ment. Combination not described. The ar- a continuous result that will not continue gument that the indictment describes only without the continuous co-operation of the the results and effects of the combination, conspirators to keep it up, and there is such but not the combination itself, rests, I think, continuous co-operation, it is a perversion of on a misreading of that instrument. Ad- natural thought and of natural language to mitting that it is necessary to charge, not call such continuous co-operation a cinematonly the commission of the offense, but 'allographic series of distinct conspiracies, the circumstances constituting' the same (United States v. Greenhut [D. C.] 51 Fed. 205; Re Greene [C. C.] 52 Fed. 104), and excluding from consideration the 'overt acts,' the combination count not only charges the offense in ampler words than those of the statute, but shows by the 'ways in which' the offense was committed all the necessary circumstances; i. e., that the defendant destroyed competition, apportioned customers, limited production, and required uniform contracts. The 'means by which' of the indictment are explanatory of the above clear averments which show both the nature of the combination and the method of its operation.

* Duplicity, etc. The analysis of the indictment first above made convinces me that each alleged offense is sufficiently charged. The suggestion of duplicity rests upon the assumption that each one of the alleged 'overt acts' is charged as a separate indictable offense. The same analysis shows the error in this argument. The true reason for the rule against duplicity is that the 'jury cannot split up a count in an indictment, and find the accused guilty of a part and not guilty of the balance; their verdict must be an entirety.' State v. Smith, 61 Me. 386. I can see no possibility of the jury being thus misled in this case."

The question here presented was considered in the case of United States v. Kissel, 218 U. S. 601, 31 Sup. Ct. 124, 54 L. Ed. 1168. Mr. Justice Holmes, delivering the opinion of the court, said: "The defendants argue that a conspiracy is a completed crime as soon as formed, that it is simply a case of unlawful agreement, and that therefore the continuando may be diregarded, and a plea is proper to show that the statute of limitations has run. Subsequent acts in pursuance of the agreement may renew the conspiracy or be evidence of a renewal, but do not change the nature of the original offense. So, also, it is said the fact that an unlawful contract contemplates future acts, or that the results of a successful conspiracy endure to a much later date, does not affect the character of the crime. The argument, so far as the premises are true, does not suffice to prove that a conspiracy, although it exists as soon as the agreement is made, may not continue beyond the moment of making it. It is true that the unlawful agreement satisfies the definition of the crime, but it does not exhaust it. It also is true, of course, that the mere continuance of the result of the crime does not continue the crime. United States v. Irvine, 98 U. S. 450, 25 L. Ed. 193, 3 Am. Cr. Rep. 334. But when the plot contemplates bringing to pass

rather than to call it a single one. Take the present case. A conspiracy to restrain or monopolize trade by improperly excluding a competitor from business contemplates that the conspirators will remain in business, and will continue their combined efforts to drive the competitor out until they succeed. If they do continue such efforts in pursuance of the plan, the conspiracy continues up to the time of abandonment or success. A conspiracy in restraint of trade is different from and more than a contract in restraint of trade. A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract is not the contract, but is a result of it. The contract is instantaneous, the partnership may endure as one and the same partnership for years. A conspiracy is a partnership in criminal purposes. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that act."

[7] The lower court held the indictment in the first case defective because no time is alleged when the offense was committed. In this we think the lower court is clearly in error.

The indictment in this case alleges that "on the 15th day of November, 1907, and continuously from said date up to the filing of this indictment," which was the 23d day of October, 1909, "the defendant," and then it named one after another and alleges that they were and are corporations, and that they, and the sentence does not stop, "committed the following acts, and entered into the following conspiracies," etc., in the county of Logan, in the said state, intentionally, feloniously, and with the intent to monopolize the market for and of cotton and its products "that is to say, they * have sought to acquire and have acquired a virtual monopoly in the marketing and ginning of cotton and seed cotton and in the marketing of the products thereof, in that they, acting * together, have acquired control of about 90 per cent. of all the gins and have among themselves divided the field, ** * that is to say," and then is a description of one town after another and what is being done there, and then, finally, that said "defendants then and there by said acts have completely annihilated competition in cotton and its products in the county of Logan except at the town of Mulhall."

* * *

As there is but one period given in the

whole indictment, and that is the time be-1 tween the 15th day of November, 1907, and the 23d day of October, 1909, the words "then and there" must refer to that period. The common-law rule as to the necessity of specifically stating the time when the offense is committed is now to a great extent modified or dispensed with by reason of statutory provisions. In this indictment, we believe the time is sufficiently stated.

For the reasons stated, the judgment of the district court of Logan county, sustaining demurrers to the indictment in each of these cases, is hereby overruled, and the cases remanded with direction to the lower court to proceed in accordance with the views herein expressed.

Appeal from District Court, Coal County; A. T. West, Judge.

Monroe Gunnells was convicted of larceny, and appeals. Affirmed.

Chas.

G. T. Ralls, for plaintiff in error.
West, Atty. Gen., and Smith C. Matson, Asst.
Atty. Gen., for the State.

DOYLE, J. Monroe Gunnells, plaintiff in error, was tried, convicted, and sentenced to imprisonment for one year in the state prison in pursuance to a verdict returned upon his trial on an information which charged the larceny of three head of cattle, the personal property of one Crockett Gray. The proof on the part of the prosecution tends to show the following facts:

Crockett Gray was a farmer living near

FURMAN, P. J., and ARMSTRONG, J., the boundary line of Pontotoc and Coal coun

concur.

(7 Okl. Cr. 98)

GUNNELLS v. STATE. (Criminal Court of Appeals of Oklahoma. March 26, 1912.)

(Syllabus by the Court.)

1. LARCENY (§ 55*)-EVIDENCE.

In a prosecution for larceny of live stock, the evidence is held to support the verdict, and that no reversible error was committed on the trial.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. 88 152, 164, 165, 167, 169; Dec. Dig. § 55.*]

2. INDICTMENT AND INFORMATION (§ 52*)— VERIFICATION.

The verification of an information charging a felony is no part of the information itself, and is not an indispensable requisite.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 163-168; Dec. Dig. § 52.*]

ties, and was the owner of three head of cattle, which were kept by one Dunn on his ranch near the town of Oconee, about three miles from Gray's home. The defendant lived with his father-in-law, Sam Whiteside, which was a mile or two from Dunn's pasture. On the morning of April 27, 1909, the defendant left the home of his father-in-law on horseback ostensibly to get some cane seed from a man named Carr, who lived about half a mile from Dunn's pasture. He reached Carr's early in the afternoon and got the cane seed and left with it.

Lon Craft, the only witness who testified directly to the larceny of the cattle, lived about a quarter of a mile from Carr's, and about the same distance from Dunn's pasture. He testified that the defendant came to his house on that day, along in the afternoon, and that his brother, Tom Craft, was there; that the defendant stayed there nearly all the afternoon, and along about dark offered Tom Craft a dollar to go with him to Dunn's pasture and get some cattle that 3. CRIMINAL LAW (§ 641*)-TRIAL-READING the defendant said belonged to his father-inEVIDENCE TO JURY. As section 6865 (Snyder's Sts.) of Pro-law, Sam Whiteside; that the defendant and cedure Criminal requires only the presence of the defendant and the calling of counsel, where there is a disagreement between jurors as to any part of the testimony, and the jury request that such testimony be read, it was not error for the court to direct the reporter to read such testimony in the absence of the defendant's counsel; he having been duly called, and the defendant being present in person. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1496-1506; Dec. Dig. § 641.*]

TRIAL-ARGU

4. CRIMINAL LAW (§ 730*)
MENT OF PROSECUTING ATTORNEY.
Where the prosecuting attorney in closing
the case makes the statement, "The perjury
was so plain that the court called me to his
bench and called my attention to same," he is
guilty of misconduct, as the jurors are the
sole judges of the credibility of the witnesses
who testify before them, and not the court.
But where the court, upon objection made, im-
mediately instructs the jury that such is not
the case, and directs the jury to disregard such
statement, it is not prejudicial error.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*]

Lon Craft went over to Dunn's pasture and drove out three head of cattle, which were afterwards identified as the stolen cattle.

The cattle were driven by the defendant, with the assistance of Tom Craft, to a pasture on his father-in-law's place, where they were marked and branded and kept for a few days, and then transferred to the pasture of one Howard, which pasture was larger and had more timber in it than the Whiteside pasture, which was a small pasture close to the road, where an entire view could be had

from the road. The cattle were kept in the Howard pasture for a week or two, when they were sold by the defendant to Dunk McMillan for $31. The cattle were then taken to the McMillan pasture, seven or eight miles from the home of Crockett Gray, the owner of the cattle. When the cattle were missed from Dunn's pasture, search was made for them, and they were found in MeMillan's pasture.

The defendant offered testimony tending to show that he purchased the cattle from a man whose name he did not know, who at the time was driving the cattle along the highway. According to the defendant's own testimony, he did not ask the man where he lived, or what was his name, or where he got the cattle. He testified that Tom and Lon Craft were present when he bought the cattle. The testimony of his brother-in-law and one or two other witnesses was offered to corroborate the fact that he was accompanied by three other men, when driving the cattle along the highway on the day charged. | [1] We have considered the record in its most favorable light to the defendant, but find no error upon which a new trial should be granted. Clearly the evidence is sufficient to sustain the conviction.

[2] The first error assigned, that "the court erred in permitting the county attorney to amend the information by adding thereto verification of Crockett Gray," is without merit. Henson v. State, 5 Okl. Cr. 201, 114 Pac. 630.

phreys, an attorney at law, agreed to act in the absence of Mr. Ralls, and to save all possible exceptions for him. The court then directed the reporter to read the testimony in question. During the reading of this testimony, Mr. Ralls appeared and excepted to the action of the court in permitting any testimony to be read in his absence. The alleged error is based upon the theory that it was the duty of the court to wait until the attorney for the defendant appeared, no matter how long that might be. Such is not the law. Section 6865, Snyder's St., provides: “After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called." This information was given in the presence of the defendant, after his counsel had been called. There is nothing in the record to show that the defendant was in any way prejudiced by the failure of his counsel to be present during the entire proceedings of the court.

This covers all assignments of error, and results in the conclusion that the defendant was properly convicted, and that the record presents no reversible error.

The judgment of the district court of Coal county is therefore affirmed.

FURMAN, P. J., and ARMSTRONG, J., concur.

[4] The second assignment is that there was error committed in the argument of the case by the county attorney. By stipulation of counsel, it is shown that the county attorney, in his closing argument, stated: "Gentlemen of the jury, there has been a great deal of perjured testimony offered by the defendant in this case. Why, the perjury was so plain that the court called me to his bench and called my attention to same." It is further agreed that the defendant objected to the statement of the county attorney and asked the court to instruct the jury not to consider that statement, and that the court did so instruct the jury. It does not appear that this stipulation was submitted to the trial court as a part of the original casemade; for this reason, the question raised is not properly before this court. We think, however, considering the contention as presented, that the misconduct of the county attorney in basing an argument on what the 1. CRIMINAL LAW (§ 741*)-TRIAL-PROVINCE court might have said regarding the credibility of a witness does not constitute reversible error, in view of the instruction of the court to the jury not to consider such statement. In the absence from the record of the proceedings had, the presumption is that the misconduct was properly rebuked, and the jury directed to disregard the prejudicial 1727, 1728; Dec. Dig. § 741.*]

statement.

[3] It is further contended that the court erred in permitting the court reporter to read the testimony of three witnesses in the absence of the defendant's attorney. It appears from the record that the jury returned into court and asked to have this testimony read. The record shows that Mr. Ralls, the

GRAY v. STATE.

(7 Okl. Cr. 102)

(Criminal Court of Appeals of Oklahoma. March 27, 1912.)

(Syllabus by the Court.)

OF COURT AND JURY.

In a criminal prosecution, it is the duty of the court to declare the law to the jury. Whether the evidence has a tendency to prove any fact in issue in a criminal case is for the determination of the court; not so as to the weight of the evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 1705, 1713, 1716, 1717,

2. CRIMINAL LAW (§ 761*)-TRIAL-INSTRUCTIONS-ASSUMPTIONS AS TO FACTS.

Where a fact material to the issue, concerning the existence of which there is conflict instruction to the jury to be fully established, in the evidence, is assumed by the court in an the province of the jury is invaded, and constitutes prejudicial error.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $8 1731, 1738, 1754-1764, 1771; Dec. Dig. § 761.*]

attorney for the defendant, was called, and that the court waited upon him a reasonable length of time, and that he did not appear. Appeal from District Court, Le Flore CounThe defendant being present, Mr. Hum-ty; Malcolm E. Rosser, Judge.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

J. H. Gray was convicted of assault with | jury pass upon the weight of the testimony intent to do bodily harm, and appeals. Re- and the credibility of the witnesses, and the versed and remanded.

ing the prohibition law, and appeals. Af-1 state if you sold any liquor to Ernest Hofirmed.

FURMAN, P. J. Appellant was convicted in the superior court of Muskogee county for a violation of the prohibitory liquor law, and his punishment was assessed by the court at a fine of $200 and 30 days imprisonment in the county jail.

heimer, or authorized any one to sell any, sharing in the profit of the sale to Hoheimer? A. I did not. By Mr. Momyer: That is all. By Mr. Disney: No questions."

We are of the opinion that this evidence fully supports the verdict, and that the jury could not have arrived at any other verdict than that the appellant was guilty. The idea that the proprietor of a drug store would allow his negro porter to open up a bootlegging

joint in the rear of the prescription case, to which access could only be had from the front, and that this proprietor was not in any manner concerned or connected with this

The only question presented by this appeal is as to the sufficiency of the evidence to sustain the verdict of the jury and the judg-bootlegging joint, was an insult to the intel

ment of the court.

in charge of that drug store.
ligence of the court and jury. Appellant was
It was his
business to see that it was conducted in a
lawful manner; and, under the facts detailed
in evidence in this case, the pretext that he
was not concerned in the sale of whisky
which was being habitually sold in his drug
store is the flimsiest pretext we have ever
heard offered in a case of this kind. We are
only surprised that his punishment was not
fixed at a fine of $500 and six months impris-

pellant is a confirmed bootlegger.

Ernest Hoheimer testified for the state that on the 31st day of December, 1910, he went into a drug store in the Estes building in Muskogee and purchased a pint of whisky; that the whisky was purchased in a little room behind the prescription case in the drug store, and was purchased from a negro who was frequently seen around the drug store; that he did not know the negro's name, but that he had frequently gone to the drug store and had seen this negro por-onment, for the evidence clearly shows apter behind the prescription case pouring out drinks of whisky, and also had seen him cleaning up the drug store; that he had seen several persons drinking in the drug store; that, when the witness would go in the drug store, he would see the appellant there, but had never seen him back behind the prescription case where the whisky was sold, but at his desk, which was very near the back end of the drug store, six or seven feet or more from the prescription case; that he had seen the negro porter who sold whisky behind the prescription case in the drug store take the money for whisky to the cash register, and there make change and bring it back.

Ben Hoffman, a witness for the state, substantially corroborates the testimony of Ernest Hoheimer.

Ed A. Estes testified for the estate that he was the owner of the building known as the Estes building; that appellant paid the rent on this drug store; that no one could go be hind the prescription case in the drug store except from the front way.

Horace Cole, a negro, testified for the state that he was porter at the drug store in question, and worked there in December, 1910; that his salary was paid by appellant.

The judgment of the lower court is therefore affirmed, and the clerk of the court is directed to issue the mandate at once.

ARMSTRONG and DOYLE, JJ., concur.

(7 Okl. Cr. 700)

PEYTON v. STATE. (Criminal Court of Appeals of Oklahoma. March 29, 1912.)

On petition for rehearing. Judgment modified and affirmed.

For former opinion, see 120 Pac. 1130.

G. W. Goad and J. G. Austin, for plaintiff in error. Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ad. V. Coppedge, Co. Atty., for the State.

PER CURIAM. We have carefully gone over the record again in this case, upon request of counsel in their petition for rehearing. Our attention has been drawn to certain portions of the record which indicate that the jury improperly considered matters not in evidence. The proof in the record, however, clearly sustains the conviction. Appellant took the witness stand, and tes- But these matters pointed out in petition for tified as follows: "Q. Your name is F. B. rehearing, to wit, that certain jurors knew Cumberledge? A. Yes sir. Q. Where do you of trouble between the accused and his reside? A. Muskogee. Q. What business are wife, wherein he was alleged to have asyou in, Mr. Cumberledge? A. Well, I am in saulted her, in all reasonable probability inthe drug business. Q. How long have you fluenced the jury in fixing the punishment, been in the drug business? A. Well, sir, 10 which was a fine of $150 and imprisonment or 11 years. Q. You are charged with selling for six months. In view of the disclosures or being interested in the sale of liquor to in the recòrd, we are impelled to the conone Ernest Hoheimer on or about the 1st clusion that substantial justice requires a day of December, 1910. I will ask you to modification of the judgment. Upon the