Volume 5 — Oklahoma Criminal Reports

<p>Appeal from, District Qourt, Marshall County'; D. A. Richardson, Judge. .</p> <p>Eiley Johnson was convicted of rape, and be appeals.</p>

<p>Appeal from District Court, Osage County; John J. Shea, Judge.'</p> <p>John Henson was convicted of grand larceny, and he appeals.</p>

T. West, Judge. Tom Spencer was convicted of burglary in the second degree, and his punishment was assessed at two years’ confinement in the state penitentiary, and he appealed.

Appeal from Garter Gountyi Courtj I. B. Mason, Judge. Bob Terrell and another were convicted of violating the prohibitory liquor law, and they appeal.

<p>Appeal from, District Court, Muskogee County; Joan H. King, Judge.</p> <p>Henry Johnson was convicted of manslaughter, and be appeals.</p> <p>Appellant was convicted for manslaughter in the first degree, and his punishment was assessed at imprisonment in the penitentiary for a period of four years, and he appealed. Eeversed and remanded.</p>

<p>APPEAL — Case-Made—Extension of Time for Service. "When the time granted by the court for making and serving a case-made has expired, the court is without power to grant further extension of time, and such order is void.</p> <p>(Syllabus by the Court.)</p>

E. Malcolm, Judge. Fred Edwards was convicted for maintaining a place where prohibited liquors were kept for sale, and he appeals.

<p>1. GRAND JURY — Impaneling—Compliance with Statute. A substantial compliance with the statute with reference to impaneling grand jurors is all that the law requires.</p> <p>2. TRIAL — Instructions on Punishment. It is error for a trial court to substitute in instructions to the jury a different and higher punishment for an offense than that prescribed by the statute.</p> <p>3. EVIDENCE — Opinion Evidence — Hearsay, (a) It is error to allow a witness to testify that he thought there' was something crooked about a draft with reference to which he was testifying.</p> <p>(b) It is error to allow a witness to introduce as a part of his testimony letters which he had received from persons other than the defendant.</p> <p>4. EVIDENCE- — Declaration of Co-Conspirators — Opinion Evidence, (a) Declarations made by a co-conspirator after a conspiracy has terminated- are not admissible against a defendant on trial.</p> <p>(b) Where a witness testified to certain statements made by him and further testified- that he did not know what was meant by said statement, it is error to allow the witness to testify as to what he understood the statement to refer to.</p> <p>5. EVIDENCE — Acts of Co-Conspirator. Acts done by a co-conspirator after the -termination of the conspiracy are not admissible in evidence against a defendant, unless the defendant was present and had knowledge of said acts, or it is proven that he was in some way connected therewith.</p> <p>(Syllabus by the Court.)</p>

Welch, Special Judge. W..T. Pollock was indicted for permitting gaming on premises. On an order setting aside the indictment, the State appeals.

<p> Appeal from Haskell County Court; A. L. Beckett, Judge. </p> <p>Claude Crawford was convicted of selling intoxicants, and he appeals.</p>

<p>APPEAL — Record—Certification of Transcript. Where an. appeal is attempted to be taken upon a transcript of the record, the clerk of the court from which the appeal is taken must certify that the transcript contains a true and correct copy of the record of the proceedings of the lower court.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Time for Taking. Where an appeal is not taken -within the time prescribed by statute, this court does not acquire jurisdiction of the case, and upon motion the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Tolbert, Judge. John Sehlumbohm was convicted of perjury, ana appeals. An information was filed against the plaintiff in error in the district court of Washita county on the 12th day of June, 1909. He was arraigned on an amended information on the 15th day of June, and 'requested 24 hours in which to plead. The request was refused, and he excepted.

<p>GAMING — Conducting Poker Games — Sufficiency of indictment. An indictment which charges a person with conducting the prohibited game of poker for value, but which fails to charge that the persons who played at the game were playing for money or representative of value, does not charge a public offense under our statute.</p> <p>(Syllabus by the Court.)</p>

M. Alexander, Judge. Annie Williamson was convicted of unlawfully maintaining a place wherein intoxicants were kept for sale, and she appeals.

<p> Appeal from Stephens County Court; W. H. Admire, Judge. </p> <p>Will Yoather was convicted for giving away whisky, and appeals.</p> <p>Citing: City of Lincoln Center v. Linker, 5 Kan. App. 242; Lemly v. State (Miss.) 20 L. R. A. 645; State v. Martin, 34 Ark. 340; Kirh v. Territory, 10 Olda. 46.</p>

<p>1. HOMICIDE — Evidence—Admissibility — Threats — Appeal—Harmless Error — Exclusion of Evidence — Subsequent Admission. On the trial of a person on a charge of murder, evidence tending to show that the deceased had made threats against the defendant is competent and should be admitted, when the issue of self-defense is presented. The trial court commits error in refusing to allow such testimony to go to the jury. Such error, however, is cured by the court later, during the trial, allowing the testimony to be introduced.</p> <p>2. EVIDENCE — Res Gestae — Declarations of Deceased. Statements of the deceased, made prior to his death and immediately, following the shooting, and while deceased is still lying where he was shot, are entitled to be admitted' as part 'of the res gestae,, especially when the proof shows that he realized that he was mortally wounded.</p> <p>3. TRIAL — Waiver of Error — Cross-Examination of Witness. A defendant does not waive his right to urge exceptions on the admissibility of evidence by cross-examination of a witness on the matter objected to.</p> <p>4. HOMIQIDE — Dying Declarations — Admissibility. A declaration made by deceased, clearly without premeditation or design, when the record shows he is mortally wounded, and he has made statements showing that he realizes his condition, are properly admitted as dying declarations.</p> <p>5. APPEAL — Harmless Error — Instructions. The giving of a manslaughter instruction on a trial for murder, although erroneous, is not sufficient to justify a reversal of a cause, when the proof shows clearly that the issue of manslaughter was not raised and that the defendant was properly convicted of murder; and the giving of such manslaughter instruction is held to be harmless.</p> <p>6. APPEAL — Harmless Error. When a re'cord although disclosing many errors, shows that the proof is clear, that the defendant was fairly tried and properly convicted, and that the errors complained of are not prejudicial to his rights, the judgment of conviction will be affirmed under the doctrine of harmless error.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Court, G-rady County; Frank M. Bailey, Judge.</p> <p>Charley Simpson was convicted of burglary in the second degree, and he appeals.</p> <p>Citing: State v. Forlder, 22 Kan. 542; Winslow v. State (Neb.) 41 N. W: 1116; State v. Schuchman, 33 S. W. 35, 34 S; 'W. 842; Thomas v. State (Ala.) 12 South. 409; Biclcford v. People, 39 Mich. 210; Neill v. State, 55 Ala. 466; Moore v. People (Mich.) 11 N. W. 415; Potter v. State, 92 Ala. 37; State v. Hutchinson, 111 Mo. 257; People v. Galderwood, 66 Mich. 92; Quinn v. People, 71 N. Y. 561; Fuller v. Slate, 48 Ala. 273; Ex parte Vincent, 26 Ala. 145; People v. Griffon, 77 Mich. 585; People v. St. Glair, 38 Cal. 137; State v. GlarJc, 42' Vt. 629; Colbert v. State, 91 Ga. 705; Mitchell v. Com., 88 Ky. 349; State v. Atkinson (Wis.) 58 N. W. 1034; Com. v. Hayden, 150 Mass. 332; Givens v. State, 40 Fla. 200; People v. Barnes, 48 Cal. 551; State v. Dale, 141 Mo. 284; Hoa/s v. Com., 3-3 S. W. 1104; St. Louis v. State (Tex. Or. R.) 59 S. W. 889; People v. Parker, 91 Cal. 91.</p> <p>Citing: Markham v. State, 25 Ga. 52; State v. Jaynes, 78 N. C. 504; Webb v. State, 52 Ala. 422'; White v. State, 49 Ala. 344.</p>

<p>1. APPEAL — Reversal—Loss of Transcript. When the record discloses that the appellant is unable to present a full and complete appeal in this court by reason of the loss of portions of the transcript by officials of the court below through no fault of his, the cause will be reversed.</p> <p>2. NEW TRIAL — Grounds—Loss of Record. When the record or portions of the record material to appeal are misplaced through no fault of the appellant, the trial court should grant a new trial upon proper showing in the same manner as the law provides for new trials on the ground of newly discovered evidence.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Court, Pottawatomie County; TP- N. M-aben, Judge.</p> <p>James Floyd was convicted of assault witli a deadly weapon, and appeals.</p>

<p> Appeal from LeFlore County Courtj Jas. L. Hale, Judge. </p> <p>T. N. Smith was convicted of selling intoxicating liquor, and he appeals.</p>

M. Williams, Judge. E. E. Eice was convicted of having in his possession spirit-uons liquors with intent to sell, and appeals.

Appeal from Pottawatomie County Court; E. D. Beasor, Judge. Joe Cowden was convicted of maintaining a place where intoxicants were kept for sale, and he appeals.

<p> Appeal from Kiowa County Court; J. W. Mansell, Judge. </p> <p>E. E. Andrews was convicted of selling intoxicating liquors, and appeals.</p>

Russell, Judge. John Mulkey was convicted of manslaughter, and he appeals. John Mulkey was indicted for the murder of Dennis Lawson, alleged to have been committed on the 4th day of December, 1908. On the 21st day of December, the defendant was placed upon trial, and on the 23d day of December, 1908, the jury returned their verdict finding the defendant guilty of manslaughter in the first degree and requesting the court to assess the punishment.

<p> Appeal from Goal County Court; B. H. Wells, Judge. </p> <p>Mike Ghione was convicted of feloniously intruding on another’s land, and he appeals.</p>

<p> Appeal from Canadian Counly Courtj II. L. Hogg, Judge. </p> <p>B. S. Peck was convicted of gaming and appeals.</p>

<p> Appeal from Logon County Court; J. C. Strang, Judge. </p> <p>Tom Beatty was convicted oi violating the prohibition law, and he appeals.</p>

N. Mahen, ■ Judge. 'C. M. Buckles was convicted o-f embezzlement, alleged to have been committed while he was treasurer of Canadian county. His punishment was assessed at one year’s imprisonment in the penitentiary and to pay a fine of $3>745.02, and he appeals.

<p>Petition by Mike O’Brien for a writ of mandamus disqualifying George W. Clark from presiding at petitioner’s trial.</p>

<p> Appeal from, Kay County Court; Claude Duval, Judge. </p> <p>Teddy Lynn was convicted of violating the prohibition law, and he appeals.</p>

Appeals from McIntosh Comity Cowtj Frank W. Bushing, Judge. Ben Clemmons, William Redmond, two cases, Will Ooppick, two cases, Everett Iiutton, Bill Bumgarner, two cases, and John Pemberton, were convicted of violating the prohibition law, and they appeal.

<p> Appeal from Osage Oounly Court; O. T. Bennett, Judge. </p> <p>Ben Andrews was convicted of selling intoxicants, and he appeals.</p>

<p> Appeal from Okfushee County Court; T. T, Boyle, Judge. </p> <p>George Hendrix was convicted of selling intoxicating liquor, and he appeals.</p>

<p>1. INTOXICATING LIQUORS — Possession with Intent to Sell-Admissibility of Evidence. In prosecutions against a defendant for having in his possession whisky and beer with the unlawful intention of selling the same, it is not competent for the state to introduce evidence that liquors were consigned to the defendant at a time subsequent to the filing of the information or indictment against him.</p> <p>2. . SAME. Proof that liquor was consigned to a defendant who is being prosecuted for having liquor in his possession, with the unlawful intention of selling the same, is not competent, unless there is some, other testimony connecting the defendant with such liquor.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGES — Disqualification—Bias, ffihe constitutional .provision which, guarantees to every person charged with crime a trial without prejudice, in so far as it relates -to the judge who presides at the trial, does not include the opinion of the judge as to the guilt or innocence of the defendant, hut, in order to disqualify a judge, it must he shown that he is biased against or entertains ill will or hostility toward the defendant of such a character as might prevent him from giving the defendant a fair trial, and this must be shown as a matter of fact, and not as a, matter of opinio.n of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.</p> <p>2. CONTEMPT — What Constitutes — Private Interviews With Judges. It is highly improper for any person 'to approach or attempt to converse with a judge with reference to any case or matter pending before him. Such an attempt is an act of contempt of court, and subjects the person resorting to it to punishment for contempt.</p> <p>3. JUDGES — Disqualification'—Prejudice—Diligence in Urging. If a defendant, acting in good faith, really desires a change of judge upon the ground of prejudice, he should exercise due diligence in asserting his rights as soon as he can conveniently do so. after he has acquired knowledge or learns of prejudice against him on the part of the trial judge.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Court, Aiolca Countyj James H. Chambers, Special Judge.</p> <p>Roland Williams was convicted of larceny, and appeals.</p>

<p>1. APPEAL — Review—Absence of Briefs. Where an appeal is taken and no briefs are filed on behalf of appellant pointing out the specific errors relied upon, this court will not do more in a misdemeanor case than examine the record for jurisdictional errors, and, if none such appear, the judgment will be affirmed.</p> <p>2. APPEAL — Presumption^. This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments, but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until It is shown that such is not the case. The appellant assists in the selection of the jury, and he thereby vouches to .this court for their intelligence, fairness. and integrity. Being thus recommended the court must accept the verdict of the jury as being correct, unless the appellant clearly points out errors committed by the judge or jury.</p> <p>(Syllabus by the Court.)</p>

M. Poe, Judge. John Farmer was convicted of manslaughter, and he appeals. On the 30th day of March, 1910, appellant was convicted in the district court of Tulsa county of the offense of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary at hard labor for a period of seven years. Appellant attempted to appeal. The transcript of the record and ease-made were not filed in this court until the 18th day of November, 1910.

P. Burwell, Judge. Charles Hast was convicted of rape, and he appeals. Appellant was convicted for the oifense of rape in the district court of Pottawatomie county, and his punishment was assessed at confinement in the penitentiary for the period of six years. This conviction took place in the territorial court in 1903. Defendant prosecuted an appeal to the Supreme Court of Oklahoma Territory; but the case was not disposed of by that court prior to the incoming of statehood.

Appeals from McIntosh County Court; Frank W. Bushing, Judge. Warren Taylor, George Odom, Walter Long, and George Lucfs were each .separately indicted for violations of the prohibition law, and from convictions they appeal.

<p>1. COURTS — Record—Adjournment. Where a court of record in this state convenes on the dates prescribed by the statute, and adjourns to some subsequent date, it is necessary for the record to affirmatively show that the court was properly convened, and an order made and entered in the journal adjourning- it to such subsequent date.</p> <p>2. COURTS — Jurisdiction—Record—Judgment Entered at Unauthorized Term. Where the regular time for the convening of the county court is fixed by law as the first Monday in July, and the record -fails to show that the court convened until the' second Monday in August, the judgments of the court rendered at such subsequent sitting are void.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Kiowa Qovmty Court; J. W. Mansell, Judge. </p> <p>Matt Lowry was convicted of having liquor in his possession, and brings error.</p>

<p> Appeal from McIntosh County Court; FranJc W. Rushing, Judge. </p> <p>Will Clark was convicted of violating the prohibition law, and brings error.</p>

<p> Appeal from Kiowa County Court; J. W. Mansell, Judgie. </p> <p>M. W. Mask was convicted of selling whisky and appeals.</p>

<p>TRIAL — Separation of Jury. It is reversible error for the trial court to permit a jury to separate after the submission of a felony case to them for determination, under our statutes, especially when the defendant objects to such separation and the state fails to show that he was not prejudiced thereby.</p> <p>(Syllabus by the Court.)</p>

<p>1. HABEAS CORPUS — Authority fior Restraint — Commitment. A person held under a warrant of commitment issued by a county court upon the judgment and sentence of said county court is not entitled to his release on habeas corpus, where said county court had jurisdiction to render the judgment upon which the warrant of commitment issued, when the term of commitment has not expired.-</p> <p>2. SENTENCE — Execution. 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 dire'ction 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>3. SENTENCE — Arrest of Accused to Serve. Where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as an escape and ordered into custody on the unexecuted judgment.</p> <p>('Syllabus by the Court.)</p>

<p> Appeal from District Court, Tulsa- County; L. M. Poe, Judge. </p> <p>Frank Henson was convicted, of murder and appeals.</p>

<p> Appeal from Rogers County Court; Archibald Bonds, Judge. </p> <p>Gabe Williams was convicted of illegally selling intoxicating liquors, and appeals.</p>

Bailey, Judge. Thomas Gibbons was tried in the district conrt of Caddo county on a charge of murder and convicted of manslaughter in the first degree, and he appeals.

<p>1. EVIDENCE — Confession of One Defendant — Joint Trial, (a) A confession or admission of one defendant upon a joint criminal charge with another, voluntarily made, when properly proven, is admissible in evidence as against him upon trial. The prejudice resulting to the joint defendant from such admission or confession is an unavoidable evil necessarily incident to their joint trial.</p> <p>(b) When two persons are .jointly on trial and admissions of one of them are offered in evidence, it is the duty of the court to limit, by proper admonition and instructions, the effect of the admissions, to the person making them.</p> <p>2. APPEAL — Trial—Indorsement of Additional Witnesses — Necessity For Objection, (a) When a case is called for trial and a jury selected, the trial court should he slow to permit the indorsement of witnesses to he called in chief hy the state, and should only do so when it is necessary for the furtherance of substantial justice. Any abuse of discretion in permitting the indorsement of 'witnesses would entitle the defendant against whom they are to he used to a new trial.</p> <p>(b) Where a defendant makes no objection, and takes no exception to the action of the court in permitting witnesses to be indorsed and fails to show wherein he was prejudiced by such action the ruling of the trial court will not be disturbed on appeal.</p> <p>(c) A defendant on trial should protect his rights by proper objections and exceptions in the trial court. Unless this is done!, he will not be heard to complain here except on fundamental errors.</p> <p>3- APPEAL — Review—Instructions. Where the record 'shows no objection or exception to the instructions of the trial court, such instructions will not be examined by this court for the purpose of ■discovering' other than fundamental errors on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from. Jefferson County Court; G. M. Bond, Judge. </p> <p>Charles Munn was convicted of conveying intoxicating liquors, and appeals.</p>

<p> Appeal from Marshall County Court; J. W. Falkner, Judge. </p> <p>Arthur Bates was convicted of violating the prohibitory law, and he appeals.</p>

<p>INDICTMENT AND INFORMATION — Necessity for Imdictment — Felonies Antedating Statehood. The courts of record of this state do not acquire jurisdiction upon an information to try, convict, and sentence a person charged with the commission of a felony prior to statehood. Felonies committed prior to statehood should be prosecuted in the trial courts of this state upon indictment.</p> <p>(Syllabus by the Court.)</p>

W. Gardner, Judge. Peter Demolan was convicted of having intoxicating liquors in possession for purpose of illegal sale, and he appeals.

<p>1. COURTS — Terms of Court — Failure to Convene. When a regular time is fixed for the terms of courts of record, and such court fails to convene upon the date fixed or within two days from such date, and no judge pro term is selected as provided by law, the term lapses.</p> <p>2. SAME — Validity of Judgments Out of Term Time. Where the regular term of the court is permitted to lapse, no proceedings ' can be had until the next regular term, or until a term is called in the manner provided by law. Any judgments rendered by a court out of term time and after the term has lapsed are void.</p> <p>(Syllabus by the Court.)</p>

T. Conley, Judge. Gid Hunt was convicted in the county court of Pawnee county for unlawfully transporting whiskey, and appeals.

T. Drake, Judge. Joe Lightle was convicted of having in his possession a substitute for beer with the intent of selling it, and he appeals.

N. Maten, Judge. T. D. Hartgraves was convicted of receiving stolen goods, and bis punishment assessed at one year’s imprisonment, and he appeals.

<p>1. APPEAL — Record—Case-Made—Service, (a) Where a case-made is not served upon the county attorney within the time fixed by the trial judge for making and serving such case-made, the case-made will be stricken from the record.</p> <p>(b) Whefre the court has fixed the time within which a case-made may be prepared and served and such time has expired, after the expiration of such time the court has no power to make an order extending the time! within which such case-made may be served.</p> <p>2. APPEAL — Record—Correction. Where the instructions given to a jury have been lost, it is the duty of counsel for a defendant to substitute! such instructions by proper proceedings. The mere loss of such instructions will not constitute ground for reversing a conviction.</p> <p>(Syllabus by the Court.).</p>

<p>Appeal from District Court, Coal County; A. T. West, Judge.</p> <p>Ed. Smith was convicted of manslaughter in the first degree, and he appeals.</p>

<p>APPEAL — Case-Made—Preparation and Service — Time—Powers of Special Judge. A special county judge may fix the time within which a case-made may be prepared and served, but he cannot extend such time for preparing and serving such case-made. If an extension of such time is desired, it must be granted by the regular county judge.</p> <p>("Syllabus by the Court.)</p>

<p>Appeal from District Court, McIntosh Comity; Preslie B. Cole, Judge.</p> <p>Ed Smith was convicted of robbery,- and appeals.</p>

Appeal from Goal County Court; B. II. Wells, Judge. W. S. Tanner was convicted of having liquor in his possession for purpose of sale, and he appeals.

<p> Appeal from 'the District Court of Pittsburg- County; Preslie B. Colo, Judge. </p> <p>John Jolly, was convicted of conjoint robbery and sentenced to imprisonment for life, and he appeals.</p> <p>John Jolly, the plaintiff in error, was, at the October, 1908, term of the district court of Pittsburg county, jointly indicted with Bill Colbert and Claude Colbert for the crime of conjoint robbery. The caption and formal part of said indictment is as follows:</p> <p>“State of Oklahoma, Pittsburg County — ss.</p> <p>In the District Court of the Fourth Judicial District, of the State of Oklahoma held in and for Pittsburg County, in said State.</p> <p>State of Oklahoma, vs. Bill Colbert, Claud Colbert Indictment.</p> <p>“At the October term, a term of the District Court of the Fourth Judicial District of the State of Oklahoma, held in and for Pittsburg county, in the State of Oklahoma, at the city of McAlester, and begun on the 5th day of October, in the year of our Lord, 1908, the jurors of the grand jury of said county, good and lawful men, then and there returned, tried, empaneled, sworn and charged, according to law, to diligently enquire into, and true presentment make of, all public offenses against the said state of Oklahoma, committed or triable within said county, upon their said oaths, in the name and by the authority of the said State of Oklahoma, do present and find that, in said county of Pittsburg, in said State of Oklahoma, on the 12th day of January in the year of our Lord, one thousand nine hundred and eight.”</p> <p>And which indictment has the following indorsements:</p> <p>“Indictment In the District Court, of the Fourth Judicial District of the state of Oklahoma, held in and for Pittsburg county.</p> <p>“State of Oklahoma</p> <p>vs.</p> <p>“Bill Colbert, John Jolly, Claud Colbert,</p> <p>“Indictment for Robbery.</p> <p>“A true Bill.</p> <p>“Jacob A. MeRoer,</p> <p>“Foreman of the Grand Jury.</p> <p>“Presented in open court by the foreman of the grand jury in the presence of the grand jurors, and filed this 28th day of October, 1908. ■ W. B. Riley,</p> <p>“District Clerk.</p> <p>“By C. L. Heeeey, Deputy.</p> <p>“T. R. DeaN,</p> <p>“County Attorney.</p> <p>“Bail is hereby fixed at $1,500.</p> <p>“PitESLiE B. Cole,</p> <p>“District Judge.</p> <p>“Filed in open court Oct. 28, 1908.</p> <p>“W. B. Riley, Clerk of Court.</p> <p>“WITNESSES.</p> <p>Dpon arraignment, he entered a plea of not guilty and demanded a severance, which was granted.</p> <p>The facts and circumstances of the case are stated in the companion case of Bill OoTberl v. The State, 4 Okla. Or. 500, 113 Pac. 558, and it is unnecessary to repeat them here, further than to add:</p> <p>The defendant, testifying on his own behalf, denied that he participated in the robbery and professed to account for his movements during the night of January 12, 1908, by stating that after leaving Bill Colbert’s house that evening, he went to a joint where with several others, including a couple of colored women, a bottle of whiskey was drunk, and he then went with one of the women to an empty house and stayed there until late in the night; then returning to Bill Colbert's house, he met Claude Colbert and went with him to another joint and from there returned to Bill Colbert’s house and went to bed about midnight. He is, however, not corroborated by any witness. He also undertook to explain his possession of White's money by stating that he won it in a crap game that Sunday afternoon.</p> <p>Iiis cross-examination showed that he had been convicted of a crime- and had been bnt recently discharged from the penitentiary at Ft. Leavenworth.</p> <p>The judgment and sentence was entered on January 16, 1909. Defendant gave notice of an appeal, and filed a pauper’s affidavit and asked that the court order a transcript of the record to be furnished for his appeal. Whereupon it was ordered by the court that a transcript be furnished at the expense of tiie county. An appeal was perfected by filing in this court on January 3, 1910, a petition in error with case-made attached, together with proof of service of notices of appeal..</p>

; Malcolm E. Rosser, Judge. Sid Stockton and Ed Clark and Tom Stockton were jointly prosecuted by information charging them with the offense of assault with intent to murder. When the ease • was reached for trial, a severance was granted, and the appellant Sid Stockton was tried separately. He was found guilty by the jury of an assault with intent to murder, and his punishment was assessed at five years’ imprisonment in the penitentiary, and he appealed.

<p>1. WITNESSES — Impeachment—Conviction of Former Offense. Where a defendant voluntarily takes the witness stand in his own behalf, it is entirely proper to permit the state for the purpose of affecting his credibility as a witness, to show on cross-examination that he was previously convicted of a felony, or any offense which indicates moral turpitude.</p> <p>2. WITNESSES — Cross-Examination of Accused' — Reputation for Peace. If a defendant, when upon the witness stand in his own behalf, places his reputation for peace in issue, or testifies that he had never before been charged with or convicted' of fighting or assaulting others, the state, on cross-examination, may go fully into these matters.</p> <p>•3. APPEAL — Record—Sufficiency. If a, defendant desires to bring a case here upon appeal, he must at least bring up enough of the proceedings of the lower court to enable this court to pass intelligently and safely upon the questions presented for decision.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGES — Disqualification—Proceedings for Change. Where a defendant in a criminal case, either in the county court or district court, seeks to secure a change of judge, he must comply with section 2016, Snyder’s Comp. Laws Okla. 1909.</p> <p>2. SAME. An application for a change of judge must set forth fully the grounds — that is to say, the facts upon which the claim is made that the judge is disqualified — and this application must be filed with the clerk of the court, and- reasonable notice of the application must be given to the county attorney, so that both the judge and the county attorney may know what the application claims and the facts upon which this claim is based. After such notice, the application for a change of judge must be presented to such judge. If such judge concedes that he is disqualified, he will certify his disqualification as requested, but, if the judge does not admit his disqualification, he - will refuse to make such certificate. A petition may then be filed in this court for a writ of mandamus to require such judge to disqualify himself.</p> <p>3. SAME. Where an application for a change of judge has been presented to the trial judge, it is improper for him to hear testimony and attempt to judicially determine the question of his disqualification. iH'e either certifies his disqualification or refuses to do so upon his personal knowledge.</p> <p>4. MANDAMUS — Proceedings to Disqualify Judge — Sufficiency of Petition. When a petition for writ of mandamus is presented to this court to require a judge to disqualify himself, such petition must be confined to the grounds set up in the original application which was presented to the trial judge and of which the trial judge and the county attorney had notice.</p> <p>5. SAME — Scope of Hearing. Upon the hearing of a petition for a writ of mandamus to require a judge to disqualify himself, this court will proceed on the petition and response thereto and the original application, and will hear oral evidence or receive affidavits either in support of or in opposition to the issues raised, as the justice of the case may require.</p> <p>6. JUDGES — Disqualification., A disqualified judge should carefully abstain from taking any part in the selection of the person who is to preside in his place in the trial of a cause in which he has been disqualified.</p> <p>7. SAME — Sufficiency of Showing. For a showing’ which authorized the issuance of a writ of mandamus requiring the judge to disqualify himself, see facts stated in the opinion.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Cou/rt, Pittsburg County; Robert M. Rainey, Judge.</p> <p>Ira N. Eubanks was convicted of forgery, and be appeals.</p>

A. Bichard-son, Judge. Jean Havill was convicted of manslaughter, and he appeals. Plaintiff in error, Jean Havill, was indicted in the Hnited States court for the Central district of the Indian Territory at the September term, 1907. The indictment charged that the defendant on the 28th day of August, 1907, within said district, shot and killed one Joe Christopher.

<p> Appeal from District Court, Pawnee County; J. T. Johnson, Judge. </p> <p>Frank Adams was convicted of rape, and appeals.</p>

<p>1. INDICTMENT AND INFORMATION — Sufficiency of Verification. An information charging murder, verified by the co unty attorney, he having no personal knowledge of the facts therein stated, is not in derogation of the defendant’s constitutional guaranty that no warrant shall issue but upon probable cause supported by oath or affirmation, where the prosecution was in fact predicated upon the evidence taken upon the preliminary examination, and the action of the examining magistrate in holding the defendant for trial in the district court.</p> <p>2. SAME. In the absence of a statute requiring verification, the county attorney, acting on his official oath, may present an information charging murder, where the defendant, having had a preliminary examination before an examining magistrate, was held to the district court for trial for the felony charged.</p> <p>3. TRIAL — Instructions—Requests. Where the instructions given by the court on a trial for murder contain a correct and comprehensive statement of the law of self-defense applicable to the facts in the case, it is not error to refuse requested instructions substantially the same, differing only in form.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Rogers County Cowrt; Archibald Bonds, Judge.</p> <p>W. E. Ault was convicted of violating the prohibitory law, g,nd he appeals.</p>

<p>1. STATUTES — Construction of Penal Statutes. The penal laws of Oklahoma are liberally construed to reach and destroy the evils at which they are aimed.</p> <p>2. INDICTMENT AND INFORMATION — Allegation and Proof of Facts. The facts necessary to constitute an offense must .be charged in an information or indictment and proven upon the trial. A failure to do either of these things will be fatal to a conviction.</p> <p>3. GAMING — Definition. Gaming includes all contests of strength, skill, or chance, between men or beasts, upon the result of which a wager is laid.</p> <p>4. INDICTMENT AND INFORMATION — Public Sport — Information — Conclusion of Law. To charge in an information or indictment that a defendant has committed an offense by assisting in a public sport on the 'Sabbath, without alleging such facts as are necessary to show that the acts in which the defendant assisted did constitute a public sport, does not do more than charge a conclusion of law, and a demurrer to an information containing such charge should be sustained.</p> <p>5. SUNDAY — Public Sports — Base Ball. A game of baseball played on the Sabbath where an admittance, fee is charged to witness such game fixes the character of such game as a public sport, and all who engage or take part in it are liable to prosecution and conviction under the law.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Crnter County Court; A. H. Latimer, Judge. </p> <p>Charlie Reed was convicted of selling intoxicating liquors, and appeals.</p>

<p>1. TRANSFER OF CAUSES — Transfer of Misdemeanors to County Court. When an indictment for a misdemeanor is returned hy a grand jury to the district court, it is necessary for an order to be made by that court transferring the cause, together with all orders and papers in the case to the county court; and the district court has no authority to make any other order in such cases.</p> <p>2. SAME — Jurisdiction. When no order is made by the district court transferring indictments for misdemeanors to the county court as provided by law, the county court does not acquire jurisdiction to try such cause; and when the record on appeal fails to disclose such an order, the cause will be reversed, and a new trial awarded by this court.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Atoka, County; A. T. West, Judge. </p> <p>Eli Nelson was convicted of assault with intent to kill, and appeals.</p>

<p> Appeal from County Court, Pittsburg County; W. U. Higgins, Judge. </p> <p>Nichola Guiaccimo was convicted of violating the prohibition law, and he appeals.</p>

<p>Application of Jesse Adair for writ of habeas corpus.</p>

<p>Petition of J. P. Crawford for a writ of mandamus to George W. Ferguson, County Judge.</p>

M. Williams, Judge. W. N. Pickrell was convicted of a violation of the prohibition law, and appeals. The plaintiff in error was convicted in the county court of Grady county of the crime of unlawfully selling intoxicating liq-our, and was on November 11, 1908, sentenced to be confined in the county jail for a term of thirty days and to pay a fine of fifty dollars. From the judgment he appealed by filing in this court on February 13, 1909, a petition in error with case-made.

<p>1. APPEAL — Time for Proceedings. In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken not exceeding 60 days. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, Or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by section 6948, Snyder’s St., this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.</p> <p>2. APPEAL — Time for Proceedings. Where a plaintiff in error, defendant below, was on the 21st day of August, 1909, duly sentenced upon a conviction had for a misdémeanor and prayed an appeal, whereupon the trial court for good cause shown extended the time for taking such appeal 60 days, and the petition in error with case-made attached, together with proof of service of notices of appeal, were not filed in this court until the 30th day of December, 1909, held, that under sections 6948 and 6949, Snyder’s 'St., this court did not acquire jurisdiction of such appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. MUNICIPAL CORPORATIONS — Powers—Police Regulations. An express grant of power contained in a charter of a municipal corporation authorizes such corporation to enact any ordinances relating to police regulations which are clearly within the power so granted, and which will aid and assist in the accomplishment of the purposes for which such express .grant of power was made.</p> <p>2. SAME. A municipal corporation may exercise the powers with reference to police regulations which are necessarily or fairly implied in, or are incidental to, the powers expressly granted in its charter.</p> <p>3. SAME. A municipal corporation can exercise any powers of police regulations which are necessarily essential to the declared objects and purposes of the corporation, and which are not prohibited by some statute or constitutional provision.'</p> <p>4. INTOXICATING LIQUORS — Police Regulations — Powers of Cities. The adoption of the prohibition ordinance by the people of this state and the enactment of the prohibition law by the Legislature does not prevent cities of the first class from enacting ordinances as police regulations, prohibiting the sale of intoxicating liquors, or having such liquors in one’s possession, with the intention of selling the same within the limits of such city.</p> <p>5. CRIMINAL LAW — Nature of^Crlme — ’Offenses Against State and Municipality. The same act may constitute an offense against ■the state law and a violation of a city ordinance, and, the two offenses being different, any person committing such act may be proceeded against under either the city ordinance or the state law, or both.</p> <p>6. CRIMINAL LAW — Nature of Offense — Different Offenses In Same Transaction. One act may constitute t«wo or more separate and distinct offenses, and may he subject to two or more separate and distinct penalties, and a prosecution and conviction for one of these offenses will • be no .bar to a- prosecution and conviction for the others.</p> <p>7. JURY — Violations of Ordinance — Prosecution. Violations of a city ordinance, such as fall within the description of municipal police regulations, may be prosecuted in' a summary manner by and in the name of the city, and without trial by jury.</p> <p>8. CONSTITUTIONAL LAW — First Ten Amendments to United States Constitution — Applicable to What Jurisdiction. The first 10 amendments to the Constitution of the United States are not applicable to state governments in their operations upon the people within their borders, but they are restrictions on the exercise of power by- the United States government.</p> <p>(Syllabus by the Court.)</p>

Dosser, Judge. B. D. Starr was convicted of murder, and he appeals. Held: the same being then and there loaded and charged with gunpowder and leaden baile, shoot and discharge leaden bullets into the body of him, the said W. E. Cordell, then and there, and thereby inflicting upon the body of him, the said W. E. Cordell, a mortal wound, of which mortal wound he, the said W. E. Cor-dell, then and there, on…

<p>Appeal from District Oow't, Roger Mills County; James U. Tol-bert., Judge.</p> <p>James W. Dobbs was convicted of manslaughter in the first degree, and he appeals.</p>

M. Bowles, Judge. Glide Lumpkin was convicted of manslaughter in the first degree, and he appeals. Judge Doyle, having been of counsel in this cause, was thereby disqualified, and did not participate in the hearing, consideration, and decision of this case, and the Governor appointed Hon. E. G. McAdams as special judge to preside in the place of Judge Doyle.

<p> Appeal from, McClain County Cowrt; E. E. Clasco, Judge. </p> <p>Elisha Black was convicted of selling intoxicating liquors, and appeals.</p>

<p>1. JUDGES — Disqualification. A district judge who, prior to his election as sxrch, was county. attorney and particip ted in the prosecution of a criminal action as such county attorney, is disqualified to sit in the trial of such case as judge, and to make any order in the case whatever, except that showing his disqualification.</p> <p>2. CRIMINAL LAW — Disqualification of Prosecuting Officer. A county attorney who, prior to his election and qualification as such, was counsel for a defendant in a criminal action then pending, is disqualified to appear and prosecute said defendant on behalf of the state or territory, subsequent to his election and qualification as such.</p> <p>3. JUDGES — Special Judge — Extent of Jurisdiction. The authority of a special judge, lawfully selected by the parties, to preside over any cause or proceedings in which the regularly elected judge is disqualified by reason of the provisions of our statutes, ceases with the lapsing of the term at which he was selected, unless the case is Anally disposed of at such term, and in' that case ceases with the Anal disposition of the cause.</p> <p>4. JUDGES — Disqualification. When a trial judge is disqualified to sit in the trial of a cause, he cannot make a valid order appointing a special county attorney to appear and prosecute on behalf of the state upon the suggestion of the disquali A cation of the regularly. elected and qualiñed county attorney.</p> <p>5. DISTRICT AND PROSECUTING ATTORNEYS — Special Attorneys — Prowers, (a) All acts of a special county attorney appointed under a void order of a trial court are themselves void.</p> <p>(b) A special county attorney, when properly appointed by a trial court, before attempting to exercise the functions incumbent upon him by the appointment, should qualify as the law requires.</p> <p>(c) A special county attorney, although lawfully appointed by proper order of the trial court, cannot lawfully perform any of the duties incumbent upon him until he first qualifies as provided by law.</p> <p>6. DISTRICT AND PROSECUTING ATTORNEYS — Special County Attorney — Authority—Appointment. An agreement between a special county attorney, acting under a void appointment of a trial court, and the counsel for the defendant in a criminal action selecting a judge pro tempore to try such criminal action, is itself void, and confers no lawful authority upon such judge pro tempore whatever.</p> <p>7- JUDGES — Criminal Law — Judge Pro Tempore — Void Selection— Authority — Change of Venue, (a) All orders, judgments, and decrees made by a judge pro tempore who is not lawfully selected are a nullity.</p> <p>(b) An order made for the purpose of changing the venue from one county to another by a judge pro tempore who is not lawfully selected, although made upon a petition by the defendant addressed to him, does not operate to change the venue, and confers no authority upon a judge, duly elected and qualified, to try such cause in the county to which the change of venue is ordered.</p> <p>(c) All orders, judgments, and decrees made by a trial judge duly elected and qualified and presiding at a regular term of court in a criminal case unlawfully transferred by change of venue to such Court, except to return the files to the court where they properly belong, are themselves void.</p> <p>g. APPEAL — Review—Appeal on Void Proceeding. When a conviction is had in a trial court and the record on appeal affirmatively discloses the fact that the trial was had before a court who acquired no jurisdiction by reason of the nullity of prior proceedings had in such action, the judgment and all irregular proceedings had in such action will be set aside by this court, and defendant, held to appear before the proper trial court to await further action.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Osage County: John J. Shea, Judge. </p> <p>J. W. Fields was convicted of larceny of domestic animals, and brings error.</p>

H. Admire, Judge. Bill Ridley was convicted of violating the prohibitory liquor law, and he appeals. On the 17th day of July, 1909, there was filed in the county court of Stephens county, Olda., an information, signed by the county attorney and sworn to by M. W. Wilson, charging the defendant, Bill Ridley, with the crime of selling, giving away, and otherwise furnishing intoxicating liquor.

<p>APPEAL — Dismissal—Writ of Error Filed too Late — Failure to File Notice of Appeal. Where judgment was rendered November 1, 1909, and there was an order of the trial judge extending the time within which accused could take his appeal to January 20, 1910, and the writ of error was not filed in the appellate court until January 25, 1910, and the record failed to show that any notice of appeal was served upon the county attorney and clerk of the county court, as required by Comp. Laws 1909, sec. 6949, the appellate court never acquired jurisdiction, and the appeal must be dismissed.</p> <p>('Syllabus by the Court.)</p>

<p>APPEAL — Record—Sufficiency of Case-Made. No case-made wilí be considered by this court, unless the record shows positively and affirmatively that it was served upon the county attorney within the time fixed by the ftrial court for that purpose.</p> <p>(Syllabus by the Court.)</p>

<p>INDICTMENT AND INFORMATION — Separate Offenses — Joinder, Where a transcript shows that an accused was tried upon two separate charges at the same time, and two verdicts rendered, one finding him guilty on the first count and another guilty on the second count, the conviction will be set aside, as accused cannot be charged with two separate offenses in the same indictment.</p> <p>(Syllabus by the Court.)</p>

<p>WITNESSES — Examination—Leading Questions — Discretion of Court. As a general rule a' party cannot ask leading questions of his own witness; hut when it appears that the witness is unfriendly toward the party placing him upon the witness stand, or is trying to evade the questions asked him, then, in the discretion of the trial court, the party may be permitted to ask leading questions of his own witness.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from, District Court, Oklahoma County; John J. Carney, J udge. </p> <p>Frank Manning was convicted of manslaughter, and he appeals.</p>

<p>1. APPEAL — Failure of Plaintiff in Error to File Briefs. When an appeal is perfected in this court, and no counsel appears and no hriefs are filed on behalf of a plaintiff in error, this court will examine the record for fundamental errors only, and discovering none the judgment appealed from will he affirmed, under rule 4 of this court (1 Okla. Cr. x, 101 Pac. xii.)</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Garter Gowvty Court; I. B. Mason, Judge. </p> <p>Bob Braziel was convicted of violating the prohibitory liquor law, and he appeals.</p>

<p>1. CONTINUANCE — Absent Witness — Sufficiency of Showing. Where a defendant seeks a continuance upon the ground that he has used due diligence to secure the attendance of an absent witness, he must state' in his application not only that he has caused a subpoena to issue for said witness, but, also, that he has placed said subpoena in the hands of an officer duly authorized to serve such subpoena, with the request that said witness be summoned in his behalf by virtue of said subpoena.</p> <p>2. SAME. It is the duty of a defendant to use all reasonable diligence to secure the attendance of a witness in his behalf, and in an application for a continuance he must set out fully the facts which constitute such diligence.</p> <p>3. SAME. Where a defendant is charged with a crime, he must use all reasonable diligence, not only to find ..out what witnesses he will need, but also to secure the attendance of such witnesses at his trial.</p> <p>4. SAME. Where a witness has been subpoenaed to testify in behalf of a defendant, and is not present at the trial of said cause, and the defendant seeks a continuance on account of the absence of such witness, he must attach to his application for a continuance such subpoena served on said witness With the officer’s return thereon endorsed, so that the court, and, if said cause is appealed, this court,, may see as a matter of fact what diligence was used.</p> <p>5. SAME. Where a defendant is charged with the illegal sale of whisky alleged to have been made upon a certain day, an application for a continuance which states that absent witnesses will testify that on said alleged date they were with the defendant, and that on said date he did not sell whisky to the complaining witness, such testimony might be true, and yet would not necessarily constitute a defens'e to the accusation against the defendant.</p> <p>6. INDICTMENT AND INFORMATION — Time of Offense — Proof. The state is not limited in its proof of the commission of an offense to the date alleged in the information or indictment, but the defendant may be convicted upon proof of the commission of the offense made at any date within the statute of limitations and prior to the date upon which the said information or indictment was filed.</p> <p>(Syllabus by the -Court.)</p>

<p>WITNESSES — Privilege—Incriminating Evidence. To permit a demand to be made on a defendant in a criminal case, in the presence of a jury, to produce a paper or document referred to, containing incriminating evidence against him, is a violation of the immunity secured to him by section 21 of article 2 of our Constitution, providing that no person in a criminal ease shall be compelled to give evidence against himself which will tend to incriminate him, even though no order for the production of the paper is made.</p> <p>(Syllabus by the Court.)</p>

<p>Petition of Annanias Copeland for a writ of habeas corpus.</p>

<p> Appeal from District Court, Adair County; Jno. II. Pitchford, Judge. </p> <p>Joe Proctor was convicted of riot, and he appeals.</p> <p>Joe Proctor, plaintiff in error, was charged jointly with Blister Scraper, Henry Turn, and Charles Sanders with the crime of riot, alleged to have been committed on or about May 22, 1909. Said information alleges that:</p> <p>“They, the said Joe Proctor, Buster Scraper, Henry Turn, and Chas. Sanders, did then and there riotously assemble to obstruct and resist a public officer of this state, to wit, W. C. Colvin, marshal of the incorporated town of Westville, in the execution of legal process, to wit, a warrant in the hands of the* said W. C. Colvin for the arrest of Henry Turn, and they the said Joe Proctor, Buster Scraper, Henry Turn, and Chas. Sanders, being then and there armed with a dangerous and deadly weapon, to wit. a pistol and a knife, and they, the said Joe Proctor, Henry Turn, Buster Scraper, and Chas. Sanders, did then and there in the manner and by the means aforesaid unlawfully, intentionally and feloniously commit the offense of riot.”</p> <p>October 12th the defendant, Joe Proctor, entered a pica of not guilty and demanded a severance, which was allowed. Whereupon he filed an application for a change of venue, which was overruled by the court.</p> <p>The evidence on the part of the state was, in brief, substantially as follows: On thd day named m the information, W. '0. Colvin, city marshal of Westville, secured, a warrant for Henry Turn for being drunk, and asked Eli Whitmire to go with him. They went to Smith’s restaurant. This defendant and Colvin had a scuffle on the sidewalk, and Colvin testifies that defendant threatened to kill him, and took his knife out of his pocket and tried to open it. Whitmire fired several shots while scuffling with Turn.</p> <p>Eli Whitmire testified that he went with the marshal, Colvin, to Smith’s restaurant to arrest Henry Turn for being drunk. The record then shows his testimony as follows:</p> <p>“Before we got there, I saw Henry Turn inside the restaurant, and I went .on in there. I didn’t see what Mr. Colvin done, as he was right behind me; I just walked up and got Henry Turn by the shoulder, and says, ‘Henry, you are getting too drunk, and we will have to take charge of you,’ and he made a grab for my pistol, and I guess we both grabbed for it. I got hold of the handle, and he got it by the barrel, and, in order to get him loose from it, I pulled the trigger, and shot it down through the floor, and then he turned it loose. About that time some one else come in — I don’t know who it was; and we scuffled there for a little bit there in the house, and Turn got around towards the counter, and by that time there had several come in. Q. Did you see Proctor at that time? A. No, sir. Q. Did you see Scraper? A. Yes, sir; I was looking for some one to help, and directly after that we got turned clear around, and some one hollowed to look out, and I looked out at the door, and Buster Scraper was off the porch on the ground there with a pistol; and I threw niv gun down on him and told him to put the pistol down, and he dropped it on the porch, and we scuffled around there for a little bit, and didn’t see where Buster went, nor who it was that took charge of the pistol. He dropped it, though, when I threw my pistol down on him. We then took Henry Turn to the cooler.”</p> <p>He then testified that he next saw the defendant, Proctor, going down the street towards the post office; that he stopped him, and Proctor said that he wanted to go to the post office and mail a letter; that he went with him; that Proctor asked him if he thought he was able to take him, or something to that effect, and witness told him he was willing to try. Just then Marshal Colvin came up, and there was some talk. Mr. Alberty then came up and said to let him take Proctor, and witness asked Marshal Colvin what to do, and he said to let Alberty have him if he could take him, and Proctor walked off with Alberty.</p> <p>Nat Dannenberg testified that he was deputy sheriff; that he heard a shot at Smith’s restaurant and went up there, and Proctor and the marshal were scuffling. Proctor got his knife out of his pocket and was trying to open it, and (he went up and took it away from him; that Buster Scraper was standing out in the street with a pistol in his hand, and Tuck Alberty was holding Henry Turn; that he turned Joe Proctor over to Tuck Alberty, and he took Henry Turn; that Henry Turn had a quart bottle of whisky stuck down in his shirt; that he made him throw the whisky on the ground; that witness had a pistol in his hand that lie bad taken from Buster Scraper. Several other witnesses testified substantially the same.</p> <p>On the part of the defense, Will Alberty testified that he saw Colvin and Whitmire come to Smith’s restaurant; that Whitmire went in and commenced to scuffle with Turn; that Colvin was on the porch, and Joe Proctor came out of Ms room, where he lived near there, and commenced to scuffle with Colvin; that Proctor came out of Ms room about the time of the shooting; that he stood within eight or ten feet of them, and did not hear Proctor make any threats.</p> <p>Thomas P. Alberty testified: That'he was standing on the Kansas City Southern Railroad with John Forgey, Frank Forgey, and Buster Scraper, and saw Colvin, Whitmire, and two or three others go to Smith’s restaurant; that he spoke to Scraper and asked him what they were going to do; that just about, that time he saw Eli Whitmire arrest Henry Turn, and Henry tried to pull loose from him; that they scuffled into the restaurant; then he heard some shooting in the house; that he saw Joe Proctor standing on the porch near the door of the house right north of Smith’s restaurant, where Proctor had his room; that Proctor was standing four or five feet from the door of his room; that witness went up and arrested Henry Turn and started to jail with him, and turned him over to Nat Dannenberg; that witness then took Joe Proctor into his room, and he went to sleep; that Proctor was drunk; that he next saw him walking down the street, going in the direction of the post office, with several officers going along; that they were having an argument, and he went, at the request of several persons, and took Proctor to the jail and locked him up; that he did not have any trouble in taking him there.</p> <p>John Forgey testified that ho-saw Joe Proctor standing near the door of his room when the trouble started; that at that time he was with Tuck Alberty, Buster Scraper, and Frank Forgey, standing on the railroad; that they went .over to Smith’s restaurant when the shooting commenced; that Buster Scraper had a pistol, and Eli Whitmire told him to drop it. Just then Nat Dannenberg ran up and took the pistol.</p> <p>Ed Walkingstick testified that he saw Joe Proctor on the. porch when Colvin met him; that they took hold of one another and scuffled, and some one separated them.</p> <p>Joe Proctor, the defendant, testified on his own behalf: That he occupied one of the Smith’s restaurant rooms on the north side of the restaurant. When he first heard the trouble, he was in his room, and went to the door, and Colvin came running towards the restaurant door; that he grabbed a hold of Colvin and held him there, because he thought some one would get killed in the house, that Colvin had a gun in his hands; that he did not attempt to take the gun from him; that he was not armed, except that he had a pocket knife in his pocket; that his room is separated from the restaurant proper by a narrow alley; that he made no threats and had never talked with the other defendants.</p> <p>October 13th the jury returned their verdict, finding the defendant, Joe Proctor, guilty as charged in the information. Motions for a new trial and in arrest of judgment were duly filed, which motions were overruled. October 15, 1909, judgment was pronounced and entered, and the defendant was sentenced to serve a term of two years in the state penitentiary. From which judgment an appeal was taken by filing in this court, on January 12, 1910, a petition in error, with case-made attached.</p>

<p>1. ANIMALS — Contagious and Infectious Diseases — Quarantine— Violation of Quarantine Law — Prosecution—Defenses. A person on trial charged with having violated a local quarantine, promulgated by a live stock inspector, is entitled to show as a defense to the charge that he had no knowledge of the existence of the quarantine, and no information of facts upon which he could be reasonably presumed to know of the existence of the same.</p> <p>2: ANIMALS — Contagious and Infectious Diseases — Quarantine, (a) A quarantine promulgated by a local live stock inspector under the provisions of our statute, in order to be effective, must be established after an examination and inspection of the premises quarantined, and upon a finding that the premises are infected with an infectious or contagious disease of a malignant character.</p> <p>(b) When such quarantine is so established, notice should be given to the person in charge of the premises, and to any others directly affected by the order, and by publication as near as practicable.</p> <p>3, ANIMALS — Contagious and Infectious Diseases — Quarantine — Violation of Quarantine Law — Prosecution—Defenses, (a) When a person is on trial charged with having violated the provisions of a local quarantine, he is entitled to show as a defense that the facts did not warrant the establishing of the quarantine.</p> <p>(b) The finding of an inspector to the effect that infectious or contagious diseases exist and the establishing by him of a quarantine are not conclusive as against a person charged with having violated the order.</p> <p>(Syllabus by the Court.)</p>

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

Cole, Judge. Andy Kerkendall was convicted of an assault with a dangerous weapon with intent to do. bodily harm, and he appeals.

<p>INTOXICATING LIQUORS — Information—Sufficiency. An information which alleges that the defendant had in his possession intoxicating liquors for an unlawful purpose, without going further and alleging the intention on the part of appellant to use such intoxicating liquors in violation of the prohibitory liquor laws of the state, is too indefinite to charge any offense, and upon motion should be set aside.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Murray County; R. McMillan, Judge. </p> <p>Jimmie Johnson was convicted of assault with intent to kill, and he appeals.</p>

<p>APPEAL — Service of Notice. When a county attorney desires to appeal a case upon any question reserved by the state, it is necessary that notice of such appeal be served in the manner required by section 6949, Snyder’s Comp. Laws Okla. 1909. If this is not done, the Criminal Court of Appeals will not acquire jurisdiction of the case, and the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Cotort, Pottawatomie County; S. H. Russell, Judge, </p> <p>Prosecution of W. N. Maben for bribery. From a judgment setting aside the indictment, the State appeals.</p>

<p> Appeal from District Court, Harper County; B. FI. Loofbourrow, Judge. </p> <p>Joe Tinker was convicted of assault with a dangerous weapon, and brings error.</p>

<p> Appeal from District Cowrt, Kiowa County; James B. Tolbert, Judge. </p> <p>J. P. Thorp and J. 0. Stewart were convicted of felonious assault, and they appeal.</p>

<p> Appeals from Superior Court, Logan County; J. M. Sandlin, Judge. </p> <p>Charles Schafer and others were convicted of violating the prohibition law, and they appeal.</p>

<p>Mandamus by G. A. Johnson against E. H. Wells, County Judge.</p>

<p> A.ppeal from District Court, Marsh-all County; D, A. Richardson, Judge. </p> <p>Oscar Paris was convicted of manslaughter, and appeals.</p>

<p>CRIMINAL LAW — “Warrant of Arrest” — Validity—“Magistrate.” The clerk of a county court has no power to issue a “warrant of arrest” for a defendant, based upon an information filed in said court; and, where a motion is made in apt time to set aside a warrant so issued, it should be sustained by the court.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Court, Coal County; 8. II. Bussell, Judge.</p> <p>Ed Musick was convicted of murder, and he appeals.</p>

<p> Appeal from Canadian County Court; H. L. Fogg, Judge. </p> <p>George W. Fortner was convicted of a violation of the prohibitory law, and appeals.</p>

A. Brown, Judge. W. S. Wtishard, plaintiff in error (hereinafter designated .defendant), was jointly indicted with J. C. Evans and P. F. Tyler for the crime of forgery as defined by sec. 2560, Snyder’s Sts. He was convicted as charged and appeals.

<p>Appeal from District Court, Blaine County; G. A. Brown, Judge.</p> <p>J. C. Evans was convicted of forgery and appeals.</p>

W. Ciarle, Judge. James Wilson was convicted of the crime of assault with intent to kill and appeals. Plaintiff in error James Wilson was by information charged jointly with one Shorty Jones and one Emma Prickett with assault with intent to kill one L. E. Prickett, alleged to have been committed on the 4th day of May, 1909; said L. E. Prickett being the husband of the defendant Emma Prickett.

B. Sheen, Judge. O. F. Frisby was convicted in the county court of Washita count}!- on a charge of giving away whisky, and he appeals.

<p>Conviction for violation of the prohibition law. Pined $150 and sentenced to 30 days’ confinement in the county jail.</p>

<p>Appeal from McClain County Court; E. E. Glaseo, Judge.</p> <p>The appellant was convicted of selling intoxicating liquors in the county court of McClain county, and appeals.</p>

L. Fogg, Judge. The appellant was convicted in the county court of Canadian county on a charge of selling intoxicating liquor, and he appeals.

<p>Appeal from Stephens County Court.</p>

<p>Appeal from Beaver County Court; J. W. Culwell, Judge.</p> <p>The appellant was convicted of selling intoxicating liquor in the county court of Beaver county, and appeals.</p>

<p>Appeal from Tillman County; T. E. Campbell, County Judge.</p> <p>Appellant was convicted for permitting gambling in a room controlled by him.</p>

<p>Appeal from Bryan County Court.</p>

Hendrix, County Judge. Defendant was convicted for gambling. His punishment was assessed at a fine of $'200 and confinement in the county jail for a period of 120 days. Defendant appealed.

<p>Appeal from District Court, Murray County; R. McMillan, Judge.</p> <p>The appellant, W. H. Price, was convicted in the district court of Murray county, and appeals.</p>

<p>Appeal from Bryan County Court.</p>

T. Drake, Judge. Bert Waits was convicted in the county court of Wagoner county, on the 17th day of May, 1909, for selling intoxicating liquors, and appeals.

L. O’Bryan, Judge. W. F. Ferneau was convicted in the county court of Woodward county, on a charge of unlawfully conveying intoxicating liquor, and appeals.

<p>Appeal from Pottawatomie County Court.</p>

<p>Appeal from Greer Counts'- Court; R. H. Wells, Judge.</p>

Phillips, Judge. Appellant was convicted for escaping from the jailor of Bryan county and his punishment was assessed at six months’ confinement in the county jail, and he appeals.

H. Wells, Judge. I). Allen was convicted of the offense of practicing medicine and Surgery without a license and certificate, and sentenced to pay a fine of one hundred dollars.

<p>Original Proceeding by Writ of Habeas Corpus.</p> <p>Application of Geo. Bal win for writ of habeas corpus.</p>

<p>Appeal from Cherokee County Court; J. T. Parks, Judge.</p> <p>Prank Dong was convicted of carrying concealed weapons in the county court of Cherokee county, and appeals.</p>

<p>Appeal from Coal County Court; R. H. Wells, Judg-e. '</p> <p>Ed. Smith was convicted in the county court of Coal county for carrying concealed weapons, and appeals.</p>

<p>Appeal from Seminole County Court; T. S. Cobh, Judge.</p> <p>Don B. Lawhead was convicted of criminal libel, and he appeals.</p>

<p>Appeal from Coal County Court; R. K. Wells, Judge.</p>

W. Mansell, Judge. M. W. Mask was convicted of having possession of intoxicating liquors for the purpose of selling the same, and appeals.

<p>Appeal from Grady County Court; N. M. Williams, Judge.</p>

<p>Appeal from Osage County Court; C. T. Bennett, Judge.</p> <p>Plaintiff in error was convicted in the county court of Osage county, on a charge of violating the prohibitory law, and appeals.</p>

T. Bennett, Judge. Plaintiff in error was convicted in the county court of Osage county on a charge of violating the prohibitory law, and appeals.

M. Williams, Judge. Appellant was convicted in the county court of Grady county on a charge of violating the prohibitory law, and appeals.

<p>Appeal from Greer County Court; Jarrett Todd, Judge.</p> <p>W. P. Shelton was 'convicted of selling intoxicating liquors in the county court of Greer county, and appeals.</p>

M. Bond, Judge. Ward Sies was convicted in the county court of Jefferson county on a charge of selling intoxicating liquor and appeals.

M. Bond, Judge Plaintiff in error was convicted in the county court of Jefferson county on a charge of selling intoxicating liquor and appeals.

W. Mansell, Judge. E. E. Andrews was convicted of violating the prohibitory law in the county court of Kiowa county, and he appeals.

McCain, Judge. Appellant was convicted in the superior court of Muskogee county, on a charge of violating the prohibitory law, and appeals.

McCain, Judge. Appellants were convicted in the superior court of Muskogee county, on a charge of violating the prohibitory law, and appeal.

McCain, Judge. Appellant was convicted in the superior court of Muskogee county, on a charge of violating the prohibitory law, and appeals.

Wolverton, Judge. Appellant was convicted in the county court of Comanche county on a charge of violating the prohibitory law, and he appeals.

<p>Appeal from Beckham County Court; Fleetwood Bell, Judge.</p> <p>Appellant was convicted in the county court of Beckham county on a charge of unlawfully pointing a pistol, and appeals.</p>

M. Bond, Judge. Plaintiff in error was convicted in the county court of Jefferson county on a charge of unlawfully transporting intoxicating liquor, and appeals.

H. Admire, Judge. Plaintiff in error was convicted in the county court of Stephens county on a charge of selling intoxicating liquor, and appeals.

<p>Appeal from Tulsa County Court; N. J. Gubser, Judge.</p> <p>This is an appeal by the state from an order sustaining a motion to set aside an information.</p>

M. Bond, Judge. ■ Charles Stuard was convicted of violating the prohibitory law in the county court of Jefferson county, and appeals.

A. Cameron, Judge. Sam Hames was convicted in the county court of Woods county on a charge of violating the prohibitory law and appeals.

W. Higgins, Judge. W. W. Crump was convicted of violating the prohibitory law in the county court of Pittsburg county, and appeals.

<p>Appeal from Pottawatomie County Court; E. D. Reasor, Judge,</p> <p>R. L. Wynne was convicted in the county court of Pottawatomie-county, on a charge of gaming, and appeals.</p>

M. Gustin, Judge. J. D. Cooper was convicted in the county court- of Alfalfa county on a charge of selling- intoxicating liquor and appeals.

M. Gustin, Judge. Appellant was convicted in the county court of Alfalfa county on a charge of selling intoxicating liquor, and appeals.

<p>Appeal from Cleveland County Court; C. M. Keiger, Judge.</p> <p>J. M. Taylor was convicted of violating the prohibitory law in the county court of Cleveland county, and appeals.</p>

T. Johnson, Judge. The appellants were tried in the district court of Comanche county on a charge of assault with 'intent to kill, and convicted of simple assault, and appeal.

T.- Bennett, Judge. Plaintiff in error was convicted in the county*' court of Osage county on a charge of violating the prohibitory law, and appeals.

T. McConnell, Judge. Plaintiff in error was convicted at the November, 1909, term of the county court of Jackson county, on a charge of conveying liquor from one place in Jackson county to another .place therein, and sentenced to pay a fine of $50 and serve thirty days in the county jail.

<p>Appeal from District Court, Pittsburg County; Robert M. Rainey, Judge.</p> <p>Benedict Elder was convicted of the crime of forgery and appeals.</p>

<p>Appeal from Logan County Court; J. C. Strang, Judge.</p>

<p>Appeal from Oklahoma County Court; Sam Hooker, Judge.</p>

F. Holding, Judge. Plaintiff in error was tried at the April, term, 1909, of the county court of Caddo county and was convicted of selling intoxicating liquors; and appeals.

<p>Appeal from Mayes County Court; A. C. Brewster, Judge.</p>

E. Sharp, Judge Hugh Northcutt was convicted in the county court of Cleveland county on a charge of disturbing religious worship, and appeals.

<p>Appeal from Canadian County Court; H. L. Fogg, Judge.</p> <p>Sadie Walcher was convicted of a violation of the prohibition law, and appeals.</p>

Sigler, Judge Pro Tempore. Plaintiff in error was convicted in the county court of Carter county for a violation of the prohibition law, and appeals.

<p>Appeal from Washita County Court; L. R. Shean, Judge.</p> <p>J. J. Putman was convicted of violating the prohibitory law', and appeals.</p>

<p>Petition for habeas corpus.</p>

<p>Appeal from Canadian County Court; !H. L. Fogg, Judge.</p> <p>Jack Lawson was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Alfalfa County Court; F. M. Gustin, Judge.</p>

<p>Appeal from Olcmulgee County Court, M. W. Alexander, Judge.</p>

<p>Appeal from Superior Court, Muskogee County; Farrar D. McLain, Judge.</p>

<p>Appeal from Canadian County Court; H. L. 'Fogg, Judge.</p>

<p>Appeal from Pontotoc County Court; Joel Terrell, Judge.</p>

<p>Appeal from Pittsburg County Court; B. P. -Hammond, 'Special Judge.</p>

<p>Appeal from Oklahoma County Court; Sam Hooker, Judge.</p>

<p>Appeal from Murray County Court; Harry W. Fielding, Judge..</p> <p>Bus Catón was convicted of violating the prohibitory law, and appeals.</p>

M. Byars, Judge. James Arrington was convicted in the county court of Dewey-county on a charge of selling intoxicating liquors and appeals.

<p>Appeal from Pontotoc County -Court; Joe Terrell, Judge.</p> <p>■Plaintiffs in error in the above numbered cases were convicted of violations of the prohibitory law, and appeal.</p>

W. H. Admire, Judge. J. W. Willis was convicted of conveying intoxicating liquors from one place in this state to another .place therein, and appeals.

<p>Appeal from District Court, Haskell County; A. T. West, Judge.</p> <p>Walter Mickle was convicted of grand larceny and appeals.</p>

E. Glaseo, Judge. A. G. Cross was convicted at the January, 1909, term of the county court of McClain county on a charge of violating the prohibitory law, and appeals.

<p>Appeal from Custer County Court; A. H. Latimer, Judge.-</p> <p>Mrs. E. V. Smith was convicted of violating the prohibitory law and appeals.</p>

<p>Appeal from Canadian County Court; H. L. Fogg, Judge.</p> <p>William Carpenter was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Pittsburg County Court; R. W. Higgins, Judge.</p> <p>Alex Nowlin was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Tulsa County Court; N. J. Gubser, Judge.</p> <p>Walter Machen was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Wagoner County Court; W. T.- Drake, Judge.</p> <p>Bert Waits was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Tulsa County Court; N. J. Gubser, Judge.</p>

<p>Appeal from Carter County Court; I. R. Mason, Judge.</p>