Volume 8 — Oklahoma Criminal Reports

<p>1. TRIAL — Direction of Verdict. When, in the trial of a criminal case, the proof introduced on behalf of the state is insufficient to sustain a conviction, it is the duty of the trial court to advise the jury to return a verdict of not guilty.</p> <p>2. SAME — Circumstantial Evidence. — Sufficiency, (a) When, in the trial of a criminal case, the evidence relied upon for conviction is entirely circumstantial; the facts shown must not only be consistent with and point to the guilt of the accused, but must be inconsistent with his innocence.</p> <p>(b) Where the evidence only raises a suspicion of the guilt of the accused, it is insufficient to sustain a conviction. Suspicion is not proof; and the court should direct a verdict under such circumstances.</p> <p>3. SAME — Reasonable Doubt — Presumption of Innocence. A person on trial, charged with the commission of a crime, is by law presumed to be innocent until his guilt is established beyond a reasonable doubt; and no inference of guilt can be founded upon circumstances, except such as naturally or necessarily follow from the facts. If the facts and circumstances are not of such character as to fairly permit an inference inconsistent with innocence, it cannot be regarded as sufficient to support a conviction.</p> <p>4. BURGLARY — Evidence—Proof. In a prosecution for burglary, evidence held insufficient to 'sustain a conviction.</p> <p>(Syllabus by the Court.)</p>

M. Graham, Jvidge. Mrs. D. S. Gregg was convicted of violating a prohibitory liquor ordinance of the city of Kingfisher, and again on appeal from the police court to the county court, where her punishment was assessed at a fine of $75 and imprisonment in the county jail for 30 days, and she appeals.

<p>1. HOMICIDE — Harmless Error — Construction, (a) All defects or imperfections in the matter of form of an indictment or information which do not tend to prejudice the substantial rights of a defendant upon the merits are immaterial, and do not affect the validity of such indictment or information.</p> <p>(b)An indictment or information which alleges that a number of different persons who were concerned in the commission of an unlawful homicide, held the pistol in their hands and fired the fatal shot is sufficient without stating which one of said defendants held the pistol and fired the fatal shot.</p> <p>2. STATUTES — Indictment and Information — Homicide—-Appeal— Review — Penal Statutes — Construction—Indictment — ‘ ‘ Murder. ’ ’ (a) In a capital case, where the extreme penalty of the law is inflicted, we will investigate the record carefully, and, if any material error appears therein which contributed to the injury of the appellant, it will be considered by this court, whether excepted to or not.</p> <p>(b) The policy of this court in liberally construing penal statutes and in rejecting the common-law doctrine that error presumes injury is explained in this opinion.</p> <p>(c) An indictment for murder which charges that the homicide was unlawfully committed with a premeditated design fo effect the death of the deceased, includes every character and degree of unlawful homicide, and a conviction, if warranted by the testimony, will be sustained under such an indictment for murder, manslaughter, assault with intent to murder, aggravated assault, or simple assault. Jewell v. Territory, 4 Olda. 53, 43 Pae. 1075, and Holt v. Territory, 4 Olda. 76, 43 Pae. 1083, explained and reaffirmed.</p> <p>(d) In its last analysis murder in Oklahoma consists in the unlawful killing of a human being with a premeditated design to effect his death, or the death of some other person. This premeditated design to effect death must be established either by direct evidence as a matter of fact, or it arises as a conclusive presumption of law in the class of cases mentioned in paragraphs 2 and 3 of section 2268, Comp. Laws 1909. These paragraphs do not state a rule of pleading to be followed in an indictment, but they establish a rule of evidence for the trial judge in the admission of testimony and in his instructions to the jury.</p> <p>(e) It is made the duty of the Criminal Court of Appeals to ' modify a judgment whenever in its opinion this should be done, in order to secure justice.</p> <p>(Syllabus by the Court.)</p>

Mandamus by the State against T. L. Brown. A petition for a writ of mandamus was filed in this court by the county attorney of Nowata county, which, in substance and effect, alleges that an action is now pending in the district court of Nowata county, wherein the State of Oklahoma is plaintiff and H. O. Jeffries is defendant, in which said Jeffries, is charged with the crime of murder, and that the respondent, Hon. T. L. Brown, is the duly elected, qualified, and acting…

<p>Appeal from Choctaw'County Court; W. ■ T. Glénn, Judge.</p> <p>Tom Wynne and Tom Chambers were convicted of malicious mischief, and each fined $25, and they appeal.</p>

<p>COMMERCE — Intoxicating Liquor — Transportation—Termination. An interstate shipment of liquor does not cease to be interstate commerce until it reaches the home or place of business of the consignee, and hence a person carrying the liquor from a railroad station to the home of the consignee, was not subject to prosecution for illegally conveying liquor within the state.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>William Dew was convicted of a felonious assault, and appeals.</p>

<p> Appeal from District Court, Bryan County; Summers Hardy, Judge. </p> <p>Joe Pittman was convicted of an assault with intent to commit rape, and appeals.</p>

<p>1. APPEAL — Continuance—Discretion of Court, (a) A motion for continuance upon the ground of absent witnesses is addressed to the sound discretion of the court, and unless an abuse of this discretion appears a judgment of conviction will not be reversed on appeal.</p> <p>(b) A motion for continuance that does not show due diligence upon the part of the person interposing it to have the absent witnesses present should be overruled.</p> <p>(e) When a motion for continuance is interposed upon the ground of the absence of material witnesses, and although on its face such motion may contain good grounds for continuance, if upon the trial the record discloses the fact that the testimony of the witnesses asked for would be cumulative, this court, as a general rule, will not interfere with the order of the trial court overruling such motion.</p> <p>2. PROSECUTING- ATTORNEYS — Special Attorney — Qualification, (a) When a special prosecuting attorney is appointed by the court, he should qualify as provided by law.</p> <p>(b) When a special prosecuting attorney is appointed by the trial court, and no objection is made and no question raised as to his qualifications and his authority to appear until after the cause is tried, in the absence of any prejudicial conduct, such objection comes too late.</p> <p>3. INDICTMENT AND INFORMATION — Filing—Failure to Place Filing Mark Thereon, (a) The failure of the clerk to place the filing mark upon the information when the same is filed, although conduct deserving severe criticism, is not such as to vitiate the information.</p> <p>(b) When a ease is called for trial, and continued for the term by agreement of the state and defense, a plea of not guilty entered, the case called for trial, and the trial concluded before any objection is made to irregularities in the information, an' objection that the' information did not bear the filing mark comes too late to avail, and a motion to set such information aside is properly overruled.</p> <p>4. APPEAL — Harmless Error. Where, upon a careful examination of the entire record, no prejudicial error is disclosed, and the judgment of conviction is sustained by the proof, this court will not seek technical grounds for reversal, which in no way deprived the accused of a fair and impartial trial, and will only' reverse when we can reasonably say that an injustice probably resulted from the proceedings.</p> <p>(Syllabus by the Court.)</p>

Bailey, Judge. Wallace Porter was convicted of manslaughter in the first degree, and sentenced to seven years’ imprisonment in the state penitentiary, and appeals.

<p> Appeal from Superior Court, Garfield County; Dan Huett, Judge. </p> <p>John Schriber was convicted of assault, and appeals.</p>

<p>APPEAL — Failure to File Record. If an appeal in a felony case is not perfected by filing the record in this court within six months after the date of judgment against the appellant, this court will not acquire jurisdiction of said appeal, and it will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Tulsa County; T. L. Brown, Assigned Judge. </p> <p>Fred Franks was convicted of assault with intent to kill, and appeáls.</p>

<p>Petition of James M. Elgan for a writ of habeas corpus.</p>

Hoffman, Assigned Judge. Charles Evans was convicted of manslaughter, and appeals. The plaintiff in error, Charles Evans, hereinafter referred to as the defendant, was informed against for the murder of Bert Gibson, on the 2d day of May, 1910. Upon his trial the jury returned a verdict of manslaughter in the first degree and assessed his punishment at 18 years5 imprisonment in the penitentiary.

<p>Appeal from District Court, McIntosh County; R. C. Allen,, Judge.</p> <p>Mike Thornsberry was convicted for assault with a deadly weapon, and appeals.</p>

P. de GraffeUried, Judge. Dan Anderson was convicted of murder and sentenced to death, and appeals. The following is a statement ef the material testimony in this case: Ruff Gossett testified in behalf of the state: That he resided in the town of Coweta, in Wagoner county, Okla. That at the time of the homicide he was sitting on the north side of the door of his house.

<p>INDICTMENT AND INFORMATION — Complaint—Information—Variance. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held ■ to answer is unavailing, and was properly overruled.</p> <p>(Syllabus by the Court.)</p>

<p>EVIDENCE — Sufficiency. To sustain a conviction of crime, each and every material element must be supported by the evidence.</p> <p>(Syllabus by the Court.)</p>

Hayson, Judge. Mrs. Irene Spence was convicted of violating an ordinance of Oklahoma City. From a judgment of the county court reversing the conviction, the city appeals.

<p> Appeal from District Court, Okfuskee Co^mty; John Caruthers, Judge. </p> <p>Gus Walker was convicted of statutory rate, and appeals.</p>

<p> Appeal from District Court, Jefferson County; Roy Hoffman, Assigned Judge. </p> <p>Lee Fowler was convicted of manslaughter in the first degree, and appeals.</p> <p>Appellant was tried in the district court of Jefferson county, charged with the offense of murder. He was convicted by the jury of manslaughter in the first degree, and sentenced by the court to imprisonment in the penitentiary for the period of 25 years.</p> <p>The following is a condensed statement of the material parts of the testimony introduced in this case:</p> <p>Dr. L. P. Sutherland testified: That he was a physician and resided in the town of Waurika. That he was summoned to attend the deceased shortly after he received the fatal wound. That upon examining the body of deceased he found that a bullet had entered 'to the left of the spinal column and gone out about three or four inches beneath the fifth and sixth rib and passed through and came out immediately over the sixth rib. This wound was fatal. Deceased was wounded about 4 o’clock at night, and died at 8 o’clock the next morning. That he was present when the clothes of deceased were taken off of him. That there was nothing about his person, except a few dollars in silver in his pants pocket, two $5 bills, and his watch and some tobacco and a little memorandum book, and that no weapon was found on deceased, except a pocketknife.</p> <p>Joe Weyman testified for the state: That he resides in and was night watchman of the town of Waurika. That' he heard the shots of the difficulty in which the deceased was killed. That he entered the joint kept by appellant about two minutes after-wards. That he saw the deceased there. He was just crouched down against the building. He was neither lying down nor standing. That with the assistance of others, he carried the deceased back into the building and straightened him out. Deceased did not speak. When witness entered the room, appellant said, “I am the man that done the shooting,” and said, “Here is my gun.” Appellant said he shot one shot to bluff deceased and the next one to hit him. Appellant was trying to take a drink of liquor. He had a bottle in one hand and a glass in the other. Appellant was very nervous, and could not pour the liquor without spilling it, and finally set the glass down and took the bottle in both hands. This happened in Jefferson county, state of Oklahoma. Appellant was very much excited and very nervous when witness entered the room.</p> <p>Dr. Cantrell testified: That he was a physician and resided in Waurika. That shortly after the shooting he wag called to the place of business of appellant and found the deceased there wounded. Dr. Sutherland was there. Deceased was shot in the back. That the ball came out about two inches below the right nipple. Deceased died from the effects of this wound the next morning. That a pocketknife and some money was taken from the clothes of deceased after he was shot.</p> <p>J. O. Barnhill testified for the state: That witness heard the shooting which resulted in the death of deceased. It was between 3 and 4 o’clock at night. Witness then went to the place of business of appellant. Witness heard appellant say, “I have killed him.” Appellant says, “By God, he is dying, and all I regret is that I shot him in the back.” Appellant also said, “I ought to be hung,” and said he would not have done it for a thousand dollars. Witness saw a knife taken from the pockets of deceased after he was removed to the hospital. The state then rested its case.</p> <p>Miss Pearl Atwood testified for appellant: That she was a nurse at the Stevens Sanatarium at Waurika at the time of this homicide; was there when deceased was brought in wounded. That witness examined the clothing of deceased and found some money and a pocketknife. That the money and pocketknife were all in the same pocket. The knife was open when found in the pocket of deceased.</p> <p>Joe Weyman was recalled by the appellant, and testified that he did not hear appellant say that the only thing he regretted was that he shot the deceased in the back, and that he ought to be hung.</p> <p>Lee Fowler, the appellant, testified in his own behalf: That he lived in the town of Waurika, and was running a joint there at the time deceased was killed. That he had met the deceased two or three times before the killing. That on the night of the homicide deceased and appellant were engaged in a game of cards. They began to play about 11 o’clock, and continued to play until about 3:30. That they started playing pitch for $1 a game, and when they quit playing they were playing for $5 a game. That on several occasions during the game a squabble came up between them. Witness then testified as follows:</p> <p>“A. We was playing — every once in a while he would raise a squabble over the game, or something like that, and along about 3:30, something like that, between 3 and 4 o’clock, we had played a game for $5. I won the game and left up my $5 on the table, and finally he claimed the $5 bill himself, and I pitched the cards across the table, and I told him it was getting late; I would quit. And he said all the time I was the fairest man he ever played with. And he said, T will play you for all the money you have got in front of yoú.’ I told him ‘All right,’ I would play him. I wanted to quit anyway. Q. Well, did you play him? A. No, sir; we didn’t. Q. What was the reason you didn’t play him? A.'Why, I put up my money. I believe I had •$22.50. I had a $10 bill and a $5 bill and $7.50 in silver — -I had $7, I believe it was, and two quarters that we had used during the game for set-back when we first commenced playing — and he stacked his silver up on top of my money, and then backed out and would not play, and taken $2.50 of my money. Q. What was said then when he took the $2.50 of your money? A. I told him he had gotten my money, and I didn’t want to take it away from him. Q. What did he say ? A. T will die before I will give it up.’ Q. What did you do, if anything? A. He raised up just about the time he put this money in his pocket, or after he went to his pocket with this money, and said, T will kill the damn son of a bitch or have it.’ The Court: I didn’t hear it. A. He says, T will kill the damn son of a bitch or have the money,’ and raised up and started to his pocket. Q. Which pocket? A. To his right-hand pocket. Q. What did you do then? A. Why, I raised up and drawed my gun just as quick as I could and shot. Q. How many times did you shoot? A. I shot twice, I believe. Q. Do you know which shot hit him? A. I would judge the first one did. Q. Flow came you to shoot the second shot? A. It was accidentally■ shot. Q. You may state whether or not you was excited at the time? A. Yes, sir; I was excited. Q. At the time you fired the shot, you can state to the jury whether or not you believed your life in danger? A. I thought he meant to kill me at the time.”</p> <p>Several witnesses testified that they knew the appellant, and that his general reputation as a peaceable, law-abiding man was good. The state, in rebuttal, proved by two witnesses that they heard Miss Atwood state that when she took the knife from the pocket of deceased it was closed, but that she had a habit of opening a knife as soon as it came into her hands, and that she had opened this knife as soon as she took it out of the pocket of deceased.</p>

C. V. Foster was convicted of manslaughter in the second degree, and brings error. Appellant, C. V. Foster, and his son, Baker Foster, were jointly prosecuted by information and tried in the district court of Jefferson county forthe offense of murder.

Pitchford, Judge. John Boswell was convicted of manslaughter in the first degree, and appeals. It is impossible to give a clear and detailed statement of the testimony in this case. The difficulty in which the homicide was committed took place at a baseball game in Cherokee county.

King, Judge. Goldie Clemmons was convicted of assault with intent to murder, and appeals. The case is clearly and correctly stated in the brief of counsel for appellant, which is as follows: “This is a case in which the appellant was charged in the district court of Muskogee county with the crime of assault with intent to kill by shooting at G. C. Clemmons. The facts, as disclosed by the record, are: That G. C. Clemmons and the husband of this appellant are brothers.

McMillan, Judge. C. M. Litchfield was convicted of manslaughter in the first degree, and brings error. The following is a condensed statement of the material testimony in the case: Dr. E. E. Norvell testified for the state: That he resided at Wynnewood, Okla., and ivas a physician. That on the 19th day of July, 1910, he was called to s'ee the deceased at the sanitarium at Wynnewood.

W. Bird, Judge. William F. Hazelton was convicted of violating the prohibitory law, and his punishment assessed at a fine of $50 and 30 days’ confinement in the county jail, and he appeals.

King, Judge. Harry Hamlin was convicted of maiming, and his punishment assessed at confinement in the county jail for one year and a fine of $500, and he appeals.

<p>1. HOMICIDE — Instructions—Grade or Degree of Offense. In. a prosecution for murder, the court should submit the ease to the jury, for consideration upon every degree of homicide which the evidence in any reasonable view, of it suggests; and, if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, whether it be requested on the part of the defendant or not.</p> <p>2. SAME — Instructions—-Grade or Degree of Offense — “Murder,” “Premeditated Design,” “Excusable Homicide,” “Culpable Negligence,” “Manslaughter in the First Degree,” “Manslaughter in the Second Degree.” See opinion for approved instructions submitting the issue of murder, manslaughter in the first degree, and of manslaughter in the second degree.</p> <p>3. TKIAL — Former Jeopardy — Discharge of Jury. The discharge of a jury in a criminal case without the consent of the defendant because the jurors are unable to agree will not sustain a plea of former jeopardy on a subsequent trial.</p> <p>4. SAME — Deliberation of Jury — Discharge Before Verdict. Section 6867 (Comp. Laws 1909), Procedure Criminal, provides: “Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.”</p> <p>Under the statute, the length of time the jury should be required to deliberate and the probability of an agreement must be determined by the court from the facts and circumstances of the particular case and the court’s discretion will be conclusive, unless it has abused its discretion in that regard.</p> <p>5. HOMICIDE — Evidence—Sufficiency. Evidence held to sustain a conviction of manslaughter in the first degree.</p> <p>(Syllabus by the Court.)</p>

<p>Application of T. C. Bowes for writ of habeas corpus.</p>

Rosser, Judge. Andrew McDaniel and another were convicted of murder, and appeal.

M. Bowles, Judge. Frank B. Rogers was convicted of manslaughter, and appeals. P..M. Butler testified in behalf of the state: That he resided in Kay county, Okla. That he was acquainted with the deceased, Ed Conrad, in his lifetime. Deceased was a good-sized man, and weighed nearly 200 pounds, of medium height, and was in fairly good health.

<p>APPEAL — Sufficiency of Evidence. When a case is fairly tried and properly submitted to the jury by adequate instructions of the court, and the testimony is such that the jury is warranted, under any reasonable conception of the facts, in finding a verdict of guilty, this court will not disturb such verdict on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Jiff or from Superior Court, Logan County; S. S. Lawrence, Judge. </p> <p>Robert Eggleston was convicted of larceny from the person, and he brings error.</p>

<p> Appeal from District Court, Pontotoc County; Robt. M. Rainey, Judge. </p> <p>Bill Nutt was convicted of murder, and appeals.</p>

Appeal, from Custer County Court; J. C. McKnight, Judge. T. C. Bowes was convicted of suppressing evidence, and his punishment assessed at a fine of $250, and he appeals.

<p> Appeal from Kingfisher County Court; John Graham, Judge. </p> <p>E. L. Lundy was convicted of violating the prohibitory law, and appeals.</p>

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

Will Rose was convicted of perjury, and his punishment assessed at 10 years in the state penitentiary, and he appeals. W. R. Collins testified that he was clerk of the district court of Bryan county, Okla.; that in 1909 a prosecution was pending in said court against R. Coleman, who was charged with the crime of perjury, and upon the trial of Coleman appellant appeared and was duly sworn, and testified as a witness in behalf of the defendant.

T. Johnson, Judge. Charles Inklebarger and Frank B rid well were convicted of grand larceny, and appeal.

<p>1. JURY — Challenges — Grounds. Where the state relies in part upon the testimony of an aeeompliee, and a juror on examination testifies that his mind is in sueh a condition that he would disregard the testimony of an aeeompliee regardless of the manner in which it might be corroborated, it is not error for the trial court to sustain a challenge “for cause made by the state to sueh juror.</p> <p>2. WITNESSES — Corroboration—Evidence of Character, (a) Where ' upon a trial a material conflict arises in the testimony of two or more witnesses, of sueh a character as to raise a question of veracity between them, either side has the right to sustain its witness by proof of general good character for veracity.</p> <p>(b) Where the veracity of a witness is in any manner called in question, it may be sustained by proof of his general reputation for truthfulness.</p> <p>3. TRIAL — Reception of Evidence — Reopening Case — Discretion of Court. The matter of reopening the testimony and allowing a witness to be placed upon the stand after the evidence has been closed by both sides is within the discretion of the trial court, and will not be reviewed upon appeal except upon a clear showing of abuse of this discretion.</p> <p>4. TRIAL — Instructions — Credibility of Witnesses. It is reversible error in a close case for the trial court to instruct the jury as follows: "In this connection, gentlemen of the jury, you are instructed that, if you believe from the evidence that any witness has knowingly and willfully testified falsely as to any material fact in the case, you have a right to disregard any and all testimony of such witness except in so far as the same may be corroborated by other credible evidence or by the facts and circumstances proven in the ease” — because this instruction is calculated to create the impression upon the minds of the jury that they are bound to believe the testimony of such witness if they find he has been corroborated.</p> <p>(Syllabus by the Court.)</p>

Hayson, Judge. W. D. Edwards was convicted of violating the prohibitory law, and his punishment assessed at a fine of $500 and six months’ confinement in the county jail, and he appeals.

<p> Appeal from District Court, Muskogee County; John H. King, Judge. </p> <p>Thomas Fritz was convicted of murder, and sentenced to be hanged, from which he appeals.</p> <p>This cause is here for review upon appeal from a judgment of conviction in the district court of Muskogee county, wherein the state of Oklahoma obtained a sentence of death against the plaintiff in error, Thomas Fritz.</p> <p>The plaintiff in error’s brief sets forth what we consider a fair abstract of the testimony as follows:</p> <p>ABSTRACT OR TESTIMONY.</p> <p>For the State.</p> <p>H. T. Ballantine: Practicing physician; visited Walter Watson on the night of September 14th; found him injured and in a semiconscious condition; found two wounds on the skull, a large one about the- center line running diagonally downward, a smaller one a little bit to the right, and a little bit smaller; wounds were on the back of the head, the large one about one and a half inch, and the smaller one about a half inch in length; death was caused by fracture of the skull. In his opinion Watson died from effects of the wounds.</p> <p>Cross-examination: Wounds were not bruised around the cut; the cut was a keen cut as though made with a sharp edge; the cut was not straight,- and was not ragged; wound did not go through the skull, but went through the scalp to the bone; there was no indentation on the skull.</p> <p>Thelma Morgan: Saw the defendant Thomas Fritz two or three weeks ago at Muskogee; was present when Walter Watson got hurt between Fifth and Fourth street on Columbus avenue, in Muskogee, about 10 o’clock at night; saw the defendant there; saw Walter Watson that night on Columbus avenue; was going east on Columbus avenue on the sidewalk; had seen the defendant about 15 minutes before that time on a vacant lot, going north; he was about ten steps in front of me; met Walter Watson coming from the north on Columbus avenue; he came across a vacant lot along the same path by which the defendant had gone north; met Walter Watson on Columbus avenue and talked to him; went together to a vacant lot between Fourth and Fifth street on the south side of the street; there were a number of wire spools on the lot, about as tall as I am; went about 40 feet across the lot; Sadie King was with me; we left her standing on the sidewalk; saw the defendant walk up and throw two stones while Walter Watson and I were lying down; he was on top of me; Watson’s head was on the left side of my shoulder, and my face was facing east, and his face was facing west; his face was on the left side of my face; we were in that position when he was struck; did not see him when he first came up; was about 10 feet away when I first saw him; when I first realized that he was there, he had hit Walter Watson with a stone; threw another stone and hit him again, then he hit me on my left arm; Walter Watson fell over on my right shoulder and groaned; the defendant came up and jerked me out from under Watson; then he searched my stockings and my privates, and said, “I am going to stop you nigger bitches fooling around with white men,” caught hold of my neck, and túrned my head to the south, told fne to get up, and I got up about ten feet from them, and he says, “Don’t you run;” then saw him go into Watson’s left hip pocket and then told me, “You can go, you black bitch;” I went to the sidewalk where Sadie was; there was an electric light in the middle of the alley; did not see the defendant any more that night; did not know that Walter Watson had been hurt until a day or two afterwards; next saw the defendant on a Saturday night.'</p> <p>Cross-examination: My husband’s name is Jeff Morgan; we were both arrested on Saturday evening and locked up; have known Sadie King for about a year or two; knew her at Oklahoma City; was arrested and found guilty in Oklahoma City at the time of raiding a house; I was living with Jeff Morgan in that house; they got him, too; saw Sadie King for the first time in Muskogee that night; met her on the street; we were working that part of town; was just walking the streets; were together when we met Walter Watson; I was walking a little in front; when he passed me I said nothing to him; he and Sadie had some words; I saw Jeff Morgan that evening; he was at the gambling house; when I get a little money, I carry it home to him at night; have been doing this for three or four years; got a dollar from Walter Watson; left Watson a little after 9 o’clock; saw Fritz just a little before we met Watson; Sadie was with me then; the place where Watson and I went was about 40 feet from the electric light; Fritz and Watson met in the vacant lot in the path; that was a different lot from the lot Watson and I went into; Watson spoke to Sadie and said he would like to see me; Sadie called me and said, “He wants to see you, girl ;”I walked back to him and he paid me a dollar; we went up the road in the lot till we got to the wheels; left Sadie on the sidewalk about 40 feet away; she was there when I came back; when the trouble occurred, I screamed very loud and yelled “murder” as loud as 1 could; I yelled several times; was badly scared and kept yelling for help; we were pretty close to the spools; it was a moonlight night; when I first saw the defendant, he was standing west from us; saw him throw one stone; I did not see him pick up the stone; I only know it was a stone by the way he threw; I imagined it was a stone, but don’t know whether it was a stone or not; don’t know whether he threw another; just saw him when he was making the motion; did not see anything come out of his hand; could not tell what he had in his hand; could not see who the man was until after I got up; began to yell “murder” after the first blow; I think there was another blow struck;defendant ran up on me and held me there until he searched me; I could not run because I was scared to death; defendant searched my stockings; he got no money; I left the $1.00 I got from Watson lying there; he told me to get up and stand there, and I saw him go in Watson’s hip pocket and then he told me to go away; defendant had his hat pulled down over his face; I never talked with the defendant in my life; had seen him once or twice maybe; I went back to Sadie and went on down to Fourth street, and told two or three people about it, and then went home; met Jeff Morgan and went home with him; did not say anything to the officers about the matter until Saturday at the jail; when they arrested me they did not tell me what they wanted me for until we got to the jail; I told them I knew’ nothing about it; I told the officers if they would let me go I would find the man; I just walked up and down Sixth street; I found him out on Sixth street; Fritz asked me where I was going and said, “Do you want to make a piece .of money?” and I said, “Yes,” and he followed me up to the alley into a barn, then the officers came up and arrested him.</p> <p>Redirect examination; Fritz as he crossed Columbus avenue going north had on a dark hat and a light pair of trousers.</p> <p>Sadie King: Saw Walter Watson once; heard of his getting hurt when I was arrested; the first time I saw him was on the 15th, Wednesday night; I was on Columbus avenue between Fourth and Sixth with Thelma Morgan, going west on the north side of the street; we met Walter Watson; he was going southeast, coming from the direction of Fourth street; I had not seen Fritz any time that night; AYatson said “Good evening” to me, and said he wanted to see the little girl; she was two or three steps ahead of me; I called her and she turned around and went on with him across the' street south and went down the alley toward the railroad track; I walked up Columbus avenue about 40 yards and stood on the south side of the street, waiting; there was an electric light about 40 yards from the alley; I saw them as they went down the alley until they got out of sight behind some big wooden wheels; I saw a colored man go down the alley; he had on a light pair of pants and a light hat or dark; it was a soft hat; I was about 10 or 15 feet away when I saw him; could not say that the defendant was the man that I saw; he was about the same size, but I paid no particular attention to him; he went down the same path that Thelma and Watson went; I paid no attention to him after he turned off Columbus avenue; the next person I saw was Thelma, who came running out; Watson was not with her; I heard no talk nor any noise of any kind while she was over there with Watson and before she came back to me; ‘they were about 40 yards from me.</p> <p>Cross-examination: I did not know Thelma before I came here; I knew of her; just only spoke to her; saw her in Oklahoma City; I came from Wichita,, Kan., on the day that this thing occurred; my husband, came with me; I hustle when I get pay for it; don’t hustle for a living, but when a man wants to spend a dollar with me, I take it; saw Thelma first that night; the colored man that I saw went in there about five minutes after Thelma and Watson had gone; I did not watch him as he went down the road; if he turned in among the spools, he had to go west; the spools are on the west side of the road; would not say what was the shape of the hat he wore, (but it was a light hat; I could tell it was not a black hat; I don’t remember testifying at the preliminary hearing that he had on a black hat; Thelma was gone over there in the yard about 15 minutes before she came back; I was standing waiting for her; saw no one but that one man; after she came out we went straight on down Fourth street home; I left her standing after we crossed the railroad track; she met her husband there and I went on home; I have never been in jail any length of time until they got me here; they would just take me down and I would pay my fine and get out.</p> <p>H. H. Brown, county jailer: When Fritz was brought to jail, we searched him and found on his person a purse and a watch chain; there were some pawn tickets in the purse; one of the pawn tickets was on T. Miller and the other one on the Toggery; the pocketbook was from the Muskogee National Bank; in the pocketbook was the watch chain and pawn tickets (the pawn tickets were here offered in evidence); I went to T. Miller’s and presented the pawn ticket, and received a watch and the ticket stub (the stub was here introduced in evidence) ; the pocketbook, chain, and watch have been in my possession.</p> <p>Joe Depew, deputy sheriff: Arrested defendant; he told me where he lived, and I searched the house and the room he occupied; I found several pairs of pants and some old coats; I took charge of one pair of pants and a hat, a light hat. (Pants are here introduced in evidence by the state.)</p> <p>T. Miller: Knew Watson; I sold him a watch along about last December, a No. 12 size, 15-jewel, 20-year crown case, open face, gold watch; I gave him a chain with the watch; I heard of Walter Watson getting hurt; I have had business with the defendant, but I could not tell positively; I think it was this defendant brought in a watch, and I made him a loan on it about 5 o’clock on the evening of the Saturday following Watson’s death; it was the same kind of a watch I sold Watson; I gave the watch to PI. PI. Brown, county jailer; he had a ticket calling for the watch; it looks exactly like the watch I sold AVatson; it is the same watch that I got from the colored man; the chain was the chain that I gave Walter Watson at the time I sold him the watch.</p> <p>George W. Gullick: I am a jeweler; work for T. Miller; I knew Walter Watson; he bought a watch from Mr. Miller and got a watch chain; I put a toggle chain on it to hang a $10 gold piece some time after Christmas. (Witness identifies the chain introduced in evidence as the one referred to.)</p> <p>Lee Smith: Saw the defendant at my place on the corner of North Fourth on Thursday after Watson’s death; I heard Wednesday night that this man had been killed, and it was on Thursday that the defendant came to my place; he had a $10 gold piece; he wanted to change it; we did not change it, as I thought there was something wrong about it; I read about Walter Watson being killed in the paper; I can swear absolutely that the defendant came to my place on Thursday, and I had read in the paper of Watson being murdered before that time.</p> <p>Paul Rial, proprietor of the store where Watson worked, testified that the purse and pocketbook in evidence were similar to those carried by Watson ; offered a reward of $250 in the case.</p> <p>John Pascal: Defendant and I roomed together on North Ninth street; did not hear of Walter Watson being hurt on Wednesday night; work in a restaurant, and was there until 9 o’clock that night, then went home; Fritz was not there; went to bed between 9 o’clock and 10 o’clock; Fritz was there in the morning.</p> <p>Cross-examination: Briggs, the owner of the house, went home with me that night; we went in at the door on the back porch; Briggs went to his room and I went to mine; neither of us went to the front of the house.</p> <p>Eva Briggs: Have known the defendant Fritz for about a year; he roomed at my house.</p> <p>It was agreed that .the first paper giving an account of Watson’s murder was not issued before 4 o’clock p. m. Thursday, September loth.</p> <p>For the Defense.</p> <p>Thomas Fritz: I am 25 years old; have lived in Muskogee since October, 1905; I was not on Columbus avenue between Fourth and Sixth streets on the night of September 14th, I have seen Thelma Morgan, but do not know her personally; I don’t know Sadie King; I have seen Walter Watson in his lifetime; I did not hit Walter Watson; I was not in that neighborhood anywhere that night; I was at 412 North Ninth street, at the house of Mrs. J. A. Briggs, where I room; went home about 6:30, had a bad cold, and got Mrs. Briggs to give me some medicine; laid down in the room awhile, then went on the front porch for about a half hour, and got a pillow; then I lay down under the shade of the vines on the front porch until about 9 :30, and from there I got up and went to bed; John Pascal occupied the room with me; he was in bed when I went up at 9 :30; I saw the watch and chain introduced in evidence; I got them from a man that gave me his name as Tom AVilliams, and afterwards I learned it was Jeff Morgan; I have seen him two or three times, but don’t know him personally; he came to me and asked me to let him have $4 on his watch, and that he would redeem it Saturday, and give me $5 .for it; I let him have the money; that was Thursday evening, September 15th; the watch had a chain on it, but no locket; I saw this man about 2 o’clock on Friday after that; he said he was just looking for. me; that he wanted to redeem his watch, and offered me a $10 gold piece; I did not have the change; I owed Prof. Woods a dollar, and he did not have the change, and we went to the First National Bank to have it changed; the first place we tried to get it changed was a place on North Fourth street; I don’t know whether Lee Smith is the proprietor; but Jeff Morgan and I went to the bank; when we got it changed, he asked me if I really needed it that day, and I told him no, I could wait until tomorrow; he said, if he did not pay me Saturday, I could pawn it, and get my money out of it; I pawned the watch at T. Miller’s and got $5 on it; the pocketbooks introduced in evidence belong to me; I got the small one at the Muskogee drug store when I was working there as porter; worked there about 18 months; I got the other one at the old Spaulding College when I cleaned up some rooms; it was among rubbish left in the room by people who had moved out; I was arrested September 17th; I was on my way to town, coming down Sixth street; met this woman Thelma Morgan, and she asked if I wanted to spend some money, and suggested that we go up the alley, and she went down Broadway and turned up sort of a vacant lot where there was an old barn; we got there just a few minutes when the officers came and arrested me; told me I was arrested for disorderly conduct; never was convicted, and was arrested only once for throwing some trash back of the store when I worked for the Muskogee Drug Company; I worked for them six months after that time.</p> <p>Cross-examination: The pants introduced in evidence are mine, and also the hat; I did not wear those pants Wednesday night; I worked in them, and always change clothes when I go home. I worked Wednesday for J. C. McCullough as janitor at the Muskogee Business College, the old Spaulding College. The hole in those pants was not there when I wore them.</p> <p>Earl Bohannon: Was present at the preliminary hearing, and heard Thelma Morgan swear that the hat the man had on who made the assault on Watson was a black hat.</p> <p>Rebuttal.</p> <p>Eva Briggs: On the Wednesday evening when Watson was supposed to have been hurt I was at home; the defendant was there; he came home about 7; there is a front porch on my house with vines over it; I left the house about half past 7 and got back about half past 9; did not see the defendant on the front porch; he was in his room about 7 o’clock and I gave him some medicine, and a little while afterward I went to church; did not see him after that time.</p> <p>Jeff Morgan: I do not know Tom Fritz; never gave Tom Fritz a watch and chain to be pawned; never told him my name was Tom Williams; never saw the watch and chain in my life; never went with Tom Fritz to the First National Bank to get change for a $10 gold piece; never gave him a $10 gold piece to get changed.</p> <p>Charles A. Cook: Was a clerk for the Muskogee Drug Company in 1909 when the defendant worked there; I do not remember any occasion when the defendant found a pocketbook in a show case; I don’t remember his ever calling my attention to it.</p> <p>B. A. Randel, teller at First National Bank: Do not have any recollection of two colored men coming to the bank and getting change for a ten dollar gold piece flattened on one edge; if the gold piece had been cleaned off and had no peculiar mark on it, it might have been passed, and I might have changed it without noticing it; I am testifying only because I understand this gold piece had some peculiar mark on it.</p> <p>C. R. Mills, bank teller in First National Bank: I do not know Tom Fritz or Jeff Morgan. I have no recollection of their coming to my window to get a' ten dollar gold piece changed; I took no $10 gold piece that had any unusual mark on the edge of it; if the gold piece had no special mark on it, this negro or somebody else might have brought the $10 gold piece, and got it changed, and I might have changed such a gold piece. All I am testifying to is that, if the $10 gold piece had been handed to me with an unusual mark on it, I would probably have known it.</p> <p>N. F. Hancock: Was one of the proprietors of the Muskogee Drug Company in 1909, when the defendant worked there; I do not recollect having a pocketbook like the one in evidence in stock, but my partner, Mr. McDaurin, did the buying; I would not say positively that we did not have such a book in stock, but it is my opinion that we did not.</p>

John Ostendorf was convicted of violating the liquor law, and he appeals. On the 5th day of February, 1913, judgment was rendered in the county court of Garfield county against appellant for a violation of the prohibitory law of Oklahoma, and his punishment was assessed at a fine of $350 and 150 days’ confinment in the county jail at hard labor.

<p>APPEAL — Failure to File Briefs — Affirmance. Where a brief is not filed by the appellant as required by the rules of the court, the appeal will be treated as abandoned, and the judgment of the trial court will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — Fugitives from Justice — Dismissal. Where an appellant has prosecuted an appeal to this court, and before it is determined the appellant becomes a fugitive from justice and flees beyond the bounds of the state and the jurisdiction of this court, such flight amounts to an abandonment of the appeal, and the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Charles D. Roberts was convicted of an assault, and appeals. Judgment was pronounced in the district court of Pottawatomie county against appellant for' an assault and battery with a deadly weapon, and his punishment was assessed at five years’ confinement in the penitentiary.

<p>Petition of J. R. Harris for writ of habeas corpus.</p>

<p>APPEAL — Review—Affirmance. When, upon appeal, it appears from the record that the offense charged against appellant was committed by him, and no error is disclosed depriving him of a substantial right during or prior to the trial, a judgment of conviction will not be reversed.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Review—Circumstantial Evidence. When a conviction for a violation of the prohibitory law is based upon circumstantial evidence, and the proof in the record is sufficient to exclude every other reasonable hypothesis except that of guilt, a verdict of .conviction should be returned by the jury, and such conviction will not be, and never has been, reversed by this court.</p> <p>2. INTOXICATING- LIQUORS — Unlawful Possession — Evidence. Proof of the ownership of a place of business to which large quantities of intoxicating liquors have been delivered and received by the owners, that intoxicating drinks have been sold in the place, and that persons have been seen intoxicated and drinking spirituous liquors therein is sufficient, when coupled with proof of the possession of quantities of like intoxicatng liquors, to warrant a conviction.</p> <p>3.' SAME — Circumstantial Evidence Rule. The approved rule as to the sufficiency of circumstantial evidence to sustain a conviction for violating the prohibitory law is the same as for any other misdemeanor, and is the rule that has been .uniformly followed by this court since its creation.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from District Court, Kiowa County; " Jas. R. Tolbert, Judge.,</p> <p>Frank Frisbee was indicted for homicide, and, having been acquitted, the State appeals.</p>

<p> Appeal from Kay County Court; Claude Duval, Judge. </p> <p>R. M. Herman was convicted of violation of the prohibitory-law, and brings error.</p>

<p> Appeal from District Court, Mayes County; T. L. Brown, Judge. </p> <p>Buck Nelson was convicted of robbery, and brings error.</p>

<p>1. APPEAL — Record—Index. It is the duty of counsel, when they, take an appeal, to incorporate in the transcript of the record an accurate index of its contents, so that this court can readily find that portion of the record which it is claimed presents an error.</p> <p>2. INTOXICATING- LIQUORS — Unlawful Possession — Sufficiency of Evidence. Por circumstances sustaining the verdict of a jury in finding the defendant guilty of having in his possession intoxicating liquors with intent to violate the prohibitory -liquor law, see opnion. •</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Willie Tucker was convicted of larceny, and appeals.</p>

<p>1. LARCENY — Taking Possession of Property. Under the Statutes of Oklahoma a person who takes personal property unlawfully, feloniously, and with intent to deprive another thereof, is guilty of larceny; and it is immaterial whether the property is taken from the owner or another.</p> <p>2. INDICTMENT AND INFORMATION — -Surplusage. An allegation in an information charging a misdemeanor which is not essential to the validity of the information nor a necessary ingredient of the offense is surplusage; and it is not material whether the proof upon the trial of the case supports, conflicts with, or refers to, such clause or allegation.</p> <p>3. LARCENY — Evidence—Sufficiency. For facts under which a conviction should have resulted, and under which it is held error for a trial court to advise an acquittal, see opinion.</p> <p>(Syllabus by the Court.)</p>

Tolbert, Judge. Alex Bates was jointly indicted with B. F. Noah for cow stealing. A severance was granted, and from a conviction defendant Bates appeals.

<p>NEW TRIAL — -Argument of Counsel. Section 6833, Criminal Procedure (Comp. Laws 1909), provides that “the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him, nor be mentioned on the trial, if commented upon by counsel it shall be ground for a new trial.” Held, that this provision is mandatory, and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant, where the prosecuting attorney in his argument violates the terms of the statute.</p> <p>(Syllabus by the Court.)</p>

<p>1. LARCENV- — Evidence—Sufficiency. In a prosecution for larceny of live stock, tbe evidence is held sufficient to support the verdict, and that no reversible error was committed on the trial.</p> <p>2. INDICTMENT AND INFORMATION — Variance — Preliminary Examination. When it appears that the charge in the preliminary complaint is substantially the same as that set forth in the information filed by the county attorney in the district court, a plea of a want of a preliminary examination, or a variance between the preliminary complaint and the information, is unavailing.</p> <p>3. TRIAL — Verdict—Sufficiency. Where the information charged larceny of live stock, and the jury were limited to consideration of such crime, and the verdict found defendant guilty “of grand larceny as-charged in the information,” the words “grand larceny” were not binding on the court, and the defendant -was found guilty as charged.</p> <p>(Syllabus by the Court.)</p>

Tolbert, Judge. Appellant was jointly prosecuted in the district court of Blaine county with Alex Bates for cow-stealing. On motion of the state a severance was granted by the trial court and Bates was tried first. Appellant was duly found guilty by the jury and his punishment was assessed at one year and six months’ confinement in the county jail. Appealed.

<p>1. APPEAL — Prejudicial Error. When upon appeal the record discloses facts sufficient to sustain a conviction or from which an acquittal could reasonably have resulted, it is essential that the record of the trial court be free from prejudicial errors of law.</p> <p>2. HOMICIDE — Instructions—Self-Defense. An instruction which, logically construed, deprives the accused of the right of self-defense unless the' danger which he contends he was defending against was real and actual and that it ’so appeared to the accused at the time, is erroneous.</p> <p>3. APPEAL — Harmless Error. The doctrine of harmless error, so frequently invoiced by this court in its endeavor to aid in the enforcement of all the criminal laws .of the state, cannot be applied when the record discloses erroneous instructions reasonably calculated to prejudice the rights of the accused when viewed in the light of the facts deducible from the evidence submitted at the trial.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Muskogee County; R. C. Allen, Judge. </p> <p>John C. Clemons was convicted of assault with a deadly weapon, and brings error.</p>

<p>1. HOMICIDE — Evidence—Admissibility. In the trial of a person charged with murder, when tho question of who was the aggressor in the fatal difficulty becomes material to the issues, the state of mind of the deceased at the time of the homicide and immediately prior thereto with reference to the accused may become material, and, when it does, testimony tending to establish a hostile state of mind and mental attitude on the part of the deceased toward the accused should be admitted.</p> <p>2. SAME — Instructions—Self-Defense, (a) When, in the trial of a person charged with murder, it becomes necessary for the trial court to instruct .the jury on the doctrine of seeking or provoking the difficulty, and the proof discloses that the accused did any act or thing which he had a right to do, which could be reasonably construed by the jury to come within the general terms of the court’s charge, it is necessary for the court to tell . the jury what acts under the law would be justifiable, and discriminate as to acts unlawful and which would deprive him of the right of self-defense, leaving to the jury to determine whether or not, under the facts and the law, the acts were lawful or otherwise. When this is not done and instructions are given which, reasonably construed, deprived the accused of the right of self-defense, if he by any willful act of his own, lawful or unlawful, brought on the difficulty, a conviction cannot be upheld by this court.</p> <p>(b) Under the facts disclosed by the record in this ease, the court should have told the jury the nature or quality of the provocative act or acts upon the part of the accused which would operate to limit or destroy the right of self-defense.</p> <p>3. SAME — Evidence—Admissibility. In the trial of a person charged with murder, it is error for the trial court to admit evidence tending to establish the fact that the person at whose house the homicide occurred did not request the accused to do certain acts which he had a right to do whether in his own home or in the home of another.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Advisory Opinion to Governor. An advisory opinion to the Governor as to the regularity of the record in a ease in which the defendant has been sentenced to death should not be given’ when the time for taking an appeal has not expired, and when the defendant has not waived his right to an appeal.</p> <p>(Syllabus by the CouTt.)</p>

C. Allen, Judge. Jesse McIntosh was convicted of murder, and his punishment assessed at imprisonment in the penitentiary for life, and he appeals.

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

<p>Appeal from Okmulgee County Court; George A. Johns„ Judge.</p> <p>Wade Foreman was convicted of violating the prohibitory law, and appeals.</p>

Bill McRae and Bob Powell were jointly prosecuted for having possession of intoxicating liquors for the purpose of unlawfully disposing of them. Powell was convicted and sentenced to pay a fine of $500 and be confined six months in the county jail, while McRae was found guilty and punishment assessed, at a fine of $50 and 60 days’ confinement in the county jail, and he appeals.

Hayson, Judge. T. C. Hargrove was convicted of selling intoxicating liquors, and his punishment assessed at confinement in the county jail for 90 days and a fine of $300, and he appeals.

<p> Appeal from Rogers County Court; H. Tom Right, Judge. </p> <p>Otto McSpadden was convicted of unlawfully selling intoxicating liquors, and his punishment was assessed at a fine of $500 and six months’ imprisonment, and he appeals.</p>

<p>1. PHYSICIAN'S AND SURGEONS — Practicing Without Authority —Failure to Record License. A person who has been regularly licensed to practice medicine in this state, and who has failed to record the certificate issued to him by the board having jurisdiction to issue licenses under the laws of this state in the county in which he resides and maintains a place of business, can not be convicted under section 4256, Comp. Laws 1909, for practicing medicine without a license, but is subject to prosecution under section 4252, Id., for failure to record his license in said county.</p> <p>2. SAME — Criminal Prosecution — Evidence. A certificate to practice medicine in this state issued by the state board having jurisdiction to issue same, properly authenticated and under the seal of said board, is entitled to be received in evidence when ■ tendered on behalf of a person who is on trial charged with practicing medicine without authority, and such certificate when bona fide is a complete defense to a prosecution based on section 4256, Gomp. Laws 1909.</p> <p>(Syllabus by the Court.)</p>

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

<p> Appeal from Okmulgee County Court; Geo. A. Jones, Judge. </p> <p>Charles Warner was convicted of violating' the prohibitory law, and he appeals.</p>

<p>1. TRIAL — Instructions—Burden of Proof. When a trial court instructs a jury that it is necessary for them to find from the facts, beyond a reasonable doubt, that the person on trial for having the unlawful possession of intoxicating liquor with intent to sell the same had such liquor for his own use, and a conviction results, such conviction cannot be sustained on appeal.</p> <p>2. NEW TRIAL — Grounds—Erroneous Instructions. When, by oversight or otherwise, a trial court gives an instruction which requires the jury to find that the accused is innocent beyond a reasonable doubt, and a conviction results, he should set aside such conviction and grant a new trial according to law. There is no rule of law that requires a jury to find an accused innocent beyond a reasonable doubt, but, on the contrary, the universal rule is that his guilt must be found beyond a reasonable doubt; and an acquittal should follow, unless the facts satisfy the jury, beyond a reasonable doubt, of the guilt' of the accused on trial for the offense charged.</p> <p>(Syllabus by the Court.)</p>

<p>INTOXICATING LIQUORS — Statutory Provisions — Constitutionality. A conviction based upon section 4, c. 70, Sess. Laws 1910-11, cannot be sustained under the doctrine laid down in Ex parte Wilson, 6 Okla. Or. 451, 119 Pae. 596.</p>

<p>INTOXICATING- LIQUORS — Unlawful Possession — Information—“Intent.” When a person is to be prosecuted on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, the information should specifically so charge; but this court has held that an information which charges an intent to violate the prohibitory law is sufficient. However, because such infor-mations have been sustained it does not mean that they are approved by this court as models.</p> <p>(Syllabus by the Court.)</p>

Error from Coal County Court; R. H. Wells, Judge. Mose Hunter was indicted for a violation of the prohibitory law, and from an order of the county court, setting aside the indictment, the state brings error.

C. Allen, Assigned fudge. Robert Davis was convicted of cattle theft, and he appeals.

<p> Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Pat Ellis was convicted of manslaughter in the second degree, and appeals.</p>

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

T. Glenn, Judge. Ed Houghton was convicted of violating the prohibitory law, and his punishment assessed at a fine of $50 and 30 days’ .confinement in the county jail, and he appeals.

<p> Appeal from Choctaw County Court; W. T. Glenn, Judge. </p> <p>W. B. Fulmer was convicted of violating the prohibitory law, and appeals.</p>

<p>1. EVIDENCE — “Accomplice.” The term “accomplice,” as used in section 6836, Comp. Laws 1909, providing that no person shall be convicted of a crime on the testimony of an accomplice without corroboration, is construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime.</p> <p>2. SAME — Testimony of “Accomplices” — Corroboration. A participant in a game of poker or other prohibited games played for money, cheeks, credit, or any representative of value is an accomplice of his adversary, within the meaning of the statute which requires the testimony of an accomplice to be corroborated.</p> <p>3. SAME — Sufficiency-of Evidence. In this cause, it is held that the testimony of the accomplice was sufficiently corroborated by the other evidence to justify the verdict.</p> <p>(Syllabus by the Court.)</p>

<p>INDICTMENT AND INFORMATION — Defects—Objections to Evidence. When the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Oklahoma County Court; John W. Hayson, Judge. </p> <p>Cal Proctor was convicted of wrongfully transporting beer, and appeals.</p>

<p>1. COURTS — Jurisdiction—Indictment and Information — Duplicity. The jurisdiction of a district court over a felonious assault is not defeated because the information charging the offense may be duplicitous, nor on the theory that county courts, under Const, art. 7, see. 12, have exclusive jurisdiction of an offense, the commission of which is necessarily included in that charged in the information.</p> <p>2. APPEAL — Parole—Dismissal. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and when the attention of the court shall be called judicially to the fact that a parole has been granted and accepted, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Superior Court, Oklahoma County; B. D. Oldfield, Judge. </p> <p>Agnes Gilbert was convicted of- manslaughter in the secon& degree, and she appeals.</p>

<p>1. INTOXICATING- LIQUORS — Injunction—Contempt—Proceedings to Punish — Constitutional and Statutory Provisions. The pro- ' vision of the prohibition enforcement act (section 13, c. 70, Sess. Laws 1910-11) that “all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances,” and that “the Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and -no bond shall be required. Any person violating the terms of any injunction granted in such proceeding shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment” — is a constitutional exercise of legislative authority under section 25 of the Bill of Rights (33 Williams), providing “the Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt,” and is not in conflict with the constitutional provision, “the county court shall have jurisdiction concurrent with justices of the peace in misdemeanor eases, and exclusive jurisdiction in all misdemeanor cases of which the justices of the peace have not jurisdiction.” Article 7, see. 12 (197 Williams).</p> <p>2. SAME — Injunction—Proceedings to Punish Contempt — Constitutional Guaranties. It is a criminal contempt to violate or disobey, out of the presence of the court or judge sitting as such, any order of injunction or restraint made or rendered by any court, under this provision of the prohibition enforcement act. The court, not having any personal knowledge of the facts, cannot proceed, except by an accusation in writing under oath, specifically charging the facts constituting the violation.’ By the filing of this affidavit and the issuance of attachment or rule to show cause, a criminal action is commenced, and the accused is entitled to' all the constitutional guaranties in criminal prosecutions secured by the Bill of Rights. Article 2, see. 20 (28 Williams’ Const.).</p> <p>3. JURY — Right to Trial by Jury — Proceedings for Contempt. On the trial of persons charged with contempt in violating or disobeying the terms of an injunction granted under the provisions of the prohibition enforcement act (section 14, e. 70, Sess. Laws 1910-11), the constitutional right of the accused to a trial by jury is secured by the proviso to section 25, of the Bill of Rights (Const, art. 2, sec. 25), providing: "That any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such,, any order of injunction, or restraint, made or rendered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused."</p> <p>4. CONTEMPT — Proceedings to Punish — Nature and Form — "Criminal Contempt." Contempts which are prosecuted to preserve the power and vindicate the dignity of the court, and punish the offender, are criminal contempts, and the proceedings for punishment should conform as nearly as possible to proceedings in criminal cases.</p> <p>(Syllabus by the Court.)</p>

McMillan, Judge. S. L. Burns was convicted of assault with intent to kill, and his punishment assessed at confinement in the penitentiary for five years, and he appeals. L. H. Mayes testified for the state: That prior to March, 1910, he had resided with his wife, Fannie Mayes, at Hennepin, Garvin county, Okla. That they had two children, aged six and eight years, respectively, both of whom were girls.

<p>PARTIES — Death—Abatement of Cause. Where it is made to appear ■to the court that an appellant has died pending an appeal, the cause will be abated.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTINUANCE — Grounds—Necessary Allegations, (a) An application for a continuance is addressed to the sound discretion of the trial court, and a conviction will not be reversed upon the ground that the continuance should have been granted, unless it clearly appears from the record that the court abused its discretion in this respect.</p> <p>(b) A defendant is not entitled to a continuance, as a matter of right, to secure cumulative testimony. If special reasons exist why a continuance should be granted to obtain this class of evidence, these reasons must clearly be set out in the application for a continuance.</p> <p>(e) Por an application for a continuance, which was insufficient, on account of the absence of witnesses and the sickness of one of the counsel for appellant, see opinion.</p> <p>2. JURY — Disqualification—Opinion. (a) Before a juror is disqualified on account of an opinion, it must appear that the opinion is fixed and is such as will combat the evidence and resist its force. A mere impression as to the guilt or innocence of a de- , fendant, where it appears to the court that a juror can and will !' disregard such impression and be governed entirely in arriving at a verdict by the testimony of the witnesses and the instructions of the court, will not disqualify such juror.</p> <p>(b) Where there is nothing in the record to show that an incompetent, disqualified, or otherwise objectionable juror was forced, .upon the defendant, this court will not consider an assignment of error based upon the ruling of the trial court on a challenge for cause.</p> <p>3. INDICTMENT AND INFORMATION — Homicide—Murder—Conviction of Manslaughter, (a) Where an indictment or informa- • tion charges that a murder was committed with a premeditated design to effect the death of the person killed, or of some other person, a conviction can be had for manslaughter in the second degree.</p> <p>(b) The various classifications made in our statutes’ on the subject of felonious homicide were never intended to, and do not, establish so many different rules of pleading. Their purpose is to mitigate the hardships of the common law and to furnish rules to guide the trial judge in the admission of evidence and in his instructions to the jury.</p> <p>4. APPEAL — Conviction of Lesser Offense, (a) When a defendant is on trial for murder, and the jury, under proper instructions, find him guilty of manslaughter in the second degree, this court will not grant a new trial upon the ground that the defendant should have been either eonvieted of murder or manslaughter in the first degree or acquitted.</p> <p>(b) The jury have the absolute right to fix the degree of a crime of which a defendant is eonvieted when the court submits to them the different degrees, and this court will not disturb their verdict upon the ground that they have found the defendant guilty of a less degree of offense than that which the evidence establishes.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Hughes County; John Caruthers, Judge. </p> <p>Delia Johns was convicted of manslaughter,' and appeals.</p>

L. Brown, Judge. Frank Lewis Vian was convicted of robbery, and his punishment assessed at five years’ confinement in the penitentiary, and he appeals.

<p> Appeal from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Jack Wainscott was convicted of larceny, and brings error.</p>

<p> Error from District Court, Tillman County; J. T. Johnson, Judge. </p> <p>Dearl Green was convicted of felonious assault, and brings error.</p>

<p> Appeal from Oklahoma County Court; John W. Hayson, Judge. </p> <p>Austin R. Gourley was convicted of violating the penal provision of the Road Law, and he appeals.</p>

Cullison, Jiidge. Peter F. Duerksen was tried in the district court of Major county on., a charge of embezzlement, and was acquitted by the jury on advice of the trial court.

Application by R. A. Metcalf for a writ of habeas corpus. The nature of the question involved requires a full statement ■of the case, for there are few, if any, more important matters than the suppression of perjury in the courts of this state.

T. West, Judge. Ed Ryan was convicted of manslaughter in the first degree, and his punishment was assessed at confinement in the penitentiary for eight years, and he appeals. Appellant, Ed Ryan, and the deceased, George Smith, were neighbors engaged in the occupation of mining, and lived in the vicinity of Coalgate, in Coal county, Okla.

Bates B. Burnett and Birch C. Burnett were convicted of •criminal contempt, and bring error. On the 7th day of October, 1912, an action was commenced in the district court of Creek county entitled “The State of Oklahoma, on relation of Chas.

<p> Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>E. H. Brunson and George White were adjudged guilty of contempt, and appeal.</p>

Error from District Court,. Muskogee County; R. C. Allen, Judge. Pat Robinson was convicted of conjoint robbery, and brings error. The plaintiff in error, Pat Robinson, hereinafter referred to as the defendant, was by information, charged with the crime of conjoint robbery, committed upon Roland Wallace in Muskogee county on the 24th day of November, 1910. The information was filed in the district court of Muskogee'county, on the 24th day of April, 1911.

H. Huston, Judge. Willie Matthews and another were convicted of grand larceny and their punishment assessed at confinement in the penitentiary for five years, and defendant Willie Matthews appeals.

H. G. Hildebrandt was convicted of violation of the prohibitory liquor law, and his punishment assessed at a fine of $400 and confinement in the county jail for 120 days, and he appeals.

<p>Appeal from District Court, Pushmataha County; Malcolm B. Rosser, Judge.</p> <p>Lyman Billy was convicted of manslaughter, and brings error.</p>

<p>Motion for rehearing.</p>

<p>1. APPEAL — Refusal of Continuance. An application for continuance in a criminal case is addressed to tbe discretion of the trial court; and its action thereon will not be disturbed, unless there appears to have been a clear abuse of discretion.</p> <p>2. TRIAL — Furnishing Lists of Witnesses — Default—Failure to Ob- ‘ ject. Section 20 of the Bill of Rights provides: “In all crimina» prosecutions the accused shall ■ have the right * * * to be heard by himself and counsel, and in capital cases, at least two days before t.he ease is called for trial, he shall be furnished with a list of witnesses that will be called in chief to prove the allegations of the indictment or information, together with their post office addresses. ’ ’ Held, that' it would be error to allow witnesses to testify against him in chief whose names have not been so furnished, if he seasonably asserts his constitutional right. But if he fails to object to going to trial on this ground, but announces ready for trial, he cannot afterwards avail himself of this objection; and the constitutional right given him by this section will be waived.</p> <p>3. HOMICIDE — “Dying Declarations.” Proof that decedent was shot in the afternoon and died the next day about midday, that his wounds were necessarily fatal, and that he stated to persons present, immediately after he was shot, that he was dying, and that he expressed no hope of recovery, sufficiently shows that decedent appreciated the certainty and imminence of his impending death, and is, in itself, a sufficient predicate for the admission of his statements of the circumstances of the homicide as “dying declarations.”</p> <p>4: SAME — Admissibility. Where decedent, mortally wounded and without hope of recovery, under the solemn conviction of impending death, mates several statements of material facts concerning the cause and circumstances of the homicide, one of which statements was reduced to writing, the prosecution is not confined to the written statement, but may offer evidence of other statements, whether the several statements were similar or not. Should any of said statements be inconsistent or contradictory, it is open to the defense to show this fact.</p> <p>5. HOMICIDE — Confronting Witnesses — Dying Declarations. The constitutional provision (Bill of Bights, sec. 20) that in all criminal prosecutions the accused shall “be confronted with the witnesses against him” refers to living witnesses, and not to dying declarations.</p> <p>6. TRIAL — Exclusion of Evidence — Harmless Error. The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.</p> <p>(Syllabus by the Court.)</p>

<p>STATES — Powers of Territories — Laws Defining and Punishing Murder and Manslaughter. Oklahoma Territory had the authority and power to enact laws defining the crimes of murder and manslaughter, and to prescribe punishment' therefor.</p> <p>(Syllabus by the Court.)</p>

<p>1. ESCAPE — Imprisonment in County Jail — Misdemeanor. Under section 7073, Code of Criminal Procedure, it is merely a misdemeanor for a person imprisoned, pursuant to a sentence of imprisonment in the county jail, to break jail and escape.</p> <p>2. ESCAPE — Breaking Jail — Punishment. Section 2161 of the Penal Code, and section 7073, Code of Criminal Procedure, are not repugnant.</p> <p>(Syllabus.by the Court.)</p>

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

<p>Appeal from Ottawa County Court; W. T. Quigley, Judge.</p> <p>John Nidiffer was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Johnston County Court; Nick Wolfe, Judge.</p> <p>John Roan was convicted of violating the prohibitory law, and' appeals:</p>

<p>Appeal from Ottawa County Court; W. Y. Quigley, Judge.</p> <p>Theodore E. Kelley was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p>

<p>Appeal from Custer County Court; E. P. Phillips, Special Judge.</p> <p>Mrs. J. M. Eossett was convicted of a violation of the prohibition law and appeals.</p>

<p>Appeal from Osage County Court; C. T. Bennett, Judge.</p> <p>W. T. Crabtree was convicted of violating the prohibitory law, and appeals.</p>

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

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

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

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

<p>Appeal from District Court, Love County; S. II. Russell, Judge.</p> <p>Press Roberts and Martin Cavins were convicted of aggravated assault, and appeal.</p>

<p>Appeal from District Court, Bryan County; Summers Hardy, Judge.</p> <p>W. J. Moon was convicted of adultery and appeals.</p>

<p>Appeal from Caddo County Court; C. Eoss Hume, Judge.</p> <p>Otto Dishon was convicted of violating the prohibitory law, and-appeals.</p>

<p>Original application for writ of habeas corpus.</p>

<p>Appeal from Pottawatomie County Court; Eoss F. Loekridge, Judge.</p> <p>Eufus Lilliard was convicted of disturbing religious worship, and .appeals.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p>

<p>Appeal from Pottawatomie County Court; Boss P. Loekridge, Judge.</p> <p>Gus Barbee was convicted of conducting a gambling game, and appeals.</p>

<p>Appeal from District Court, Latimer County; W. H. Brown, Assigned Judge. ■</p> <p>Bud Heart was convicted of grand larceny, and appeals.</p>

<p>Appeal from Garvin County Court; W. B. M. Mitchell, Judge.</p>

<p>Appeal from Ellis County Court; A. L. Squire, Judge.</p>

<p>Appeal from Major County Court; E. W. Madison, Judge.</p>

<p>Appeal from Washington County Court; James T. Shipman, Judge.</p>

<p>Appeal from Osage County Court; C. T. Bennett, Judge.</p>

<p>Appeal from Garter County Court; W. P. Winfrey, Judge.</p>

<p>Appeal from Marshall County Court; J. W. Falkner, Judge.</p>

<p>Appeal from Sequoyah County Court; W. N. Littlejohn, Judge.</p>

<p>Appeal from Canadian County Court; W.’ A. Maurer, Judge.</p> <p>W. B. Stafford and Pred Mittnacht were convicted of a violation of the prohibition law, and appeal.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p>

<p>Appeal from Superior Court, Grady Oounty; Will Linn, Judge.</p>

<p>Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.</p>

<p>Appeal from Ouster County Court; J. C. McKnight, Judge.</p>

<p>Appeal from Bryan County Court; J. L. Bappolee, Judge.</p>

<p>Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.</p>

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

<p>Appeals from Coal County Court; R. H. Wells, Judge.</p>

<p>Appeal from Pottawatomie County Court; Boss P. Loekridge, Judge.</p> <p>O. J. Truesdell was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Washita County Court; L. E. Siean, Judge.</p> <p>Otto Bauer was convicted of violating the prohibitory law, and appeals.</p>

<p>Appeal from Canadian County Court; W. A. Maurer, Judge.</p> <p>James Herbert was convicted of violating tie prohibitory law, and appeals.</p>

<p>Appeal from Stephens County Court; W. H. Admire, Judge.</p> <p>Theodore Gates was convicted of violating the prohibitory law, and appeals.</p>

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

<p>Appeal from Stephens County Court; W. H. Admire, Judge.</p> <p>Bill Green was convicted of a violation of the prohibitory law, and appeals.</p>

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

<p>Appeal from Okfuskee County Court; W. A. Huser, Judge.</p> <p>J. D. Welch, Jr., was convicted of a violation of the prohibition law, and appeals.</p>

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

C. Allen, Judge. Appellant was convicted in the district court of Wagoner county of the offense of grand larceny, and his punishment was assessed at fiye years confinement in the penitentiary, and appeals.

<p>Appeal from Garfield County Court; Winfield Scott, Judge.</p> <p>Sam Hogan and Walt Cook were convicted of selling intoxicating liquor, and appeal.</p>

<p>Appeal from Oklahoma County Court; John W. Hayson, Judge.</p> <p>A Wietelman was convicted of unlawfully selling beer, and appeals.</p>

<p>Application for write of habeas corpus.</p>