MEMORANDUM DECISIONS

EICHLER v. TEDFORD. (L. A. 3,009.) (Supreme Court of California. March 2, 1912. Rehearing Denied March 29, 1912.) Department 2. Appeal from Superior Court, Los Angeles County; Walter Bordwell, Judge. Action by Mamie L. Eichler, Administratrix, against Sarah J. Tedford, executrix. Judgment for plaintiff, and defendant appeals. Affirmed. Will D. Gould and G. L. Whitham, for appellant. D. C. Burrey and Harris & Swanwick, for respondent.

PER CURIAM. The above-entitled cause presents the same propositions considered in Tedford v. Eichler (L. A. No. 2,772) 121 Pac. 730, decided February 7, 1912, and was submitted with the last-mentioned case for decision. For the reasons there given, the order appealed from is affirmed.

ously obtaining a license therefor, and was sentenced to pay a fine of $100. The judgment and sentence was entered on August 12, 1910. An appeal was attempted to be taken by filing in this court petition in error, with case-made, on December 3, 1910. The Attorney General filed a motion to dismiss said appeal, because the petition in error was not filed in this court within the 60 days filed by statute, and no extension of time for taking the appeal was granted by the court. It is just as essential to have the order of the trial court extending the statutory time within which to take an appeal as it is to have the time extended within which to make and serve the case-made. An examination of the record discloses that the motion to dismiss the appeal is well taken. The purported appeal is therefore dismissed, and the case remanded to the county court of Payne county.

SAN PEDRO, L. A. & S. L. R. CO. v. LEE et al. (L. A. 2,760.) (Supreme Court of Cal- BERTINO et al. v. STATE. (Criminal ifornia. March 2, 1912.) Department 2. Ap- Court of Appeals of Oklahoma. April 4, peal from Superior Court, Los Angeles Coun- 1912.) Appeal from Pittsburg County Court; ty; N. P. Conrey, Judge. Action by the San R. W. Higgins, Judge. Joe Bertino and Joe Pedro, Los Angeles & Salt Lake Railroad Nigro were convicted of unlawfully selling inCompany against John Lee and others. From a toxicating liquors, and appeal. Affirmed. Harjudgment for plaintiff, defendants appeal. Af-ley & Wilkins, of McAlester, for plaintiffs in firmed. Dian R. Gardner, for appellants. A. error. Chas. West, Atty. Gen., and Smith C. S. Halsted, S. M. Johnstone, and Miner P. Matson, Asst. Atty. Gen., for the State. Goodrich (W. R. Kelly, of counsel), for respondent.

PER CURIAM. Joe Bertino and Joe Nigro were convicted in the county court of PittsPER CURIAM. This case is in all essen-burg county of the crime of unlawfully selling tials identical to the case of San Pedro, etc., intoxicating liquor. Bertino was sentenced to Railway Co. v. Hamilton (No. 2,539) 119 Pac. pay a fine of $500 and to serve a term of 30 1073, decided by this court on December 19, days in the county jail, and Nigro was sen1911. The plaintiff is the same in both cases. tenced to pay a fine of $50 and serve a term The leasehold estate of the plaintiff is the of 30 days in the county jail. The judgment same, and covers the same land. The defendwas entered January 21, 1910. We have careant's right of possession is the same as that fully examined the record, and no prejudicial asserted by the Hamiltons, and, finally, all of error appears, We are of the opinion that the legal questions involved and discussed are the verdict and judgment was right. The judgidentical with those in the above-mentioned ment of the lower court is therefore affirmed, case. The judgment and order appealed from and the case remanded thereto, with direction are therefore affirmed. to enforce its judgment and sentence therein.

TEDFORD v. GAY et al. (L. A. 3,029.) (Supreme Court of California. March 2, 1912.) Rehearing Denied March 29, 1912.) Department 2. Appeal from Superior Court, Los Angeles County; W. R. Hervey, Judge. Action by Sarah J. Tedford against Leslie F. Gay and others. From a judgment for defendants, plaintiff appeals. Affirmed. G. L. Whitham, for appellant. Gibson, Trask, Dunn & Crutcher, Hammack & Hammack, E. T. Sherer, and Joseph Smith, for respondents.

PER CURIAM. The above-entitled cause presents the same propositions considered in Tedford v. Eichler (L. A. No. 2,772) 121 Pac. 730, decided February 7, 1912, and was submitted with the last-mentioned case for decision. For the reasons there given, the judgment and order appealed from are affirmed.

AMBLER v. STATE. (Criminal Court of Appeals of Oklahoma. April 19, 1912.) Appeal from Payne County Court; P. D. Mitchell, Judge. E. B. Ambler was convicted of misdemeanor, and appeals. Dismissed. Springer & Oursler, of Stillwater, for plaintiff in error. The Attorney General, for the State.

PER CURIAM. The plaintiff in error was convicted on an information which charged the

BIRDWELL v. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from District Court, Pontotoc County; A. T. West, Judge. Dick Birdwell was convicted of larceny, and appeals. Affirmed. Stone & Maxey, of Ada, for plaintiff in error. Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.

PER CURIAM. The plaintiff in error was tried in the district court of Pontotoc county on a charge of stealing two mules, and on the 26th day of February, 1910, was convicted by a jury, and his punishment fixed at four years' imprisonment in the state penitentiary. The facts upon which this conviction is based are substantially as follows:

W. C. Mayberry, on behalf of the state, testified: That he lived at Wetumka; was in Wetumka on the 4th, 5th, and 6th of last August (1909); knows the defendant by sight; saw him there about that time; that the first time he saw defendant was when defendant and another man came into his office and wanted him to sell a team of mules for them; used to be a public auctioneer, and auctions occasionally now; that these parties wanted him to sell a team of mules, buggy, and harness for them; that the mules were small mules, one a bay, the other a brown, or dark bay; that

them was tied with a halter; that he never won them off Amos; that he did not know when Amos tied them up; that they looked for them and found them; that witness supposed they would be loose in the field; that witness knew Amos had these two mules some time; that the moon was shining, and that it was about the 1st of August; that it was a light night; that witness was walking when he went in the field, and that he had a rope in his hand; that he told Bob Hatcher he was going for a yearling with the rope; that they looked some time for the mules; that they put the mules in a wagon yard the next night; that witness still has the buggy and harness; that Dick Birdwell lived something like five miles and a half from where witness lived; that Birdwell lived about a quarter of a mile from Amos Sampson; that witness lived about four miles from Amos; that both went to Mr. Mayberry; and that witness paid him. Redirect examination: That Dick Birdwell fixed up this gambling defense in this case, he thought. Recross-examination: That witness has not tried to get some fellows to steal some horses since being arrested.

Oscar Williamson, on behalf of defendant, testified: That in August, 1909, he lived one mile southwest of Francis, in Pontotoc county; that he remembered the occasion of Dick Birdwell and George Wilfong stopping at his house one morning; that they were working a span of mules; that he was not acquainted with George Wilfong at that time; that witness went to the tank that morning to water some stock, and that Wilfong went with him; that Wilfong wanted to trade him the mules for a bay mule of his; that Wilfong told him he had won them, he believed from a negro; did not know Wilfong at the time; that Birdwell and Wilfong stayed there two or three hours, and left about 12 o'clock; that they did not eat dinner; that they went north. Cross-examination: That witness has known Dick Birdwell seven or eight years; that witness now lives three miles west of Purcell; that he has not for the past 12 months been associated with a good many criminals, nor has he run with them; that he did not run with Burwell and Jim Miller there; that he was not acquainted with them at all; that he did not live in Francis about a year before; that he is farming; that he did not have any conversation with Birdwell about this team.

examination: That he came up there and was
inquiring about some horses, and got to talk-
ing about his troubles; that Wilfong said, if
he turned state's evidence, he would lose his
friends; and that he did not tell witness he
was going to plead guilty in his case.
Dick Birdwell, in his own behalf, testified:
That he has lived near Bebee five years; that
he went to Wetumka with Wilfong at the time
these mules were sold; that he told Wilfong
that evening he was going off to look for a job,
and that Wilfong told him he could leave in
the buggy with him; that Wilfong said he had
won the mules, and was going up there to get
rid of them; that he could go along with him
if he wanted to; that he did not go into the
field with Wilfong to get the mules; that he
stayed on the horse, while Wilfong went and
got the mules; that he could not see the mules
from where he was; that Wilfong said he had
won the mules off this negro, and that the ne-
gro said he would tie them out in the field, be-
cause he did not want his brother to know he
had lost them; that George had been gam-
bling; that it was light, and about 10 or 11
o'clock; that Wilfong told him the mules were
hitched; that one was tied up to a stump by
a halter and the other with a bridle to a bush;
that one had a bridle and one a halter; that
Wilfong told him they were tied a hundred
yards or so from the house; that there is a
lot around the house; that there is a stable;
that Wilfong came out close to where they
were; that they went to Oscar Williamson's
and ate breakfast; that Oscar and Wilfong
went down to the tank or pond to water some
horses that morning; that witness was not
close enough to hear the conversation; that
from Oscar's house they went to Holdenville;
that they stayed there overnight; that Wil-
fong, before they got to Holdenville, said it
might be a good idea for him to change his
name, because they might inquire around for
him for gambling; that witness told him, “all
right"; that he had known him a good while
and did not think he would do anything like
that; that witness don't believe yet Wilfong
stole them, but believes what Wilfong said;
that witness told them his own name was Ray,
and Wilfong said his name was Gray; that at
Wewoka George did the talking, and got the
auctioneer to sell the mules, or try to sell
them; that George paid the auctioneer; that
witness never claimed the mules; that he nev-
er claimed any of it; that George bought
them; that George said he was going to bid
them in if they did not bring what he wanted;
that witness was not to get any of the pro-
ceeds for the buggy and stuff, but was just
going along with Wilfong, if he would pay his
expenses; that witness was looking for a
job, or any kind of work he could get. Cross-
examination: That witness was 33 years old;
that he thought Rat Chestnut and George were
trying to give him the worst of it; that George
had been living out in that part of the country
ever since he had; that he did not know right
where Oscar Williamson lived, but knew it was
in the neighborhood there somewhere; that
witness has a family; that George told him
he had won the mules; that witness told him,
if he could prove it, that was the best; that
George said there was not anybody there, and
could not prove it; that that was when they
were arrested; that Wilfong had told him he
had won the mules before they went for them;
that it was the same day; that Wilfong said
the negro had tied them out there to keep his
brother from knowing he had lost them that

Tom Cowger, on behalf of defendant, testified: That he lives north of Bebee; that he is engaged in farming; that he has lived there a little over a couple of months; that one year he made a crop south of Bebee and moved over on the river; remembers the circumstance of he and Wilfong going from the Widow Steele's in November of the previous year; that they were in a buggy, and were drinking whisky; that Wilfong said his friends told him to turn it off on Dick Birdwell, that that was the only way he could keep out of the pen, and that he won the mules off of the negro. Cross-examination: That it was some time the last of November; that the conversation took place on the road, where the Bebee road connects with the Ada and Maxwell road, on George Wilfong's place; that it was daytime; that witness took up the subpoena, and asked Wilfong why they were not both joined, and that Wilfong told him his friends had said he would have to turn it off onto Dick; that Wilfong had been drinking and seemed intoxicated. Jim Dodgin, on behalf of the defendant, testified: That he lives at Bebee, had lived there nine years, and is a farmer; that he had known George Wilfong about four years; that Dr. Bearteet, on behalf of the defendant, he had known Birdwell about six years; that testified: That he knew Amos Armstrong, the Wilfong came to where he and his brother one who went by the name of Phillips and were sawing wood one morning in the fall; Armstrong and Sampson; that witness did not that Wilfong talked about his case, and said know whether he was a brother to Tom Phil

way.

who told him he had lost a span of mules gam- | with selling intoxicating liquor. The piece of bling with George Wilfong; that Armstrong owed witness for some medicine he got for his sister; that he told witness, as soon as he sold his mules, he would pay him; and that the next time witness saw him, which was about a week from that time, he told witness he had lost the mules gambling, by playing poker. Cross-examination: That witness did not know when this was; thought it was some time in July or August; that one day witness saw him in regard to the money matter, and when he asked him why he did not pay him, and whether he had sold the mules or not, he said he had lost them in gambling with Wilfong.

Dick Birdwell, recalled by the state, testified: That he did not think he told Mr. Mayberry they were up there at Wetumka, and were just going through the country looking for a place, nor that they thought they would sell the team and go back home.

W. C. Mayberry, in rebuttal for the state, testified: That at Wetumka, that day, the defendant said they were looking for a place, driving through the country looking for a place, and that they thought they would sell their buggy and team and go home on the train; that it was the other man who owned the buggy, and the defendant who owned the team.

Dr. Bearteet, recalled by the state, testified: That this negro lives out north of Bebee; that he knows Tom Phillips and George Wilfong: that he had known Wilfong for nearly three

years.

D. O. Chestnut, on behalf of the state, testified in rebuttal: That George Wilfong agreed during the last court to plead guilty; that it was along in the fall; that Birdwell and Wilfong and Tom Cowger and Brand and witness were somewhere near the drug store, and that he (Birdwell) said he won these mules from that negro shooting craps.

Tom Cowger, recalled for the defendant in rebuttal, testified: That Dick Birdwell did not state in his presence and in the presence of Rat Chestnut that he (Dick Birdwell) won the mules shooting craps.

There are a number of assignments of error relied upon by the accused for reversal of this cause, some of which are technically correct. But the testimony points conclusively to the guilt of the accused, and we are unable to find any error sufficiently prejudicial to justify a reversal of the judgment. The judgment of the trial court is therefore affirmed, with direction to execute the same.

BOURBONNAIS STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge. Aaron Bourbonnais was convicted of assault, and brings error. Modified and affirmed. L. G. Pitman, of Shawnee, and G. A. Outcelt, of Tecumseh, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., and C. P. Holt, Co. Atty., for the State.

The

PER CURIAM. The plaintiff in error, who is an Indian, was convicted in the district court of Pottawatomie county, at the March, 1910, term, on a charge of felonious assault, and his punishment fixed at imprisonment in the state penitentiary for a period of two years. prosecuting witness testified that he was hauling ties in Tecumseh, in said county, on March 2, 1910; that he was assaulted by the accused, who struck him with a piece of iron just behind the ear and across the shoulder, inflicting a painful wound; that he had had no trouble with accused, and did not know he was in danger of being assaulted until he was struck; that he had given testimony against brother of the accused, who was charged

iron with which the prosecuting witness claimed to have been struck was identified by the witness when he was on the stand; but there is absolutely nothing in his testimony from which it can be reasonably inferred that the piece of iron was a deadly weapon per se. Ed Roe testified, on behalf of the state, that he was working in his shop near where the difficulty occurred; that he came outside for the purpose of securing material to be used in his work, and saw the accused walking away, and the prosecuting witness stoop down and pick up a piece of iron, and identified the piece of iron produced by the state as similar to the one picked up at the scene of the difficulty. There is nothing in the testimony of this witness which gives any idea as to the character of the weapon. These were the only witnesses introduced by the state. The accused introduced no testimony whatever. The proof further shows that the blow struck was not sufficient to knock the prosecuting witness down. This court is always anxious to aid in the proper enforcement of the criminal law, and to uphold the judgment of the trial court when it can be reasonably done. But the prosecuting attorneys, who represent the interest of the state in the trial courts, are charged with the duty of protecting the interest of the state by having the records show facts upon which such judgment can be upheld. It is as much the duty of this court to prevent an injustice being done a person charged with crime as it is to uphold a proper judgment. The weapon used not having been shown to be a deadly weapon per se, nor a weapon, when used in the manner in which it was used in this case, reasonably calculated to produce death or great bodily injury, we are impelled to the conclusion that the judgment is excessive. The errors assigned and argued are not sufficient to justify a reversal of the judgment. We think, however, the judgment should be modified. It is therefore ordered by the court that the judgment of the trial court be modified, and that the accused be adjudged to pay the costs of this prosecution, and be confined in the county jail for a period of six months. As modified, the judgment is affirmed.

CUNNINGHAM V. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from Blaine County Court; George W. Ferguson, Judge. W. C. Cunningham was convicted of violating the prohibitory law, and appeals. Affirmed. Johnson & Wishard, of Geary, for plaintiff in error. Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.

PER CURIAM. Plaintiff in error, W. C. Cunningham, was convicted in the county court of Blaine county at the January, 1910, term, on a charge of maintaining a place wherein intoxicating liquors were sold contrary to law, and on the 3d day of February, thereafter, adjudged to pay a fine of $500 and be imprisoned in the county jail for a period of six months. After a careful consideration of the record in this case, we are of the opinion that the judgment of the trial court should be affirmed. The judgment is affirmed, with direction to the county court of Blaine county to execute the

same.

DAILEY v. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from Rogers County Court; Archibald Bond, Judge. J. J. Dailey was convicted of a violation of the prohibitory law, and appeals. Affirmed. C. B. Holtzendorff, of Claremore, J. B. Rutherford, of Muskogee, O. L. Rider, of Vinita, and J. I. Howard, of Claremore, for plaintiff in error. Chas, West, Atty. Gen.,

Smith C. Matson, Asst. Atty. Gen., and E. G.
Spilman, Asst. Atty. Gen., for the State.

PER CURIAM. The plaintiff in error was convicted on an information which charged the unlawful sale of intoxicating liquor, and on September 19, 1910, was sentenced to serve a term of 90 days in the county jail and to pay a fine of $500. An examination of the record discloses the fact that there is no merit in this appeal. The verdict, judgment, and sentence should be sustained upon the testimony of the defendant alone. The judgment of the county court of Rogers county is therefore affirmed. Mandate to issue forthwith.

which motion is allowed, and the appeal is hereby dismissed, and the cause remanded to the district court of Choctaw county forthwith, with direction to enforce its judgment and sentence therein.

HALL V. STATE. (Criminal Court of Ap peals of Oklahoma. April 25, 1912.) Appeal from Ottawa County Court; W. G. Quigley, Judge. Ben Hall was convicted of violating the prohibition law, and appeals. Affirmed. O. F. Mason, of Miami, for plaintiff in error. PER CURIAM. On the 2d day of May, 1911, appellant was found guilty of a violation of the prohibitory liquor laws of the state, and his punishment was assessed at a fine of $50 and 30 days' confinement in the county jail. Counsel for appellant has never made an ap con-pearance in this court, either by brief or oral argument, and the appeal of appellant has thereby been abandoned. The judgment of the lower court is affirmed, for want of prosecu tion.

DE STALL v. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from Oklahoma County Court; John W. Hayson, Judge. Charles De Stall was victed of violation of the prohibitory law, and appeals. Dismissed. Edw. E. Reardon, of Oklahoma City, for plaintiff in error.

HARGRAVES v. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Appeal from Carter County Court; J. R. Mason, Judge. Virgil Hargraves was convicted of violating the prohibitory law, and he appeals. Affirmed. Sigler & Howard, of Ardmore, for plaintiff in error. E. G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.

PER CURIAM. The plaintiff in error was convicted upon an information which charged the unlawful possession of intoxicating liquor with the intent to violate the provisions of the prohibition law. Upon his trial he was found guilty, and the jury assessed his punishment at six months' confinement in the county jail and to pay a fine of $500. June 14, 1911, judgment and sentence was entered in accordance with the verdict. An appeal from the judgment was attempted to be taken by filing in this court a petition in error, with case-made, September 8, 1911. The record does not show an order PER CURIAM. Plaintiff in error, Virgil extending the time beyond the statutory time Hargraves, was convicted in the county court of 60 days in which to take an appeal to this of Carter county on a charge of selling intoxcourt. The court not having acquired jurisdic-icating liquor, and on the 29th day of Novemtion, the purported appeal is hereby dismissed, ber, 1910, adjudged to pay a fine of $50 and and the cause remanded to the county court of be imprisoned in the county jail for a period Oklahoma county, with direction to enforce its of 30 days. Upon a careful examination of judgment and sentence therein. Mandate to the record, we find no error prejudicial to the issue forthwith. substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.

DUPREE v. STATE. (Criminal Court of Appeals of Oklahoma. April 25, 1912.) Appeal from Oklahoma County Court; John W. Hayson, Judge. J. M. Dupree was convicted of violating the prohibition law, and appeals. Affirmed. Harris & Nowlin and Pruiett & Sniggs, all of Oklahoma City, for plaintiff in error. Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.

PER CURIAM. Plaintiff in error, J. M. Dupree, was convicted in the county court of Oklahoma county on the 4th day of May, 1911, on a charge of having possession of intoxicating liquor for the unlawful purpose of sale, and was thereafter sentenced to pay a fine of $500 and be imprisoned in the county jail for a period of six months. We have carefully examined the record, and, finding no error prejudicial to the substantial rights of the accused, the judgment of the trial court is affirmed.

GRANT v. STATE. (Criminal Court of Ap

HEINIMAN v. STATE. (Criminal Court of Appeals of Oklahoma. April 18, 1912.) Ap peal from Comanche County Court; James H. Wolverton, Judge. L. Heiniman was convicted of violating the prohibitory law, and ap peals. Dismissed. Hamon & Ellis, of Lawton, for plaintiff in error. Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. This is an appeal from a conviction for a violation of the prohibitory law, had in the county court of Comanche coun ty. On the 14th day of March, 1912, the plaintiff in error filed the following motion to dismiss his appeal: "Comes now the plaintiff in error, L. Heiniman, and dismisses his appeal in said action." The motion is sustained, and the appeal dismissed, and the trial court direct. ed to enforce the judgment and sentence.

peals of Oklahoma. April 25, 1912.) Appeals of Oklahoma. April 25, 1912.) Appeal peal from District Court, Choctaw County; A. H. Ferguson, Judge. S. E. Grant was convicted of manslaughter, and appeals. Dismissed. J. L. Dickson, of Hugo, for plaintiff in

error.

PER CURIAM. Plaintiff in error, S. E. Grant, was convicted upon an information charging manslaughter in the first degree, and was sentenced to imprisonment for a term of four years in the state penitentiary. The judgment and sentence were entered October 26, 1911. The defendant appealed by filing in this court on January 15, 1912, his petition in error and case-made. The plaintiff in error has

LEE V. STATE. (Criminal Court of Apfrom Oklahoma County Court; Sam Hooker, Judge. James Lee was convicted of violating the prohibition law, and appeals. Affirmed. Giddings & Giddings, of Oklahoma City, for plaintiff in error.

PER CURIAM. James Lee, the plaintiff in error, was convicted in the county court of Oklahoma county for the unlawful sale of intox icating liquor. On March 12, 1910, he was sentenced to serve a term of 60 days in the county jail and to pay a fine of $200. From this judgment he appealed. No briefs have been filed or oral argument made on behalf of the defendant. The appeal having been aban