Volume 4 — Oklahoma Criminal Reports

Wolverton, Judge. W. H. Stack and H. Stermer were jointly tried and convicted of the offense of selling intoxicating liquor, and they appeal.

<p> Appeal from Pittsburg County Court; R. W. Higgins, Judge. </p> <p>La Fayette Waters and Shagg Foster were convicted of a violation of the prohibition law, and’ appeal.</p>

<p> Appeal from, Jaclcson County Court; W. T. McConnell, Judge. </p> <p>Frank Johnson was convicted of violating the prohibition law, .and.he appeals.</p>

<p>Appeal from Adair County .Court j B. IF. Alberty, Judge.</p> <p>J. F. Hudson .was convicted of a violation of the prohibition law, and appeals.</p>

Appeal fro'm Oltfusltee'County Court; T. T. 'Doyle, Judge: ■ Will Simmons was ' convicted of the offense of ■ selling intoxicating liquor, and was sentenced to pay -a fine of $50 and to be imprisoned in the county jail for a period, of 30 days. From an order overruling a motion for a new trial, he' appeals'.

L. Beckett, Judge. Claude Crawford was convicted of selling intoxicating liquor, and sentenced to pay a fine of $300, .and to be imprisoned in the county jail for a period of 60 days. From an order overruling a motion for a new trial, he appeals.

T. Doyle, Judge. . Jim Childress was convicted of -selling intoxicating liquorj and his punishment assessed at a fine of $100 and imprisonment in the county jail for a period of 60 days. From an order overruling a motion for a new trial,, he appeals.

<p> Appeal from Olcfushee County Court; T. If. Doyle, Judge. </p> <p>John Simmons was convicted of violation of the prohibition law, and brings error.</p>

<p> Appeal from Goal County Court; R. H. Wells, Judge. </p> <p>Bob George was convicted of an illegal sale of liquor, and appeals.</p>

<p>Appeal from Adair County Court; B. 17, ATberty, Judge.</p> <p>J. F. Hudson was convicted of a violation of the liquor law, and appeals.</p>

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

<p> Appeal from Tulsa County Court; N. J. Qubser, Judge. </p> <p>Will Harmon was convicted of a violation of the prohibition law, and appeals.</p>

<p> Appeal from Beckham County Court; Fleetwood Bell, Judge. </p> <p>S. E- Van Zant was convicted of a violation of tbe prohibition law, and appeals.</p>

<p> Appeal from Le Flore County Court; Jas. Ij. Hale, Judge. </p> <p>J. S. Hale was convicted, of an illegal sale of liquor, and he appeals.</p>

<p>. 'Appeal from C.omahcKe County Court; James II. Wolverton, Judge.</p> <p>J. H. Ledgerwood ,-was convicted of a violation of the prohibition law, and appeals.</p>

<p>APPEAL — Time — Extension. Snyder’s St. sec. 6948, provides that in misdemeanor cases the - appeal must be taken within 60 days after judgment, but that the trial court or judge for good cause shown may extend the time 60 days. Held, that, where an appeal is not perfected within 60 days from judgment, thé record must show a proper order made .by the trial court or Judge before expiration of the first 60 days extending the time, and where the court, upon judgment rendered October 22, 1909, after allowing 30 days in which to make and serve a case-made, -and 5 days thereafter to suggest amendments thereto, granted a 30-day extension, ■ and the case-made was,,served on December 24, 1909, and without further order was signed and settled on Januars' 4, 1910, but not filed in the Criminal -Court of Appeals until January 21, 1910, the appeal will be dismissed.</p>

<p> Appeal from Stephens County Court; W. U. Admire, Judge. </p> <p>C. C. Champett was convicted of violation of the prohibition, law, and appeals.</p>

Mandamus on petition of Ira N. Eubanks against Preslie B. Cole, Judge. The petitioner, Ira N. Eubanks, on May 3, 1910, filed in this court his verified petition for a mandamus, which, omitting the formal parts, reads as follows: “Comes now Ira N. Eubanks, and respectfully shows to the court: That he stands charged by indictment with the offense of forgery in the district court of Pittsburg county, Okla., said cause being No. 686 on the criminal docket of said court.

<p>Mandamus on petition of' Albert Figlos and another against Preslie B. Cole, Judge.</p>

<p>APPEAL — Absence of Evidence. Where the prosecution fails to offer any testimony tending to prove the offense charged, or whether the evidence tends to prove anything- pertinent to the issue, is a question for the court; and where there is an entire absence of evidence, a conviction will be reversed.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Choctaw County Court; W. T. Glenn, Judge.</p> <p>Will Chambless was convicted of a violation of the prohibition law, and appeals.</p>

<p> Appeal from Grady Gounty Court; N. M. Williams, Judge. </p> <p>Berry Stringer was convicted of a violation of the prohibition law, and brings error.</p>

T. Drake, Judge. Jake Ensley was convicted of violating the prohibition law, sand his punishment was assessed at a fine of $100.00 and imprisonment in the county jail for a term of sixty days. From an order •overruling a motion for a new trial and in arrest of judgment, he appeals.

Drake, Judge. Joe Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $100.00 and be imprisoned in the county jail for a term of ninety days, and he áppeals.

<p>Appeal from County Court of Wagoner County; W. T. Crake, Judge.</p> <p>Walter James was convicted of violating the prohibition law, and sentenced to pay a fine of $300.00 and to be imprisoned in the county jail for a term of sixty days, and he appeals.</p>

<p> Appeal from Wagoner County Court', W. T. Drake, Judge. </p> <p>C. M. Nichols was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned-in the county jail for a term of 60 days, and he appeals.</p>

<p> Appeal from Wagoner County Court; W. T. Drake, Judge. ■ </p> <p>John Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $100 and to be imprisoned in the county jail'for a term» of 30 days, and he appeals.</p>

T. Drake, Judge. P. W. Williams was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned in the county jail for a term of 30 days> and he appeals.

<p>Appeal from Wagoner County Court; W. T. Drake, Judge.</p> <p>Joe Flowers was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a term of 30 days, and he appeals.</p>

<p> Appeal from, Wagoner County Court; W. T. Brahe, Judge. </p> <p>Walter James was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a term of 90 days, and he appeals.</p>

<p> Appeal from Wagoner County Court; W. T. Drake, Judge. </p> <p>Bob Aytch was convicted of violating the prohibition law, and sentenced to pay a fine of $400' and. to be imprisoned in the county jail'for a term of 6 months, and-he' appeals.</p>

T. Drake, Judge. Mts. M. J. Wade was convicted of violating the prohibition law, and her punishment assessed at a fine of $250 and imprisonment in the county jail for a term of 30 days. From an order overruling a motion for a new trial and in arrest of judgment, she appeals.

<p>Appeal from Wagoner County Court :, W. T. Drake, Judge.</p> <p>Bob Malone was convicted of violating the prohibition law, and sentenced to pay a fine of $300 and to be imprisoned in the county jail for a term of 90 days, and he appeals.</p>

J. Gubser, Judge. Walter Steen was convicted of violating the prohibition law, and sentenced to pay a fine of $250 and to be imprisoned in the county jail for a period of 90 days. From an order overruling a motion for a new trial, he appeals.

<p>Appeal from Blaine County Court; C. F. Malcomb, Judge.</p> <p>Fred Edwards was convicted of a violation of the prohibition law, and he appeals.</p>

<p> Appeal from Washita County Court; L. B. Shean, Judge. </p> <p>W. P. Scott was convicted of a violation of'the prohibition law, and he appeals.</p>

<p> Appeal from Washita County Court; L. B. Shewn, Judge. </p> <p>R. C. Bittle was convicted of a violation of the prohibition law, and appeals.</p>

Original Proceeding by Habeas Corpus. The Incorporated Town oí Eldorado, Oklahoma, passed an ordinance entitled An ordinance describing what shall constitute a public nuisance; prescribing the punishment for maintaining the same, and providing methods for the abatement thereof,” by which ordinance it was declared in substance that all billiard halls, poolrooms, or other places where any billiard, pool or combination billiard and pool table or tables are or may be kept or…

<p>Application of A. H. Huling for writ of mandamus.</p>

<p> Appeal from the County Court of Stephens Coimty; W. H. Admire, Judge. </p> <p>Jim Gray was convicted of violating the prohibition law, and lie appealed.</p>

<p>1. HABEAS CORPUS — Subsequent Application — Conolusiveness of First Decision. Where the Criminal Court of Appeals on final hearing has discharged a writ of habeas corpus theretofore issued, it will not ordinarily entertain a subsequent application for a writ 'based on the same' ground and the same facts, or on any other ground or facts existing when the first application was made, whether presented then or not.</p> <p>2. HOMICIDE — Evidence—Threats —'Reputation—Materiaity. Upon a charge of murder, where the killing is admitted, evidence of the general reputation of the deceased and of the threats made by the deceased, whether communicated or uncommunicated, are neither relevant nor material, unless some evidence is first introduced tending to show that the defendant acted in his real or apparent necessary self-defense in committing the homicide.</p> <p>3. BAIL — Right to — Life Endangered by Confinement. Where it is clearly shown that a defendant, held to answer a capital charge, is suffering from a serious malady, endangering his life, and that confinement in jail would probably result .fatally to him, and that it will be several months before he can be tried, !he may be admitted to bail.</p> <p>(Syllabus by the Court.)</p>

<p> Original Proceeding by Writ of Habeas Corpus. </p> <p>Application of Walter James for writ of habeas corpus.</p>

<p> Appeal from the District■ Court of Gree'r County; G. A. Brown, Judge. </p> <p>Lon Thomas and' H. M. Gregson were jointly convicted of grand larceny, and they appeal.</p>

<p> Original Proceedings by Writ of Habeas Corpus. </p> <p>Application of P. W. Williams for writ of habeas Corpus.</p>

<p> Original Proceeding by Writ of Habeas Corpus. </p> <p>Application of C. M. Nichols for writ of habeas corpus.</p>

M. Poe, Judge. J. W. Culpepper .was1 indicted for murder and convicted of manslaughter in the first degree; and he appeals. On “presumption of innocence”; Greenleaf, Evidence (16th Ed.) vol. 1, p. 127; Horn v. Territory, 8 Okla. 52; Coffin v. U. 8., 156 U. S. 432; Com. v. York (Mass.) 43 Am.. Dec. 373; People v. Mougiis, (Cal.) 86 Pac. 191; State v. Hanlon (Mont.) 100 Pac. 1037.

<p> Appeal from the District Court of Pottawatomie County; J. H. Woods, Special Judge. </p> <p>Rand Cowart was indicted for murder, and was convicted of manslaughter in the second degree.</p> <p>On question whether sec. 9, art. 10, Const, is self-executing: Cooley, Const. Lim. (7th Ed.) p. 127; Railroad Co. v. Lawrence County, 27 111. 50; Long v. Billings, 7 Wash. 267; French v. Teschemaker, 24 Cal. 518; Railroad Co. v. Fire Ass’n Phila., 60 Ark. 325.</p> <p>On same question: Davis v. Burke, 179 II. S. 403; State v. Holmes (Wash.) 40 Pac. 736; Parker Co. v. Jackson, 5 Tex. Civ. App. 37; Trigg v. State, 49 Tex. 645; Railroad Co. v. State Bom-d of Equalization, 64 Mo. 304.</p>

<p> Appeal from District Oourt, Latimer County; M. E. Rosser, Judge. </p> <p>Will Starr was convicted for grand larceny, and appeals.</p>

<p>Petition for writ of mandamus.</p>

<p>HABEAS CORPUS — Court Records — Impeachment. The orders and judgments of a court of record which appear to be properly entered can not be impeached or contradicted in a habeas corpus proceeding.</p> <p>('Syllabus by the Court.)</p>

Cole, Judge. Ed Bartell was convicted of an assault with intent to kill, and his punishment assessed at imprisonment in the penitentiary for a term of three years. He filed a motion for a new trial, which was overruled, and he appeals. No briefs reached the reporter.

<p>1. INDICTMENT — Murder—Sufficiency—Time for Objections, (a) All objections as to the sufficiency of an indictment should be presented by proper motions before the defendant pleads thereto. When the defendant enters .his plea of not guilty and waits until after the jury has been empaneled and sworn and then for the first time questions the sufficiency of the indictment by objecting to the introduction of testimony, on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the indictment can be sustained.</p> <p>(b) For an indictment for murder held to be good as against the objection after the jury had been sworn that it did not allege facts sufficient to constitute an offense, see opinion.</p> <p>2. WITNESSES — Impeachment — Harmless Error, (a) For the purpose of impeaching a witness he may be asked on cross-examination if he has ever been convicted of a felony or of any erime which involves a want of moral character, but it is improper to ask him if he has ever been indicted, arrested or imprisoned, before conviction for any character of offense.</p> <p>(b) Although a witness may have been improperly impeached, yet such error will not be ground for reversal when the witness has not testified to any fact favorable to the defendant, upon the ground that the reception of incompetent evidence, which it appears was not prejudicial to the defendant, is not ground for reversal.</p> <p>3. EVIDENCE — Threats—Admissibility—Trial—Record of Excluded Testimony, (a) When threats are admissible in evidence the fact that they were communicated to the defendant may be testified to ¡by the defendant or any other person who heard them so communicated, and it is not necessary for the defendant to prove that as- a matter of fact such threats were actually made.</p> <p>(b) When objections to a question are sustained, if it is desired to reserve the question as to the competency of the testimony sought to be introduced, for the determination of this court, the record must contain some showing as to what the testimony of the witness would have been had he been permitted to answer the question. Otrierwise this court cannot determine as to whether the defendant has been injured by the ruling of the trial court.</p> <p>(c) When counsel desire to incorporate in the record what they expect to prove by a witness, if he had been permitted to answer a question to which objection had been sustained, it is improper for counsel to make an oral statement in the presence of the jury as to what they expect the testimony to be; they should reduce the .statement of such testimony to .writing and hand it to the trial judge, and if he is in doubt as to its admissibility, the jury should be withdrawn and the court should hear what the actual testimony of the witness would be, and this should appear in the record.</p> <p>(d) Threats made by the deceased against a defendant are not admissible in evidence when there is no testimony presenting the issue of self-defense.</p> <p>4. INSTRUCTIONS — Sufficiency. Although the instructions of the court may be subject to criticism, yet if when taken as a whole they are substantially correct, and present the law as favorably for the defendant as he could claim, the judgment will be affirmed as far as the instructions are concerned.</p> <p>('Syllabus by .the Court,)</p>

H. Russell, Judge. Frank Turner was convicted of murder and sentenced to imprisonment for life at hard labor, and he appeals. Plaintiff in error (hereinafter designated the defendant) was on the 12th day of November, 1908, indicted in the District Court of Carter County. The indictment charged that on the 19th day of September, 1908, in said county and state, the defendant did kill and murder one Charles McCumber by shooting him with a shotgun.

Error from District Court, Comanche County; TF. M. Bowles, Special Judge. John Hopkins was convicted of murder and brings error. —On presumption of regularity in grand jury proceedings: 'Laurent v. State, 1 Kan. 313; 22 Cyc. 206, par. 4, and cases cited.

King, Judge. Arthur. Berry and Iiarrison Kimble were convicted of grand larceny, and they appeal. On question of variance: People v. Buelna, 81 Cal. 135; State v. Hayes, 98 Iowa, 619. On admissibility of ■confessions: Dotson v. State, 88 Ala. 208; State v. Leonard, 3 Ore. 157; Thompson v. State, 19 Tex. App. 593; State v. Meekins,. 4-1 La. Ann. 543. Instruction on presumption of innocence: Campbell v. State, 100 Ga. 271.

<p> Appeal from County Court of Caddo County; B. F. Holding, Judge. </p> <p>Harry Deeds was convicted of selling intoxicating liquor, and he appeals.</p>

<p>1. APPEAL — Sufficiency of Evidence. Where the evidence is conflicting, and that on the part of the prosecution such that, if •believed by the jury, a verdict of guilty should result, a conviction will not be set aside on the ground that it is not justified by the evidence.</p> <p>2. APPEAL — Specification of Error — Sufficiency. A specificat!on of error in a petition in error as follows. “For errors of law occurring at the time and excepted to by plaintiffs in error,” is too general and indefinite to raise any question for review ip the appellate court.</p> <p>3. PARTIES TO OFFENSES — Participation — "Acquiescence" — Instructions. It is error to instruct the jury that a person who stands by and consents or acquiesces in the commission of a crime is a participant therein. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or he must aid, assist, abet, advise or encourage its commission.</p> <p>4. SAME. Where two defendants were jointly charged with a crime, and all the evidence as to the actual commission of the offense identified one defendant as the person who did the manual act constituting it, and tended to show that the other only aided and abetted therein, an erroneous instruction to the effect that all persons who stand by and consent or acquiesce in the commission of a crime are participants therein, being applicable only to the latter defendant, was prejudicial only to him.</p> <p>5- INSTRUCTIONS — “Reasonable Doubt.” The statement in an instruction defining a reasonable doubt that. “A doubt, to justify an acquittal, must be reasonable and arise from a candid and impartial consideration of all the evidence in the case,” is not erroneous as precluding a reasonable doubt arising from a want of evidence.</p> <p>6. APPEAL — Venire for Jury — Record. The orders of the court or judge for the drawing of jurors, and directing the issuance of open venires, must he entered of. record; and to be considered on appeal, they must be shown by a transcript of the record, and cannot be shown by affidavit.</p> <p>7. TRIAL — Venire for Jury — Time for Objections. The propriety of the court’s action in ordering the issuance and service of an open venire for a certain number of jurors, when the names of sufficient jurors yet remained in the jury box, cannot be raised for the first time after verdict has been rendered.</p> <p>8. ASSAULT WITH INTENT TO KILL — Information—Sufficiency. In an information for an assault with intent to -kill, drawn under sec. 2307, Snyder’s Comp. L. Okla., it is not necessary to allege that the intent to kill was felonious, the information alleging that the assault was intentional and wrongful.</p> <p>9. SAME — Allegation of Battery. An allegation in an information that the defendant did intentionally and wrongfully assault, beat, cut, stab and wound one C., sufficiently alleges a battery.</p> <p>10. ASSAULT WITH INTENT TO KILL — Evidence—Proof of ln^ strument. The fact that an assaulted party was cut in the night time with some sharp instrument; that a serious wound was thereby inflicted upon him which blinded him, covered him » with blood, confined him to his bed for quite a while, and necessitated a physician’s attendance upon him for some considerable time, the weapon remaining in the perpetrator’s possession, were circumstances from which the jury could legitimately find that the assault was committed with a knife or some instrument of that character, and that the same was a deadly weapon.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIAL — Correction of Record. Sec. 6095, Snyder’s Comp. L. Okla., prescribing the procedure for the correction of mistakes or omissions of the clerk, or of an irregularity in obtaining a judgment or order, refers solely to civil matters and has no application to criminal cases.</p> <p>2. SAME — Record of Convening of Court. Where the clerk fails or neglects to enter upon the journal of the court the formal order showing the convening of the court, the same may be entered in conformity with the facts, even after the expiration of the term.</p> <p>3. SAME — Notice of Order of Correction. The formal order opening the court is one with which no party to litigation pending therein has anything to do, -which adjudges nothing respecting any person’s right in any case, and upon which no person is entitled to a hearing before it is made; and where the clerk neglects to enter the order in regular course, no notice is required to be given to any person ibefore a nunc pro tunc entry thereof can be made.</p> <p>4. SAME — Nunc Pro Tunc Entry — Collateral Attack. A nunc pro tunc entry of an order showing the convening of the county court, imports absolute verity -when brought into question in any subsequent proceeding other than a proceeding to vacate or correct it instituted in the court in which the order was made.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Gourt, Caddo County; S. II. Russell, Judge. </p> <p>Joe Elliott was convicted of manslaughter in the second degree, and his punishment assessed at a fine of $1,000.00. From an order overruling a motion for a new trial, he appeals.</p> <p>Citing: 3 Greenleaf on Ev., sec. 140; Guedel v. People, 43 111. 226; Eelmerleing v. Comm. (Ky.)' 37 S. W. 264; Ciarle v. Comm. (Kj.) 63 S. W. 740; State v. Reed (Mo.) 55 S. W. 278; Danforth v. State (Tex.) 69 S. W. 159; Rex. v. Kelley, 1 Moody, C. C. 113, 1 Lewin Cr. Cas. 193; Rex v. Thompson, 1 Moody, C. C. 139, 1 Lewin Cr. Cas. 194; Brown’s Case, 1 Lewin Cr. Cas. 165; 1 Whart. Cr. Law (10th Ed.) sec. 519; 1 McLain, Cr. Law, sec. 377.</p>

JJ. Cooler. Special, Judge. Defendant was convicted for violating the prohibition Jaw and was fined $50.00 and sentenced to 30 days’ confinement in the county jail. Defendant appealed.

County Courtj W. C. Jackson Judge. Defendant was convicted for violating the prohibition law and sentenced to confinement in jail for a period of 40 days, and to pay a fine of $3000.00, and he appeals.

King, Judge. The defendant was prosecuted by information for the crime of forgery and sentenced to seven years’ confinement in the state penitentiary and appealed.

C. Fullerton, Judge Pro Tempore. Defendant -was convicted for violating the prohibition law and was sentenced to pay a fine of $50.00 and imprisonment in the county jail 30 days. Defendant appealed. -Citing Michaels v. 'State (Okla. C'r.) 103 Pac. 1069.

T- Johnson, Judge. Defendant was convicted of the crime of grand larceny and sentenced to four years’ imprisonment in the state penitentiary, and appealed.

<p> Appeal from Canadian County Court; E. L. Fogg, Judge. </p> <p>Defendant was convicted for keeping a house of ill fame, and fined one hundred dollars. Defendant appealed.</p>

<p>1. INTOXICATING LIQUORS — Detectives—Entrapment. The state is not estopped from prosecuting- a violation' of the prohibition law because the purchase of the liquor was made at the instance of the prosecuting attorney and for the purpose of instituting a prosecution thereon.</p> <p>2. INFORMATION — Verification — Conclusiveness. Where an information in legal form is verified as true in positive térms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to put the defendant on trial; and on a motion to quash the information no issue can be made as to the knowledge or want of knowledge of the facts charged on the part of the person who verified ifche information; nor can the information be set aside on the ground that the person who verified it had no personal knowledge of the facts alleged.</p> <p>3. INTOXICATING LIQUORS — “Beer” Presumed Intoxicating. Where a defendant is prosecuted under sec. 7, art. 1, of the state Constitution for selling intoxicating liquor, to wit “beer,” and the state proves that the defendant sold beer, the presumption is that the same was intoxicating, and the burden is on the defendant to rebut the presumption by evidence. If no evidence • is adduced upon that question by either side, the presumption that the beer sold was intoxicating is conclusive on the jury, jury.</p> <p>4. SAME — Reasonable Doubt — Duty to Instruct Jury. In rebutting the presumption arising in such case that the beer ^old was intoxicating, the defendant is required to produce only sufficient evidence to raise a reasonable doubt as to its intoxicating quality. When that is done it devolves upon the state to show beyond a reasonable doubt that the beer sold was in fact intoxicating; and it is error to refuse to so instruct the jury when properly requested by the defendant, provided evidence has been produced tending to show that the beer sold was not intoxicating.</p> <p>5. INTOXICATING LIQUORS — Constitutional Offense — Allegations and Proof. Under sec. 7, art. 1, of the state Constitution, forbidding the sale of “intoxicating liquor, including beer, ale and wine,” it is necessary to allege that the liquor sold was intoxi--eating, and to prove that fact either by evidence of its intoxicating quality or effect, or by evidence showing that the liquor sold was of that kind presumed by law to be intoxicating.</p> <p>6. SAME — Statutory Offense. Under sec. 1 of art. 3 of the Act approved March 24, 1908, (sec. 4180 of ‘Snyder’s Comp. Laws.) forbidding the sale of “any spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor,” it is necessary neither to allege nor prove that the liquor sold -was 'in- .“ toxicating. The allegation and proof that the liquor sold was a spirituous, vinous, fermented or malt .liquor, as the case may be, or an imitation of or a substitute for one or the other of those liquors is sufficient-, and it will be no defense to show that the liquor was not intoxicating.</p> <p>7. SAME — Percentage of Alcohol. The further provision of sec. 4180 of ’Snyder’s Comp. Laws forbidding the sale of “any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol measured by volume, and which are capable of being used as a beverage,” etc., is intended to prohibit the sale of patent medicines and medicated drinks and compounds which contain alcohol and are capable of being used as a -beverage, and in no sense modifies or qualifies the preceding provision forbidding the sale of “spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor.”</p> <p>8. INSTRUCTIONS — Requests — Substance Already Given. It is not error to refuse a requested instruction where the court has already given the substance of the request in other proper instructions.</p> <p>9. INTOXICATING LIQUORS — Information—Purchaser Unknown. Where an information charges that the defendant sold intoxicating liquor to some person whose name is unknown to the informant, the information is not demurrable on account of the failure to state the name of the purchaser.</p> <p>10. SAME — ^Purchaser Known — Variance. Where an information alleges that defendant sold intoxicating liquor to some person whose name is unknown to the informant, in the absence of any evidence on the question, the verity of the allegation that the name of the purchaser was unknown at the time of filing the information will be presumed. But if the evidence affirmatively shows that the name was known to the informant at the time of filing the information, the variance 'between the allegation and the proof is fatal.</p> <p>11. SAME — Variance—Presumptions—Evidence. If there is no evidence adduced by either side tending to show that the name of the purchaser was known to the informant at the time of filing the information, the presumption of the verity of the allegation that it was unknown becomes conclusive on the court and jury. If the possession of such knowledge by the informant at the time of filing the information is admitted by the prosecution or conclusively and indisputably shown, then the question is one for the court only; but if there is evidence tending to show the fact of knowledge on the part of the informant, but which falls short of conclusive proof, then the question is one for the jury under proper instructions.</p> <p>12. SAME — Name of Purchaser Known — Necessity of Allegation. A county attorney and an enforcement attorney each represented the state in the enforcement of the prohibition law, and each had authority in the county; the enforcement attorney knew of a sale of liquor and the name of the purchaser, the purchase being made at his instance; the county attorney prepared and signed an information charging the defendant with the sale and alleging the name of the purchaser to be unknown to him; the enforcement attorney then and there verified the information, and assisted in the prosecution, and the information was never amended. Held, that the enforcement attorney could not lawfully withhold from the county attorney the name of the purchaser, if he in fact did so, thus- making the allegation that the purchaser’s name was unknown to the informant a mere subterfuge to avoid disclosing the name; and that a showing of such facts constituted a fatal variance between the allegation and the proof, entitling the defendant to an acquittal.</p> <p>(Syllabus by the Court.)</p>

Dailey, Judge. S. F. Saunders was convicted of tbe crime of murder, alleged t'o have been committed on one William Edward Carnahan on December 9, 1907, and his punishment was assessed at imprisonment at hard labor in -the state penitentiary for and during the term of his life.

<p>1. APPEAL AND ERROR — Case-Made—Record. An assignment of error based on the overruling of a demurrer to an information, where the record does not show that a demurrer was ever filed or presented, cannot be considered.</p> <p>2. INTOXICATING LIQUORS — Conveying Liquor — Information. An information charging the unlawful conveyance of liquor from one place in the state to another place therein is not defective for failing to state the place from which the liquor was conveyed, where it alleges that such place was unknown to the informant.</p> <p>3. SAME — Evidence—Sufficiency. Evidence examined, and held to warrant a finding that defendant was guilty of conveying liquor.</p> <p>4. SAME — Information — Negativing Exceptions. In a prosecution instituted under sec. 4180, Snyder's Comp. L. Ok'la., making it an offense for any person to convey certain kinds of liquor from one place in the state to another place therein, except the conveyance of a lawful purchase as authorized in a different section, it is not necessary that the information negative the exception contained in the statute.</p> <p>5. SAME — Burden of Proof — Matters of Defense. In a prosecution instituted under see. 41S0, Snyder’s Comp. Law. Okla.. making it an offense for any person to convoy certain kinds of liquor from one place in the state to another place therein, except the conveyance of a lawful purchase as authorized in a different section, the state is not required to .prove in the first instance that the liquor conveyed was not,Ja lawful purchase. 'That it was a lawful purchase is a matter of defense to be raised 'by the evidence in behalf of the accused.</p> <p>6. SAME — Lawfulness of Purchase — Presumption. In a prosecution for the conveyance of liquor under sec. 4180, Shyder’s Co.mp. L. Okla., if there is no evidence, introduced 'by either party tending to show that the liquor conveyed was a lawful purchase, then the presumption is that it was not such.</p> <p>7. SAME — Measure of Proof Required of Defense. To relieve himself of liability for the conveyance of liquor on the ground that the same was a lawful purchase, the defendant is required to produce only evidence sufficient to raise a reasonable doubt on the whole case as to whether the liquor conveyed was a lawful purchase; and he is not required to prove that it was such by a preponderance of the evidence.</p> <p>8. SAME — Instructions—Harmless Error. An erroneous instruction to the effect that the burden is on the defendant to show by a preponderance of the evidence that the liquor conveyed by him was a lawful purchase, is not prejudicial where the evidence of neither party m any manner tends to show that the liquor conveyed was a lawful purchase.</p> <p>9. SAME — Evidence—Competency. In a, prosecution for the unlawful conveyance of. liquor where the proof shows that the defendant was found with the liquor in a certain building and that he did not procure it there, evidence that a few days before the defendant obtained a quantity of liquor of the same kind and brand, and took the same to .his home, is1 competent as a circumstance tending to show a nro'bable connection between the liquor with which he was found and that which he had carried to his home, the probability of the conveyance, and the probable place from which he conveyed it.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Muslco.gee CountyJohn H. King, Judge. </p> <p>Ethel Gray was convicted of perjury, and she appeals.</p> <p>On sufficiency of information: 2 Bishop, Crim. Proc. secs. 910a, 918; Rofvrer v. State, 13 Tex. App. 167; QabrielsTcy v. State, 13 Tex. App, 437; Rich v. U. S., 1 Okla. 359; Z7. S. v. Hess, 124 IJ. S. 483; Petiibone v. U. S., 148 U. S. 197; Anderson v. State, 18 Tex. App. 17, On necessity of instruction limiting-effect of evidence: Washington v. State, -23 Tex. Cr. App. 338; Littlefield' v. State, 24'Tex. Cr. App, 169; Davidson v. State, 22 Tex. Cr. App. 382. On question of proper cross-examination: Slater v. U. S., 1 Okla. Cr. 275.</p> <p>On sufficiency of information: People v. Ah Bean, 77 Cal. 12; People v. De Carlo, 124 Cal. 452; People v. Ennis, 137 Cal. 263.</p>

Appeal from Tulsa County Court; N. J. Gubser, Judge. Walter Steen and A1 C'arr were jointly convicted of selling intoxicating liquor, and they appeal.

T. West, Judge. The defendant was convicted for the, crime of stealing hogs and sentenced to one year’s imprisonment in the penitentiary, and appealed.

T. West, Judge. On March 20, 1907, Eoss Hárris was indicted in the United States Court for the Southern District of Indian Territory for the crime of larceny. Upon the admission of Oklahoma into the Union the cause was transferred to the District Court of Johnston County, and was tried during the September, 1908, term of said court, resulting in a conviction and a judgment imposing upon the defendant a term of imprisonment in the penitentiary.

<p>SHOOTING WITH INTENT TO KILL — Indictment—Sufficiency. The allegation in an indictment or information that the defendant shot at another with a pistol, by necessary implication avers that the pistol was loaded.</p> <p>(iSyllabus by the Court.)</p>

<p>1. INFORMATION — Verification—Waiver of Defects. An information verified only on information and belief should be set aside on a timely motion for that purpose; but if no such motion be filed, the defect is waived.</p> <p>2. SAME — Cure of Defects — Reverifioation. Where an information is filed verified only on information and belief, but before the defendant pleads thereto is - reverified in positive terms, the defect • is cured.</p> <p>3. JURY — Number Concurring — County Court. Under sec. 19, art. 2 of the Constitution, six men constitute a jury in the county court, and five of the six concurring may render a verdict.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Jurisdiction—Offenses Antedating Statehood. The courts of the State of Oklahoma have jurisdiction of offenses committed prior .to statehood.</p> <p>(Syllabus by the Court.)</p>

C. Jackson, Judge. Defendant was convicted for violation of the prohibition law and sentenced to pay a fine of $300.00 and forty days’ confinement in the county jail, and he prosecuted an appeal. Citing Garter v. Texas, 177 TJ. S. 442, and Rogers v. Alabama, 192 TJ. S. 226.

<p> Appeal from District Court, Custer County; James B. Tolbert, ' Judge. </p> <p>Ben Hughes was convicted of grand larceny, and appeals.</p>

<p>1. ARREST — Warrant—Requisites. Tinder the law in force in the Indian Territory prior to statehood a warrant of arrest, to be valid and to justify an officer in acting thereunder, must either name or describe the person to be arrested.</p> <p>2. SAME — Necessity of Warrant — Misdemeanor. A peace officer may lawfully arrest without a warrant for a misdemeanor committed in his presence.</p> <p>3. ARREST — Duty of Officer to Inform Person of Intent. Under section 1350, Ind. Ter. Stat, a peace officer in making an arrest should inform the person about to be arrested of the intention to arrest him and the offense for which he is arrested; 'but this was not required where the person to be arrested knew the officer’s official character and was committing an offense in the officer’s presence.</p> <p>4- ASSAULT AND BATTERY — Resisting Arrest — Self-Defense. A person about to be arrested, who knows the officer’s official character and his intention to arrest him, cannot assault such' officer upon his first uttering a word, and justify his act on the ground that the attempted arrest was illegal in that the officer did not inform him of his intention to arrest and for what offense the arrest was to be made.</p> <p>5. SAM E — Resisting Arrest Without Warrant. Where an officer without a warrant, attempts an arrest for a misdemeanor believed by him to have been committed in his presence, but which in fact wtas not committed, the person to be arrested, if he knew the officer’s official character and his intention, is not justified, merely on the ground that he is innocent of the offense, in assaulting the officer upon the latter’s first uttering a word, without the arrested party’s making any explanation, and without his either inquiring the purpose of the arrest or giving the officer an opportunity to state it..</p> <p>6. SAME — Illegality of Arrest — Evidence. Where a defendant is on trial for an assault committed upon an officer in resisting arrest, and he contends that the attempted arrest was illegal, it is competent for the prosecution to introduce evidence tend.-ing to show 'that it was legal.</p> <p>7. ARREST — Right to Use Force. An officer has no right, in the' absence of resistance or flight, to use any force or violence upon one whom He is arresting for any offense; and also has no right to use a deadly weapon upon one whom he is attempting to arrest for a misdemeanor and who. does not resist but merely flees.</p> <p>8. ASSAULT AND BATTERY — Resisting Arrest — Self-Defense. The mere fact that a known officer in making an arrest for a misdemeanor lias a pistol in his hahd, will not alone and of itself justify the person to be arrested in shooting at the officer.</p> <p>9. SAME. Where a person about to be arrested makes no effort to resist or injure the officer, and the latter nevertheless makes; such a demonstration. with his pistol as would cause a reasonable man in like situation to believe that he is about to. be killed; or seriously injured, and the arrested party perceives suchi demonstration and honestly believe? that he is about to be-killed or injured by the officer, he is justified in shooting the-officer, if he acts in good faith, under the influence of sucbj. belief, and not in a spirit of malice or revenge.</p> <p>10. SAME. Where a person to be arrested for a misdemeanor offers no resistance or violence towards the officer, but merely flees or attempts to flee, and thereupon the officer either-shoots at him or makes such a demonstration as would cause-a reasonable man in like situation to believe that the officer was about to shoot at him, and such person thereupon shoots the- , officer, honestly believing that unless he does so he will probably be killed or seriously injured, his act is justifiable.</p> <p>11. INSTRUCTIONS — .Requests—Duty to Instruct oh Material Issues. Where an instruction requested by the defendant is not in proper-form, but pertains to a material issue in the case as made by the evidence, the court should correct it. and give it in proper form, if he has not otherwise instructed upon that issue; and. after such request it is error for him to fail or refuse to give an instruction upon -such issue.</p> <p>(’Syllabus toy the Court.)</p>

Application of George Jacobs for reduction of bail. Tbe petitioner offered tbe following affidavits: “In tbe District Court of the Fourteenth Judicial District of tbe State of Oklahoma, in and for McClain County. State of Oklahoma v. George Jacobs. Charged with murder.

Appeal p'om Oklahoma County Court; 8am Hooker, Judge. The defendant was convicted for violation of the prohibition law and was sentenced to pay a fine of $500.00 and imprisonment in the county jail for six months. Defendant appealed. Citing Wells v. Territory, 1 Olda. Or. 469.

<p>Appeal from, District Court, Atoka County; A. T. West, Judge.</p> <p>Pierce Cox was convicted of larceny, and he appeals.</p>

<p>1. INDICTMENT AND INFORMATION — Grammatical Errors. An allegation in an indictment or information that the defendant committed the crime of murder “by then and there — shoot and discharge leaden bullets,” etc., where thé averment should have been, “toy then and there — shooting and discharging leaden bullets,” is only a defect of form, a mere grammatical error, does not tend to the prejudice of the substantial rights of the defendant upon the merits, and presents no ground for a demurrer.</p> <p>2. HOMICIDE — Murder—Sufficiency of Information. An indictment or information which alleges that the defendant shot the deceased with a gun, without authority of law, and with a premeditated design to effect his death, and that the death of the deceased was thereby produced, sufficiently charges the offense of murder. It is not necessary to allego in express words that the killing itself was committed with a premeditated design to effect death. The shooting- resulting in death, constituted the killing.</p> <p>3.. INFORMATION — Defective Verification — Method of Objection. A defective verification of an information, or the total want of a verification, cannot be reached by demurrer, but can be taken advantage of only by a motion to set aside the information on that specific ground.</p> <p>4. INFORMATION — Verification—'Sufficiency. An information as a ■whole constitutes but one statement; and a verification thereof •which says that “the statement contained in the above information is true,” is not defective for omitting to say that the statements therein contained are true.</p> <p>5. CRIMINAL LAW — Right of Accused to Copy of Indictment or . Information. Under the Constitution of Oklahoma, the defendant is entitled to a copy of the indictment or information filed against him; but if he be at large so that he can go to the clerk’s office, call for and examine the original accusation, and copy it if -he desires, the state is under no obligation to make and serve a copy upon him. If the defendant be in custody and demands a copy of the accusation, the state must furnish it; but unless he demands it (before announcing ready for trial, his right to a copy is waived.</p> <p>6. SAME — Time for Demanding Copy — Appeal—Record. The demand for a copy of the accusation should be made in open court before announcing ready for trial; and the fact of the demand and the court’s ruling thereon should be made a matter of record, or shown by proper recitals in the case-made.</p> <p>7. INFORMATION — Allegations—Presumption of Preliminary Examination. When an information is filed charging á defendant with the commission of a felony, the law presumes that the defendant has had a preliminary examination or has waived the same, and the information need' not allege that fact. If the defendant contends that no preliminary examination has been had or waived, and he desires to raise the question, he must do so by a motion to set (aside the information on that ground, and the burden of proof is on him.</p> <p>8. HOMICIDE — Dying Declaration — Sufficiency of Predicate. [Proof that the deceased was found lying on the ground, covered with gunshot wounds and unable to move, that he stated that he was dying, and that he died within six hours thereafter, shows a sense of impending death, and constitutes a sufficient predicate for the admission of his dying- declaration.</p> <p>9. HOMICIDE — Dying Declaration. In response to the question, “Did you see who shot you?” the deceased in his dying declaration answered, “Joe Blair, from ambush, two shots.” Held, that the answer on its face was a statexnent of fact and not a mere opinion, and was admissible.</p> <p>10. TRIAL — Verdict—Assessment of Punishment by Court. Under ■ section 2029 of Sxyyder’s Comp. Daws, where the jury returns a verdict of conviction, but fails to assess the punishment to be inflicted, it is the duty of the court to assess and declare the punishment.</p> <p>11. TRIAL — Misconduct of Jury. The mere fact that the trial jury and their bailiff, before the submission of the case, had their pictures made in a group by a photographer in front of the court house, is not ground for a new trial.</p> <p>(Syllabus by the Court.)</p>

T. Johnson Judge.. The defendant was convicted of the crime oi burglary and sentenced to two years’ confinement in the penitentiary. Defendant appealed.

<p> Appeal-from* District Court, Greer County; G. A. Brown, Judge. </p> <p>C. H. Clark and John Sparks were convicted of assault with intent to kill, and appealed.</p>

<p> Appeal from District Court, Ohmulgee County; John J. Shea, Judge. </p> <p>M. N. Alexander was indicted for misconduct in office. Accusation quashed, and the state appeals.</p>

<p> Appeal from Pawnee County Court; H. T. Conley, Judge. </p> <p>Claude Box was convicted of violating the prohibitory law, and appeals.</p>

<p>INDICTMENT AND INFORMATION — Duplicity—Separate Offenses. 'Selling intoxicating- liquor and having- intoxicating liquor in one’s possession with the intention of violating any of the provisions of the prohibitory liquor law are made two separate and distinct offenses by the statute, and cannot be joined in an information or indictment.</p> <p>('Syllabus by the Court)</p>

<p> Appeal from District Court, Creer County; G. A Brown, Judge. </p> <p>Willie Richardson was prosecuted by information for the of-' fense of rape. The information was quashed, and the state appeals.</p>

<p>APPEAL — Necessity of Notice — Dismissal. When no notices of appeal are given as provided by statute, this court is without jurisdiction to consider a case on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>INTOXICATING LIQUORS — Information — Sufficiency — Conveying Liquor in State. An information charging a defendant with having conveyed intoxicating liquor from one place in the state of Oklahoma to another place in the state must fay proper allegations so identify the particular transaction as to enable the defendant to prepare for trial.</p> <p>(Syllabus by the Court.)</p>

<p>1. INTOXICATING LIQUORS — Information—Language of Statute. It is permissible to charge in an information that the defendant “did unlawfully sell, barter, give away, and otherwise furnish certain intoxicating liquors, to wit, whisky.” This is substantially the language of the statute, and charges but one offense, and will sustain a verdict, upon proof that the defendant sold, bartered, or.gave away whisky.</p> <p>2. APPEAL— Review — Instructions—Necessity for Exceptions. Errors committed by the trial court in its instructions to the jury, if not fundamental, will not be ground for reversal upon appeal, unless they were duly excepted to at the trial.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Briefs—Time for Filing Briefs must be filed within the time prescribed by the rules, or an extension of time should be applied for; otherwise, they will be stricken from the record.'</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Adair County; John II. Pitchford, Judge. </p> <p>Colon Cochran was convicted of riot on a charge of robbery, and he appeals.</p>

<p>Appeal from District Oowri, Adair County; John II. Püchforcl, Judge.</p> <p>Colon Cochran was convicted of an assault with intent to kill, and he appeals.</p>

<p>Appeal from Pontotoc County Court; W. C. Edwards, Special Judge.</p> <p>G. M. Ramsey was convicted of violating the prohibition law, and appeals.</p>

<p> Original Proceeding bv Writ of Habeas Corpus. </p> <p>Application of Tom Talley for writ of habeas corpus.</p> <p>Citing Salter v. State, 2 Olda. Cr. 464.</p> <p>Citing Ex parte Flowers, 2 Olda. Cr. 430; Ex parte Justus, 3 Olda. Cr. Ill; Snapp v. State, 2 Olda. Cr. 515; De Graf v. S'ta-te, 2 Olda. Cr. 519; Mulleins v. U. 8., 10 Olda. 288; Miller v. U. S., 8 Okla. 315; State v. Barr, 54 Kan. 230; Lewis v. State, 15 Neb. 89; State v. Brown, 181 Mo. 192; People v. Murphy, 56 Mich. 546. •</p>

<p>ANIMALS — .Death by Disease — Failure to Bury — Information., In prosecutions for violation of section 212, Snyder’s Comp. Laws Okla., 1909, the information must allege, and the state must prove, that 24 hours elapsed after the defendant had notice of or knew that a domestic animal had died of disease before said owner can be convicted for failing to bury or burn the carcass of said animal.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Marshall County; D. A. Richardson, Jud.ge. </p> <p>Stoke B. Walling was convicted of manslaughter, and appeals.</p>

<p> Original Proceeding by Writ of Habeas Corpus. </p> <p>Application of A. J. Show for writ of habeas corpus.</p> <p>No briefs reached the reporter.'</p>

Rosser, Judge. Appellant was indicted for murder and convicted of manslaughter in the first degree, and sentenced to the penitentiary for twenty years, and he appealed.

C. Jackson, Judge. Defendant was convicted for violating the prohibitory,- liquor law of the state, and was fined in the sum of $200, and sentenced to 30 days’ imprisonment in the county jail. Defendant appealed.

<p>1. . APPEAL — Case-Made—Service—Time. When the time provided by law for preparing and serving a case-made has expired before being served upon the countj' attorney, the case-made will be stricken from the record.</p> <p>2. INTOXICATING LIQUORS — Indictment and Information — Sufficiency. Selling, giving away, bartering, or furnishing intoxicating liquors, occurring at one and the same time,_ constitutes but one offense, and may be charged in one count in the same information or indictment.</p> <p>(Syllabus ¡by the Court.)</p>

<p> Appeal from District Court, Beckham County; G. A. Brown, Judge. </p> <p>Glen Harrison was convicted of assault with a dangerous weapon, and appeals.</p>

L. Fogg, Judge. Appellant was convicted of a violation of the prohibitory liquor law. His fine was assessed at $100.00 and 60 days’ imprisonment in the county jail, and he appealed.

T. West, Judge. Tom Birdwell and Blake Allen were indicted in tbe United States Court for the Southern District of Indian Territory for the crime of murder, and upon a trial in the District Court of Pontotoc County, to which the cause was transferred after statehood, they were found guilty óf manslaughter and were sentenced to imprisonment in the penitentiary for the terms of ten years and two years respectively. From an order overruling a motion for a new trial they appeal.

<p> Appeal from Seminole County Court; T. S. Cobb, Judge. </p> <p>E. C. Childs was convicted of violating the prohibition law, and he appeals.</p>

N. Alexander, Judge. Appellants were convicted for a violation of section 31 of Snyder’s Comp. Laws of Okla. 1909, and were found guilty and each find $100 and thirty days’ confinement in the county jail. This prosecution should have been based on secs. .312, and 216, Snyder’s Comp. Laws of Okla. 1909. Defendants appealed.

<p>INSTRUCTIONS — On Punishment. Where an instruction given only states the, maximum term of imprisonment and omits to state the minimum or alternative punishment that may be imposed. Held, that the judgment and .conviction must be reversed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from, District Court, Carter County; S. il. Bussell, Judge. </p> <p>Knox Simmons was convicted of grand larceny and appeals.</p>

D. Davis, Special Judge. Harry C'ohu was convicted of violating the prohibition law and sentenced to imprisonment for a term of six months and to pay a fine of $500. He filed a motion for a new trial, which was heard and overruled, and he appeals.

TF. Higgins, Judge. Harry Cohn was convicted of selling malt liquor, and his punishment was assessed at imprisonment for a period of sixty days and a fine of $200. From an order overruling a motion for a new trial, he appeals.

<p>1. APPEAL — Case-Made—Certification. A purported case-made not certified to by Uie trial judge cannot be considered by the appellate court. °</p> <p>¡J. APPEAL — Transcript—Requisites. The record of a criminal trial in a county court, not certified to either 'by the judge or the clerk of the court, cannot be treated a.s a transcript.</p> <p>3. APPEAL — Cas,e-Made—Record of Service. No case-made will be considered on appeal which does not show affirmatively that it was served upon the county attorney within the time fixed for that purpose by the trial court.</p> <p>(■Syllabus by the Court.)</p>

Cole, Judge. Bill Colbert was convicted of conjoint robbery and sentenced to imprisonment for life, and he appeals. Plaintiff in error was, at the October, 1908, term of the district court of Pittsburg county, jointly indicted with John Jolly and Claude Colbert for the crime of conjoint robbery. Upon arraignment he entered a plea of not guilty and demanded a severance, which was granted.

Greer County; J. B. Tolbert, Judge. The defendant was convicted of an assault with intent to do bodily harm, and his punishment was assessed by the court at confinement in the county jail at hard labor for a period of six months. Defendant appealed.

H. Montgomery, Judge. Appellant was convicted of a violation of the prohibitory liquor law of the State, and his punishment was assessed at a fine of $50 and imprisonment in the county jail for a period of 30 daj^s. Defendant appealed. On grounds 'for setting aside -panel of jury”: Hair jo v. United States, 1 Oída. Cr. 590; People v. Brasquez (Cal.) 99 Pac. 282.

<p>Appeal from Pittsburg Qouniy Court; U. ~W. Higgins, Judge.</p> <p>D. Buffo was convicted of violating the prohibitory law, and he appeals.</p>

- A. Richardson. Judge,. The defendant was convicted of the crime of rape and was sentenced to imprisonment in the penitentiary for life. He prosecuted an appeal.

<p>Appeal from Gh'ady County Court; N. M. Williams, Judge.</p> <p>Defendant wa-s convicted for a violation of the prohibitory liquor law and was fined $300 and sentenced to 30 days’ confinement in the county jail, and he appealed.</p>

Appeal from, District Court, Music ogee County; John E. King, Judge. Defendant was convicted of murder and sentenced to tlie penitentiary for life, and he appealed.

E. Sharp, Judge. Appellant was convicted for violating the prohibitory liquor law, and Ms punishment was assessed at three months’ confinement in the county jail and a fine of $250, and he appealed. Citing Wathins v. U. S., 1 Ind. T. 364.

Appeal from Garter County Court; I. R. Mason, Judge. The defendants were jointly convicted for violating the prohibition law, and their punishment was assessed at a fine of $250 each and four months each in the county jail, and they appealed.

<p>1. INDICTMENT AND INFORMATION — Felonies Committed Before Statehood — Necessity of Prosecution by Indictment. Article 5 of the amendments to the Constitution of the United States, providing that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” guarantees to a defendant charged with the commission of a felony in Oklahoma Territory, prior to statehood, an unalterable right to be accused by indictment only.</p> <p>2. SAME. 'In such cases the indictment is a necessary requisite to give the court jurisdiction, and 'without indictment the court has no jurisdiction to try.</p> <p>3. SAME — “Infamous Crime.” A crime punishable by imprisonment for a term of years at hard labor is an “infamous crime,” within the provision of the fifth amendment of the Constitution of the United .States.</p> <p>4. CONSTITUTIONAL LAW — Prosecution by Indictment — Ex Post Facto Laws. The constitutional guaranty constitutes a substantial right under the laws of Congress a.nd the laws of Oklahoma Territory, and any state law which operates as a denial of this right alters the situation of the accused to his disadvantage, and is therefore ex post facto as to such offense.</p> <p>(Syllabus by the Court.)</p>

IS. Sharp, Judge. Fred Stewart, Claude Stewart, Earl Stewart, Charlie Wilson, Frank Wilson, Charley Blanton, Jess Blanton, Ira Butler, and Walter Butler were convicted of grossly disturbing the public peace, and their punishment was assessed at a fine of $15 each. They filed a motion for a new trial, which was heard and overruled, and they appeal.

<p>WEAPONS — Carrying and Pointing — Information—Duplicity. Where the defendant was charged in the information with carrying a deadly weapon with the intent of injuring his fellow men, and in the same count also charged with unlawfully pointing a deadly weapon at another person, said information is bad for duplicity, and a demurrer thereto should be sustained.</p> <p>(Syllabus by the Court.)</p>

T. West, Judge. Defendant was convicted of the crime of manslaughter and sentenced, to four years’ confinement in the state penitentiary, and he appeals.

<p>1. GAMING — Conduct of Turf Exchanges — Issues and Proof. Under an information charging- a defendant with conducting a banking and percentage -game, played with certain devices, for money and other representatives of value, a conviction cannot be had upon proof that the accused conducted a “Turf Exchange” where his patrons congregated and bet upon horse-races run at another place.</p> <p>2. GAMING — “Banking or Percentage Games” — Construction of Statute. To be guilty of violating section 2422 of Snyder’s 'Comp. L. Okla., the accused must deal, play, carry on, open or conduct the game upon which money or other representative of value is wagered, and the game which he so deals, plays, carries on, opens or conducts must be one of those specially mentioned in said section, or some banking or percentage game played with dice, cards or some other device.</p> <p>3. SAME — “Device”—Definition. By the word “device” as used in section 2422 of Snyder’s Comp. I.. Okla., is meant the means, instrument, contrivance or thing by which a banking or percentage game is played.</p> <p>4. NUISANCE — Gaming—Turf Exchanges. A house or place kept for the purpose of enabling persons to place bets or wagers upon horse races is a common gambling house, is a nuisance per se and those who conduct it are indictable and punishable under section 2465 of Snyder’s Comp. I*. Okla.</p> <p>('Syllabus by the Court.)</p>

F. Holding, Judge. Logan Billingsley was convicted of having in Ms possession intoxicating liquor with the intent to sell same, and he appeals.

<p> Appeal from District Court, Pushmataha County; Malcolm E. Rosser, Judge. </p> <p>Nabert Bonaparte was convicted of uttering a forged instrument, and appeals.</p>

H. Loofbow-row, Judge. Defendants were convicted of adultery. Defendant Lucy A. Heacock was sentenced to pay a fine of $100 and defendant Sid Morris was sentenced to pay.a fine of $350, and they appealed.

<p>.1. WITNESSES — Cross-Examination—Criminal Record. Por the purpose of affecting the credibility of a’witness, he may be asked as to whether or not he has ever been convicted of a violation of the prohibitory liquor law of the state; 'but it is improper to ask him as to whether or not he has been arrested, imprisoned or indicted for any offense whatever, before conviction.</p> <p>2. INSTRUCTIONS — Credibility of Witnesses. An instruction that the jury mas'- disregard the entire testimony of any witness whom they believe to have testified falsely to any material fact, and which leaves out of consideration the- question whether such false testimony was wilfully and knowingly given, is erroneous.</p> <p>(Syllabus by the Court.)</p>

II. Gaylen, Judge, pro tern. Cyrus Kasberry was convicted of burglary, and he appeals.

Appeal from District Court, Woodward County; B. H. Loofiour-row, Judge. This was a proceeding against Hon. T. L. O’Bryan, County Judge of Woodward county. He was removed from office, and he appealed.

A. Richardson, Judge. The defendant was convicted of the crime of murder, and was sentenced to imprisonment in the penitentiary for the period of his natural life, and he appeals.

A. Richardson, Judge. Appellant was convicted of assault with intent to commit rape and sentenced to three years’ imprisonment in the penitentiary, and he appeals.

<p>APPEAL — Review — Failure to File Briefs. Where a plaintiff in error appeals from a judgment of conviction and no briefs are filed, or oral argument made, this court will make an examination of the indictment, the instructions given and the judgment and sentence, and if no error prejudicial to the substantial rights of the plaintiff in error appears, the judgment will be affirmed-</p> <p>(Syllabus by the Court.)</p>

T. Johnson, Judge. Defendant was convicted of the crime of grand larceny and sentenced to one 3rear’s imprisonment in the state penitentianr, and appealed.

R. Shem, Judge. Appellants were convicted of a violation of the prohibitory liquor law, and were each sentenced to pay a fine of $50 and to be imprisoned for 30 days in the county jail, and they appealed.

<p>1. PARTIES TO OFFENSES — “Principals”—Who Are. All persons who take part, participate, or engage in an offense are guilty as principals. It is immaterial as to whether they have any interest in or receive any financial gain from the commission of such crime.</p> <p>2. PARTIES TO OFFENSES — Defenses—Agency. The law of agency asi applied in civil cases has no application in criminal cases, and no man can escape punishment when toe participates in the commission of a crime upon the ground that he simply acted as agent for any party.</p> <p>3. INTOXICATING LIQUORS — Illegal Sale-Purchase by Agent. Any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby aiding and assisting in The sale of such liquors, and may be prosecuted and convicted for such sale. Reed v. State, 3 Okla. Cr. 17, 103 Pac. 1070, 24 L. R. A. (N. S.) 268, overruled.</p> <p>(Syllabus by the 'Court.)</p>

<p>1. INTOXICATING LIQUORS — Conveying Within State — Information. The information alleged that the defendant, “did wilfully and unlawfully convey intoxicating liquors from one place within the state to another place therein.” Held, insufficient on demurrer, for not stating the acts claimed to constitute the offense, and' for not alleging the particular circumstances of the offense charged.</p> <p>2. . INFORMATION — Words of Statute — Sufficiency. The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute when the particular circumstances of the offense charged are necessary to constitute a complete offense.</p> <p>3. INTOXICATING LIQUORS — Conveying Within State — Information. An information charging a shipment or conveyance of intoxicating liquor from one place within the state to another place therein must allege the place from and to which such liquors were so shipped or conveyed, if they are known, and if unknown, it must be so alleged.</p> <p>(Syllabus by the -Court.)</p>

<p>Appeal from County Court, Washita Countyj J. A. Duff, Special Judge.</p> <p>W. P. Scott was convicted of a misdemeanor, and he appeals.</p>

<p> Appeal from Ottaiva County Cowgt; W. Y. Quigley, Judge. </p> <p>Walter Tydings was convicted of violating the prohibition law and sentenced to pay a fine of $500 and to be imprisoned in the county jail for a term of 180 days, and he appeals.</p>

T. McConnell, Judge. D. B. M. Jones was convicted of violating the prohibition law and sentenced to pay a fine of $500 and to be imprisoned in the county jail for a term of 90 days, and he appeals.

Original Proceeding by Habeas Corpus. Application by T. H. Simmons for writ of habeas corpus.

<p> Appeal from Disirici Court, Kingfisher County; A. H. Huston, Judge. </p> <p>George W. McNaught was convicted of manslaughter in the first degree and appeals.</p>

<p>Application of Poley McAffrey for writ of habeas corpus.</p>