Volume 7 — Oklahoma Criminal Reports

Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge. E. M. Cowherd was convicted of having liquor in his possession with intent to sell, and appeals.

<p> Appeal from Choctaw County Court; ■ W. T. Glenn, Judge. </p> <p>H. G. Luttrell was convicted of an illegal sale of liquors, and appeals.</p>

<p>INTOXICATING LIQUORS — Illegal Sale — Evidence. Where the information charges that appellant sold whisky,. beer, wine, and ale, a conviction will not be sustained' upon the proof of the- sale of patent medicine. In other words, where an information charges a specific offense, defendant cannot be convicted of another offense.</p> <p>(Syllabus by the Court.)</p>

W. Gardner, Judge. On the 24th day of April, 1911, judgment was rendered against appellant for a violation of the prohibitory liquor law of the state of Oklahoma, and his punishment was assessed at a fine of $50, and imprisonment in the county jail for the period of 30 days. Appealed.

<p>1. APPEAL — Review—Conflicting Evidence. No verdict should be disturbed upon the ground of contradictions in the testimony where there is any evidence in the record from which the jury could legitimately conclude that the defendant was guilty, unless there is something in the record from which it appears that the jury were probably misled in their considerations of the testimony.</p> <p>2. APPEAL — Trial—False Testimony — Corroboration—Instructions— Exceptions. It is error for the trial court to instruct the jury that, if they believe any witness has willfully testified falsely to any material fact in the case, they may disregard the whole of sueh witness’ testimony, unless the same is corroborated by other competent testimony. But the giving of this instruction does not necessarily constitute reversible error. Before a cause will be reversed for giving this instruction, it must have been properly excepted to when given, and the evidence in the ease must be such as to enable this court to see that the defendant may have been injured thereby.</p> <p>(Syllabus by the Court.) ■</p>

<p>1. TRIAL — Objections to Instructions — Sufficiency. A general exception to instructions given upon the trial of a ease will not be considered for any purpose whatever. Counsel should point out to the trial court the particular instruction to which they desire to except, in order that the court may have an opportunity to correct the error therein, if any.</p> <p>2. APPEAL — Review—Sufficiency of Evidence. The jury are the exclusive judges of the credibility of the witnesses, and this court will not reverse a conviction where there is any evidence in the record from which the jury could legitimately draw the conclusion that the defendant was guilty.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDICTMENT AND . INFORMATION — Requisites of Accusation —Following Language of Statute. An indictment for felony, although in the language of the statute, is not sufficient, unless it states all the elements necessary to constitute the offense.</p> <p>2. STATUTES — Repeal—Implication—Statutes Covering Same Subject-Matter. The rule of construction of statutes is tha't, where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions plainly 'showing that it was intended' as a substitute for the first act, it will act as a repeal of the first, and especially where the subsequent act contains a general repealing clause.</p> <p>3. BRIBERY — Statutory Provisions — Repeal. Sections 2120 and 2121 of the Penal Code (Comp. Laws of 1909) were repealed by an act entitled "An act relating to the bribery of certain public officers, and providing punishment,therefor," approved February 21, 1905, art. 7, e. 13, p. 197, Sess. Laws of 1905, being sections 2147, 2148, and 2149 of the Penal Code (Comp. Laws 1909).</p> <p>4. BRIBERY — Criminal Prosecution — Sufficiency of Evidence. Evidence examined, and held insufficient to sustain the verdict, finding the defendant guilty of bribery.</p> <p>5. BRIBERY — Indictment—Sufficiency. An indictment for offering a bribe to a constable to influence him in the execution of a search warrant which he was proceeding to execute'is insufficient, where it does not allege that the defendant knew that the person named was an officer, and does not allege that the search - warrant was issued out of a court of competent jurisdiction to the officer for execution.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONSTITUTIONAL LAW — Appeal — Violation of Ordinance-Jurisdiction. The provision in the constituent aet of cities of the first class (chapter 12, Wilson’s Eev. & Ann. St. 1903; chapter 14, Comp. Laws 1909) that, "in all cases before the police judge arising under the ordinances of the city, an appeal may be taken by the defendant to the district’ court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into a recognizance with good and sufficient sureties, to be approved by the police judge, conditioned for the personal appearance of the appellant before the district court of the county on the first day of the next term thereof,” is not repugnant to the Constitution, and was therefore adopted, extended to, and remained in force as the law of the state under the provisions of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Constitution.</p> <p>2. APPEAL — Appeal from Police Court. The aet of June 4, 1908 (Acts 1907-08, c. 27, art. 1, see.-3; section 1979, Comp. Laws 1909), providing that "the county court shall have, concurrent with the district court, appellate jurisdiction of judgments of justices of the peace, and of judgments of police judges in all civil and-criminal causes,” only confers on the county court concurrent jurisdiction with the district court in appeals from judgments of police courts.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIAL — Instructions—Credibility of Witnesses, (a) It is error for a trial court to instruct the jury that they are bound to accept as true the testimony of a witness who they believe has testified falsely on any material matter, when such witness is corroborated by other credible testimony.</p> <p>(b) Under the provisions of section 6857, Comp. Laws 1909, the jurors are made the exclusive judges of all questions of fact.</p> <p>2. TRIAL' — Province of Court and Jury. Trial courts cannot legally indicate their opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of any witness, or as to the truth of any fact in issue. The whole matter of finding as to the facts of the case must be left entirely to the jury, without suggestions or leadings by the court.</p> <p>S. APPEAL — Review—Presumptions, (a) Under subdivision 6, see. 6823, Comp. Laws 1909, all instructions given to a jury by a trial court must be in writing, unless waived by both parties; and such instructions must be filed and become part of the record.</p> <p>(b) When the circumstances disclosed by the record indicate that the court gave oral instructions which were reduced to writing and made a part of the record, in the absence of showing to the contrary, it will be presumed that the instructions were written out and given to the jury before they retired to deliberate.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Kiowa County; J. S. Carpenter, Special Judge. </p> <p>L. A. Nowlin was convicted of violating the prohibitory law, and he appeals.</p>

<p>1. APPEAL — Continuance—Review. An application for a continuance is addressed to the sound discretion of the trial court, and unless an abuse of this discretion is shown, a judgment will not be reversed on appeal.</p> <p>2. INDICTMENT AND INFORMATION — Amendment — When Allowed. Under Oomp. Laws 1909, sec. 6645, relating to amendments of informations, an amended information may be filed at any time prior to the time the case is actually put on trial, and if done before accused is arraigned and pleads it may be done without permission of the court, but if accused has pleaded the permission of the court must be had.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Pushmataha County; Malcolm E. Rosser, Judge. </p> <p>Julius Choate was convicted of shooting at another with a gun with intent to injure, and appeals.</p>

<p>APPEAL — Time for Taking Proceedings. In felony cases, the appeal must be perfected within six months from the date of the rendition of the judgment. If this is not done, the appellate court does not acquire jurisdiction of the cause, and the appeal will be dismissed.</p> <p>(Syllabus’by the Court.)</p>

<p> Appeal from Superior Court,, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Walter Billus was convicted of assault with intent to murder, and sentenced to confinement in the penitentiary for one year, •and appeals.</p>

M. Rainey, Judge. Clarence Weston was convicted of manslaughter in the first ■degree, and sentenced to confinement in the state penitentiary for thirty years, and appeals.

R. Armstrong, Judge. R. W. Murray was convicted of perjury, and sentenced to the penitentiary for five years, and appeals.

T. Parks, Jtcdge. George Paschal was convicted in the police court of the city of Tahlequah for assault and battery, from which conviction he appealed to the county court, and executed a bond, with sureties, which was approved by and filed with the police judge. The county attorney moved the county court to dismiss the appeal, upon the ground that one of the sureties on the appeal bond was a licensed attorney at law of the state and was counsel of record for the defendant.

<p> Appeal from Texas County Court; W. C. Crow, Judge. </p> <p>John W. Plooper was convicted of assault, and appeals.</p>

<p>1. GAMING — Indictment—Sufficiency. An indictment which charges a person with playing a game of poker, but which fails to charge that the person was playing such game for money or other representative of value, does not state a public offense against our statute.</p> <p>2. TRIAL — Instructions—Reasonable Doubt. An instruction which states that by the term “reasonable doubt” is meant “a doubt ' for which a reason can be given,” is erroneous.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Oklahoma County Court; John W. Hayson, Judge. </p> <p>Bastardy proceedings against Ira Speed. From a judgment appeals.</p>

<p> Appeal from Payne County Court; P. D. Mitchell, Judge. </p> <p>T. P. Eaton was convicted of libel, and appeals.</p>

<p>1. STATUTES — Constitutional Law — Partial Invalidity of Act — Equal Protection of Laws. The Legislature passed an act approved June 6, 1908, commonly called the Labor Act, which provided: "See. 2. No agreement, combination or contract by or between two or more persons to do or procure to be done, or not to do or procure to be done, any act in contemplation or furtherance of any trade dispute between employers and employees in the state of Oklahoma, shall be deemed as criminal nor shall those engaged therein be indictable or otherwise punishable for the crime of conspiracy, if such act committed by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered as in restraint of trade or commerce, nor shall any restraining order or injunction be issued with relation thereto. Nothing in this act shall exempt from punishment otherwise than is herein excepted, any person guilty of conspiracy for which punishment is now provided by an act of the Legislature, but such act of the Legislature shall as to the agreement, combination and contracts hereinbefore referred to, be construed as if this act was therein contained: Provided, that nothing in this act will be construed to authorize force or violence. ’ ’ t (Laws 1907-08, c. 53, art. 2, Comp. Laws 1909, sec. 4042). And ‘ passed another act approved June 10, 1908, commonly called the Anti-Trust Act, prescribing in section 1: "That every act, agreement, contract, or combination in the form of trust, or otherwise, or conspiracy in restraint of trade or commerce within this state, which is against public policy, is hereby declared to be illegal." (Laws 1907-08, c. 83, art. 1 [Comp. Laws 1909, sec. 8800]).</p> <p>Held, (a) That the Legislature intended that the provisions of said section 2 and the provisions of the Anti-Trust Act should constitute one whole, and if both could not be carried into effect, neither would have received legislative sanction.</p> <p>(b) That said section 2 and the Anti-Trust Act so considered is not in violation of the Constitution of this state, nor of that of the United States, and is not in contravention of the fourteenth amendment, guaranteeing the equal protection of the laws, and that both are within the scope of legislative power and authority.</p> <p>2. CONSTITUTIONAL. LAW — Distribution of Governmental Powers —Judicial Powers — Validity of Statute. The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state.</p> <p>3. SAME — Determining Validity of Statutes — Presumptions. Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.</p> <p>4. COURTS — Rules of Decision — Former Decision. The construction of a statute in a civil proceeding is authority for a like construe-, tion in a criminal prosecution.</p> <p>5. MONOPOLIES — Trusts—“Public Policy.’’ The courts must look to the Constitution and the statutes to determine the public policy of the state on a given subject, hence the words “public policy,” as used in section 1 of the Anti-Trust Act of June 10, 1908 (Laws 1907-08, c. 83, art. 1 [section 8800, Comp. Laws 1909]), are interpreted to mean the law of the state, whether found in the Constitution or the statutes'. A constitutional statute cannot be contrary to public policy, since it is public policy.</p> <p>6. INDICTMENT AND INFORMATION — Duplicity—Conspiracy in Restraint of Trade. An indictment under section 1 of the AntiTrust Act of June 10, 1908 (Laws 1907-08, c. 83, art. 1 [section 8800; Comp. Laws 1909]); charging a conspiracy in restraint of trade, is not bad for duplicity, on the theory that it alleges what was agreed to be done, and the acts to have been done in pursuance of the alleged conspiracy.</p> <p>7. MONOPOLIES — Criminal Prosecutions — Indictment—Time of Offense. An indictment under said section 1 of the Anti-Trust Act (Laws 1907-08, c. 83, art. 1 [Comp. Laws 1909, sec. 8800]), charging a conspiracy in restraint of trade, sufficiently sets out the time, when it alleges the time when the several acts relied on to establish the offense were done, and it is not essential to set out the precise time when the conspiracy was formed.</p> <p>8. STATUTES — Irrepealable Law. The Legislature cannot pass an irrepealable law.</p> <p>9. STATES — Trusts—Statutory Provision. The Sherman Anti-Trust Act (Act July 2, 1890, e. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) does not continue in force in Oklahoma since statehood.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Coal County; A. T. West, Judge. </p> <p>Monroe Gunnells was convicted of larceny, and appeals.</p>

<p>1. TRIAL — Province of Court and. Jury. In a criminal prosecution, it is the duty of the court to declare the law to the jury. Whether the evidence has a tendency to prove any fact in issue in a criminal case is for the determination of the court; not so as to-the weight of the evidence.</p> <p>2. SAME — Instructions—Assumptions as to Facts. Where a fact material to the issue, concerning the existence of which there is conflict in the evidence, is assumed by the court in an instruction to-the jury to be fully established, the province of the jury is invaded, and constitutes prejudicial error.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Coitrt, Oklahoma County; G. A. Broivn, Judge pro tem. </p> <p>M. C. McGraw, alias Mike O’Brien, was convicted of crime, and appeals.</p>

<p> Appeal' from Bilis County Court; A. B. Williams, Judge. </p> <p>W. H. Etchison was convicted of violation of the prohibition law, and appeals.</p>

<p>INTOXICATING LIQUORS — Illegal Sale. Where the evidence shows, that a defendant upon trial was concerned in the sale of intoxicating liquor, it is immaterial as to whether or not the sale was. made by the defendant or by another person who was acting with, the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>1. INTOXICATING LIQUORS — Evidence—Violation of Prohibitory Law. For evidence sustaining the charge of having possession of intoxicating liquors with intent to sell the.same, see opinion.</p> <p>2. APPEAL — Case-Made—Sufficiency. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the case-made contains proper recitals of what occurred duly certified to by the trial judge.</p> <p>(Syllabus by the Court.)</p>

<p>1. INTOXICATING LIQUORS — Information—Sufficiency. 'Where an information charges the defendant with having in his possession intoxicating liquors with the intention of violating the provisions of the prohibitory liquor laws of Oklahoma, such information states an offense against the laws of this state.</p> <p>2. INDICTMENT AND INFORMATION — Objections —Waiver. AVhere a defendant goes to trial, and for the first time objects to the information or indictment when the state attempts to introduce testimony thereunder, or upon appeal, or by habeas corpus, the objection should be overruled if by any intendment or presumption the information or indictment can be sustained.</p> <p>8. HABEAS CORPUS — Defects in Information. Formal defects in an information cannot be presented by habeas corpus proceedings..</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Coal County; A. T. West, Judge. </p> <p>Lee Hughes was convicted of embezzlement, and brings error.</p> <p>Lee Hughes, plaintiff in error, was prosecuted by information filed in the distinct court of Coal county by James R. Wood, county attorney, on the 11th day of March, 1909, charging him in three counts ■ with embezzlement and larceny of apples and money, the personal property of one H. A. Squires. An amended information was filed March 18th, charging embezzlement in the first and larceny in the second count. The county attorney dismissed the count charging larceny, and relied for conviction upon the count charging embezzlement; the first paragraph charging the embezzlement on November 13, 1908, of 231 barrels of apples, the second paragraph charging the embezzlement on said day of $375 in money, the proceeds of the sale of said apples, the said Lee Hughes being alleged to be the agent, broker, and assignee in trust, of the said H. A. Squires. He was put upon trial and found guilty; his punishment being assessed by the jury at two years in the penitentiary. The judgment and sentence was entered November 12, 1909. From the judgment and an order overruling á motion for a new trial, the defendant appealed by filing in this court on May 9, 1910., his petition in error with case-made.</p>

<p>1. INTOXICATING- (LIQUORS — Criminal Prosecutions — Sufficiency of Evidence. For evidence sustaining the charge of having possession of intoxicating liquors with intent to sell the same, see opinion.</p> <p>2. APPEAL — Record—Case-Made. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the ease-made contains proper recitals of what occurred duly certified to by the trial judge.</p> <p>(Syllabus by the Court.)</p>

<p>INTOXICATING LIQUORS — Criminal Prosecution — Punishment. Where on appeal from a conviction for selling a pint of whisky the evidence shows that the defendant, a negro boy, was induced by private detectives to so violate the prohibition law, this being his first offense, and the maximum penalty was imposed by the court on the recommendation of the jury, and there were irregularities on the trial insufficient to constitute reversible error, the court being of opinion that the punishment assessed is excessive, will modify the sentence to 60 days' confinement and a fine of $100.</p> <p>(Syllabus by the Court.)</p>

<p>1. COURTS — Superior Court — Jurisdiction. The superior courts of Oklahoma have concurrent jurisdiction with the county courts to hear and determine misdemeanor cases.</p> <p>2. SAME — Stare Decisis — Constitutional Questions. Principles of public policy demand a stable and fixed construction of constitutional law; and that which has been deliberately decided should not be unsettled, unless clearly erroneous.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Pittsburg County; A. T. West, Judge. </p> <p>S. G. Smith was convicted of false pretenses, and appeals-</p>

<p> Appeal from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Mose Caido was convicted of larceny, and appeals.</p>

Rainey, Judge. O. H. Lee was convicted of felonious assault, and appeals.

<p> Appeal from District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Walter Deen was convicted of felonious assault, and appeals.</p>

<p> Appeal from Latimer County Court; Cliff V. Peery, Judge. </p> <p>Bash Beard was convicted of a misdemeanor, and brings error.</p>

<p>TRIAL — Impeachment of Verdict — Affidavit of Jurors. Unless required by statute, a verdict cannot be impeached by the affidavits or testimony of jurors, showing misconduct on their part in arriving at the verdict.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Washita County Court; L. R. Shean, Judge. </p> <p>J. Teter was convicted of a violation of the prohibition law, and appeals.</p>

<p> Appeal from District Court, Pontotoc County; A. T. West, Judge. </p> <p>Dick Birdwell was convicted of larceny, and appeals.</p> <p>_</p>

<p>HOMICIDE — Assault with Intent to Kill — Evidence. In a prosecution for assault with intent to kill, evidence held to sustain conviction of assault with intent to do bodily harm.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, •Wagoner County; John H. King, Judge. </p> <p>J. T. Ritchie was convicted of stealing cattle, and appeals.</p>

<p> Appeal from Comanche County Court; James PI. Wolverton, Judge. </p> <p>O. O. Goben was convicted of a violation of the prohibition law, and' appeals.</p>

<p> Appeal from Superior Court, Custer County; J. IV. Lawier, Judge. </p> <p>Abe Green was convicted of violating the prohibitory law, and appeals:</p>

<p>APPEAL — Review. When a disputed issue of fact is properly submitted' to the jury, the finding of the jury on such issue will not be disturbed by this court on appeal, when there are no prejudicial errors of law disclosed by the record.</p> <p>(Syllabus by the Court.)</p>

<p>1. INTOXICATING LIQUORS — Illegal Conveyance — Evidence. In prosecutions for unlawfully conveying intoxicating liquor from one place in this state to another place therein, the state is only required to establish by the proof, beyond a reasonable doubt, that the liquor charged to have been conveyed, or some portion of it, was conveyed as alleged in the information.</p> <p>2. SAME. As a matter of defense, a person charged in the courts of this state with conveying intoxicating liquor may prove that the liquor so conveyed was a lawful purchase, intended for a lawful purpose; and when this is done, to the extent of raising a reasonable doubt in the minds of the jury, he is entitled to an acquittal.</p> <p>3. APPEAL — Affirmance. When a person is on trial, charged with unlawfully conveying intoxicating liquor from one place to another in this state, and the proof establishes the conveyance as al leged, and no proof is introduced by the accused, a judgment of conviction is proper, and will be affirmed on appeal.</p> <p>(Syllabus by the Court.)</p>

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

Applications by R. K. ITunnicutt and C. H. Patton, respectively, for writs of habeas corpus.

<p>VENUE — Jurisdiction—Transfer of Causes — Certification. When an order for a transfer of a criminal case that was pending in a territorial court at the time of the admission of Oklahoma as a state to the proper court of the county of proper venue is made, it is the duty of the clerk of the district court to make out a descriptive list of all the papers, orders, and judgments, and copies of all orders and docket entries therein, certified to as being tho complete record of the case as shown by the record of such court, and send the same, together with all the papers, to the court to which the case is ordered transferred. A trial and conviction upon papers not authenticated, and without the certificate required by the statute, is invalid. The trial court, having no sufficient record on which to proceed to trial, was without jurisdiction.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIAL — Instructions—Credibility of Witnesses. An instruction advising the jury that they are at liberty to disregard the testimony of any witness who they believe from the evidence has testified falsely, except in so far as his testimony is corroborated by other evidence or facts and circumstances in the case, should not be given. The jury cannot be bound by the court to believe the testimony of such witness, whether corroborated or not.</p> <p>2. SAME — Erroneous Instruction — Reversal. When such an instruction is given by the trial court over the objection and exceptions of the accused, and the record discloses a close ease on the facts, a judgment of conviction will be reversed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Superior Court, Oklahoma County; B. D. Oldfield, Judge. </p> <p>I-T. C. Parker was convicted of burglary, and appeals.</p>

<p>3. APPEAL — Objections Waived. It is essential that all points upon which counsel rely for the reversal of a cause be presented to the court in the brief or oral argument, and when not so presented they are waived. It is not enough to. assert in general terms in a brief or oral argument that a ruling of the trial court is wrong. Affair effort must be made to prove that it is wrong, or the point will not be considered as having been made.</p> <p>2. SAME — Review. Except in eases of the gravest character, this court will not examine any record for errors not presented by a brief or oral argument other than those which are jurisdictional.</p> <p>3. SAME — Petition in Error — Definition. Only those questions are brought up on appeal which are included in the petition in error. A petition in error is a formal written request addressed to the appellate court asking it to review alleged errors which it specifically points out. This court does not try cases de novo. We are only authorized to consider and decide such questions as are presented to us by the petition in error, unless they are jurisdictional.</p> <p>4. SAME — Record. An appeal by petition in error is not a continuation of the old case. It is in the nature of a new suit brought to the appellate court to determine the issues stated in the petition in error. The petition in error is the pleading. The transcript of the record or case-made is the proof. They must correspond with each other.</p> <p>5. SAME — Review—Petition in Error. Por a petition in error which fails to present the issues argued by counsel, see opinion.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Transcript—Certification. Where an attempt is made to take an appeal to this court by filing a transcript of the record, such transcript must be certified to by the clerk of the court from which it is taken, under the seal of the court. Unless this is done, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Garvin County; S. H. Russell, Judge pro tern. </p> <p>Robert Williams was convicted of manslaughter, and appeals.</p>

H. Biting, Special Judge. J.- R. Ellington was convicted of embezzling $1,160, which came into his possession as the property of Clara May Burney, a minor and ward of defendant, and appeals.

C. Garber, Judge. Sherman Shown was convicted of horse stealing, and appeals. Plaintiff in error, Sherman Shown, a resident of Oklahoma City, was prosecuted by information filed October 25, 1909, in the district court of Garfield county for the crime of stealing a bay gelding, the property of A. Plumley. The information jointly •charged Lee Terry with the crime. The case was dismissed as to Terry, and he was used as a witness for the state.

Bailey,, Judge pro tern. Price Patterson, on the 25th day of October, 1906, in the United States Court in and for the Southern District of the Indian Territory, at Pauls Valley, was indicted for murder.

<p> Appeal from District Court, Wagoner County; John H. King, Judge. </p> <p>Cornelius Day was convicted of murder, and brings error.</p>

<p>1. TRIAL — Presence of Judge. The law requires the presiding judge of a trial court to sit during each and every stage of the proceedings before him. His presence cannot be dispensed with; and, when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction in a criminal case will be reversed.</p> <p>2. SAME — Argument of Counsel. The argument of counsel is as much a part of the trial as the taking of testimony. It is the duty of the trial judge to be present and see that counsel do not travel outside the record, or transcend the limits of legitimate argument, and that there is no misconduct on the part of the jurors.</p> <p>3. SAME — Duty of Prosecuting Attorney. It is just as important to the public for the prosecuting attorney, be he a special prosecutor or the official regularly elected, to see that a person on trial for a crime has a fair and impartial trial as it is to perform any other duty incumbent upon him by reason of his position.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGES — Disabilities—-Acting as Attorney. An attorney at law, when elevated to the bench of any of the courts of record in this state, is prohibited from practicing law as an attorney, counselor, or advocate in any of the state courts, so long as he occupies such official position.</p> <p>2. -TRIAL — Counsel for Prosecution. When a judge of a court of record vacates the bench and prosecutes a person charged with crime in the court over which he presides and before a jury drawn and impaneled by him, a judgment of conviction had under such circumstances will be reversed.</p> <p>3. JUDGES — Admission to Practice — Disqualification. Under the statutes in this state, a judge of a court of record cannot practice law in any of the courts of this state, and is only permitted to finish such business as he may have had on hand in the various United States courts at the time- of his elevation to the bench.</p> <p>4. PUNISHMENT — Constitutional and Statutory Provisions. The Constitution provides that “the repeal of a statute shall not revive a statute previously repealed by such statute; nor shall such repeal affect any accrued right or penalty incurred of proceedings begun by virtue of such repealed statute.” (William’s Const, sec. 144; article 5, sec. 54.)</p> <p>Section 2815, Wilson’s Rev. & Ann. St. 1903, provides: “The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”</p> <p>Under these provisions of the written law, it is held that the district court of Lincoln county, upon a retrial of this case, should submit the punishment for conjoint robbery under the statute as it existed at the time the offense is alleged to have been committed, which punishment is life imprisonment.</p> <p>(Syllabus by the Court.)</p>

R. Armstrong, Judge. J. C. Hampton was convicted of manslaughter in the first degree, and his punishment assessed at 30 years’ confinement in the state penitentiary, and he appeals.

<p>1. APPEAL — Harmless Error — Instructions. When, in the trial of a homicide case, instructions on the law of self-defense are given which are erroneous and prejudicial as abstract propositions of law, a judgment of conviction will not be reversed, when the record clearly discloses that there is no element of self-defense involved,</p> <p>2. HOMICIDE — Trial—Questions for Jury — Self-Defense. For facts held insufficient to raise the issue of self-defense, see opinion.</p> <p>(Syllabus by the Court.)</p>

<p>1. BURGLARY — Elements of Offense — Indictment or Information-Intent — “Steal.” (a) In an indictment or information charging burglary, based upon the unlawful breaking and entering of a railroad car with intent to steal therein, it is necessary for the allegation of intent to set out the acts required to constitute the crime of stealing at common law.</p> <p>(b) “Steal,” as the word is used in the burglary statute (section 2554, Comp. Laws 1909), is an offense of such character that it is burglary to break and enter with intent to steal, without regard to the 'value of the property sought to be taken.</p> <p>2. BURGLARY — Indictment—Sufficiency. An allegation, in an indictment for burglary, that the accused, in the nighttime of a certain day, unlawfully, willfully, feloniously and burglariously did break and enter a railroad ear, situated in the city of Shawnee, in the possession of and under the control of a certain railway company, a corporation, the name of the owner thereof being to the grand jurors unknown, is fatally deficient for want of certainty, in the absence of an allegation that a more particular description of the car cannot be given.</p> <p>3. BURGLARY — Elements of Offense — “Steal”—“Larceny.” Under Comp. Laws 1909, sec. 2554, making it burglary to break and enter any building, etc., with intent to steal therein, the word “steal” involves a felonious intent on the part of the taker to deprive the owner of property and to convert it to the taker’s use; while any trespass involving the taking of personal property with intent to deprive another thereof is “larceny,” within section 2557, making it burglary to enter any building, etc., with intent to eqmmit any felony, larceny, or malicious mischief.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Statutory Provisions. It is the duty of counsel appealing cases to this court from the trial courts to perfect the appeals in the manner provided by the statute, the provisions of which are plain and simple, and when not complied with this court does not acquire jurisdiction to review a cause on the merits.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Record—Speedy Trial — Continuance. In tlie absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers, otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the ease from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision, art. 2, sec. 20, and the statutory provision, sec. 6498, Comp. Laws 1909.</p> <p>2. INTOXICATING LIQUORS — Evidence—Sufficiency. See opinion for evidence' held insufficient to support a conviction for selling intoxicating liquor.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Jackson County Court; E. N. Woodson, Judge. </p> <p>J. V. Kinnon was convicted of violating the prohibitory law, and appeals.</p>

P. DeGraffenreid,. Judge. Robert Davis was convicted of cattle stealing, and brings error. The plaintiff in error, Robert Davis, was convicted in the district court of Muskogee county on an information filed in said county January 25,1911, wherein he was charged with the larceny of two cows, the property of B. V. Bushears. Said larceny is alleged to have been committed June 16, 1910. Trial was had at the February, 1911, term of said court.

<p>Appeal from Kiowa County Court; J. W. Mansell, Judge.</p> <p>Frank Fullingim was convicted of unlawful sale of liquor, and appeals.</p>

A. Richardson, Judge. Chas. H. Koozer was convicted of manslaughter in the first degree and his punishment was assessed by the jury at imprisonment in the penitentiary for years,

<p> Appeal from District Court, Beckham County; G. A. Brown, Judge. </p> <p>■ W. D. Hoyl was convicted of grand larceny, and appeals.</p>

S. Lawrence, Judge. John Selstrom was convicted of having possession of intoxicating liquor with intent to sell the same, and was on the 27th day of May, 1911, sentenced in accordance with the verdict to serve a term of 30 days in the county jail and to pay a fine of $50, and to stand committed until the fine is satisfied according to law. From the judgment and an order overruling a motion for a new trial the defendant appeals.

<p> Appeal from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>George P. Rau was convicted of embezzlement, and appeals.</p>

<p>1. APPEAL — Record—Indictment. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.</p> <p>2. INDICTMENT AND INFORMATION —Objections —Mode of Raising. The authenticity of an indictment should be raised by motion to quash and set aside, or by plea in abatement, in the trial court.</p> <p>3. TRIAL — Jurisdiction—Transfer of Causes — Time for Objections. An objection to the introduction of testimony, under an indictment charging a misdemeanor, on the ground that the same was not properly certified from the district court, comes too late where the defendant has entered his plea thereto.</p> <p>i. TRIAL — Argument of Counsel — Retaliatory Remarks. Where counsel for defendant went outside of the record in an attempt to affect the credibility of the prosecuting witness, he cannot complain of the argument of the county attorney called forth in answer thereto.</p> <p>(Syllabus by the Court.)</p>

A. St. Clair, Judge. Appellant was found guilty of a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days’ confinement in the county jail. Appealed.

<p>APPEAL — Review—Questions of Fact. When the jury find a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, it will not be set asida in the absence of prejudicial error.</p> <p>(Syllabus by the Court.)</p>

<p>INTOXICATING LIQUORS — Criminal Prosecutions — Evidence — Sufficiency. In a prosecution for the unlawful sale of intoxicating liquor, the evidence is held to support the verdipt, and that no reversible error was committed on the trial.</p> <p>(Syllabus by the Court.)</p>

<p>T. APPEAL — Sufficiency of Evidence. The credibility of witnesses and the weight or value to be given to their testimony is a question solely for the jury's determination; and, to reverse a judgment for the reason that the verdict is contrary to the evidence, this court must find) as a matter of law, that the evidence is insufficient to warrant the conviction.</p> <p>2. APPEAL — Questions of Fact. It is the policy of'the law in this jurisdiction to permit questions of fact to be determined solely by the jury; and when the people, by their legislative bodies, have enacted provisions looking to this end, it is the duty of the courts to carefully observe them.</p> <p>3. APPEAL — Review. When there are grounds to justify the conclusion that the jury has erred in its judgment on the facts, this court will look carefully to the record for errors of law sufficient to justify a reversal.</p> <p>4. APPEAL — Sufficiency of Evidence. It is the duty of the trial judge, under the law, to set aside a verdict of conviction which is against the weight and credibility of the evidence, when, in his judgment, justice so demands. When the trial court, who has seen the witnesses and heard them testify, puts the stamp of approval on the verdict of a jury, it comes to this court, not upon the proposition that the verdict is against the weight and credibility of the evidence, but upon the proposition that it is contrary to the evidence. And when there is any competent evidence tending reasonably to support a conviction the finding of the jury, approved by the trial court, will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Sequoyah County; John H. Pitchford, Judge. </p> <p>Mitchell Bigfeather was convicted of manslaughter in the first degree, and his punishment assessed at four years in the state penitentiary, and he appeals.</p>

M. Poe, Judge. Frank Manning was convicted of manslaughter in the first degree, and his punishment assessed by the jury at eight years’ imprisonment in the state penitentiary, and he appeals.

<p>INTOXICATING LIQUOKS — Illegal Sale — Evidence. For testimony which sustains a conviction for unlawfully having possession of intoxicating liquors with intent to sell the same, see opinion.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Jackson County Court; B. N. Woodson, Judge. </p> <p>Hubert Spear was convicted of violating the prohibitory law, and appeals.</p>

<p> Appeal from Okfuskee County Court; W. A. Huser, Judge. </p> <p>Charlie Thompson was convicted of violation of the prohibitory law, and appeals.</p>

<p> Appeal from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Ralph Hawkins was convicted of defrauding by false representations, and appeals.</p>

<p> Appeal from District Court, Coal County; A. T. West, Judge: </p> <p>Bob Shaw was convicted of a felony, and appeals.</p>

W. Ferguson, Judge. Joe Steils was convicted of violating the prohibitory law, and appeals. Lawyers who attempt to make a purely technical defense, without regard to reason and justice, will see themselves as this court sees them by reading,the following lines: The Up-To-Date Defense of Cy N. Ide. (By J. W. Foley.) Remarks by Counsel.

<p> Appeal from District Court, Muskogee County;' R. P. De Graffenreid, Judge. </p> <p>Charlie Stanfield was convicted of larceny, and appeals.</p>

<p>1. MALICIOUS MISCHIEF — Elements' of Offense — Statutory Provisions. Section 2692, Comp. Laws 1909, creating the offense of malicious mischief for defacing or destroying real or personal property, was intended to protect the owner of such property, and is not for the protection of the property itself.</p> <p>2. SAME — Malice. Malice toward the owner of such property is a necessary ingredient of the offense.</p> <p>3. SAME. If it be shown that a defendant has defaced or destroyed personal property not his own without malice toward the owner, but acting in good faith under a claim of right, the charge of malicious mischief cannot be sustained.</p> <p>(Syllabus by the Court.)</p>

C. Abernathy, Judge. R. D. Milton was convicted of forgery in the first degree, and appeals. Plaintiff in error, R. D. Milton (hereinafter referred to as the defendant) was jointly indicted with one Felix J. Saxon and Eugene Walker in the superior court of Pottawatomie county for the crime of forger)* in the first degree.

<p>INTOXICATING LIQUORS — Illegal Sale — Evidence. For evidence which sustains a conviction for violating the prohibitory liquor law, see opinion.</p> <p>(Syllabus by the Court.)</p>

Application of George Wilkins for writ of habeas corpus. The petitioner, George Wilkins, on January 24, 1911. filed in this court a verified petition, wherein he avers that he is unlawfully restrained of his liberty by one J. L. Wisener, sheriff of Muskogee county, at and in the common jail of said county.

<p>1. INTOXICATING LIQUORS — Unlawful Possession — Sufficiency of Evidence. For testimony -which sustains a verdict for having possession of intoxicating liquors with intent to violate the prohibitory liquor laws of Oklahoma, see opinion.</p> <p>2. WITNESSES — Credibility and Impeachment — Admissibility of Evidence. The previous occupation, companions, and associates of a witness are proper subjects of inquiry for the purpose of affecting his credibility.</p> <p>3. EVIDENCE — Relevancy—Preparation for Crime. Where a person is on trial, any fact is admissible in evidence which tends to prove preparation on his part to commit the crime with which he is charged.</p> <p>i. EVIDENCE — Acts and Declarations of Conspirators. Where two or more persons have conspired together to commit an offense, any statement made by one of such persons in pursuance of such conspiracy is admissible in evidence against all of his co-conspirators.</p> <p>(Syllabus by the Court.)</p>

<p>1. ROBBERY — Criminal Prosecution — Sufficiency of Evidence. In a prosecution for assault with intent to rob, the evidence is held sufficient to support the verdict and that no reversible error was committed on the trial.</p> <p>2. SAME — Indictment — Assault with Intent to Rob. An indictment for assault with intent to rob need not state what the defendant intended to take, nor that he intended to deprive the owner thereof, nor is it necessary to allege ownership in the party assaulted; mere possession in him being sufficient.</p> <p>3. SAME — Instructions — Sufficiency. The instructions of the court, taken as a whole, fairly stated the rules and principles of law applicable to the issues involved.</p> <p>4. SAME — Indictment — “Rob.” In the statute relating to assault with intent to rob, and an indictment following its language, the term “rob,” is used in its common-law sense.</p> <p>(Syllabus by the CouTt.)</p>

Bailey, Judge. Robert E. Deaton was convicted of larceny, and appeals. The plaintiff in error, Robert E. Deaton, was convicted at the November, 1910, term of the district court of Stephens county'on a charge of grand larceny, and his punishment fixed at imprisonment in the state penifentiary for a period of one year and one day.

<p>Appeal from District Court, Comanche County; J. T. Johnson, Judge.</p> <p>John Gonzalus was convicted of murder, and appeals.</p>

<p> Appeal from' District Court, Washita County; James R. Tolbert, Judge. </p> <p>J. B. Wines was convicted of rape in the first degree, and appeals.</p> <p>. The plaintiff in error was convicted of the crime of rape in the first degree and sentenced to ten years’ confinement at hard labor at the state prison. The judgment and sentence were pronounced and entered on the 12th day of November, 1910. From the judgment and orders overruling motions for new trial and in arrest of judgment, the defendant appealed by filing in this court on February l1?1, 1911, a petition in error with case-made.</p> <p>The defendant was a farmer, 50 years of age. He had lived continuously for over eighteen years on his homestead about fourteen miles southwest of Cordell. He was never before accused of any crime, and he had served as deputy sheriff of Washita county four years. His only child, a boy, died; and being in Ft. Worth with his wife in January, 1904, or 1905, they went to the Benevolent Orphans’ Home for the purpose of adopting a boy. Finding no boy suitable, the matron of the home induced them to take the prosecutrix; stating her age to be, in her presence, eleven years. They brought her to their homestead in Washita county and sent her to school and cared for her until July 21, 1910, when she left, and the next day filed a complaint against the defendant charging rape.</p> <p>The evidence for the state tended to prove the following facts: The complainant, Willie T. Dekle, testified that prior to July 20, 1910, she had lived for over five years with Mr. and Mrs. J. B. Wines on their homestead; that prior-to that time she stayed about three months at the Orphans’ Home at Ft. Worth; had lived with her mother for about two years before being placed in the Orphans’ Home; during that time was on the stage for several months; had lived a year with an old couple in Minnesota; had lived three or four years with an aunt in Alabama; that she was born at Houston, March 23, 1895, and was fifteen years of age. She further testified that Mrs. Wines went on a visit to Tillman county, July 15th; that on Saturday night after Mrs. Wines went away the defendant came to her room and attempted to have sexual intercourse with her, hut that he did not do as he intended that night; that the next night he did not disturb her; that on Monday night he tried to persuade her to consent to sexual intercourse, but did not accomplish his purpose. That Tuesday night he again came to her room, and through fear she submitted. That this was the first time he had sexual intercourse with her. That the next day, Wednesday, she went with the defendant to the town of Sentinel in a buggy; that he left her at Ramsey’s store, telling her to stay there until he returned ; that she stayed there a while, then went out on the street and met him and told him that she was going to visit Mrs. Davies; that he told her to hurry back. That she found that Mrs. Davies was not at home, and she went to Mrs. McAtee’s, where Mrs. Davies was visiting, staying there about two hours, then returned to Ramsey’s store; that she did not tell Mrs. Davies what defendant had done, because the defendant and Mr. McAtee were great cronies and she was afraid to say anything about it to Mrs. Davies before Mrs. McAtee. She rode back with the defendant to their home that evening, and that night the defendant came to her-bed again and begged her to let him do as he wished to, but she would not consent; that he stayed there until about 12 o’clock; that all she could do was to push him away and beg him to let her alone; that he finally overpowered her and had sexual intercourse with her. That this was the second and last time. That when she was thirteen years old the defendant tried to persuade her to allow him to have sexual intercourse with her; that his wife heard part of what he said; that she went to singing school short terms for several years, and the defendant always went with her; that on these occasions he had never insulted her. That she had secured two letters from her mother about two months before leaving the defendant, and this was the only time she had heard from her mother while living with the defendant; that the defendant had whipped her for writing letters to young men and had forbidden her to keep company with young men; that she was engaged to be married to a neighbor's son, Otis Higgenbottom, and the defendant would not permit her to marry him; that the defendant, worked in the field Tuesday and Wednesday, and a neighbor, Mr. Ne-Smith, came there for grain and talked to her on Thursday while the defendant was in the field; that Thursday afternoon the defendant said she could go and visit Mrs. Jayrose; that when she went to Mrs. Jayrose she told her how the defendant had mistreated her. That she did not return to her home, but went to 'Cordell the next morning and swore to the original complaint, and three or four days later sued the defendant for $10,000 in the district court of Washita county as damages for his mistreatment of her.</p> <p>Mrs. Lettie Jayrose testified that she lived a quarter of a mile from the defendant; that the prosecutrix came to her home July 21st, and after staying there about an hour told her the •defendant had mistreated her; that the defendant called that •evening and asked where prosecutrix was.</p> <p>C. N. Cook testified that he lived about half 'a mile from the defendant; that prosecutrix was there on the evening of July 21st and told him that the defendant had mistreated her.</p> <p>Mrs. Bunch Carter testified that she lived at Pine Apple, Ala., and was prosecutrix’s aunt; that after prosecutrix was two years old she lived with her for three or four years; that the date of her birth was March 23, 1895. On cross-examination she identified four letters that she had written at various times, wherein she stated prosecutrix was born March 24, 1894. In explanation she stated that she was mistaken about prosecutrix’s age when she wrote the letters; that prosecutrix’s mother was living, but, owing to the fact that she was a public woman, they did not disclose to her the place where her daughter, the prosecutrix, lived.</p> <p>Two doctors testified that on July 26 th they examined prosecutrix and found there was no hymen, but that there were no bruises, lacerations, or inflammation of her genital organs; that their examination was made by request of the prosecution.</p> <p>Mrs. Varna Davies testified that she had known prosecutrix for about six years; saw her on the 20th day of July at Sentinel; was with her a couple of hours; she acted perfectly calm while she was in her presence; that was at the home of Mrs. McAtee.</p> <p>On behalf of the defendant, T. H. NeSmith testified that he was at the defendant’s place on Thursday and saw prosecutrix on the porch; did not see anything wrong, and she did not make any complaint; that the defendant was at the time harrowing in the field about half a mile from the house; that he also saw her Wednesday morning in the pasture driving up the cows, but did not see the defendant at that time.</p> <p>Miss Rosa Higgenbottom testified that a .few days after prosecutrix came to this county they were going to school together, and prosecutrix said she would be eleven years old her next birthday. That they were together often, and several times conversed about the difference in their ages; that witness will be seventeen in November.</p> <p>Mrs. Fannie Wines testified that she was the wife of the defendant; that she did not overhear any insulting language used by" the defendant to prosecutrix when she was thirteen years old, and prosecutrix had never told her of any mistreatment of her by the defendant. That when she returned she found the nightgown and pair of drawers 'between the mattress and the springs of the bed in prosecutrix’s room; that they were not torn nor stained; that she gathered prosecutrix’s clothes for Mr. Day and Mr. Allen, who came after them/ and put all she could in 'the trunk, • and they said that was all they could take; that she afterwards carried other clothes to prosecutrix, and that some of her clothes were there yet.</p> <p>The defendant was a witness on his own behalf and denied that he had been guilty of any misconduct towards the prosecuting witness. It appears that the mother of the prosecuting witness was a public woman, conducting a house of prostitution at Ft. Worth for many years.</p>

<p> Appeal from Craig County Court; S. F. Parks,, Judge. </p> <p>Otis Tittle was convicted of violation of the prohibitory law, and appeals.</p>

Application of C. L. Harkins for writ of habeas corpus. The material portions of the evidence taken upon the preliminary trial are as follows : Mrs. Anna Grissom testified at the preliminary hearing that she lived at Delaware, Okla., about 50 feet from the home of Mr. Arvie Hurst. That she moved there on the 20th day of January, 1912. That she knew Elsie Adams, who lived at Hurst’s house. Knew Mr. Hurst when she saw him, but had never met him.

<p>Petition of Dan Johns for writ of habeas corpus.</p>

<p> Appeal from Washita County Court; T. R. Sheen, Judge. </p> <p>Amos Anderson and W. P. Scott were convicted of violating the prohibitory law, and appeal.</p>

<p>INTOXICATING LIQUORS — Unlawful Possession — Information. An information charging the unlawful possession of whisky should charge possession with intent to sell without reference to a specific section, chapter, or article of any statute. ■</p> <p>(Syllabus by the Court.)</p>

M. Rainey, Judge. Jacob Dansby was tried in the district court of Atoka county, charged with the offense of knowingly uttering a forged note, and he was found guilty by the jury, who assessed his punishment at confinement in the penitentiary for the period of one year and one day. The record fails to show that any judgment was ever rendered on this verdict. Defendant appealed.

Perry, Judge. John Patterson was convicted of violating the mining laws, and appeals. The plaintiff in error was convicted in the county court of Latimer county of the crime of allowing and permitting as mine foreman, miners, and employees, other than shot firers, to remain in the mine while shots are being fired, and was sentenced in accordance with the verdict of the jury to pay a fine of $250.

<p>1. JURY — Right to Trial by Jury. It is the duty of courts to enforce a rigid and vigilant observance of the statutes designed to preserve inviolate the right of trial by jury.</p> <p>2. TRIAL — Instructing Jury. Under Comp. Laws 1909, see. 6865, providing that after the jury have retired for deliberation, if they shall desire to be informed on a point of law, they must be conducted into the courtroom, and the information given in the presence of or after notice to the counsel for both parties, it is reversible error for the judge to follow the bailiff to the jury room, and there instruct the jury as to the effect of a verdict rendered by them; none of the counsel being present.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Dewey County Court; S. M. Byers, Judge. </p> <p>Appellant was convicted for a violation of the prohibitory liquor law, and appealed.</p> <p>In the early part of 1910 an opinion was prepared in this case, but it was inadvertently mislaid and lost and never delivered. The matter has recently been called to our attention. This statement is made to explain -why a cause pending so long on our docket has just been decided.</p>

<p> Appeal from District Court, Bryan County; Summers Hardy, Judge. </p> <p>William Brisco was convicted of manslaughter, and appeals.</p>

<p>Appeal from District Court, Latimer County; Malcolm B. Rosser, Judge.</p> <p>Sheridan Williams was convicted of grand larceny, and appeals.</p>

<p> .Appeal from District Court, Custer County; Jas. R. Tolbert, Judge. </p> <p>S. V. Camp was convicted of larceny and appeals.</p>

<p> Appeal from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. </p> <p>George Crump and Thomas Wright were convicted of forgery, and appeal.</p>

Application of FI. O. Jefferies for a writ of habeas corpus. On the 25th day of April, 1912, a preliminary trial was commenced before F. L. Hill, a justice of the peace in and for Nowata county, in a case then pending before said justice, wherein the petitioner was charged with the offense of murder. When said trial was completed, said justice ordered that petitioner be committed to jail without bail to answer said charge before the district court of said county.

<p> Appeal from District Court, Coal County; A. T. West, Judge. </p> <p>Arthur McKinley was convicted of rape, and appeals.</p>

<p>RAPE — Evidence—Sufficiency. Where the testimony of the prosecuting witness is self-contradictory and was obtained through fear, threats, coercion, or duress, and where such testimony is not corroborated by other material evidence as to the commission of the offense, coming from an unquestioned source, a conviction for rape will not be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Petition of Jack Wheeler for writ of habeas corpus.</p>

<p>1. APPEAL — Review—Presenting Question in Trial Court, (a) Where the record shows that the regular judge is disqualified and that a special judge has been selected by the parties and sworn and has presided at the trial, the form of the oath administered to such special judge cannot for the first time be questioned upon appeal. (b) Only those questions can be considered upon appeal, unless jurisdictional, which were decided adversely to the appellant in the trial court.</p> <p>2. SAME — Construction of Penal Statutes — Presumptions on Appeal — Duties of Prosecuting Officers, (a) The common-law doctrines of a strict construction of penal statutes and that error presumes injury have no place in the criminal jurisprudence of Oklahoma. On the contrary, penal statutes in this state are liberally construed in furtherance of justice and for the purpose of enabling them to reach and destroy the evils at which they are aimed, and no ease should be reversed upon appeal on any technicality or exception unless it appears from the record that thereby the appellant was deprived of a substantial right to his injury.</p> <p>(b) County attorneys and all other officers of the state of Oklahoma should exercise the utmost diligence in the prosecution of persons who commit perjury, in order that it may become as dangerous to criminals as it is odious to reason and ruinous to justice.</p> <p>(Syllabus by the Court.)</p>

<p>1. BAIL — Determination of Application for Bail — Feature of Self-Defense. Ordinarily it is not necessary to discuss the law of self-defense on an application for bail in a murder case, because under our Constitution a party so charged is entitled to bail as a matter of right, unless the proof is evident or the presumption is great that he is guilty of a capital offense.</p> <p>2. SAME — Evidence. See opinion for statement under which applicant could not be legally convicted for a greater offense than manslaughter in the first degree.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Muskogee County; R. C. Allen, Judge. </p> <p>S. S. Starr was convicted of grand larceny, and appeals.</p>

<p>1. OBSCENITY — Evidence—Sufficiency. For evidence which did not warrant a verdict of guilty for using obscene language in the presence of females, see opinion.</p> <p>2. EVIDENCE — Identification. Before a witness can be permitted to identify another person by his voice, he must testify that he has heard such person speak, and knows the voice of the party so identified.</p> <p>(Syllabus by the Court.)</p>

J. Guhser, Judge. Guy Harper was convicted of a violation of the prohibitory law, and appeals. Upon the trial of this case J. J. Moran testified that in 1910 he was assistant chief of police of the city of Tulsa; that on the 5th of September, 1910, in company with Policeman Henry De Witt, between 8 and 9 o’clock at night, he saw two men enter the place of business of appellant. I-Ie then testified as follows: “Q. What kind of a place is Harper’s place?

<p> Appeal from District Court, Bryan County; M. C. Garber, Judge. </p> <p>C. H. Watson was convicted of murder, and appeals.</p>

In the matter of the application of Lee F. Wilson for writ of habeas corpus.

<p>1. COURTS — Appeal—Written Opinions — Misdemeanors. By an express provision of the statutes of Oklahoma, this court is not required to prepare written opinions in misdemeanor eases pending before it, but is permitted to render written opinions in misdemeanor cases when in its judgment the public interests may be subserved thereby.</p> <p>2 INTOXICATING LIQUORS — Unlawful Sale — Husband and Wife —Evidence. On a trial where an information charges the illegal sale of intoxicating liquor, and the evidence shows that the sale charged in the information was made by the wife of the defendant at his home, it is competent to introduce testimony of other sales of intoxicating liquor made by the wife at his home, and that large quantities of liquor were kept at the home of the defendant, for the purpose of enabling the jury to determine whether or not the wife was acting for defendant, and that defendant was concerned in the particular sale for which he was being prosecuted, and that such sale constituted a part of a plan or system of the defendant for the sale of liquor.</p> <p>3. SAME — Witnesses—-Failure to Testify — Presumption — Appeal. Where a defendant is being prosecuted for the sale of intoxicating liquor and the state’s witnesses testify that such sale was made by his wife at his home, she is a competent witness in his behalf; and if he does not place her upon the witness stand, or account for his failure to do so, such failure will be strongly corroborative of the truhtfulness of the state’s testimony; and if there is other testimony in the record connecting the defendant with such sale, a verdict of conviction will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>Application by Floyd Woods for writ of habeas corpus-.</p>

<p> Appeal from Superior Court, Pottazvatomie County; George C. Abernathy, Judge. </p> <p>W. C. Byars was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the state penitentiary for fifteen years, and he appeals.</p> <p>The following is a condensed statement of the material portion of the testimony:</p> <p>J. I. Miller testified for the state that about the 1st of August, 1909, in Pottawatomie county, witness saw the deceased late Sunday afternoon lying on the spring seat in his wagon; that deceased appeared to be shot in the mouth; that there was blood all over his face and also on the seat and wagon.</p> <p>Charles Green testified for the state: That just after sundown on the 1st of August, 1909, the team and wagon of the •deceased came up to the house of witness. That witness stopped the team and found the deceased lying dead on the front seat ■of the wagon, shot in the mouth. That witness heard gunshots, •and heard a wagon driving very fast. This was just a few minutes before the team of deceased came up to the house of witness. That witness then took the back tracks of the wagon, and about a mile from there found a gun and the hat of deceased, where the team had apparently stopped. Witness found at this place horses’ tracks and men’s tracks. This was on the public road. There were some trees near where the wagon was stopped. The road was sixty odd feet wide, and had a three-strand wire fence on each side. Witness found the gun under •a tree south of where the wagon stopped. The gun was lying on •a pile of brush. The hat of the deceased was found west of the wagon. Witness also found an empty cartridge hull ten or fifteen feet northwest of the wagon. There were some horses’ tracks and men’s tracks near where witness found the empty cartridge hull. It was a Winchester shotgun, with two loaded shells in the gun. These shells were loaded with No. 8 buckshot. The gun was a No. 12 shotgun. Tracks led from where the ■empty shell was found to the wagon, both men’s tracks and horses’ tracks. The ground where the empty hull was found was elevated about three feet above where the wagon stood.</p> <p>Arthur Stanley testified for the state that on Sunday afternoon, the 1st of August, 1909, witness was on the place of Mr. ■Charles Green, and heard two shots about one-quarter of a mile west of where witness was. Witness did not hear anything else for a few minutes; then he saw a wagon coming. The wagon passed witness about fifty yards, and went to Mr. Charles Green’s house. No one was driving the wagon. The deceased was in the wagon, apparently dead. Deceased was balanced across the wagon seat. Deceased appeared to be shot in the mouth.</p> <p>W. M. Williams testified for the state that he went out to the house of Mr. Charles Green. That he found the deceased lying in his wagon in front of Mr. Green’s house. Deceased was dead. He appeared to be shot in the mouth. The front of the wagon where deceased was was covered with blood. Witness, in company with other persons, went up the road in the direction the team had come from, and went south about a mile and west about a quarter, and found the place where' there had apparently been a scuffle in the road. That they found a lot of horses’ tracks and men’s tracks. They also found a gun eighteen or twenty feet from the road on the south side of the road, where the wagon had stood. The gun had one load in the barrel and two in the magazine. They also found a hat about twenty feet from the gun on the southwest side of the road. Witness noticed tracks leading from where the wagon stood going in the- direction of the town of .Byars, and followed these tracks to Byars.</p> <p>It was admitted that Dr. Burfield had testified in the preliminary trial of appellant, and had since died.</p> <p>Hal Johnson, being sworn, testified for the state: That he was justice of the peace and resided in Shawnee, Pottawatomie county, Okla. Witness was also a stenographer. That he was present at the preliminary trial of appellant and took the testimony in the case. That Dr. Burfield testified at said' trial. That appellant was present and represented by counsel, who cross-examined the witness Burfield. That on said trial said Burfield testified that he resided at Byars, and was constable there. That on the night of the killing witness saw the appellant, Will Byars, and arrested him on the charge of being implicated in the murder of deceased. That appellant rode up to the house of witness and called him, and said:</p> <p>“T suppose you have heard of Snapp being shot?’ I says: ‘No; what time?’ I says. Pie says: ‘Tonight.’ Then he went on and told me. He says: ‘Hawk Jones, Pat Ellis, John Rudell, and myself, we all went down.’ And I asked hirh what they went for, and he said to get some beer, and when they got down there that Mr. Snapp had left the ford, and was on his road home; and he said: ‘We overtook him, and when we overtook him in the lane, about three-quarters of a mile from the ford, and John Rudell rode up on the left side and got off his horse, and Pat Ellis rode up on the right-hand side.’ And that him and Hawk Jones was back in the rear somewhere. He said John Rudell picked up the shotgun, and said, ‘Will this thing shoot?’ and pointed it at Snapp, and it went off. And I asked him then what was doing on the other side, and he said that Pat was off his horse, but didn’t think that Pat was doing anything. And I examined him further, and asked what he had done with the gun. ‘When the gun .fired,’ he said, ‘Snapp fell over on the spring seat, and the team started off in a trot;’ and that Pat Ellis followed the team down the road, perhaps two or three hundred yards, or something like that — I believe the remark was two or three. I asked him, ‘What did Ellis say when he came back?’ He said, ‘Pie said he was asleep or drunk,’ and I says, ‘What did you do then?’ And he says, ‘We rode back home.’, ‘What did you do with the gun?’ I says. He said: ‘Rudell threw the gun on a brush pile, and we came on home.’ I says, ‘What time was this?’ ,He says: ‘It was about dark, or maybe a little after dark.’ And I says, ‘Where did you go to then?’ And he says, ‘We came to Johnsonville and ate some ice cream there and rested a little bit; and I left Pat Ellis and Hawk Jones there and came on. to town, me and Rudell.’ ‘Then what?’ I says. He says: T went home and went to bed and couldn’t sleep; got to studying over this matter; and Mamma told me I had better come up and tell you just what I knew about it,’ he says.”</p> <p>George H. Layton, being sworn, testified: That he was city marshal of the town of Wanette, and knew the deceased when he was living. That between eight and nine o’clock on Sunday night, the 1st of August, 1909, witness went to the house of Mr. Charles Green, in Pottawatomie county, and there he found the deceased dead on his wagon seat. That witness then went to Byars, in 'McClain county, to see if he could find the person who had killed deceased. Witness returned, bringing with him Will Byars, Pat Ellis, Hawk Jones, and John Rudell. That on the way back appellant said to witness: “I can’t see what caused that fellow to want to shoot that fellow. I think it was an accident.”</p> <p>J. P. Hawkins testified for the state that' he. lived near the road which led from Johnsonville to. the place where the deceased was killed, in McClain county, Okla.; that on Sunday afternoon, the 1st day of August, 1909, appellant, Will Byars, and Pat Ellis passed the house of witness traveling east toward the place where Snapp was killed; that after dark on the same night three or four men on horseback passed the house of witness going west, and they traveled pretty fast.</p> <p>Claud Hankins testified for the state: That he resided two miles north of Byars and about one-half mile north of Johnsonville. That the road from Johnsonville to the place where deceased was killed leads past the house of witness. That on the evening of the killing witness saw Hawk Jones, John Rudell, Pat Ellis, and appellant, Byars, pass the house of witness traveling northeast in the direction of the place where Snapp was killed. Hawk Jones and Rudell passed about 4 o’clock. Pat Ellis and appellant, Byars, passed about sundown. These parties came back about dark. Witness saw them all. They were riding rapidly; their horses being in a run. They were running as fast as they could. Witness was standing on his porch and saw them when they passed.</p> <p>Tom Cummings testified for the state that witness saw the body of deceased lying in his wagon seat in front of the house of Mr. Green about 9 o’clock at night. Witness assisted in washing and dressing the body. Deceased was shot right in the mouth. Deceased had a moustache, but it was not powder burned.</p> <p>Mark Thompson testified for the state that on the night of the homicide, in company with his brother, John Thompson, he heard some parties coming from the direction of the place where the deceased was killed, and they were riding their horses as fast' as they could run. These parties passed within twenty feet of witness. They were Will Byars, - Rudell, Hawk Jones, and Pat Ellis. They were talking loudly to each other, and they passed by where witness was. One of them said, “I wish we had got his pocketbook.” Another one said, “Didn’t you get his whisky?” The man said this was the hind one. It was Will Byars, the appellant, who said, “Why didn’t you get his pocketbook?” Witness did not understand what answer was made to this. Witness is acquainted with all of these parties. Witness lives about a mile from where the killing occurred.</p> <p>John Thompson testified for the state: That he lived on the road leading from the place where the deceased was killed, in Pottawatomie county, to the town of Johnsonville, in McClain county. That between sundown and dark on the evening when the deceased was killed he heard some persons riding their horses, apparently going in the direction of where deceased was killed from the town of Johnsonville. That witness was standing at his kitchen door. That Will Byars, Hawk Jones, Pat Ellis, and John Rudell passed, traveling on the road going to Johnsonville. That they were riding as fast as their horses could run. That as they passed where witness was he heard one of them say, “Why didn’t you get the son of a bitch’s pocketbook and whisky?” Witness could not swear which one said this. That they passed within thirty feet of where witness was standing.</p> <p>George Hankins testified for the state that he resided about three miles northeast of the town of Byars, in McClain county, Okla., near where the South Canadian river runs between McClain county and Pottawatomie county; that he remembered the occasion when the deceased was killed; that a little while before sundown on that day he saw appellant and some one else, whom he did not recognize, traveling on the road going in the direction of the place where deceased was killed; that just before dark he saw four men on horseback coming from the direction of the place where deceased was killed traveling pretty fast.</p> <p>A. Y. Rollow, being sworn, testified that he lived in the town of Byars, in McClain county, Okla.; that he kept a hotel there; that on the evening when the'deceased was killed, appellant, Byars, came to the hotel and inquired for Pat Ellis, who boarded at the hotel; that he heard appellant, Byars, say to Ellis that he was going to prize up a little hell, or something like that; that Ellis and appellant, Byars, left the hotel of Byars a little before sundown.</p> <p>Tom McCall testified for the state that he lived near Wanette, in Pottawatomie county, Okla.; that witness heard of the death of deceased; that he went to Mr. Green’s house, where the wagon of deceased was, and found deceased dead in his wagon bed; that ten or twenty minutes before learning of the death of deceased he heard some shooting coming from the direction of the place where they found that the killing had occurred.</p> <p>O. W. Cottrell ceased for burial after his death; that deceased was shot in and his neck was broken.</p> <p>J. A. Rickstrater testified for the state: That he resided in Wanette, Okla.; that he was acquainted with deceased and assisted in preparing deceased for burial; that deceased was shot in the. mouth, and his neck was apparently broken.</p> <p>Mrs. M. V. Snapp testified: was the deceased. That she last saw him alive about 8 o’clock on Sunday morning. I-Ie then left the house, driving a small light wagon. He took with him his gun, a water cooler, his dinner bucket and water jug. He put the gun in .the back of the wagon. Witness never saw her husband again until after midnight. Pie was dead. He was shot in the mouth.</p> <p>Charlie Green testified for used by the deceased was a small wagon. The bed of the wagon was about fourteen inches deep. That it had in it an ordinary spring seat. That the back of the seat was about ten inches .high in the center and six inches high at the ends: That deceased weighed about two hundred pounds, and was about six feet tall.</p> <p>It was proven upon the part of the state that the deceased was a whisky peddler, and that some time before the homicide the deceased had refused credit to Hawk Jones for whisky, upon the ground that said Jones was then in debt to him for whisky purchased in the past.</p> <p>John quainted with appellant, Pat Ellis, and Hawk Jones. That witness resided in Texas, and had only been in the town of Byars a few days before the homicide. That witness had purchased whisky and beer from deceased on two occasions previous to the homicide. That deceased carried his beer and whisky in a small wagon. That beer was kept in a water cooler with ice. That witness and some other parties had been buying beer and whisky from the deceased on Sunday, August 1, 1909, and had started back to McClain county, when he met appellant, Will Byars, and Pat Ellis about sundown, about three-quarters of a mile from where they, left deceased. That they all took a drink. That appellant, Byars, and Pat Ellis requested witness to go back with them and get some more beer. Hawk Jones and witness then went with appellant and Ellis back to where deceased’s wagon was. That when they got there his wagon had left. The parties then decided to overtake him, as he could not have gone far. Witness had had seven or eight bottles of beer that day and a drink of whisky. The parties were' riding in a lope, and overtook the deceased traveling in a wagon. The deceased stopped the wagon and wrapped the lines around the brake. Pat Ellis and appellant, Byars, were in front, and got to the wagon first. Appellant rode to the north side of the wagon and stopped opposite the front wheel. Hawk Jones stopped at the rear of the wagon. Witness stopped about the center of the wagon and got off of his horse. Witness had no angry feeling toward deceased, and deceased had no angry feeling toward witness. Witness did' not. owe deceased anything. When the parties got up to the wagon of deceased, Pat Ellis said, “Hello.” Witness then testified as follows:</p> <p>“Q. Then what did’ he say? A. He said, ‘Give me four bottles of beer.’ Q. What, if anything, did Mr. Snapp say? A. Pie said something; I didn’t hear it. Q. Where were you? A. On the other side of the wagon getting off my horse. Q. Did you get off your horse? A. Yes, sir. Q. Where did you leave your horse? Did you tie it, or what did you do? A. I dropped the reins on the ground; I left him standing there. Q. Where was Will Byars • from you ? A. At the front side of the wagon. Q. Where was Hawk Jones? A. At the rear of the wagon. Q. And where was Pat Ellis? A. On the opposite side. Q. Was Pat off his horse? A. No, sir. Q. And was Hawk Jones on his horse? A. Yes, sir. Q. What, if anything, did you see in that wagon? A. I saw a water cooler covered up with a wagon sheet, I suppose, and I saw the gun and some sacks. Q. Where was the water cooler? A. In the center and towards the back. Q. Did you see any bottles in the sacks in there? A. Yes, sir; some sacks. Q. Did you see anything in the way of a gun in that wagon? A. Yes, sir. Q. Where was that? A. Leaning against the water cooler. Q. Leaning against it in this position, or laying up against it? A. It was up against it. Q. Which direction was it pointing? A. To the south and back of the wagon. Q. Then you think the gun pointed this way? A. Yes, sir; to the back and to the south. Q. Where was the stock of the gun? A. It was in the wagon bed. Q. Was there anything else in the wagon, except what you spoke of and the gun? A. Some sacks. Q. What did you do? A. I walked up to the wagon and caught hold of the gun, intending to pick it up. Q. Where did you take hold of the gun? A. In the center. Q. Did you take hold of the trigger? A. No, sir. Q. What was your intention when you picked up the gun? A. I just wanted to look at it. Q. Just a matter of curiosity? A. Yes, sir. Q. What did you do with it as.you picked it up, or what did you intend to do? A. To bring it out to me and look at it. Q. And it pointed this way? A. Yes. sir. Q. And you took it in your right hand? A. Yes, sir. Q. How did you start to take it to you? A. My elbow was on the back wheel, and I caught it up in my hand and turned it over, and — Q. AVhat happened when you got it off the bottom of the wagon bed? A. As I was turning the gun over it .went off. -Q. Do you know what caused it to go off? A. No, sir. Q. Did you point it at Mr. Snapp? A. No, sir. Q. Did you have any hostile feeling toward him? A.. Not a bit in the world; no, sir. Q. Did it go off after or before you put your left hand on it? A. Before. . O. At the instant the gun was fired, where was Pat Ellis? A. On the opposite side of the wagon. O.. Where was Hawk Jones? A. At the rear of the wagon. Q. Were they on their horses? A. Both of them; yes, sir. Q. Where was Willie Byars? A. At the front of the wagon. Q. What was he doing? A. I don’t know. Q. You didn’t notice him? A. No, sir. Q. How far was Pat from you? A. A few feet. Q. Where was Hawk from you? A. At the rear of the wagon. O. How far was Mr. Snapp from you ? A. He was on the spring seat. Q. What was he doing when the gun was fired? A. Sitting on the seat his leg thrown over the seat looking back; his head was turned to the north. Q. That was after Pat Ellis had given him the dollar? A. Yes, sir; whatever it was he had given him. O. Did he turn in the seat? A. Yes, sir. Q. And he was facing which direction? A. To the north and northwest. Q. That would be in the direction in which you stood? A. Yes, sir. Q. Did you get your left’hand on the gun before it was discharged? A. Yes, sir. Q. When the gun was discharged, what did you do? A. I jumped back, the team lunged, and I jumped back and grabbed the gun with my other hand. Q. Did it jar you? A. Yes, sir. Q. Who did you next see after that? A. Hawk Jones. Q. What did Mr. Snapp’s team do? A. They run. Q. Where did you see Hawk Jones? A. He came to me up at the side of the wagon. Q. What did Will Byars do? A. His horse was cutting up, and I never paid no attention to him; I saw his horse going backwards. Q. What did Pat Ellis do? A. He turned and followed the wagon. Q. What did Hawk Jones say, or what did you say to him, when he came to you? A. He said, ‘What’s the matter with that?’ and he took the gun out of my hand, and said: ‘Go catch your horse; he’s going off.’ Q. What did you do? A. I went and caught my horse. O. Where was your horse? A. Going down the road a short ways. Q. Running or walking? A. He was walking when I got to him; the reins dragging on the ground. Q. What did Hawk Jones do with the gun while you was gone for your horse? A. I don’t know. Q. Did you fire it again? A. No, sir. Q. How far did you go after your horse? A. Just a short ways. Q. Did you see Mr. Snapp after that? A. No, sir. Q. You went after your horse? A. Yes, sir. Q. What did Mr. Snapp’s. team do at the instant the gun fired? A. The team jumped and ran. Q. John, when you got your horse, what did you do? A. I came back where Hawk was. Q. Where was Hawk? A. Standing about where the wagon stood. Q. Did you have any conversation with him there? A. Yes, sir. Q. What was it? A. I asked him what he was going to do with the gun, carry it on or not; and I told him I guess we had better take it, and he said, ‘No;’ we would lay it out there, and if Mr. Snapp didn’t get it we would tell him where it was. Q. Where did you put the gun? A. On the side of the road on some bushes. Q. How far was that from where the wagon had stood ? A. Just a few feet; I don’t remember how far. Q. Did you know Mr. Snapp was hurt? A. I did not. Q. How long after that was it before you saw Pat Ellis ? A. A few minutes. Q. Where did Pat come from? A. From where the wagon had stood, ■ Q. Did you say anything to him? A. Yes, sir; I said, ‘Is there anything hurt?’ Q. What did Pat say? A. He said: ‘Hell, no; nothing hurt.’ Q. And what did you boys do then? A. We, went back to Johnsonville. * * * Q. Had Will Byars had. anything to do with that gun that day? A. Not that I saw; no, sir. Q. Did Will Byars touch that gun. A. No, sir; I don’t think he did. Q. Did Hawk Jones touch that gun? A. Yes, sir. Q. Did Pat Ellis touch the gun? A. No, sir. Q. Was there any conversation between you boys, prior to this time, concerning Mr. Snapp? A. No, sir. Q. Was there any feeling of hostility mentioned by either one of you ? A. No, sir. Q. Did you intend, when you went over there, to kill him? A. No, sir, O. Did you ever intend to kill him. A. No, sir.”</p> <p>Pat Ellis, being sworn, testified for the defendant: That he had known the deceased for about a week before his death, and had never had an}' angry feeling toward him. That appellant, Byars, came to the hotel where witness was eating supper the evening of the killing, and asked if witness wanted to ride around with him a while. Witness replied he didn’t care. Witness and appellant met John Rudell and Hawk Jones, and it was suggested that they go to Snapp’s wagon and buy some whisky and beer, and they all went together. They went to where the wagon had been standing, and it was gone, and they decided it couldn’t have gone very far, and they would' catch up with it. They overtook the wagon. This witness gave substantially the same account of the shooting as testified to by the witness John Rudell.</p> <p>Hawk Jones testified for appellant. His testimony was substantially the same as that of Rudell and Ellis.</p> <p>George PI. Layton testified for the state in rebuttal that on the night of the homicide he heard Hawk Jones state that when the gun went off it was in Pat Ellis’ hands. .</p>

<p> Appeal from District Court, Bilis County; G. A. Brown,' Judge. </p> <p>Benjamin M. Flatliers was adjudged guilty of contempt and committed to jail, and appeals.</p>

<p>1. INDICTMENT AND INFORMATION — Amendment—Time. By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered,, and before the trial is begun.</p> <p>2. SAME — Form. By leave of court, an information may be amended, as to matters of form, after the jury has been impaneled,, when the same can be done without prejudice' to the substantial rights of the defendant.</p> <p>3. HOMICIDE — Assault to Kill. One who seeks and brings on an affray cannot shield himself under a plea of self-defense.</p> <p>4. SAME — Self-Defense. On the facts of this ease, it is considered by the court that there was no evidence tending to show that the shooting was in self-defense.</p> <p>5.. SAME — Appeal—Prejudice. Error, if any, in an instruction defining the law of self-defense was not prejudicial to defendant* where the evidence did not justify an instruction on self-defense.</p> <p>(Syllabus by the Court.)</p>

<p> .Appeal from District Court, Atoka County; Robt. M. Rainey, Judge. </p> <p>Jay Gould Brown was convicted of cattle stealing, and he appeals.</p>

<p>EVIDENCE — Admissibility—Statements of Other Persons in Presence of Accused — Silence. It is error in the trial of a criminal ease for the court to admit testimony as to declarations between an officer who had accused under arrest and the state’s witnesses, or other persons, in the presence of the accused, tending to connect him with the offense charged, and that the accused remained silent as to such conversation; and when a Conviction results with such testimony before the jury a new trial- should be granted.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Caddo County Court; C. Boss Hume; Judge.</p> <p>Ben Ford and Otto Dishon were convicted for violation of the</p> <p>prohibitory law, and appeal.</p>

<p>Appeal from Coal County Court; B. H. Wells, Judge.</p>

<p>Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.</p> <p>Lee Spurlock was convicted'of violating the prohibitory law. and appeals.</p>

<p>Appeal from Carter County Com't; M. P. Winfrey, Judge.</p> <p>Bob Braziel was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Coal County Court; E. H. Wells, Judge.</p> <p>Angelo Pozzini was convicted of violating the prohibitory law, and appeals.</p>

<p>■ Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>John Bush was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garfield County Court; James B. Cullison, Judge.</p> <p>Walt Cook was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Custer County Court; W. J. Lackey, Judge.</p> <p>L. T. Shive was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Wagoner County Court; Leon B. Fant, Judge.</p> <p>R. C. Hardin was convicted of violating the prohibitory law, and appeals.</p>

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

<p>Appeal from Wagoner County Court; Leon B. Fant, Judge.</p> <p>Miss Joe Allen was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garfield County Court; Winfield Scott, Judge.</p> <p>P. F. Fagan was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garfield County Court; Winfield Scott, Judge.</p> <p>Ora Coyle was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Blaine County Court; George W. Ferguson, Judge.</p> <p>W. F. Shivers was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Kay County Court; Claude Duval, Judge.</p> <p>William Day was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Kay County Court; Claude Duval, Judge.</p> <p>Ira Brown was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Custer County Court; J; C. MeKnight, Judge.</p> <p>P. A. Edwards was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garfield County Court; Winfield Scott, Judge.</p> <p>Anthony Yarbrough was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Delaware County Court; W. O. Hall, Judge.</p> <p>L. B. Peyton was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garvin County Court; W. B. M. Mitchell, Judge.</p> <p>Ed Mitchell was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>T. E. Sims was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Canadian County Court; W. A.</p> <p>Richard Hennessey was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Washington County Court; James T. Shipman, Judge.</p> <p>George Winters was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Canadian County Court; W. A. Maurer, Judge.</p> <p>J. M. McNeil was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>John Youst was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John.W. Hayson, Judge.</p> <p>H. Riggart and William Gilbreck were convicted of violating the prohibitory law, and appeal.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>J. M. Rakestraw and G. R. Parks were convicted of violating the prohibitory law, and appeal.</p>

<p>Appeal from Garvin County Court; W. B. M. Mitchell, Judge.</p> <p>Oscar Hybarger was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Craig County Court; S. F. Parks, Judge.</p> <p>Jack Michaels was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Washington County Court; James T. Shipman, Judge.</p> <p>Charles Mitehem was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Harmon County Court; C. W. King, Judge.</p> <p>Joe Hinesley was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.</p> <p>Wesley McGill was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.</p> <p>Joe Eogers was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Grant County Court; J. W. Bird, Judge.</p> <p>Ed Thompson was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Cherokee County Court; J. P. Parks, Judge.</p>

<p>Appeal from Woods County Court; W. M. Bickel, Judge.-</p> <p>Harve Dunlap was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Greer County Court; Jarret Todd, Judge.</p>

<p>Appeal from Harmon County Court; C. W. King, Judge.</p>

<p>Appeal from Comanche County Court; James H. Wolverton, Judge.</p>

<p>Appeal from Payne County Court; P. D. Mitchell, Judge.</p> <p>Kelley Collins was convicted of violating the prohibitory law, and ■appeals.</p>

<p>Appeals from Garfield County Court; Winfield Scott, Judge.</p> <p>J. W. Gillespie was convicted for violation of the prohibition law, ■and appeals.</p>

<p>Appeal from Cherokee Countv Court; J. T. Parks, Judge.</p>

Lockridge, Judge. Appellants were found guilty by a jury in the county court of Pottawatomie county of the offense of assault and the punishment of Blaekey Layman was fixed by the court at confinement in the county jail for a period of fifteen days and a fine of one hundred dollars, and the punishment of the defendant, Clarence Squires, was assessed' at a fine of one hundred dollars.

<p>Appeal from Latimer County Court; Cliff V. Peery, Judge.</p>

<p>Appeal from Caddo County Court; C. Boss Hume, Judge.</p>

<p>Appeal from Carter County Court; M. E. Winfrey, Judge.</p>

T. West, Judge. On the 30th day of June, 1910, judgment was rendered against appellant in the district court of Johnston county for the crime of burglary and he was sentenced to three years ’ imprisonment. Appealed.

<p>Appeal from Bryan County Court; Chas. A. Phillips, Judge.</p> <p>W. J. Moon was convieted for violations of the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>C. Lamoreaux was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Blaine County Court; Geo. W. Ferguson, Judge.</p>

<p>Appeal from Pittsburg County Court; E. W. Higgins, Judge.</p> <p>Joe Bertino and Joe Nigro were convicted of violating the prohibitory law, and appeal.</p>

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

<p>Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.</p> <p>Alex Nowlin was convicted of selling intoxicating liquor to a minor, and he appeals.</p>

<p>Petition for writ of habeas corpus from Oklahoma County by A. G. Brashear.</p>

<p>Appeal from Rogers County Court; Archibald Bond, Judge.</p> <p>J. J. Dailey was convicted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from Blaine County Court; George W. Perguson, Judge.</p> <p>W. C. Cunningham was convicted, of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; Sam Hooker, Judge.</p> <p>Clarence Roberts was convicted of the crime of pointing a pistol, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>Charles DeStall was convicted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge.</p> <p>Aaron Bourbonnais was convicted of felonious assault, and appeals.</p>

<p>Appeal from District Court, Johnston County; A. T. West. Judge.</p> <p>John Morgan was convicted of larceny of domestic animals, and appeals.</p>

<p>Appeal from District Court, Jefferson County; Prank M. Bailey, Judge.</p> <p>P. A. Parker was convicted of felonious assault, and appeals.</p>

<p>Appeal from Carter County Court; I. R. Masón, Judge.</p> <p>Virgil Hargraves was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Superior Court, Pittsburg County; P. D. Brewer, Judge.</p> <p>William Price was convicted of assault with intent to kill, and appeals.</p>

<p>P. D. Mitchell, Judge.</p> <p>B. Ambler was convicted of a</p>

<p>Appeal from Comanelie County Court; James H. Wolverton, Judge.</p> <p>Jj. Heiniman was convicted of violating the prohibitory appeals.</p>

<p>Boss P. Loekridge, Judge.</p> <p>John Bodgers was convicted of violating the prohibitory appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>J. M. Dupree was convicted of violating the prohibitory law, and appeals.</p>

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

<p>Appeal from Ottawa County Court;</p> <p>W. G. Quigley, Judge.</p>

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

<p>Appeal from Greer County Court; Jarrett Todd,. Judge.</p> <p>Doc Talley was convicted of violations of the prohibitory law, and appeals.</p>

<p>Appeal from District Court, Adair County; John H. Pitchford, Judge.</p> <p>Richard H. Sharpe was convicted of perjury, and appeals.</p>

<p>Appeal from District Court, Choctaw County; A. H. Ferguson, Judge.</p> <p>S. E. Grant was convicted of manslaughter, and appeals.</p>

<p>Appeal from Oklahoma County Court;</p> <p>John W. Hayson, Judge.</p> <p>E. Roberts was convicted of violating the prohibition law, and appeals.</p>

<p>Appeal from Cherokee County Court; J. T. Parks, Judge.</p> <p>R. W.- McKinley was convicted of contempt of court, and appeals.</p>

<p>Appeal from LeFlore County Court; James L. Hale, Judge.</p>

<p>Appeal from Pottawatomie County Court; E. D. Reasor, Judge.</p> <p>W. B. Grant was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Garfield County Court; James B. Cullison, Judge.</p> <p>A. W. Gillespie was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Love County Court; R. A. Keller, Judge.</p> <p>Chas. Osborne was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Superior Court, Custer County; J. W. Lawter, Judge.</p> <p>Pete Fowler and Bill Franks were convicted of a misdemeanor, and appeal.</p>

<p>Appeal from Jefferson County Court; B. T. Price, Judge.</p> <p>Banty Jones was convicted of violating the prohibitory law, and appeals.</p>

<p>Craig County Court; S. E. Parks, Judge.</p> <p>William Frederick was convicted of violations of the prohibitory law, and appeals.</p>

<p>County Court; John W. Hayson, Judge.</p> <p>N. W. Geer was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Craig County Court.; S. F. Parks, Judge.</p> <p>Webb was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Tulsa County Court; N. J. Gubser, Judge.</p> <p>L. Armstrong was convieted of a violation of the prohibitory law, and appeals.</p>

<p>Appeal from Tulsa County Court; N. J. Gubser, Judge.</p> <p>W. J. Williams was convieted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from Hughes County Court; P. W. Gardner, Judge.</p> <p>Henry Hampton was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Custer County Court;</p> <p>J. C. MeKnight, Judge.</p> <p>Chas. Stueble was convicted of a' violation of the prohibition law, and appeals.</p>

<p>Appeal from Sequoyah County Court; W. N. Littlejohn, Judge.</p> <p>Ellis Rumph was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Tulsa County Court; N. J. G-ubser, Judge.</p> <p>E. H. Miles was convicted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from Custer County Court; J. C. McKnight, Judge.</p> <p>Chas. Stueble -was convicted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from Love County Court; E. A. Keller, Judge.</p> <p>Cam Hornbeek was convicted of haying possession of intoxicating liquor with intent to sell, and appeals.</p>

<p>Appeal from Seminole County Court; T. S. Cobb, Judge.</p> <p>Tom Wright was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Blaine County Court; George W. Ferguson, Judge.</p> <p>D. W. Ellington was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Pottawatomie County Court; Boss F. Lockridge, Judge.</p> <p>Nelson Jelts was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>J. B. McGarrah was convicted of violating the prohibitory law, and appeals,</p>

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

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>Jake Reinert was convicted, of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oraig County Court; S. F. Parks, Judge.</p> <p>Dock Isbell and Clay Tittle were convicted of violating the prohibitory law, and appeal.</p>

<p>Appeal from Craig County Court; S. F. Parks, Judge.</p> <p>N. H. Langley was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Blaine County Court; Geo. W. Ferguson, Judge.</p> <p>Ralph Hawkins was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Jefferson County Court; B. T. Price, Judge.</p> <p>Seth Little was convicted of a misdemeanor, and appeals.</p>

<p>Petition for writ of habeas corpus from Pittsburg county by .Zonone.</p>

<p>Appeal from LePlore County Court; P. C. Bolger, Judge.</p> <p>George W. Eozzelle was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeals from Canadian County Court; W. A. Maurer, Judge.</p> <p>Charles Brown and Carl Oelke were convicted of violating the pro- ' kibitory law, and appeal.</p>

<p>Appeal from Blaine County Court; Geo. W. Eerguson, Judge.</p> <p>Henry Steil was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>Henry Sloan was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Pawnee County Court; Ered S. Liscum, Judge.</p> <p>George Collins was convicted of violating the prohibition law, and appeals.</p>

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

E. Parks, Judge. Appellant was indicted for a violation of the prohibitory liquor law. He entered a jflea of guilty and his punishment was assessed by the court at a fine of two hundred dollars and thirtys days’ confinement in the county jail.

<p>Appeal from Craig County Court; S. F. Parks, Judge.</p> <p>Appellant was convicted for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of fifty dollars and thirty days’ confinement in the county jail. Appealed.</p>

<p>Appeal from Carter County Court; M. P. Winfrey, Judge.</p> <p>Mack Cox was convicted of violating the prohibitory law, and appeals.</p>

P. Parks, Judge- Appellant was convicted in the county court of Craig county fof a violation of the prohibitory liquor law and his punishment was assessed at a fine of four hundred dollars and one hundred and eighty days’ confinement in the county jail.

<p>Appeal from Carter County Court; M. P. Winfrey, Judge.</p> <p>Tom Pord was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Ellis County Court; A. L. Squire, Judge.</p> <p>Joe Eatliff was convicted of violating the prohibitory law, and’ appeals.:</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>Jerry Wood was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Woods County Court; W. M. Bielde, Judge.</p> <p>W. B. McKenzie was convicted of violating the prohibitory law,, and appeals.</p>

<p>Appeal from Woods County Court; W. M. Bielde, Judge.</p> <p>John Eaton was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Woods County Court; W. M. Bielde, Judge.</p> <p>John Eaton was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Ilayson, Judge.</p> <p>P. D. Taggart was eonvieted of violating the prohibitory law, appeals.</p>

<p>Appeal from District Court, McClain County; E. McMillan, Judge.</p>

<p>Appeal from Eogfers County Court; II. Tom Kight, Judge.</p>

<p>Appeal from Ottawa County Court; W. Wyatt Quigley, Judge.</p>

<p>Appeal from Pontotoc County Court; Conway O. Barton, Judge.</p> <p>Emmett Sanders and John Sanders were convicted of violating the prohibitory law, and appeal.</p>

<p>Appeal from Pottawatomie County Court; Ross F. Loekridge, Judge.</p> <p>M. J. Mundy was convicted, of violating the prohibitory law, and' appeals.</p>

<p>Oscar Hybarger was convicted of violating the prohibitory law, anil appeals.</p>

<p>Appeal from Pawnee County Court; ' Pred S. Liscum, Judge.</p> <p>George Collins was convicted of a violation of the prohibition law, ■and appeals.</p>

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