter, and state of Oklahoma, and within the jurisdiction of this court, with having committed the crime of assault with intent to kill, in manner and form as follows, to wit: The said Will Capíes did then and there unlawfully, intentionally, wrongfully, and feloniously shoot at one Elmer Finley with a certain firearm, to wit, a pistol, with intent then and there and thereby to kill him, the said Elmer Einlev, contrarjr to the form of the statutes in such case made and provided, etc.</p> <p>“(2) The court instructs you that, for a more definite and accurate description of the crime charged against the defendant, you are referred to the indictment, Avhich you will take with you in your retirement.</p> <p>“(3) You are instructed that the statutes under which the defendant -is being prosecuted is as follows: ‘Every person who intentionally and wrongfully shoots, shoots at or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or resisting the execution’ of any legal process, is punishable by imprisonment in the state prison not exceeding ten .years.’</p> <p>“(4) To the information read to you, the defendant has entered his plea of not guilty, and you are instructed that under the law the defendant is presumed to be innocent of the offense charged against him, and of every ingredient thereof, until such presumption is overcome by competent evidence to your satisfaction beyond a reasonable doubt, and you are instructed in this connection that it devolves upon the state to prove to your satisfaction beyond a reasonable doubt every material allegation of the information charging the offense against the defendant.</p> <p>"(5) The jury are the sole judges of the facts proven and of the credibility of the witnesses, and each of them, and of the weight and value to be given to their testimony, and this rule and instruction applies to each and every witness who has testified in this case. In determining what credit you will give to a witness and the Aveight and value you will attach to his testimony, you will take into consideration the conduct and appearance of the witnesses on the stand, the interest of the witness, if any, in the trial or the result thereof, the motives of the Avitness in testifying, the witness’ relation to, or feeling for or against, the defendant, and give the testimonA^ of each witness such Aveight and value as you may deem right and proper.</p> <p>“f(6) Yon are instructed that an assault is any wilful or unlawful attempt or offer, with force or violence, to do a corporal hurt to another.</p> <p>“(7) You are instructed that homicide, or attempt to commit a homicide, is justifiable when committed by any person when resisting any attempt to murder such person or commit any felony upon him. Second, when committed in the lawful defense of sucE person, when there is a reasonable ground to apprehend a design-io commit a feknry against such person, or to do him some personal injury, and there is imminent danger of such design being accomplished.</p> <p>“(8) Therefore, in this ease, if you believe from the evidence beyond a reasonable doubt that the defendant, W. T. Caples, did on or about the time alleged in the information, in the county of Carter and state of Oklahoma, intentionally and Avrongfully, with a pistol in his hand and held, shoot, at Elmer Finley, Avith said pistol, with intent to kill the said Elmer FinleA', as alleged in said information, then under such circumstances you are instructed that it is your duty to find the defendant guilty, as charged in the information.</p> <p>"(9) You are instructed that although you may believe from the eAddence that the defendant’s Avife communicated to him the fact that the witness, Elmer Finley, had made overtures to her to have carnal intercourse with her, in the manner testified to in the evidence before you, and you further believe that this was the reason that prompted the shooting at the said Elmer Finley by the defendant, if you find that he did so shoo't at him, then you are instructed that such communication referred to did not excuse or justify the defendant in shooting at the said Finley, as alleged in the information, and if you find that such communications were tlie reason for such shooting, then you are instructed to find the defendant guilty.</p> <p>“(10) You are instructed that in the event you find the defendant guilty as herein charged, you may assess his punishment by imprisonment in the penitentiary for any time not exceeding 10 years.</p> <p>“(11) Gentlemen of the jury, the law of the ease of your guidance is found in these instructions, and by which you will be governed, but as to the facts, you are the sole judges of them and of their weight and value; and, without prejudice upon the one hand or sympathy upon the other, let your verdict be found.</p> <p>“ S. H. Russell, Judge.”</p> <p>The case is regularly before us on appeeal.</p> <p>— On sufficiency of information; formal requirements of the Constitution: State v. Campbell (Mo.) 109 S. W. 706; White v. Commonwealth, 6 Binn. (Pa.) 179; Yeager v. Grove, 78 ICy. 278; City of Davenport v. Bird, 34 Iowa, 524; State v. Hosledahl (N. D.) 52 N. W. 315; Jefferson v. State (Tex. App.) 7 S. W. 244; Sainé v. State, 14 Tex. App. 144; Calvert v. State, 8 Tex. App. 538; Gould v. People, 89 Ill. 216; Pams v. People, 76 111. 274;</p>

Original petition by Carson Whitehouse for writ of habeas corpus. This is an original action bv petition for a writ of habeas corpus to release Carson Whitehouse from imprisonment on-judgment and sentence of the superior court of Pittsburg county. The petitioner was tried in the superior court of Pittsburg county on an information charging him with the crime of unlawful possession of liquor.

Original petition for habeas corpus by Edward B. Justus. This is an original action in this court on petition for writ ■of habeas corpus. The petitioner is confined in the State Penitentiary at MeAlester, Okla., under judgment and sentence issued nut of the district court of Kay county, Okla., then Oklahoma Territory, September 30, 1898. That part of the petition neees-sai7 to be copied is as follows: “That the said It.

<p>APPEAL AND ERROR — Dismissal. In a criminal cause, where the defendant appeals from a judgment of conviction, and no briefs are filed or oral argument made, and where a dismissal of said appeal is filed by counsel of defendant, this court will not examine the record as presented, but will make an order dismissing the appeal, with direction to enforce the judgment and sentence,</p> <p>(Syllabus by the Court.)</p>

C. B. Cox and others were convicted'of an unlawful sale of intoxicating liquor, and they appeal. On motion for rehearing.

<p>APPEAL — Record—Review—Absence of Briefs. In a criminal cause, where the defendant appeals from a judgment of conviction, and no briefs are filed or oral argument made, this court- will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and, it no prejudicial error appears, will affirm the judgment.</p> <p>(Syllabus by the Court.)</p>

Original application for habeas corpus by Lyda Howland. The relator, Lyda Howland, filed her petition in this court on July 13, 1909, alleging that she is restrained in the state penitentiary by virtue of an alleged commitment, purporting to come from the district court of Lincoln count}', Okla.

Error from, District Court, Woods County; J. L. Pancoast, Judge. Leroy Dickinson was convicted of pointing a gun at another, and he brings error. Leroy Dickinson, plaintiff in error (hereinafter designated defendant) was informed against in the probate court of Woods county, Okla.

D. J. Faggard was convicted of embezzlement, and brought error to the Supreme Court, whence the cause was transferred to the Criminal Court of Appeals. The plaintiff in error, hereafter referred to as defendant, was indicted in the district court, Pittsburg county, 11th day of Janu-ar}r, 1908, charged with the crime of embezzling the funds of Local No. 1306, District 21, of the United Mine Workers of America, in Pittsburg county, on the 1st day of May, 1907.

<p>1. HABEAS CORPUS — Commitment upon Preliminary Examination —Inquiry Into Validity. An order of commitment to hold for trial before the district court, issued by a magistrate before whom a person is brought for examination upon a felony charge, after such examination is concluded, and a finding made that there is sufficient cause to believe defendant guilty of the felony, is not “a process issued on any final judgment of a court of • competent jurisdiction.” as provided under section 4867, Wilson’s Rev. & Ann. St. 1903.</p> <p>2. HABEAS CORPUS — Preliminary Examination — Sufficiency of Evidence. Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court, is void, and petitioner will be discharged on habeas corpus.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge. T. J. Bailey was convicted of larceny, and brought error to the United States Court of Appeals for the Indian Territory, whence the cause was removed to the Supreme Court of Oklahoma, and then transferred to the Criminal Court of Appeals. On motion to reverse judgment and grant a new trial by reason of loss of record.

Bailey, Judge. P. F. Tyler was convicted of forgery and appealed. Motion by the State to dismiss the appeal, for the reason that appellant had escaped from, the custody of the law and was a fugitive from justice. Plaintiff in error, P. F. Tyler, was indicted in the district court of Blaine county, tried by a jury, and found guilty of the crime of forgery.

Error from the United States Court for the Southern District 'of ■ the Indian Territory; Ilosea Townsend, Judge. : Kid Kelley was convicted 'of murder, and appealed to the United States Court of Appeals, whence the cause was transferred to the Supreme Court of the State of Oklahoma, and thence to the Criminal Court of Appeals. Cause stricken from docket.

<p>1. COURTS — Criminal Court of Appeals — Rules of Practice— 'Power to Make. The power to make reasonable rules for the regulation of the practice before the Criminal Court of Appeals is expressly conferred upon the court by statute. Section 10, art. 2, c. 14, p. 172, Sess. Laws 1909.</p> <p>2. APPEAL — Review—Dismissal of Appeal — Grounds. A motion to dismiss an appeal for want of prosecution will be sustained, where the record shows there has been a failure by the appellant to comply with the rules and orders of the court in said ■ case.</p> <p>(Syllabus toy the Court.)</p>

Original application bj' B. M. Cranford for writ of habeas . corpus. B. M. Cranford, petitioner, was convicted in the district court of Pontotoc county of the crime of adultery, and was thereupon sentenced to imprisonment in the state prison for a term of five years.

Application by Bert Fowler for a writ of habeas corpus to review his commitment for contempt in violating an injunction restraining petitioner and another from maintaining a liquor nuisance. This is an application to this court for a writ of habeas corpus to relieve the petitioner, Bert Fowler, from the custody of Hiram Stephens, sheriff of Bogers county.

<p>Original application by S.’ M. Dodson and Newt Scudder for a writ of habeas corpus.</p> <p>This is an application to this court for writs of habeas corpus to relieve the petitioners, S. M. Dodson and Newt Scudder, from the custody of Hiram Stephens, sheriff of Bogers county. The amended petition sets out with particularity the proceedings in the district court of Bogers county, and has annexed to it as an exhibit pleadings and proceedings in an action commenced on the relation of William H. Hall, as county attorney, of Bogers county, before the district court of said county in the name of the state of Oklahoma, wherein S. M. Dodson and Newt Scudder are defendants.</p> <p>■ The petition in said action alleges, in substance, that a liquor nuisance was being maintained by said defendants in a two-story brick building, the first floor of which is used and occupied by said defendants, engaged in business under the firm, name and style of .the “Chelsea Drug Company.” Among other things, the following relief is therein prayed for:</p> <p>“Third. * * * That in the meantime the said defendants may be enjoined, until the further order of the court, from keeping open, or permitting to be open, the said building located on said lot 19 in block 40 in the town of Chelsea, in Bogers-county, Oída., and from selling, bartering, or giving away, and from keeping for sale, barter, or gift, or use in or about said premises, any beer, ale wine, or other .intoxicating liquors, and from permitting such liquors to be sold, bartered, or given away, or to be kept foi sale, barter, or use, in or about said premises.”</p> <p>Pursuant to said prayer, and on the application made by the said county attorney to the Hon. T. L. Brown, judge of the said district court, at chambers, an order was made and entered in said cause on the loth clay of May, 1909, whereby the following order was made on the loth day of May, 1909:</p> <p>“It is therefore" ordered, adjudged, and decreed by the court that said defendants, and each of them, their servants or agents, be and they are hereby restrained and enjoined from keeping or permitting to be open the first floor of the building located on lot 19, block 40, in the town of Chelsea, Bogers county, state of Oklahoma, and from selling, bartering, or giving away, and from keeping for sale, barter, gift, or delivering in and about said premises any beer, wine, ale, spirituous, vinous, fermented, and other intoxicating liquors, and from permitting such liquors to be sold, bartered or given away,, or kept for sale, barter, gift, or delivery in and about said premises, and that the sheriff shut up said building and aba+e said nuisance until further judgment in this suit, or until further order of the court.”</p> <p>The defendants entered a general appearance in said cause by filing therein their motion to dissolve the order of injunction heretofore granted, and thereupon the judge of said court at chambers made an order modifying the former order, the material portion of which does not differ from that part of the order heretofore quoted.</p> <p>On the 7th day of June, 1909, the county attorney filed in said cause an information, to which said information was attached the affidavit of one M. V. McClain, charging that on or about the 22d day of May, 1909, the said defendants violated said temporary injunction, and thereupon a notice and citation was issued by the Hon. T. L. Brown, judge of the said district court, directed to said defendants, commanding them to appear at the courtroom of the district court on the 8th day of June, and make answer to said charges of violating said temporary injunction. Thereafter, on the 8th day of June, 1909, the said defendants filed in the office of the clerk of the district court their demurrer to the information, which demurrer was overruled, and exception allowed. Whereupon said defendants entered a plea of “not guilty,” and the cause was called for trial on the issues raised for the contempt of court in violating the order of the court. A jury of 12 was called and sworn to try the cause, and upon the trial so had the jury returned a verdict finding the defendants guilty of violating the order of the court as charged. Whereupon'defendants filed motions for a new trial, which motions were overruled by the court, to which ruling the defendants excepted. Thereupon the court pronounced judgment and sentence, fining each of the defendants $50, and ordering them committed to the jail of Rogers county for a period of 10 days, and that commitment forthwith issue. Whereupon defendants prayed an appeal and asked the court to fix ihe amount of their bail bonds pending an -appeal. Petitioners aver that said judge of the said district court refused to fix the amount of their bail bonds or supersedeas pending their appeal, and instructed the said sheriff to accept no bond; the court holding that this .was a judgment from which no appeal would lie.</p> <p>The respondent, Hiram Stephens, sheriff, makes return that he holds petitioners by virtue of commitments which read as follows:</p> <p>“State of Oklahoma, Rogers County — ss.: In the District Court of Said County. The State of Oklahoma to the Sheriff of said County. Greeting: Whereas, on the 9th day of June, 1909, Newt Scudder was brought before me upon a charge of contempt of court; and, whereas, on the 9th day of June, 1909,. after an impartial trial upon said charge, the said Newt Scudder was found guilty as charged, and, as punishment therefor it was ordered by me that he pay to the state of Oklahoma a fine of $50.00, that he be confined in the jail of the county of Rogers for a term of ten days: You are therefore commanded to receive the said Newt Scud-der into your custody and to confine him in the jail of the county of Rogers for ten days. You will make due return of this writ with your doings indorsed thereon. Witness my hand and official seal, this 10th day of June, A. D. 1909. T. L. Brown, Judge of District Court. Officer’s Return. Received this writ on the 10th day of June, 1909, and executed the same by committing to jail Newt Scudder. Fees: For committing to jail, $25ct. Hiram Stephens, Sheriff.”</p> <p>“State of Oklahoma, Rogers County — ss.: In the District Court of Said County. The State of Oklahoma to the Sheriff of said County, Greeting: Whereas on the 9th day of June, 1909, S. M. Dodson was brought before me upon a charge of contempt of court ;and, whereas, on the 9th day of June, 1909, after an impartial trial upon said charge, the said S. M. Dodson was found guilty as charged, and, as punishment therefor it was ordered by me that he pay to the state of Oklahoma a fine of $50.00, that he be confined in the jail of the county of Eogers for a term of ten days: You are therefore commanded to receive the said S. M. Dodson into your custody and to confine him in the jail of the county of Eogers for ten days. You will make, due return of this writ with yrour doings indorsed thereon. Witness my hand and official seal this 10th day of June, A. D. 1909. T. L. Brown, Judge of District Court. Officer’s Beturn. Eeeeived this writ on the 10th, day of June, 1909, and executed the same'by committing to jail S. M. Dodson. Fees: For committing to jail, $25 ct. Hiram Stephens, Sheriff.”</p>

<p>Application by S. B. Caveness for writ of habeas corpus to obtain reduction of bail.</p>

<p> Appeal from District Court, Latimer County; Malcolm R. Rosser, Judge. </p> <p>Willie Adams was convicted of larceny, and sentenced to two years’ imprisonment in state prison. His petition in error and case-made was filed in the Supreme Court on August 7, 1908, and was by the Supreme Court transferred to this court as provided by law.</p>

Error from District Court, Canadian Countyj John II. Burford, Judge. George Elmo Vance was convicted of murder, and brings error. The plaintiff in error (hereinafter referred to as the “defendant”) was indicted in Roger Mills county, territory of Oklahoma, at the April term, 1906, charged with the murder of Walter Sheehan. At the September term, 1906, a change of venue was granted to Canadian count}', Oída.

Application of George L. Ellis for a writ of habeas carpus. This is an application to this court, filed November 16, 1909, for a writ of habeas corpus, to relieve the petitioner*, George L. Ellis, from the custody of T. M. Latham, sheriff of Texas county.

<p>Application of Henry McCann for writ of habeas corpus. Writ granted, and petitioner discharged.</p>

<p>Appeal from District Court, Canadian County; C. F. Inuin, Judge.</p> <p>William H. Bhea was convicted of manslaughter, and he appeals.</p> <p>At the March term, 1907, of the district court of Canadian county, the grand jury returned an indictment against Wm. B. Bhea, hereinafter called “defendant,” charging him with the murder of Arthur Newall. Said cause was tried at the July term, 1907, of said court, and the defendant was found guilty of manslaughter. A motion for new trial was presented and overruled, and the punishment of the defendant was fixed by the court at 30 years' imprisonment in the penitentiary, and sentence was pronounced accordingly. The- case is regularly before us on appeal.</p>

<p> Appeal from Greek County Court; John Gm-uthers, Judge. </p> <p>Application of Joseph Inskeep for writ of habeas corpus.</p>

<p> Error from Seminole County Court; T. S. Cobb, Judge. </p> <p>Friday Davis and Israel Davis were convicted of resisting an executive officer, and they bring error.</p>

<p>1. ABORTION — “Use” of Instrument — What Constitutes. An indictment, alleging. “That on the— -day of May, in the year of our Dord, one thousand nine hundred and six, at and within said county, and within the jurisdiction of said court, Clark Greenwood, then and there 'being, did then and there unlawfully, willfully, and feloniously advise and procure Ethel Carpenter, a pregnant woman, to use certain instruments, with the unlawful and felonious intent of him, the said Clark Greenwood, to procure the miscarriage of the said Ethel Carp'enter, the same not being necessarj' to preserve the life of the said Ethel Carpenter,” held sufficient to charge an offense under section 2370, Snyder’s Comp. Laws, 1909 (section 2268, Wilson’s Rev. & Ann. St. 1903), prohibiting the “use” of instruments.</p> <p>2. PARTIES TO OFFENSES — “Principals”—Who Are. All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are “principals.” Section 2045, Snyder’s Comp..Laws, 1909 (section 1948, Wilson’s Rev. & Ann. St. 1903).</p> <p>3. INDICTMENT AND INFORMATION — Statement of Facts. An indictment should recite the material facts an circumstances constituting the offense, rather than charge that defendant has committed a certain specified crime.</p> <p>(Syllabus by the Court.)</p>

.Error from District Coitrt, Seminole County; Malcolm E. Rosser, Judge. J. J. Chandler was convicted of crime, and brings error. On the 20th day of January, 1908, complaint was filed before H. M. Tate, justice of the peace, charging the defendant with an attempt to procure an abortion upon Barbara Brown. Upon hearing, the defendant was held for appearance before the district court of Seminole county.

Error from District Court, Pittsburg Countyj B. W. Higgins, ■Judge. William Baker and another were convicted of simple assault, and they bring error. Plaintiffs in error, hereafter referred to as “defendants,” were indicted in the district court of Pittsburg county, at the January term, 1908, charged with having committed an assault on H. B. Stile with deadly weapons on the 5th day of July, 1907. The case was transferred to the county court of Pittsburg county.

Will Eea was convicted of -unlawfully selling intoxicating liquor., and he appeals. On the 14th day of February, 1908, Will Rea, hereinafter called defendant, was convicted on a charge of selling intoxicating liquor, in the county court of Pontotoc county, Okla., on information, and his punishment was assessed at a fine of $500 and 60 days in jail. The case is properly before this court on appeal. — On admissibility of evidence of other prosecutions: .Slater v. State, 1 Okla.

<p>1. JUDGES — Motion for Change — Time for. Under section 6647, Snyder’s Comp. Laws 1909, and section 15, Bunn’s Const., a motion for a change of judge on account of the bias or prejudice of a county judge is in time if presented before the trial begins.</p> <p>2. CONSTITUTIONAL LAW — Right to Justice — Bias And Prejudice of Judge — Right to Change. Section 15, BUnn’s Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the trial begins for a change of judge upon the ground of the -bias or prejudice of the. trial judge, it is the constitutional right of the party making it that it shall be granted.</p> <p>(Syllabus by the Court.)</p>

W. C. Rea was convicted oí unlawfully selling intoxicating liquor, _ and he appeals. The plaintiff in error, hereinafter designated as defendant, was convicted in the county of Pontotoc county, on an information charging that, in Pontotoc count}', Okla., on July 15, 1908, the said defendant did unlawfully sell, barter, give away, and furnish one Wes Hattox intoxicating liquor, to wit, alcohol.

Error from District Court, Creeh County; John Caruthers, Judge. Frank Haikey was convicted of murder, and he brings error. The plaintiff in error was indicted on the 13th day of February, 1907, in the United States Court for the Western District of the 'Indian Territory, sitting at Tulsa, charged with the crime of murder.

Error from Blaine County Court; E. L. Hotchhiss, Judge p'o tern. Harry G. Snow was convicted of a violation of tbe game law, and brings error. On the 25th day of January, 1908, the defendant was charged by information filed in the county court of Blaine county, Olda., with a violation of the game law, by having quail in his possession for the purpose of transportation.

Carney, Judge. David Atchison was convicted of murder, and be appeals. David Atchison, plaintiff in error (hereinafter designated the “defendant”), was indicted in the district court of Canadian county on the 17th day of December, 1908, for the murder of Duel Anderson. Upon arraignment a plea of not guilty was interposed, Said cause came on for trial March 1, 1909.

<p>1. COURTS — Criminal Court of Appeals — Advisory Opinions — Binding Effect. An opinion in response to a requirement of the Governor, as authorized by Snyder’s St. sec. 6928, has not the force of an adjudication, and is at most advisory.</p> <p>2. PARDON — Reprieve Pending Appeal — Power of Governor. Under Snyder’s St. sec. 6929, providing that no court or officer other than the Governor can suspend the execution of the judgment of death, unless a writ of error is allowed and taken, a reprieve can only be granted by the Governor pending the perfecting of an appeal in the case, and an order of the trial judge staying the execution of judgment after granting an appeal is without authority; and, where an appeal has' been granted, but not filed, in the Criminal Court of Appeals, the Governor may grant a reprieve to a day beyond the time allowed to make, serve, and file a case-made and petition in error.</p>

Error from District. Court, Le Flore County; Malcolm E. Rosser, Judge. George O’Barr was convicted of manslaughter on an indictment for murder, and he brings error. On definition of manslaughter: Eev. St. IT. S., sec. 5341; Wharton on Homicide, sec. Ill, and cases cited; Brown v. U. 8. (Ind. T.) 52 S. W. 56; Territory v. Baca, (N. Mex.) 71 Pac. 460, and cases cited; Roberts v. U. S., 126 Fed. 897; U. 8. v. Meagher, 37 Fed. 880.

Application of Balph Brown for writ of habeas corpus. The petitioner, Balph Brown, on November 11, 1909, filed in this court a petition signed and verified by his oath, wherein he avers that he- is unlawfully restrained of his liberty by one W. A. Fox, sheriff of Payne county, at and in the common jail of said count}', and for the reasons stated therein .petitioner prays that a writ of habeas corpus be allowed, and that'he be discharged.

<p>Application of George W. McNaught for writ of habeas corpus.</p>

<p> Error from Canadian County Court; H. L. Fogg, Judge. </p> <p>T. M. Speece was convicted of violation of the prohibition law and brings error.</p>

<p>Petition of Edward B. Justus for writ of habeas- corpus.</p>

<p> Appeal from Distinct Court, Pottawatomie County; B. F. Burwell, Judge. </p> <p>Charles H. Hast was convicted of crime, and appeals.</p>

<p>INTOXICATING LIQUORS — Statutes—Constitutionality —• Possession of Prohibited 'Liquors — Information, (a) Section 1 of article 3 of Senate Bill No. 61 (Laws 1907-08, p. 603, c. 69), which makes 'it an offense to have possession of prohibited liquors with the intention of violating any of the provisions of the act,', is constitutional and valid.</p> <p>(b) Por a sufficient information charging the defendant with having possession -of prohibited liquors with the intention, of violating the provisions of the enforcement act. see opinion.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Procedure to Perfect Appeal. An appeal in a criminal case, when taken by the defendant, is perfected by filing- a petition in error in the office of the Clerk of the Criminal Court of Appeals, together with case-made, or duly authenticated transcript of the judgment and proceedings attached thereto, and by filing proof of service of notice upon the clerk of the court where the judgment is entered, and notice upon the prosecuting attorney of the county, stating that the appellant appeals from the judgment.</p> <p>2. SAME — Notice of Appeal — Dismissal. An appeal to the Criminal Court of Appeals may be taken by the defendant as a matter of right, from any judgment against him, but the manner of taking and perfecting such appeal is a proper matter for legislative • control, and the appeal must be taken in the manner prescribed by the law; and, where the record before this court fails to show notices of appeal and proof of service as required by law, the case will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Grady County Court; N. M. Williams, Judge. </p> <p>•. R. R. Wilson was convicted of .a violation of the prohibition law, and appeals.</p>

Application by William Ridley for writ of habeas corpus alleging that relator was illegally restrained of his liberty by W. M. Cates, Sheriff of Stephens County.

<p> Appeal from Haslceil County Court; A. L. Beclcett, Judge. </p> <p>C. B. Carlisle was convicted of violating the prohibition law, and appeals.</p>

<p> Brror from Coal County Court; B. H. Wells, Judge. </p> <p>Information against E. J. Johnson. From the judgment, the State brings error.</p>

<p>APPEAL AND ERROR — Notice of Appeal. In order to perfóet an appeal to this court by a defendant, notice of such, appeal must be served upon the county attorney and the clerk of the court • where the judgment was rendered, as is provided by section 6949, Snyder’s Comp. Laws Okla. 1909.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Defective Record — Dismissal, (a) Section 6951, Snyder’s Comp. Laws Okla. 1909, requiring the case-made or transcript of the record to contain a copy of the judgment from which the appeal is prosecuted, is mandatory, and, when such judgment is not contained in the case-made or transcript of the record, the appeal will be dismissed.</p> <p>APPEAL AND ERRO'R — Service of Case-Made — Time. - (b) The case-made must be served before the statutory time for such service has expired or before the expiration of the time allowed by the court, if the statutory time has been extended ■by the court, and if this is not done any service of such case-made after the expiration of such time is void, and no court has power to settle and sign a case-made upon such service. Cvl</p> <p>(Syllabus by the Court.)</p>

<p>INSTRUCTIONS — Presumption of Innocence — Negative Instructions, The following instruction held to be erroneous: “If you believe from the evidence that the defendant did not, on or about the day and in the county and- state aforesaid, deliver, directly or indirectly, any whisky to the said W. N. Ellis, or if you believe defendant did not receive or expect to receive any money in exchange therefor for his own use and benefit or for the use and benefit of any one else for whom he might have been employed, or if there is a reasonable doubt of the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty.”</p> <p>(Syllabus by the Court.)</p>

<p>INSTRUCTIONS — Presumption of Innocence — Negative Instructions. The following instruction held to be error: “If you believe from the evidence that the defendant did not, on or about the flay and in the county and state aforesaid, deliver to the said Frank Engles whisky, and receive in exchange therefor money, or other valuable consideration, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty, under the law, to render a verdict of not guilty.”</p> <p>(Syllabus by the Court.)</p>

<p> Appeal, from Greek County Court; Josiah Q. Davis, Judge. </p> <p>Jack Young was convicted of violating the prohibition law, and he appeals.</p>

The petitioner, J. B. Warford, was tried in the district court of Canadian county on an indictment charging him with forgery. He’ was convicted and sentenced to a term of imprisonment for six months. He has filed application in this court for wiit of habeas corpus, alleging that he is'now illegally imprisoned and restrained of his liberty by the sheriff of Canadian county.

Application by Bert Eoller for writ of habeas corpus. This is an action by Bert Boiler for writ of habeas corpus to be released from imprisonment in the county jail of Custer county.

<p> Appeal from Muskogee County Court; W. C. Jackson, Judge., </p> <p>W. L. Hughes and M. C. Simmons were convicted of a violation of the prohibition law, and appeal.</p>

<p>APPEAL AND ERROR — Failure to File Briefs. When no briefs are filed on part of plaintiff -in error, as required by rule 4 of this court, and no fundamental errors appear of record, the judgment of the lower court will be affirmed.</p> <p>(Syllabus -by the Court.)</p>

<p>Application of J. F. Hudson for writ of habeas corpus</p>

<p>Application, of Ed Hines for writ of habeas corpus.</p>

Error from Tillmm County Court; T. E. Campbell, Judge. The plaintiff in error, W. G. Gragg, was tried in the county court of Tillman county on the 5th day of Februaiy, 1908, charged with selling intoxicating liquor. He was convicted and sentenced to imprisonment in the county jail for thirty days and to pay a fine of fifty dollars. The case is before us on appeal. Error confessed by counsel for the state.

Error from Caddo County Court; B. F. Holding, Judge. The defendant in error, Homer J ones, was tried in the county court of Caddo county on the charge of carrying concealed weapons on his person. The county court sustained an objection to the introduction of testimony, for the reason that- the information failed to state facts sufficient to constitute a criminal offense against the laws of the state of Oklahoma. From this judgment the state appeals.

<p> Error from Mayes County Court; A. C. Breioster, Judge. </p> <p>J. M. Couch was convicted of crime, and brings error.</p> <p>The plaintiff in error was convicted in the county court of Mayes county in the July term, 1908, charged with violation of the liquor law and sentenced to imprisonment in the county jail for 30 days and to pay a fine of $150. The case is before us on appeal. 'Error confessed by counsel for the state.</p>

<p>Frror from Pittsburg County Court; B. W. Higgins, Judge.</p> <p>Jolm Silva was convicted of a violation of the prohibition law, and brings error.</p>

Error from Garfield County Court? John F. Curran, Judge pro tern. Bert Files was convicted of a violation of the prohibition, law, and brings error.'

Error from Rogers County Court; Archibald Bonds, Judge. J. E. Clifford was indicted for. offering for sale meat of a calf which had not been inspected. Demurrer to the complaint was sustained, and the state brings error.

<p>1. CONTINUANCE — Absence of Witness, (a) Application for a continuance should be most strongly construed against the pleader. Intendment and presumption will not be indulged in to support such applications.</p> <p>(b) A defendant should not sit still and wait until just before hisi trial before he begins to get ready for trial, but must exercise diligence in procuring process for his witnesses.</p> <p>(c) For an application for a continuance which was fatally defective in not showing proper diligence, see opinion.</p> <p>2. WITNESSES — Impeachment — Cross-Examination, (a) It is improper to ask a witness, for the purpose of affecting his credibility, as to whether he has ever been indicted, arrested, or imprisoned for crime. Slater v. United States, 1, Okla., Or. 2.73, 98 Pac. 110, and Price v. United States, 1 Okla., Cr. 291, 97 !Fae. 1056, approved.</p> <p>(b) It is permissible on cross-examination to inquire into the occupation, social connections, and manner of living of a witness. These matters, being voluntary on his part, may be shown for the purpose of affecting his • credibility.</p> <p>3. APPEAL AND ERROR — Objection's Waived. If instructions excepted to are not complained of and copied in full in the brief of counsel for the defense, they will be treated as waived, unless they relate to some fundamental matter.</p> <p>(Syllabus by the Court.)</p>

Error from, Oklahoma County Court; Sam Hooker, Judge. The plaintiff in error, May Cook, was tried in the county court of Oklahoma county on the 24th day of June, 1908, on a charge of selling intoxicating liquor. She was convicted ‘ and sentenced to imprisonment in the county jail for a'term of thirty days and to pay a fine of fifty dollars. The case is before us on appeal. Motion to strike the case-made from the files of this court.

<p> Error from Sequoyah County Court; W. N. Littlejohn, Judge. </p> <p>The plaintiff in error, Bruce Crow, was tried in the county court of Sequoyah county in September, 1908, charged with the violation of the game .and fish law. He was convicted and sentenced to pay a fine of $50, a fee of $25 to the Game Warden, and the costs of the prosecution. The case is before us on appeal.</p>

Error from Creeh County Court; Josiah G. Davis, Judge. The plaintiff in error, Al. Mumbrauer, was tried in the county court of Creek county in September, 1908, charged with selling intoxicating liquor. He was convicted and sentenced to imprisonment in the county jail of Creek county for thirty days and to pay a fine of $100 and costs. The case is before us on appeal.

Error from District Court, Atoha County;' A. T. West, Judge. The plaintiff in error, Buster Sample, was tried in the district court of Atoka county, November term, 1908, on an indictment 'charging him with rape. He was convicted and sentenced to imprisonment for a térra of ten years. The case is before' us on appeal.

<p>1. APPEAL AND ERROR — Review—Scope. When the ease-made and transcript of the record omit the instructions of the court and the testimony of the witnesses, and contain only the information, the verdict of the jury, and judgment of the court, if these are regular upon their faces, the judgment will be affirmed.</p> <p>2. APPEAL AND ERROR — Service of Case-Made. After the time for preparing and serving case-made has expired, the court is without power to extend such time.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Garfield County Court; Ban Hewitt, Special Judge. </p> <p>John M. D. Mulliken was convicted of violating the prohibition law, and appeals. *</p>

<p>1. COMMERCE — Interstate Commerce — Shipment of Liquors. The protection afforded by the Constitution and laws of the United States to shipments into this state of intoxicating liquors, upon the ground that they are interstate shipments of commerce, extends only to persons who are lawfully in possession of the liquor so shipped.</p> <p>2. EVIDENCE — Statements of Accused. When an officer arrests a defendant without warrant, 'the admissibility in evidence of any voluntary statement made by the defendant is not affected by the legality or illegality of the arrest.</p> <p>(Syllabus by the Court.)</p>

N. Maben, Judge. J. E. Landon was charged with violating .a city ordinance, and from a judgment of conviction in police court he appealed, and from an order sustaining a demurrer to the complaint the City of Shawnee appeals.

<p>1. APPEAL — Service of Notice — Appearance. While the statute provides (section 6949, Snyder’s St.) that an appeal is taken by the service of a notice upon the clerk of the court where the judgment is entered that the appellant appeals from the judgment, a similar notice to be served upon the prosecuting attorney, yet a general appearance entered by the Attorney General in a cause in this court is sufficient to give this court; 1 jurisdiction.</p> <p>2. CONDUCT OF COUNSEL — Comment on Defendant’s Failure to Testify. Where the defendant upon his trial fails to t.estify in his own behalf, and the prosecuting attorney comments upon such failure to the jury, such comments constitute “reversible error.”</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Case-Made—Service—Extension of Time. When the time granted 'by the court for preparing and serving a case-made has expired, the 'Court is without power to grant an extension of such time, and any such attempted granting of ex-extension of such time is void.</p> <p>2. SAME — Expiration of Time — Effect. This court cannot consider a case-made served after the expiration of the time granted by the court in which it should be served.</p> <p>3. APIPEAL — 'Uncertified Transcript. A transcript of the record, not certified to by the clerk of the district court, will not he considered on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Pushmataha County; Malcolm Ros-ser, Judge. </p> <p>Sampson Lewis was convicted of crime, and appeals.</p>

<p> Appeal from Pottatvatomde County Courtj F. D. Reasor, Judge. </p> <p>Bill Blunt was convicted of an illegal sale of liquors, and he appeals.</p> <p>Fred 8. Caldwell, Counsel to the Governor, for the State.</p>

<p>APPEAL — Notice of Appeal — Record—Dismissal. An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; ' but the manner of taking and perfecting' such appeal is a proper matter for legislative control,' and the appeal must be taken in the manner prescribed by law, and, where the record before this court fails to show notices of appeal and proof of • service as required by law, ■ the case will be dismissed. In order to give this court jurisdiction, the notices required toy statute must be served, and proof'of'service of such notices must be hied with the record in this court within the time in which an appeal may be • taken.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Garfield County Court; James B. Culliscm, Judge. </p> <p>James Mullikin was convicted of a violation of the prohibition ordinance, and appeals.</p>

<p>1. APPEAL — Jurisdiction—Assault and Battery. In a proseeutidn for assault and battery before a probate court, an appeal may be taken from a judgment of conviction to the Criminal Court of Appeals of Oklahoma as the successor in criminal causes of the Supreme Court of Oklahoma Territory in the same manner as from the district court and with like effect when only questions of law are involved in the appeal.</p> <p>2. JURY — Right to Jury Trial — Constitutional Law. The sixth amendment of the Constitution of the United States secures to the .people of the territories the right to trial by a common-law jury in criminal prosecutions, and a person charged with having committed a misdemeanor prior to statehood has a constitutional right of trial by a jury composed of 12 persons.</p> <p>3. COURTS — Decisions of United States Supreme Court as Controlling. In determining questions of federal cognizance, this court is bound by and will adopt and be governed by the rules of decision adjudicated in the 'Supreme Court of the United States.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Latimer County; Malcolm E. Boss&r, Judge. </p> <p>William Burks was' convicted of receiving stolen property, and appeals.</p>

<p> Appeal from District Court, Ottawa County; L. M. Poe, Judge. </p> <p>S. S. Forge was convicted of murder, and appeals.</p>

<p>APPEAL — Failure to File Briefs, — Scope of Review. Where the defendant appeals from a judgment of conviction, and no briefs, are filed or argument presented, this court will only examine the pleadings, the judgment, and instructions excepted to, and, if no reversible error is apparent, will affirm the case.</p> <p>(Syllabus -by the Court.)</p>

Error from, District Cowl, Pushmataha County; Malcolm E. Rosser, Judge. Will Nelson was convicted of manslaughter, and brings error. Plaintiff in error here, who was defendant in the lower court, was tried in the district court of Pushmataha county at. the September term, 1908, charged with murder. He was convicted of the crime of manslaughter and sentenced to imprisonment for 10 years.

Error from Canadian County Court; H. L. Fogg, Judge. Charles Brown, plaintiff in error here, who was defendant in the trial court below, was tried on March 35, 1908, in the county court of Canadian county, charged with selling liquor. He was convicted and sentenced to imprisonment in the county jail for a period of thirty days and to pay a fine of $100 and costs of prosecution. The case is before us on appeal.

<p>1. COMMERCE — Interstate Commerce — .Shipping Liquor Into State for Personal Use. The Constitution of the United States and the decisions of the 'Supreme Court of the United States permits persons living in this state to ship or bring intoxicating liquor into this state for their own use, and to carry or convey such liquor to their homes or places of residence for their own use or the use of their families, and any state law or constitutional provisions which seeks to make such bringing or shipping of such iiquor into this state illegal is void.</p> <p>2. INTOXICATING LIQUORS — Offenses — Interstate Shipments. When a defendant is charged with illegally shipping intoxicating liquors into this state, and the evidence shows that the liquor was lawfully purchased in another state for the personal use of the defendant or of his family, and that the defendant has not sold or attempted to sell such liquor or to make any other illegal use of the same, the jury should be instructed that the defendant has the legal right to so ship or convey such liquor into this state, and to convey it to his home or place of business, and that in so doing he does not commit a violation of the law.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court. McCurtain County; D. A. Richardson, Judge. </p> <p>' Dixon James was convicted of assault, with intent to kill, and he appeals.</p>

<p>APPEAL — Service of Case-Made — Expiration of Time. Tf a judgment allowed accused 60 days in which to prepare and serve a case-made, a service thereof 61 days thereafter would not give the appellate court jurisdiction of an appeal upon the case-made . alone.</p> <p>(Syllabus by the -Court.)</p>

<p> Appeal from Grady Gownty Oouri; N. M. Williams, Judge. </p> <p>Charles Thacker was convicted of illegally selling intoxicating liquors.' and he appeals.</p> <p>Plaintiff in error, Charles Thacker, was convicted in the county court of Grady county of the crime of selling intoxicating liquors and sentenced to pay a ñne of $150 and costs; that he be confined at hard labor in the county jail of Grady county, Okla., for a period of 30 days. The judgment and sentence was entered on the 15th day of October, 1908. From which judgment an appeal was taken by filing in this court on January 15, 1909, a petition in error, with case-made attached, and proof of service of notice that appellant appeals, upon the prosecuting attorney and the clerk of the county court of said county. The cause was submitted at the January, 1909, term, of this court.</p> <p>Rut one witness, JDow Fisher, testified in behalf of the state. He testified that he lived 1% miles south of Bradley, was acquainted with defendant, and on the 27th day of March, 1908, he went to Bradley. The record then recites:</p> <p>“Q. l)id you have any dealings with him on that date? A. Yes, sir; not exactly with him, but in.a manner-I did. Q. Go ahead and tell the jury exactly what dealings you had? A. I went to town and wanted to get some whisky, and I seen him, and asked .him if he-could get it, and Mr. Thacker told me he could get it. He told- me- to go around at the back of an old pool hall there that was closed up, but was run by Mr. Thacker at one time, and 1 went back there and laid down a dollar and picked up'the'whisky. Q. Was this where Mr. Thacker told you it was? A. Yes, sir. Q. Hid Mr. Thacker tell you it was back there ? A. Yes,' 'sir/-’ ' ' •</p> <p>. On cross-examination- the witness admitted that he stated to one Frank Marshall in his barber shop that the only dealings he ever had with Thacker in regard to any whisky was that he rode oil horseback with him, and took a bottle of whisky out of his pocket, and that Thacker did not want him to take this whisky; and that he went and'tried to pay Thacker for the whisky, and that he refused to taire the money, and explained this by saying: “Yes, sir; but I did not tell Frank Marshall all of my business.”</p> <p>Charles Thacker; the defendant, testifying on his own behalf, stated that:</p> <p>“I never sold any whisky to Dow Fisher; that on or about the 27th of March, 1908, I got on a horse with Dow Fisher to ride up the hill, that I had a bottle of. whisky. in my pocket; that Fisher felt the whisky and said that he wanted it. I told him to leave the whisky alone, but he took it anyway; that Fisher afterwards ofEered to pay for it, and I told him'that he did not owe me anything because I did not have the whisky for sale.”' ' ■ -</p> <p>On cross-examination ' defendant admitted that , he had been arrested for selling whisky in another case; that he was running a pool hall at Bradley since statehood, ánd was still 'in the same business ■ and sold all- drinks that are • sold at any soda fountain, 'also Adam’s Special.</p> <p>Frank Marshall, for the defendant,) .testified!. that he .was acquainted with the witness Fisher, and that he told him in his barber shop at Bradley that • the only transaction that he ever had with ¡¡the defendant • was the time he took the bottle of' whisky out of his pocket.</p> <p>— Citing: 12 Cyc. 574, 580; 'Gilbert v. Gommw. (Ky.) 51 S. W. 804; State v. F&i-guson (Mo.) 53 S. W. 427; Bullard v. Railroad Go. (N. II.) 5 Atl. 838; State v. Prendible (Mo.) 65 S-. W. 559; Williams v. United States, 168 U. S. 380; Buller v. Siate (Tex. Crim. App.) 27 S. W. 128; People v. Dane, 26 N. W. 781; Miller v. Territory, 79 C. C. A. 268.</p>

<p> Error, from District Court, Choctaw County■; D. A.. Richar.d-son, Judge. </p> <p>Ed. Dóoling and W. N. Campbell, the plaintiffs in error here, who were the defendants in the trial court, were tried at the March term of the district court of Choctaw county, charged with assault with intent to kill. - They were convicted of assault to inflict bodily harm, and sentenced to imprisonment in the territorial prison at Lansing, Kan., at hard labor for a term of two years and six months, and to pay the cost of the prosecution. The ease is before us on appeal.</p> <p>— Citing: Stale v. Foutch (Tenn.) 34 S. W. 423; BrumMey v. State, 21 Tex. App. 223; People v. Maughs (Cal.) 86 Pac. 190; People v. Van Fman (Cal.) 43 Pac. 520; Wright v. Commw., 85 Ely. 123; Buckley v. State, 62 Miss. 707; People v. Borrego (Cal.) 95 Pac. 381; Hartford v. State, 96 Ind. 461.</p> <p>— Citing: State v. Crank (S. C.) 23 Am. Dec. 117; Stevens v. State, 42 Tex. Crim. App. 154; 14 Cent. Dig., title “Criminal Law,” sec. 1387; Robinson v. Territory, 16 Olda. 241; State v. Hanper, 142 Mo. 478; Kirk v. Territory, 10 Oka. 46.</p>

<p>1. SENTENCE — Essential Elements — Time. The time' fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the' nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.</p> <p>2. SENTENCE — Subsequent Arrest of Convict at Large. Where a convicted defendant is at liberty and has not served his sentence. and the same is not stayed as provided bv law, he may be arrested as on escape and ordered into custody on the un-executed judgment.</p> <p>3. SENTENCE — Execution — Expiration of Time. Expiration of time without imprisonment is in no sense an execution of the sentence.</p> <p>(Syllabus by the 'Court.)</p>

Error from District Court, Seminole County; A. T. West, Judge. Jess Humphre}', the plaintiff in error, was tried in the district court in Seminole county at the June term, 1908, on information charging him with murder. He was convicted of manslaughter, and sentenced to imprisonment for the term of 10 years, and to pay a fine of $10 and costs of the prosecution. The ease is before us on appeal.

Error from Greek County Courtj Josiah 0. Dav-'s, Judge. S. Feeback was charged with having the unlawful possession of intoxicating liquors.

Application of Wallace Dodson and others for a writ of habeas corpus. The petitioners, Wallace Dodson, Henry Parris, and Fred Walker, on December 7, 1909, filed in this court their separate petitions, each duly verified, wherein each avers that he is unlawfully restrained of his liberty by one James S. Sanders, sheriff of Cherokee county, at and in the common jail of said county.

Error from District Court, Washita County; James B. Tolbert, Judge. Tlie plaintiff in error, Otto Bauer, was tried at the June term, 1908, in the district court of Washita county, on a charge of asault with intent to kill. He was convicted of assault to do bodily harm. The case is before us on appeal. — Citing: 21 A. & E. Ene.

<p>Appeal from District Court, Blaine County; C. A. Brown, Judge.</p> <p>Alf Hunter, alias James ICingsbery, was convicted of murder, and appeals.</p>

Error from District Court, Hughes County; John Caruthers, Judge. The plaintiff in error, John Black, was tried at the November term of the district court for Hughes county on an information charging him with murder. He was convicted on the 4th day of November, 1909, and his punishment fixed at death. The ease is before us on appeal.

<p> Appeal from Grady County Court; N. M. Williams, Judge. </p> <p>Jack Sawyer was convicted of violation of prohibitory law, and appeals.</p>

<p> Appeal from Grady County Court; N. M. Williams, Judge. </p> <p>L. W. Beckham was convicted of violating the prohibition law, and appeals.</p>

<p> Appeal from Grady County Court; N. M. Williams, Judge. </p> <p>Pat Tolan was convicted for violation of the prohibition law, and brings error.</p>

<p>In the matter of the application of George Jacobs for writ of habeas corpus, for the purpose of obtaining bail.</p>

<p>1. INDICTMENT AND INFORMATION — Prosecution of Felony by Information. It is well settled in this state, that a person charged with a felony may be tried in a court having jurisdiction of such offense by information, having first had a preliminary examination before an examining magistrate, or haying waived such preliminary examination.</p> <p>2. SAME — Allegation of Preliminary Examination. It Is not necessary for an information charging a felony to allege that defendant has had a preliminary examination before an officer authorized by law to hear the same, and has been bound over to await trial thereon, or has waived such examination.</p> <p>3. SAME — Surplusage. A charge in an information that W„ on the 4th day of April, 190S, had a preliminary examination on said charge before T., a duly elected, qualified, and acting magistrate of Roger Mills county, state of Oklahoma, and he, the said W., was by said T., on the 4th day of April 1908, committed and held in the common jail of said county and state to await the action of the district court on said above charge, is not in conflict with that portion of article 7, sec. 1.9, of the Constitution of the state, which provides, “All indictments, informations and complaints shall conclude ‘Against the peace and dignity of the state,’ ” but is a matter wholly foreign and irrelevant to the information, and may be treated as surplusage.</p> <p>4. .Jury — Challenge to Panel — Grounds. A challenge to a petit jury panel must be predicated on facts from which defendant has suffered material prejudice.</p> <p>5. SAME — Challenge to Panel — Sufficiency of Challenge. While it is the duty of a trial court, when a challenge to a petit jury panel is presented to it, to try the issue of fact when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justifj' the court in dischaging the jury, if true.</p> <p>6. HOMICIDE — Manslaughter — Self-Defense—Provocation. If W. provokes an altercation between himself and H., or challenges H. to a mutual combat, without intending to kill H., but intending an ordinary battery merely, and H. assaults W., or by some act done gave W. reasonable apprehension of loss of life or great bodily harm, and W. kills H. to protect himself from the apprehended danger, the killing under such circumstances would not be justifiable, but would be manslaughter.</p> <p>7. APPEAL — Review—Argument of Counsel. Remarks of counsel in the course of their argumentó objected to as improper shall be considered and construed in reference to the evidence, and in order to constitute reversible error the impropriety indulged in must be such as to influence the verdict. 'Section 6957, Snyder’s Comp. Laws, requires this court to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” The letter and spirit of the statute is that, if the court can say, after carefully considering the entire record, that the conviction is sufficiently supported by competent evidence, and that the verdict was not reached by error or as a result of passion and prejudice, the conviction should be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>1. HOMICIDE — Murder—Instructions. The homicide in this case having been committed prior to statehood in that portion of the state formerly Indian Territory, the defendant was entitled tc¡ an instruction defining manslaughter as defined by the United States statute, and it was error to omit the word “willfully’ from the definition of manslaughter; the defense being- lack of criminal intent.</p> <p>(Syllabus by the Court.)</p>

•Error from Sequoyah County Court; W. N. Littlejohn, Judge. The plaintiff in error, Jim Sandlin, was tried on the 24th day of November, 1908,- in the county court of Sequoyah count}1', •charged-with using profane and obscene language. He was convicted and brings error.

Error from Pittsburg County Court; B. W. Higgins, Judge. The plaintiff in error, Paul Antonelli, was indicted in the district court of Pittsburg county on the 15th day of January. 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquors. On motion of the county-attorney the case was transferred to the county court of Pittsburg county.

<p>Error from, Pittsburg County Court; B. IF. Higgins, Judge.</p> <p>The plaintiffs in error, Paul Antonelli and A. H. Dreyfus, were indicted in the district court of Pittsburg county on the 29th day of January, 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquor, were convicted and sentenced to imprisonment in the county jail for a term of six months and to pay a fine of $500.</p> <p>The case is before us on appeal.</p> <p>The plaintiffs in error were indicted in the district court of Pittsburg county on the 29th day of January, 1908, charged with violating the provision of the Constitution against the sale of intoxicating liquor, were .convicted, and sentenced to- imprisonment in the county jail for a term of six months and to pay a fine of $500. The case is before us on appeal.</p>

Error from Pittsburg County; B. W. Fig gins. Judge. The plaintiff in error, John Petitti, wais tried and. convicted in the county court of Pittsburg county charged with' selling intoxicating liquor, and sentenced to imprisonment in the county jail for a period of 30 days and to pay a fine of $150 and the cost of prosecution. From that judgment he appeals.

Application by W. 0. Moody for writ of habeas corpus. On the 12th day of January, 1910, the county attorney oí Woodward county, Olda., filed the following information against W. O. Moody, before 13. B. Smith, Esq., a justice of the peace for the city-of Woodward: “State of Oklahoma, Woodward County. Information. In Justice Court, before B. B. Smith, Justice of the Peace for City of Wooward, Woodward County, Oklahoma. State of Oklahoma v. W. O. Moody, County Weigher.

<p>STATUTES — Trial—Procedure — What Law Governs. A defendant charged with the commission of a crime' is entitled to be tried and dealt with under the laws as they existed at the time of the alleged commission of the offense of which he stands charged in all matters where such laws vouchsafe to him a substantial protection.</p> <p>(Syllabus by the Court.)</p>

Appeaíl from District Court, Le Flore County; M. E. Rosser, Judge. Morris Gibson, the defendant, was convicted of the offense of manslaughter, and sentenced to seven years’ confinement in the penitentiary and a fine of $500. Motions for a new trial and in arrest of judgment were filed and overruled on the 11th day of November, 1908. Defendant was given 90 days in which to prepare and serve a case-made, and appeals.

G. Lowe,, Judge. Eudolph Tegler was convicted of murder, and appeals. On the 11th day of April, 1908, Eudolph Tegler, the defendant, after having been indicted and tried, was by the judgment and sentence of the Thirteenth judicial district court of the state of Oklahoma adjudged guilty of the crime of murder, and sentenced to imprisonment in the penitentiary lor the term of his natural life.

Error from District Court, Pontotoc County; A. T. West, Judge. The plaintiff in error, Dan Scribner, was tried in the district court of Pontotoc County on a charge of murder. He was eon-vietecl, and his punishment fixed at death. —On disqualification of jurors: Johnson v. State, 1 Okla.

E. Sharp, Judge. Fred Stewart and others were convicted of disturbing the peace, and they appeal, and the State moves to dismiss the appeal.

<p>1. INDICTMENT — Caption—Sufficiency. The omission of the word “the’’ before the words “State of Oklahoma” in the caption of an indictment is not fatal to the indictment.</p> <p>£. RAPE — Appeal—Review—Verdict, (a) The statute makes the jury in the trial court the exclusive judges of all matters of fact, and this court will not disturb their finding, unless it is so clearly unsupported by testimony as to create a strong presumption that the jury was influenced by improper motives in reaching a verdict.</p> <p>(b) For facts supporting a conviction for rape see opinion.</p> <p>3. NEW TRIAL — Newly Discovered Evidence, (a) When parties are indicted, they must recognize the fact that it is a serious matter, and be diligent in preparing for trial. It is too late after conviction to begin to investigate the character of the witnesses for the state, of whom they have notice before trial.</p> <p>Ob) A new trial will not be granted on the ground of newly discovered, evidence to impeach the reputation for truth and. veracity of witnesses for the state.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Blaine County; M. C. Garter. Ludge. </p> <p>Joseph Harkneiss was convicted of assault with intent to do bodily barm, and appeals.</p>

<p>1. WITNESSES — Impeachment — Contradictory Statements... It is proper to show inconsistent statements of a witness, made out of court, to affect his credibility.</p> <p>2. EVIDENCE — Other Offenses. Upon the subject of motive or intent, other transactions tending to prove its criminal existence, even though they may involve other offenses, may be given in evidence against the defendant, but such evidence must be so limited and restricted as to leave the jury only at liberty to use it to discover the motive or intent actuating the accused in the act for which he is on trial.</p> <p>3, APPEAL — Evidence—Perjured Testimony. A judgment of conviction will be reversed on appeal, where the record shows that it is founded solely on perjured testimony.</p> <p>(Sjdlabus by the Court.)</p>

<p>1. APPEAL — Review of Evidence — Sufficiency. Under our system of jurisprudence, it is the exclusive province of the jury to determine whether the evidence tending- to prove the guilt of the defendant is so lacking in convincing force as to leave an in- , telligent and discriminating mind to doubt as to the truth of the charge contained in the indictment, and in reviewing questions of fact upon appeal to the Criminal Court of Appeals, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced 'by passion or prejudice.</p> <p>2. RAPE — Sufficiency of Evidence. See opinion for evidence held sufficient to sustain a verdict of guilty without capital punish- ' ment for the crime of rape.</p> <p>(Syllabus by the Court.)</p>

<p>1. PARDON — Grant Pending Appeal — Validity. A pardon granted and accepted after conviction and pending an appeal in the 'Criminal Court of Appeals is valid under Const, art. 6. sec. 10, wherein the Governor is empowered to grant, after conviction, reprieves, commutations, paroles and pardons.</p> <p>2. PARDON — “Conviction.” The term “conviction,” in article 6, sec. 10, of the Constitution, denotes the final judgment of the trial court, upon a plea of or verdict of guilty.</p> <p>S. APPEAL — Pardon—Dismissal. Where a pardon is granted and accepted, and brought to the attention of this court pending an appeal, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Canadian County Court; H. L. Fogg, Judge. </p> <p>Shirley Chapman was convicted of having in possession intoxicating liquors, and he appeals.</p>

<p> Appeals from Creek County Court; Josiah O. Davis, Judge. </p> <p>W. E. White was twice convicted of illegally selling liquor, and appeals.</p>

<p> Appeal from Pittsburg County Court; R. W. Higgins, Judge. </p> <p>Frank Sauleck was convicted of violation of the prohibition law, and appeals.</p>

<p> Appeal from Washita County Court; L. B. Shean, Judge. </p> <p>G. W. Teels was convicted of selling intoxicating liquor., and appeals.</p>

<p> Appeal from -Washita County Court; L. R. Shean, Judge. </p> <p>G. W. Teels'was convicted of an illegal sale of liquor, and appeals.</p>

<p> Appeal from District Court, .Alfalfa County; M. C. Garber, Judge. </p> <p>Melvin M. Jacobs was convicted of murder, and appeals.</p>

King, Judge. . The plaintiff in error, Gabe Hawkins, was convicted of the crime of murder, and his punishment assessed at imprisonment in the state penitentiary at hard labor for and during the term of his life. He filed a motion for a new trial, which was overruled, and he appeals. On question of res gestae: Price v. State, 1 Okla. Or. 358. On admissibility of testimony of witness subsequently convicted of infamous crime: TJ.

<p>1. APPEAL AND ERROR — Assignment of Error — Sufficiency. An assignment of error in substance that the court erred in overruling a motion for a new trial, states a conclusion which could result only from error committed prior to the presentation of the motion; and the assignment of itself presents no question for review in the appellate court.</p> <p>2. INDICTMENT — Construction of Recitals — “Then and There.” The formal part of an indictment roads as follows: “At the November, 1908, term of the District Court of Carter County, 'State of Oklahoma, begun and held in the City of Ardmore in said county, on the 9th day of November, 1908, the grand jury of said county, good and lawful men, legally drawn and summoned according to law, and then and there examined, empaneled, sworn and charged according to law, do present and find, etc.” Held, that the words “then and there” have direct reference to the expression, “at the November, 1908, term of the district court,” and not to the phrase, “on the 9th day of November, 1908.”</p> <p>3. INDICTMENT — Recitals—Date of Impaneling Grand Jury. The date of the empaneling of a grand jury is properly shown by the journal of the court, and need not appear in the indictment.'’ If the indictment shows that it was found and returned at a term of the district court by a grand jury empaneled during that term, it is sufficient in that respect.</p> <p>4. GRAND JURY — Qualifications of Jurors. The mere fact that a person is a member of an association organized for the purpose of aiding the public officers in the maintenance of law and order and the suppression of crime, does not disqualify such person as a grand juror.</p> <p>5. SAME — Time for Questioning Qualifications. Under Section 6738 of Snyder's Comp. Laws of Okla., after a grand juror has been examined as to his qualifications, has answered under oath that he is qualified, has been received by the court and permitted to act, and after an indictment has been found, no possible issue can be made upon the competency or incompetency of such jur- or for the purpose of invalidating' the indictment.</p> <p>6. SAME. Under section 6663 of Snyder’s Comp. Laws of Okla., a person held to answer a charge for a public offense may, before the grand jury is sworn, challenge for cause an individual grand juror or the entire panel; failing to do so, he cannot, after an indictment has been found, take advantage of any objection to the panel or to an individual juror, whether he knew of such objection at the time the jury was empaneled or not.</p> <p>7. JURY — Competency of Jurors — Service on Recent Panel. The statutory inhibition against placing an elector’s name in the jury -box who has served upon a regular jury panel within twelve months last past, is not mandatory, but only directory; and a violation thereof as to any person will not vitiate the jury list, but will render such person subject to challenge for cause when called upon to serve the second time. If, however, he be not challenged on that ground, the question of his competency cannot afterwards be raised.</p> <p>8= GRAND JURY — Authority of Deputy County Attorney. Under section 1603 of Snyder’s Comp. Laws of Oklahoma, a lawfully appointed deputy county attorney may appear before the grand jury for the purpose of interrogating witnesses, and may perform the same duties before the grand jury which the county attorney himself may perform.</p> <p>9. INDICTMENT — Setting Aside — Misconduct of Grand Jury. Proof that the grand jury left their regular jury room and went to a nearby sanitarium to take the testimony of a witness, without any showing as to w'ho the witness was, whether or not his testimony was in fact taken, why he could not attend before the grand jury, or to what case the testimony of the witness pertained, the act of the grand jury standing in the record as an isolated fact unconnected with the case at bar by any evidence direct or circumstantial, constitutes no ground for setting aside an indictment.</p> <p>10. INDICTMENT — Murdei—Equivalent of Statutory Language. An indictment for murder, to be sufficient, must allege that the killing was done without authority of law, but it need not allege it in the exact lang-uage of the statute; the use of any other words equivalent in effect and meaning is sufficient.</p> <p>11. SAME — “Unlawfully.” The word “unlawfully” is the full equivalent in effect and meaning of the phrase “without authority of law,” as the latter is used in the statutory definition of murder.</p> <p>12. HOMICIDE — Murder—Indictment—Sufficiency. It is not necessary to allege in an indictment for murder that the deceased was a human being.</p> <p>13. SAME — Design to Kill Another Than Deceased. In an indictment for the murder of one person committed with a premeditated design to effect the death of a different person, it is not necessary to allege an actual assault upon the person designed to be killed, under a statute defining murder as the killing of one human being by another, without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being.</p> <p>14. INSTRUCTIONS — Intimation by Judge of Opinion of Guilt. In an instruction to the jury that,' "If you convict the defendant, you can only convict him on one count of the indictmeiit,” the ■conditional clause, “if you convict the defendant,” does not indicate any belief, opinion or desire in the mind of the court as to what the verdict of the jury should be.</p> <p>15. TRIA'L — Verdict—Specifying Count of Indictment. Where a conviction is had upon an indictment containing more than one ■count, but each count charging the same offense in a different form, the law does not require that the jury state in their verdict upon which count the conviction is had.</p> <p>16. SAME. Where the same act constitutes two or more different offenses, and such different offenses are charged in separate counts of the same indictment, the law requires that a verdict of conviction state upon which count the conviction is had.</p> <p>17. HOMICIDE — Murder—Instructions—“Premeditated Design.” The court instructed the jury that, “A design to effect death is premeditated within the meaning of the law, if the intention to take life is deliberately formed in the mind before the act is done which results in death, no matter for how short a time* It may be formed instantly before committing the act by which it is carried into execution.” Held, a sufficient definition of a premeditated design to effect death.</p> <p>18. INSTRUCTIONS — Defining Legal Terms Used — Necessity. The failure of the court to define a legal term used in his instructions and in the statutory definition of the offense, where the defendant makes no request for a definition of the term and .saves no exception to the failure of the court to define it, is no ground for reversal .</p> <p>19. INSTRUCTIONS — On Weight of Evidence. 'The court instructed the jury that, “It is the opinion of the court that there is no proof in the case justifying a conviction of the defendant of manslaughter in the second degree, that your verdict should toe either guilty of murder, manslaughter in the first degree, or not guilty; but notwithstanding this opinion of tihe court, you may, if on your oaths you believe the defendant guilty of manslaughter in the second degree, convict him of that crime.” Held erroneous as being a charge on the weight of the evidence.</p> <p>20. INSTRUCTIONS — Degree of Offense Not in Evidence. The court should not instruct upon a degree of an offense of wlhich there is no evidence tending to show the defendant’s guilt.</p> <p>(Syllabus by the Court.)</p>

<p>1. ABATEMENT — Death of Defendant. 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. FINES — Death of Defendant — Abatement of Prosecution. A judgment of conviction against a defendant pending on appeal to the Criminal Court of Appeals is abated by the death of the defendant, and cannot be enforced against his personal representative.</p> <p>(Syllabus 'by the Court.)</p>

J ppeal from, Superior Court, Logan County; J. M. Sandlin, Judges The county attorney of Logan County filed in the Superior Court of that county an information against Tillie Hill charging her with the offense of unlawfully having in her possession certain spirituous, fermented and malt liquors with the intent on her part to violate section 1, article 3, chapter 69 of the Session Laws of 1907-8, by selling said liquors.

<p>Appeal from Goal County Court; B. H. Wells, Judge.</p> <p>Campbell George was convicted of selling intoxicating liquor, and appeals.</p>

<p>Appeal from Garter County Court; Z. B. Mason, Judge.</p> <p>'Jim Whitfield was convicted of selling intoxicating liquor, and appeals.</p>

<p> Appeal from Canadian County Court; 11. L■ Fogg, Judge. </p> <p>H. A. Todd, Jr., was convicted of selling intoxicating liquor,, and appeals. '</p>

<p> Appeal from District Court, Mushogee County; J. H. King, Judge.. </p> <p>Eobert Crittenden was convicted of robbery, and appeals.</p>

<p> Appeal from Pittsburg County Court; If. W. Higgins, Judge. </p> <p>Tom Beasley was convicted of selling whisky; and' was sentenced to pay a fine of $50.00 and to be imprisoned in the county jail for a term of thirty days. From an order overruling a motion for a new trial and in arrest of judgment he appeals.</p>

<p>1. HOMICIDE — Instructions — “Murder”—“Manslaughter.” In an instruction -correctly defining- murder and manslaughter; the - statement, .“You see by .these- definitions that in murder- malice . must exist-, -but that manslaughter is the killing, of human being without malice,” made, not as a definition of either offense," c but only as distinguishing t-he two; is not- reversible error:</p> <p>2." INSTRUCTIONS — Verbal Inaccuracies. Instructions should be considered as' á whole; -and -when so considered, if théir various’ parts are not inconsistent with each other and on the .whole correctly. state the law, they are sufficient. Mere verbal inaccuracies will not' vitiate them. ' '</p> <p>3. HOMICIDE — Instructions—Burden of Proof.,, Upon a trial for murder, an instruction to the jury that, “If you find in this casé that the killing is proven, then the burden of proving circumstances to mitigate or justify or excuse 'such killing devolves upon the defendant, unless by the .proof on the part- of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide,” when properly explained or properly limited in its application, is not error.</p> <p>(Syllabus by the Court.)</p>

Wolverton, Judge. Sam Berner was convicted of selling whisky and was sentenced to pay a fine .of $100.00 and to be imprisoned in the connty jail for a term of sixty days. He filed a motion for a new trial, which was heard and overruled, and he appeals.

<p> Appeal from Stephens County Court; W. II. Admire, Judge. </p> <p>Dr. J. ft. Wilson was convicted in the County Court of Stephens County of the offense of selling liquor, and he appeals.</p>

<p>. Original Proceeding in Habeas Corpus.</p> <p>Application of M. F. Fraley for writ of habeas corpus to the end that' he be let to. bail.</p> <p>— Citing: Ex parte Randon, 12 Tex. App. 155; Re Genero Lo Sasso et ak, 10 L. R. A. 847; Richards v. State, 9 Tex. App. 616; McCoy v. Slate, 25 Tex. 33; In re Thomas, 20 Okla. 167.</p>

<p> Original Proceedings in Habeas Corpus. </p> <p>.Application for bail by writ of habeas corpus.</p>

<p>1. JUDGES — Prejudice—Disqualification. Under the law as it existed prior to the passage of the Act approved March 22, 1909. (art. 6, chap. 2G of Snyder’s Comp. Laws of Okla.) it was error to refuse a change of judge, where the defendant, ¡before the case was called’ for trial, filed an affidavit in due form stating that the presiding judge was' prejudiced against him, and that by reason thereof he could not have a fair and impartial trial .before said judge.</p> <p>2. CRIMINAL LAW — Sale of Liquors — Entrapment. The state is not precluded from prosecuting a defendant for selling liquor because the purchase was made by an officer, for the purpose of instituting a prosecution thereon.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Choctaw County Court; W. T. Glenn, Judge. </p> <p>A. O. Burton was convicted of soliciting the purchase of intoxicating liquor, and he appeals.</p>

A. Brown, Judge. G. A. Shaw filed in the district court of Greer county an application for writ of habeas corpus, which was denied, and he appeals.

<p> Appeal from Coal County Court; B. H. Wells, Judge. </p> <p>G-. McGinnis was convicted of a violation of tbe prohibition law, and he appeals.</p>

<p> Appeal from Garter County Court j I. B. Mason, Judge. </p> <p>Bill Jones was convicted of violation of the prohibition law, and appeals.</p>

Appeal from Carter County Court; I. B. Mason, Judge. John Bonner was convicted of the offense of selling intoxicating liquor, and his punishment assessed at a fine of $50 .and. imprisonment in the county jail for a term of 30 days. From an order overruling a motion for a new trial, he appeals.

Wagoner, Judge. James Horton, at the July, 1908, term of the county court of Lincoln county, was convicted of violating the prohibition law, and he appeals,

<p> Appeal from Pittsburg County Court; R. W. Higgins, Judge. </p> <p>Deak Hokey was convicted of the crime of violating the prohibition law, and he appeals.</p>

<p> Appeal from Beckham County Court; Fleetwood Bell, Judge. </p> <p>William Meirholtz was convicted of the violation of the prohibition law, and he appeals.</p>

<p> Appeal from Okfuskee County Court; T. T. Doyle, Judge. </p> <p>Tom Talley was convicted of a violation of the prohibition law. and appeals.</p>

<p> Appeal from Goal County Court; R. U. Wells, Judge. </p> <p>Bob George was convicted of selling intoxicating liquor, and appeals.</p>

<p> Appeal from Caddo County Court; B. F. Holding, Judge. </p> <p>James Le Force was convicted of a violation of the prohibition law, and appeals.</p>

<p> Appeal from Wagoner County Court; W. T. Drake, Judge. </p> <p>C. M. Nichols was convicted of a violation of the prohibition law, and he appeals.</p>

<p> Appeal from Grady County Court; N. M. Williams, Judge. </p> <p>Sam Smith was convicted of a violation of the prohibition law, and he appeals.</p>