Volume 9 — Oklahoma Reports

<p>1. Criminal Law — Carrying Weapons— Valid Statute. The provisions' of art. 45, ch. 25, Statutes 1893, in reference to carrying weapons, are not in conflict with any constitutional provision or Organic Law, and are, therefore, valid and may be enforced against all persons violating their inhibitions.</p> <p>2. Trial — Evidence—Material Error. It is material error to admit evidence of other misconduct of the defendant over his objection, which is not pertinent to any issue, and which is calculated to inflame the minds of the jury against the defendant.</p> <p>8. Same — Immaterial Evidence — Prejudice—Error. Over the defendant's objections the Territory was permitted to prove that the prosecuting witness was a tenant on the defendant's farm and resid-Ins in defendant’s house; that on ithe day of the alleged offense the defendant procured several men and went with them to th's house and over the objection of the witness, and while his family were in the house, tore it down, and hauled it away without hav ng ever brought any suit for possession; thus leaving witness and his family without any shelter. 3el4, Error, as the facts mentioned were not material to any issue in the case, and were calculated to prejudice the minds of the jury against the defendant.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Nolle County; lefore B. T. Hainer, District Judge. </p>

Errof from the District Court of Kay County; before A. G. C. Bierer, District Judge. STATEMENT OP THE CASE. Held: as follows: Wade . $1,119'.55 Aetna National Rank. 1,934.54 Aetna National Bank. 1,000.00 Fifth note . 3,577.92 — $ 7,632.01 Ba/rth note in the sum of 2,639.18 Total, without interest. $10,261.19 '“With reference to the Fish & Keck company’s account of sales of cattle: August 14, 303 head. $ 4,582.70 August 31, 59 head. 1,100.75…

Error from the District Court of Payne County; lefore Jno. H. Burford, District J.udge. Action by the leader Printing company against Robert A. Lowry.and others. Judgment for defendants, and plaintiff brings error.

Error from the District Court of Woods County; oefore Jno. L. McAtee, District Judge. Roy Parker was convicted of rape, and brings error. STATEMENT OF THE CASE. This case originated in the district court in and for Woods connty at the May term, 1897.

Frorr from the District Court of Woodward County; before Frank Dale, District Judge. Action by the Atchison, Topeka & Santa Fe Railroad company against E. S. Wiggins, county treasurer, and others. Judgment for plaintiff, and defendants' bring error.

<p>Chattel Mortgage — Lien Under — Discharged hy Attao7imentfWhen. Where a creditor brings suit against his debtor and sues out a writ of attachment, but before levying the same learns that the debtor’s property is covered by a chattel mortgage, and upon receiving such information, buys the chattel mortgage debt and has the mortgage assigned to himself, and thereafter causes said property to be seized under such attachment, he thereby waives his lien under the chattel mortgage; and, in case the attachment is discharged, either by the court on the trial, or by appealing from the judgment of the trial court and executing an appeal bond, the creditor cannot maintain an action in replevin to secure the possession of the mortgaged property, so that he may foreclose his mortgage, for the reason that the mortgage lien is waived by the attachment of the property covered thereby.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Pawnee Countyj before Bayard T. Hainer, District Judge.</p>

Original Proceeding in Mandamus. STATEMENT OP THE CASE. This is an original proceeding in mmdamus commenced in this court on May 22, 1899, by the Territory of Oklahoma on the relation of Edgar Jones, county attorney of Logan county, against S. N. Hopkins, as territorial auditor of the Territory of Oklahoma, to compel said auditor to register $80,000 of Logan county refunding bonds, issued by the board of county commissioners' on May 9, 1899.

Error from the District Court of Kay County; On Petition for Rehearing. STATEMENT OE THE CASE. This suit was brought to recover the title to certain lands in Kay county, including the southeast quarter, the southwest quarter, and the northwest quarter of section 27, township 26, range 2, the southeast quarter having originally been, before this controversy began, the property of C. TV.

<p> Appeal from the District Court of Grant County; before Jno. L. McAtee, District Judge. </p>

Error from the District Oourt of Logan County/ before Frank Dale, District Judge. STATEMENT OF THE CASE.

B. Green, District Judge. Action by Yeeder B. Paine against John Foster and others, trustees of townsite board No. 6. From a decree for defendants, plaintiff brings error!

<p>On petition for rehearing. Former opinion of Feb. 13, 1896, by Burford, J., adopted as modified.</p>

Error from the District Court of Oklahoma County; before Javies R. Keaton, District Judge. STATEMENT OP THE CASE. On June 3, 1894, one Evans was the owner of two parcels of land- which’ for the convenience of this opinion, will be described as lots 1 and 3, located in the southwest quarter of section 3, township 11, range 3, west, in Oklahoma County and1 which lay between the North Canadian river and the west line of the said quarter ■section.

Error from, the District Court of Kingfisher . County; before John C. Tarsney, District Judge. STATEMENT OP THE CASE. Tills was an action brought by McGowan, defendant in error, in the district court of Kingfisher county, for the purpose of having a deed from Thomas H. Jenks to hia wife, Agnes D. Jenks, set aside, and to-have McGowan declared the- owner of the land in controversy. The defendants are non-residents.

Error from the District Court of Payne County; before Jno. E. Burford, District Judge. STATEMENT OF THE CASE. This is an indictment found by the grand jury of Payne county in November, 1895, charging the defendant, Henry Harmon, with an assault upon one Daisy Yantis, with the intent to commit the offense of rape. The defendant was tried and convicted and sentenced to five years in the penitentiary.

<p> Error from the District Court of Nolle County; lefore-B. T. Earner, District Judge., </p>

<p>1. Criminal Trial — Witness—Credibility of — Remarles of Judge — Error. On a trial for murder remarks made by the judge during the progress of the trial affecting the character and credibility of a witness are an improper invasion or infringement of the province of the jury, and when it appears that such remarks were prejudicial to the rights of the defendant they constitute reversible error.</p> <p>2. Same — Prosecuting Attorney — Improper Statement to Jury — Prejudical Error. Where the counsel on behalf of the Territory in his closing argument to the jury uses the following language: “The defend- and claims he committed the act of killing in self defense; if so, *why did he not come on the witness stand and make that state- , ment,” held, to be prejudicial error for which a new trial must be granted on motion of the defendant.</p> <p>S. Same — Error Carniot be Cured, When. -Such misconduct by the counsel • for the prosecution cannot be cured or remedied by the withdrawal of the prejudicial statements from the consideration of the jury by the court, and admonishing them that they must not consider the same.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Cleveland County; before B. F. Burwell, District Judge. STATEMENT OF THE CASE. On November 2, 1898, J. J. Wallace, plaintiff in error, filed a petition in the district court of Cleveland county, in words and figures as follows: “Territory of Oklahoma, Cleveland Oounty, In the District court. J. J. Wallace, plaintiff, v. The Town of Norman, defendant. Gase No. 2266.

<p> Error from the District Court of Canadian County; before John C. Tarsney, District Judge. </p>

<p>1. Criminal Law — Principal and Accessory — Distinction Abolished. By the provisions of our crimes act, all distinction between an acces-sor before the fact and a principal, and between principals in the first and second degree in cases of felony, are abolished, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, must be indicted, tried and punished as principals.</p> <p>2. Same — Accessories Before and After Faci^S (atutory Denomination, All those persons who at the common law were classed as principals, principals-in the first degree, principals in the second degree, accessories at the fact and accessories before the fact, are, under our statutes, made principals; while those who were classed as accessories after the fact, are, by the terms of the statute, denominated accessories.</p> <p>3. Same — Aide, and Abetter — Principal, When — Indie'ment—Necessary Charge. One who was present at the commission of a felony, and was aiding and abetting the one who committed the overt act, was at common law a principal in the second degree, and is under the statute a principal. In charging such offense it is not necessary to allege any facts other than would be necessary in charging the principal who committed the overt act.</p> <p>4. Murder — Indictment—Sufficient Which Charges, What. An indictment for murder is sufficient which charges that A and B, án and upon one C, feloniously, without authority of law, and with a premeditated design to effect the death of the said C, did make an assault, and the said A, a certain revolving pistol then and there charged . with gunpowder and leaden bul’Iet, which he, the said A, then and there held, and then and there, without authority of law, and with a premeditated design to effect the death of the said C, did shoot off and discharge, at and against the said C, thereby giving to him, the said C, then and there with the leaden bullet aforesaid so shot off and discharged as aforesaid, one mortal wound, in and through the head, of which mortal wound, he, the said ,C, then and there instantly died. And the said B., was then and there feloniously, without authority of law, and with the premeditated design to effect the death of the said C, present, aiding and abetting the murder aforesaid, in manner and form as aforesaid to do, commit and perpetrate. And the jurors aforesaid, upon their oaths aforesaid, do say that the said A and B, him, the said C, in the manner and by the means aforesaid, without authority of law, and with a premeditated design to effect the death of the said C, did kill and murder; contrary to the form of statutes in such 'case made and provided, and against the peace and dignity of the Territory of Oklahoma. Such indictment charges B as a principal, and not as an accessory, and the fact that the indictment charges the particular manner in which B is held as a principal, gives him no cause to complain, because the indictment is more specific than the statute requires.</p> <p>5. ’V'EB.'DicTT-Immaterial Evidence — Same not Objected to. This court will not set aside the verdict of a'jury on the ground that incompetent and immaterial evidence was permitted to go to the jury, where the record shows that such evidence was not objected to by the defendant, and no motion was made to strike it out.</p> <p>6. Instructions — -Not Revieioed, When. Instructions given by the court and not excepted to by the defendant at the trial, or before the trial court will not be reviewed on appeal.</p> <p>7. Evidence — Objection to — Ground for — Error. Where objection is made to the introduction of evidence on some particular ground, which is not well taken, the court will not treat such objection as general, and hold that it-was error to permit such evidence to go to the jury, for some reason not stated in the. objection.</p> <p>8. Criminal Trial — Admissions—Witness. When the prosecution is seeking to prove admissions made by the defendant tending to show his guilt, it is not required that the particulars of time, place and persons present shall be given, before the witness is permitted to testify to such admissions.</p> <p>9. Evidence — Witness—Confession—Error. Where a witness is called for the prosecution and asked if the defendant had not made certain statements in the nature of confessions or admissions to him, and the witness denies that any such statements were made, it is error to permit the attorneys for the prosecution to testify that the witness had stated to them that the defendant had made to the witness the statements inquired about, and to perm't such attorneys to testify what the witness had told them the admissions and confessions were.</p> <p>10. Incompetent Evidence — Criminal Cause — Reversible Error. Where the trial court has permitted illegal and incompetent evidence to go to the jury, and subsequently withdraws such evidence and directs the jury to disregard it, and’ give such evidence no consid- • eration, the correct rule for determining whether such action is reversible error is, if the illegal evidence was of such a character as wowa ordinarily create such prejudice against the defendant as was reasonably calculated to make a fixed impression on the minds of the jury and influence their verdict, and the court, from an examination of the whole case, is unable to say that such evidence did not affect, the verdict, or that the verdict would not probably have been different in any event, then the verdict should be set aside and new trial ordered.</p> <p>11. Murder — Necessary Proof — Defense. Where one is charged with the crime of murder and it is alleged that another committed the overt act in the perpetration of the crime, it is not sufficient to show that the defendant was present and knew the offense was being com-, mitted; the proof must go further and show, beyond a reasonable doubt, that he was participating in the homicide before or at the time of its commission.</p> <p>22. New Trial — (Grounds for — Rule Applied. The evidence in this case examined, and held, that the illegal evidence admitted and subsequently withdrawn was of such a damaging and prejudicial character, and the legal and competent evidence, of such weak and uncertain character, that the court cannot say that the jury were not probably misled and influenced by the illegal evidence, and new trial should be ordered.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Pottawatomie County; before J. D. F. Jennings, Probate Judge. </p>

<p> Original Proceeding in Habeas Corpus. </p>

<p>Error from the District Court of Kay County; before • B. T. Hainer, District Judge.</p>

Error from the District Court of Kingfisher County/ before John C. Tarsney, District Judge. No brief filed for the Territory. Held: upon the person of one James S. Bates, there being, did intentionally, wrongfully, wilfully, unlawfully and feloniously, commit an assault and battery, in manner likely to produce death, and did otherwise wound and ill-treat said James S. Bates, contrary to the form, force and effect of the statute in such case made and provided, and…

<p>Error from the District Court of Canadian; County; before John C. Tarsney, District Judge.</p>

<p> Error from the District Court of Custer County; before John C. Tarsney, District Judge. </p>

<p>1. Criminal Action — Appeal of Defendant-Notice — Service. An appeal toy a defendant in a criminal action ds taken toy the service of a notice upon the clerk of the court where judgment was entered, stating that the appellant appeals from the judgment, and toy serving a similar notice upon the prosecuting attorney.</p> <p>2. Same — When Appeal is Perfected. An appeal in such case is completed toy the filing of a petition in error in the office of the clerk of the supreme court, with a case-made, or duly authenticated transcript of the judgment, and proceedings attached théreto.</p> <p>S. Same — No Summons in Error Required. No summons in error is authorized or required, and the issuance and service of such summons can serve no proper purpose.</p> <p>4. Same — Record^—.Notice—Proof of Service — Dismissal. Where the record in this court fails to show notice and proof- of service as re-</p> <p>• quired toy the criminal procedure act, the cause will toe dismissed.</p> <p>5. Appeal — Matter of Right — Statutory Regulation. An appeal in a criminal cause may toe taken as a matter of right, tout the manner of taking and perfecting such appeal is a proper matter for legislative control, and the legislative direction must toe observed.</p> <p>(Syllabus toy the Court.)</p>

Error from the District Court of Logan County; before Jno. H. Burford, District Judge. STATEMENT OE THE CASE. This was an action begun bv the Harvey Lumber company, to recover the value of a building which it alleged that the defendant, the Oity of Guthrie, had converted to its own ude in 1890, 'and for which payment had been refused.

Error from ihe District Court of Oklahoma, County; before James R. Keaton, District Judge. STATEMENT OF THE CASE. On tbe 1st day of October, 1895, the Hanes Grocery company was indebted to the plaintiff in error in the sum of $1,621.23 upon an account for merchandise sold by the plaintiff in error to> the said Hanes Grocery company, between the 18th day of June, 1895, and the 1st day of October, 1895, inclusive of said days.

<p> Error from the District Court of Kay County; before; B. T. Hainer, District Judge. </p>

<p>Error from the District Court of Nolle County; before Bayard T. Earner, District Judge.</p>

Error from the District Court of Logan County; before Franlc Dale, District Jtidge. statement of the case.

Error from the District Court of Woods County; before Jno_ L. McAtee, District Judge. STATEMENT OF THE CASE. This wa.s an indictment found by tbe grand jury in the-district court of Woods county, at the May term, 1893.

<p> Error from the District Court of Logan County; before Jno. H. Bur ford, District Judge. </p>

Error from the District Court of. Garfield County; before John L. McAtee, District Judge. STATEMENT OF THE CASE. This was an action brought in the district court of Garñeld county, on the 26th day of June, 1895, by the Citizens Rank of North Enid, aaginst R. W. Patterson. Jaco-b Guthrie, and Fred R. Janes:, to recover the sum of $500 with interest, attorney’s fees’and costs, upon a certain promissory note, executed on the 23rd day of May, 1894.

<p> Error from the District Court of Patones County; before Bayard T. Eainer, District Judge. </p>

Efror from the District Court of Kay County; before Bayard T. Hamer, District Judge. STATEMENT OF THE CASE. On December 16, 1897, the defendant in error was charged' bj indictment with the offense of receiving a deposit in the First State Bank of Perry, when he knew the bank to be insolvent, and when he was at the time assistant cashier thereof. A demurrer filed by the defendant was overruled, and the plea of not guilty entered.

<p>Appeal — Case-Made—Authentication. Where a* case-made is signed by the trial judge, but is not attested by the clerk of the court with his signature, and the seal of the court is not attached thereto, it is not sufficiently authenticated as required by section 566 of the Civil Code, to constitute a legal case-made, and the judgment of the court cannot be reviewed and the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>Error from, the District Court of D County; before John C. Tarsney, District Judge:</p>

Error from the District Court of Nolle County; lefore Bayard T. Rainer, District Judge. STATEMENT • OF THE CASE. This is an action brought to this court asking a reversal of the judgment of the district court of Noble county, sustaining a general demurrer to the evidence offered by the plaintiff, and rendering judginent in favor of defendant for costs.

<p>1. Contract — Suretyship—Separate Estate of Marrried Woman. Under the laws of the state of Georgia a married woman cannot bind her separate estate by contract of suretyship, but such contract if-made, is voidable and not absolutely void.</p> <p>2. Promissory Note — Surety—Parol Evidence. Parol evidence is competent to show that one whose name appears on a promissory note as a joint maker, signed such note only as a surety.</p> <p>3. . Principal and Surety — Rule—Exceptions. One who appears to be a principal, whether by the terms of a written instrument, or otherwise, may show that he is, in fact, a surety except as against persons who have acted on the faith of his apparent character of principal.</p> <p>4. Same — 'What Surety Must Prove. When a surety sets up claims depending on that relation, and the fact of suretyship does not j,p-nea,r from the instrument signed by him, he must, in order to sustain such claims, prove that the creditor knew of the surety-ship.</p> <p>5. Same — Presumption—Burden of Proof. Where the note remains with the original payee, he is presumed to know the relation the parties to the note sustain to each other, and where he denies such knowledge, the burden is on him to overcome such presumption by proof to the contrary.</p> <p>6. Same — Evidence—Rule Applied. The evidence in this case examined, and held, that the plaintiffs had no knowledge that Mrs’ Adair siYned the notes in suit as surety, and that they acted on the faith ,of the appearance -of her name to the note as a joint maker and 'principal, and that as against them she is not permitted to avail herself of any rights as a surety.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Kay Countyj before B. T. Hainer, District Judge. </p>

<p> Error from the District Court of Kay County; before Bayard T. Hainer, District Judge. </p>

<p> Appeal from the District Court of Logan County; before Jno. H. Burford, District Judge. </p>

Error from the District Court of Washita County/ before John C. Tarsney, District Judge. statement of the case.

<p> Error from the District Court of Noble County; before B. T. Hainer, District Judge. </p>

<p>1. Mandatory Injunction — Contest—Prevailing Party — Rights of. Where adverse parties are residing upon a tract of public land, and each claiming priority of settlement, and the entry of the contestee is canceled Iby the land department, and the contestant allowed to make homestead entry thereof, the latter e=s±ryman is entitled to the full and undisturbed possession of such tract as against the unsuccessful contestee, and mandatory injunction is a proper remedy to enforce the rights of the entryman.</p> <p>2. Judgment — Land Tribunal — Successful Party — Relief Granted. Where the court is satisfied of the correctness of the rulings of the land department and renders its judgment to give effect to the same, it will not stultify itself or compromise its judgment by withholding from the successful party a portion of the relief to which he is entitled, in order to enable the unsuccessful party to wage some future independent action to test the correctness of its conclusions and judgment.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County; before-Bayard T. Hainer, District Judge. STATEMENT OP THE CASE. This action wa,s commenced by the defendant in error,. Herbert E.Ellis, plaintiff in the court below, against Geo. P. Endicott and Sam Lee. Said action was by petition,, asking for a mandatory injunction. Summons was issued and served on the defendant. To which petition, defendant demurred.

Error from the District Court of Kay County; before Bayard T. Hainer, District Judge. statement op thio case. This is am action commenced by the defendant in error Herbert E.EUis, plaintiff in the court below, against Geo. P. Endicott and Sam Lee. Said action was by petition, asking for a mandatory injunction. Summons was issued and served on the defendant. To which petition, defendant demurred.

<p> Error from the District Court of Noble County; before Bayard T. Eainer, District Judge. </p> <p>STATEMENT OF THE CASE.</p> <p>This is an action commenced by the defendant in error, plaintiff in the court below, Byron E. Cable; against W. J. Mendenhall, defendant in the court below, and plaintiff in error here. Said action was by petition, asking for a mandatory injunction; on the filing of which petition a temporary injunction was gramted'by the court. Summons was issued and served on the defendant. To which petition defendant demurred, which demurrer was overruled, ti> which defendant excepted. Defendant then filed his answer to said petition. Defendant afterwards, by leave of court, filed his amended and supplemental answer to said petition. Afterwards, on the 7th day of November, 1898, the court grants an order and judgment enjoining and restraining the plaintiff.from committing waste upon the premises in said petition described. To which amended and supplemental answer plaintiff demurs. Afterwards, on the 30th day of November, 1898. the demurrer to said amended and supplemental answer was sustained, to which the defendant excepts. And afterwards the plaintiff moves the court to dissolve and vacate the order of injunction made on the amended and supplemental answer, which motion is by the court sustained, to which' the defendant excepts. Defendant refuses to plead further. The court renders judgment in favor of the plaintiff. Which order sustaining plaintiff’s demurrer to the amended and supplemental answer of defendant, and the order of the court sustaining the motion of the plaintiff to dissolve the temporary injunction granted on said amended and supplemental answer of defendant, and the decision of the court in favor of the plaintiff, is assigned as error, and the cause is brought here for review.</p>

<p> Error from the District Court of Pawnee County; before Bayard T. Hainer, District Judge. </p>

<p> Error from the Probate Court of Noble County; before Ethan Allen, Probate Judge. </p>

Error from the District 'Court of Pawnee County; before Bayard T. Eainer, District Judge. STATEMENT OP THE CASE. This was an action brought by the plaintiffs in. error, plaintiffs below, in the district court of «Pawmee oounty, to obtain a permanent injunction against the defendants in error, restraining them from the sale of- the, neal estate described in the petition, under an execution issued from the court.

Error from the District Cowt of Garfield Countyj before John L. McAtee, Distribt Judge. STATEMENT OP THE CASE.

<p> Error from the District Court of Olclahoma County; before B. F. Burwell, District Judge. </p>