liquors with the intention of violating the provisions of the prohibitory liquor law of the state, the defendant is thereby sufficiently notified of the nature of the offense charged against him, and that a conviction upon such an information is valid. The writ of habeas corpus therefore will not issue in this cause, as we find that the petitioner is properly in the custody of the sheriff of Osage county. ARMSTRONG and DOYLE, JJ., concur. RIAL v. STATE. (7 Okl. Cr. 110) (Criminal Court of Appeals of Oklahoma. April 2, 1912.) (Syllabus by the Court.) INTOXICATING LIQUORS (§ 236*)—EVIDENCE -VIOLATION OF PROHIBITORY LAW. For evidence sustaining the charge of having possession of intoxicating liquors with intent to sell the same, see opinion. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.*] 2. CRIMINAL LAW (§ 1105*)-APPEAL-CASEMADE-SUFFICIENCY. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the case-made contains proper recitals of what occurred duly certified to by the trial judge. ed by the action of the petitioner in going | fendant was in possession of intoxicating to trial without making his objection in proper time. In no event could the case of Michael v. State be considered as authority in support of the contention of petitioner. In the case of State v. Feeback, 3 Okl. Cr. 510, 107 Pac. 443, Judge Owen, speaking for this court said: "Counsel for the defendant insist that the action of the trial court in sustaining the demurrer was in accordance with the decision of this court in the case of Michael v. State, 2 Okl. Cr. 703, 103 Pac. 1069. The conclusions reached in the Michael Case are correct under the information in that case. The information there charged the unlawful possession of the liquor, 'with intent to use the same in violating the law.' This language does not indicate what use was intended. The offense sought to be punished here is purely statutory, and consists in having the possession with the intention of 1. violating any of the provisions of the statute. It is a rule of universal application that, when a statute creates the offense and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute. Bishop in his work on criminal procedure announced the rule in this language: "The allegations must cover SO many of the statutory terms as will show a prima facie violation of the written law, and need not cover no more.' The indictment in this case, in effect, charged the defendant with having the unlawful possession of the liquor with the intention to violate all the provisions of the statute against selling, bartering, giving away, etc. In the Michael Case the court said it was necessary to allege the defendant's intention to violate some one of the provisions. The crime is none the less complete if he intended to violate all of them. * Possession of the liquor with the intention of violating any provisions of the statute is a criminal overt act. This is the offense charged in the statute. The information in the Michael Case was not in the language of the statute, nor was the language used equivalent to the words of the statute. To say that a man intends to use the liquor in violating the law does not charge any offense for the reason that it is too indefinite." The case of State v. Feeback was approved and reaffirmed in the case of Childers v. State, 4 Okl. Cr. 238, 111 Pac. 959. This court there said: "In this case the information charged the defendant with having in his possession the liquor described in the information with the intention of violating the prohibitory liquor law of the state of Oklahoma. Upon the authority of state v. Feeback we hold that the information in the case at bar was sufficient, and that the court did not err in overruling the demurrer thereto." [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2887-2889; Dec. Dig. § 1105.*] Appeal from Superior Court, Muskogee W. W. Momyer, of Muskogee, for appellant. FURMAN, P. J. In this case the undisputed evidence is that appellant, Paul Rial, conducted what was known as the Bank drug store in the city of Muskogee; that this drug store was searched for intoxicating liquors in December, 1910; that there was a room about 16 by 18 feet in the back of the drug store, and in this room was found a quantity of whisky and beer on ice, and that there was also in this room an ice box, glasses for drinking intoxicating liquors, and a cork puller. There was a barrel behind the counter in which empty bottles were placed. There was a counter in the room with a shelf behind the counter. There was a bottle of whisky and one of wine setting on this shelf, and the corks set in them loosely. There was a vault that cut into the We are of the opinion that, where an in-room between the prescription case and the formation or indictment charges that the de- north side of the room. In this vault nails motion, why the necessity of having a judge certify to the case-made at all? If this can be done, the records of trial courts would be taken out of the hands of the judge, and would be at the mercy of defendants, and this court would not know what to depend upon. Nothing which occurred in open court in the presence of the trial judge can be considered upon appeal, unless such matters are embodied in proper recitals in the casemade and are certified to by the judge. This is the plain letter of the law. See Saunders v. State, 4 Okl. Cr. 264, 111 Pac. 965; Cochran v. State, 4 Okl. Cr. 379, 111 Pac. 974; Beatty v. State, 5 Okl. Cr. 105, 113 Pac. 237; Nowlin v. State, 6 Okl. Cr. - 115 Pac. 625. [2] As the judge has not certified to the truthfulness of the statements contained in appellant's motion for a new trial, which occurred in open court and of which the judge had personal knowledge, we cannot consider this matter. The judgment of the lower court is therefore affirmed. DOYLE, J., concurs. concurs in result. ARMSTRONG, J., were found in planks placed in there loosely | a new trial or by affidavits supporting such so they could be pulled out with the fingers, and, when they were pulled out, the planks would slide out. In this vault about 30 bottles of wine were found; also a five-gallon water bottle containing about a gallon of whisky and also a tow sack full of beer bottles and another tow sack half full of beer. [1] The above is a condensed statement of the testimony on the part of the state. The appellant offered no evidence in reply. This evidence conclusively shows that appellant and all persons concerned with him in conducting this establishment were violating the law, and all such persons should have been prosecuted and convicted for their participation in this offense. If a man works in such an establishment as an employé, he is just as guilty as the proprietor. No one should be permitted to escape punishment upon the ground that he was an employé when he commits an unlawful act. Under our statute all persons concerned in the commission of an offense are just as guilty as though they committed the offense themselves. The motion for a new trial, among other things, alleges: "That the jury which tried the defendant was not impaneled as provided by law and was not a legal jury in this, to wit: That during the same term of the superior court of Muskogee county, Okl., at which this defendant was tried and on the day immediately preceding the trial of this defendant a jury was duly impaneled and sworn in said court to try the case of the state of Oklahoma v. S. H. Pate, and that after said jury had been impaneled and sworn to try said cause a continuance of the case of the State of Oklahoma v. S. H. Pate was had by the court until the following morning, the said jury being admonished by the court that they were still in the trial of said cause, and that on the calling of the case of the State of Oklahoma v. This Defendant, J. C. Hood, one of the said jurymen, then engag. ed in the trial of the case of the State of Oklahoma v. S. H. Pate, was impaneled and sworn to try the cause against this defendant, and the said juryman did so sit on the trial of this defendant; that this defendant had no knowledge or information that the atoresaid jury man was engaged in the trial of the case of the State of Oklahoma v. S. H. Pate until after the verdict in this case had been rendered." We cannot consider this question because the case-made nowhere contains a statement properly certified to by the trial judge touching this matter. It is true that the judge does certify that appellant's motion for a new trial was filed, but he does not certify to the truthfulness of any statement contained therein. If an appellant can perfect his case-made as to any matter occurring in open court of which the judge has personal knowledge by making statements in his motion for (7 Okl. Cr. 430) TERRY et al. v. STATE. (Criminal Court of Appeals of Oklahoma. April 4, 1912.) (Syllabus by the Court.) 1. INTOXICATING LIQUORS (§ 236*) — CRIMINAL PROSECUTIONS-SUFFICIENCY OF EVIDENCE. For testimony which sustains a verdict for having possession of intoxicating liquors with intent to violate the prohibitory liquor laws of Oklahoma, see opinion. Liquors, Cent. Dig. §§ 300-322; Dec. Dig. 2. WITNESSES (§ 344*)-CREDIBILITY AND IM PEACHMENT-ADMISSIBILITY OF EVIDENCE. The previous occupation, companions, and associates of a witness are proper subjects of inquiry for the purpose of affecting his credibility. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 800, 801; Dec. Dig. § 344.*] 3. CRIMINAL LAW (§ 345*)-EVIDENCE-RELEVANCY-PREPARATION FOR CRIME. Where a person is on trial, any fact is admissible in evidence which tends to prove preparation on his part to commit the crime with which he is charged. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 764, 765, 777; Dec. Dig. 345.*] 4. CRIMINAL LAW (§ 423*)-EVIDENCE-ACTS AND DECLARATIONS OF CONSPIRATORS. Where two or more persons have conspired together to commit an offense, any statement made by one of such persons in pursuance of such conspiracy is admissible in evidence against all of his co-conspirators. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. 423.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Appeal from Blaine County Court; G. W., for three or four months before the county Ferguson, Judge. E. J. Terry and another were convicted of having in their possession intoxicating liquors with the intention of violating the prohibitory law, and appeal. Affirmed. Ben Smith, of Watonga, and J. W. JohnSon, of Oklahoma City, for appellants. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. FURMAN, P. J. This is an appeal from a judgment, rendered in the county court of Blaine county, against appellants for having in their possession intoxicating liquors with the intention of violating the prohibitory liquor laws of this state. attorney ever found out about it. He said that he had a sample in the outside room, and there in the back room he had the stuff. He said that he was never out of it. He said that he never let men out or in there that were intoxicated. He said that when the county attorney found it out he asked him how long he had been running there, and he finally told him. He called him by name, and told him that he wanted to run just two more days, and the county attorney told him to go ahead and run the two days and then to get out; and he said that he went from there to Oklahoma City and started in the restaurant business as a kind of stall. I don't know how long he said he was in business there; but he said that the police told him that if he didn't get out they would throw him in the jug." [1] It was proven upon the trial of this cause that on the 14th day of February, 1911, the premises occupied by appellants were searched for intoxicating liquors by Several other witnesses testified to similar the officers of Blaine county; that appellants statements made by appellant Terry. Apclaimed to be engaged in the poultry busi- pellants Huff and Brown did not reach Waness, and occupied a two-room house in the tonga until the latter part of January. It is town of Watonga; that one of these rooms true that much of this evidence was contrawas occupied as a living room and the other dicted by the defendants' testimony; but the as a place of business; that a barrel, con- credibility of the witnesses was a question taining 37 bottles of whisky, was found in for the jury to determine. The jury having this house in the room used as a living room, accepted the truthfulness of the state's tesand also a bottle of whisky was found in timony, we are bound by it. We think the said room; that an empty barrel was found testimony overwhelmingly and conclusively in this house similar to the one which con- established the guilt of all of the appellants. tained the whisky. It was also proven that [2] It is contended upon the part of counon the 30th day of January, 1911, the appel-sel for appellants that the statements alleged lant Brown received, at the depot in Waton- to have been made by appellant Terry with ga, a drum or barrel of whisky weighing reference to his previous occupation were not 100 pounds; and that appellant Terry was admissible in evidence. With this contenpresent and identified appellant Brown as tion, we cannot agree. Terry was a witness the owner of the whisky when it was re- in his own behalf. It was therefore compeceived at the depot. It was also proven that tent to inquire into his previous occupation, on the 13th day of February following ap- companions, and associates for the purpose pellant Huff received a drum or barrel of of affecting his credibility as a witness. whisky at the railroad depot in the town of These matters, being voluntary, are an InWatonga containing 50 bottles of whisky. dex of character, and can always be inquirThis was the day before the whisky was ed into. See Crawford v. Ferguson, 5 Okl. found in the premises of appellants. A num- Cr. 378, 115 Pac. 278. ber of witnesses testified that they had visited the place of business of appellants early in February and had obtained whisky there, although it is not clear as to whether or not they paid for the whisky. This, however, was immaterial. The sheriff testified that after the whisky was found in the possession of appellants, and they were arrested, appellant Terry claimed the whisky belonged to him, and stated that he had it for his own use. None of the appellants lived in Watonga before January, 1911. In the early part of January, shortly after the appellant Terry reached Watonga, he had a conversation with the state's witness, F. S. McConahay. Said witness testified as follows: "We were talking about the officers, and Terry got to talking about being in that business and in the oil burner business at Lawton, and he said that he was in [3] The evidence was clearly admissible upon another ground, because it tended to establish the fact that appellant Terry and those associated with him had gone to the town of Watonga for the purpose of establishing a bootlegging joint. Any testimony which shows preparation to commit a crime is always admissible in criminal prosecutions against all persons who are concerned in the commission of such crime. [4] The other testimony shows that appellants were all acting together in the commission of the offense charged. Therefore the statements of Terry were admissible against all of his co-conspirators. This is an elementary proposition of law, so well established that it is not necessary to discuss it or to cite authority in its support. The fact that appellants received a barrel of whisky on the 30th day of January, which had all other barrel of whisky on the 13th day of [6. RECEIVERS (§ 139*)-SALES-RIGHT TO SET February, and had disposed of 13 bottles of ASIDE-GROUNDS. this by the 14th day of February, when the house was searched, tended to prove that appellants were engaged in the bootlegging business in the town of Watonga, as charged in the information. We are therefore of the opinion that the evidence not only supports the verdict of the jury, but that it clearly establishes the fact that appellants are all guilty. The judgment of the lower court is therefore, in all things, affirmed. ARMSTRONG and DOYLE, JJ., concur. (45 Mont. 89) In re RECEIVERSHIP OF FIRST TRUST & SAVINGS BANK OF BILLINGS. GAZETTE PRINTING CO. et al. v. McCONNELL. (Supreme Court of Montana. Feb. 27, 1912.) 1. APPEAL AND ERROR (§ 1011*)-FINDINGS CONCLUSIVENESS. A finding on conflicting evidence is conclusive on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 1011.*] 2. APPEAL AND ERROR (§ 413*) - PARTIES NOTICE. Where petitioners in receivership proceedings of a bank obtained an order directed to the receiver and the purchaser at a sale to show cause why the sale should not be set aside, and the receiver and the purchaser appeared and answered, and the court set aside the sale, and the purchaser gave notice of appeal to all the other persons who were parties to the proceeding, the court, on appeal, acquired jurisdiction, and must dispose of the case, but must protect the bank and its creditors, though they were not parties to the proceeding. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2136-2139; Dec. Dig. 8 413.*] 3. RECEIVERS (§ 139*)-SALES-RIGHT TO SET ASIDE. A court of equity in receivership proceedings may set aside an order of sale either before or after confirmation when it appears that the same was entered through mistake, inadvertence, or improvidence. [Ed. Note.-For other cases, see Receivers. Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*1 4. RECEIVERS (§ 142*)-SALES-OBLIGATION OF PURCHASER. A purchaser at a receiver's sale takes with notice that the court may, in its discretion, set the sale aside. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 248-251; Dec. Dig. & 142.*] 5. RECEIVERS (§ 139*)-SALES-RIGHT TO SET ASIDE-GROUNDS. Though mere inadequacy of price is not ordinarily in itself sufficient to warrant the setting aside of a receiver's sale to a bona fide purchaser, yet, where the property was greatly undersold and the purchaser obtained an undue advantage of the creditors, the court may, in its discretion, set the sale aside, though the purchaser acted in good faith. [Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*] aside a receiver's sale is not affected by the The power of a court of equity to set fact that the purchaser acted in good faith without intending to obtain an unfair advantage, and has complied with the terms of sale, and he cannot be placed in statu quo, but such facts must be considered by the court in the exercise of its discretion. [Ed. Note. For other cases, see Receivers, Cent. Dig. & 243, 244; Dec. Dig. § 139.*] 7. RECEIVERS (§ 139*)-SALES-RIGHT TO SET ASIDE-GROUNDS. Where a receiver's sale is set aside, the purchaser must, if possible, be reimbursed for damages sustained thereby. [Ed. Note. For other cases, see Receivers, Cent. Dig. 88 243, 244; Dec. Dig. § 139.*] 8. RECEIVERS (§ 139*)-SALES-RIGHT TO SET ASIDE-GROUNDS. Mere lapse of time does not affect the power of a court of equity to set aside a reit in the exercise of its discretion. ceiver's sale, though it may be considered by [Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*] 9. RECEIVERS (§ 139*)-SALES-SETTING ASIDE -GROUNDS-EVIDENCE. Evidence held to support a finding that an order of sale in receivership proceedings was made through mistake, inadvertence, or improvidence, justifying the setting aside of the sale. [Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*] 10. EQUITY (§ 65*)-MAXIMS. One coming into equity must come with clean hands. [Ed. Note.-For other cases, Cent. Dig. & 185-187; Dec. Dig. § 65.*] see Equity, 11. RECEIVERS (§ 135*)-Sales-RIGHT TO SET ASIDE. One offering to purchase at a receiver's sale for $6,000 property for which he had paid $40,000 three years before may not appeal to a court of equity to compel a sale to him, where the evidence showed that he was familiar with the facts, and the property had probably doubled in value during the three years, and the indebtedness against it, if any, was not shown. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 231-235; Dec. Dig. § 135.*] 12. RECEIVERS (§ 135*) JURISDICTION OF COURT. A court of equity in receivership proceedings of an insolvent domestic corporation must protect the creditors, and see to it that the property of the corporation is sold to the best advantage, for all it is worth, if possible. [Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 231-235; Dec. Dig. § 135.*] 13. RECEIVERS (§ 139*)-SALES-RELIEF TO PURCHASER ON SETTING ASIDE OF Sale. Where the court setting aside a receiver's sale exonerated the purchaser from wrongdoing, the purchaser should be placed in statu quo. [Ed. Note.-For other cases, see Receivers Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*] Appeal from District Court, Yellowstone County; Sydney Sanner, Judge. In the matter of the receivership of the First Trust & Savings Bank of Billings. From an order granting a motion of the Gazette Printing Company and others to set For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 122 P.-36 aside a sale by the receiver to Odell W. Mc- | Moss could get all the money. On NovemConnell, the latter appeals. Affirmed. Chas. A. Taylor, O. W. McConnell, and Gunn & Hall, for appellant. O. F. Goddard, F. L. Tilton, and T. J. Walsh, for respond ents. SMITH, J. On the 14th day of July, 1910, the district court of Yellowstone county, Hon. Sydney Sanner, judge presiding, on petition of the state of Montana, a creditor in the sum of $25,000, appointed Samuel G. Reynolds as receiver of the First Trust & Savings Bank of Billings, Mont., an insolvent corporation theretofore organized under the laws of this state. The Gazette Printing Company is a domestic corporation, having a capital stock of 300 shares of a par value of $100 each, located at Billings, owning a plant and Associated Press franchise, and engaged in publishing two daily newspapers, the Billings Daily Gazette and the Billings Evening Journal. Among other assets of the First Trust & Savings Bank of Billings, which came to the hands of the receiver, were 297 shares of the capital stock of the Gazette Printing Company which stock was the absolute property of the bank, and certain claims against the printing company. It appears to be admitted that on November 29, 1910, these claims, which were evidenced by promissory notes, amounted, with accrued interest, to the sum of $13,035.38. The stock in the printing company was carried arbitrarily on the books of the bank at a valuation of $6,001. The total of these two amounts is $19,036.38, the significance of which sum will hereafter become apparent. P. B. Moss was the president of both corporations. He testified: "I paid $40,000 for the stock, and charged it down from the profit of the company and otherwise down to $6,000. That is how the value of $6,000 got into the stock." It will thus be seen that the amount at which the stock was carried on the books of the bank was no criterion of its real value. On or about the 31st day of October, 1910, the receiver, at the request of Mr. Moss, procured from Hon. Sydney Fox, judge of the Thirteenth judicial district, an order authorizing him to sell the notes and capital stock of the printing company to unnamed persons for the amount due upon said notes, and $6,001 additional for the 297 shares of capital stock. This order was never filed in court. There was some controversy at the hearing subsequently had as to what conversations took place between Reynolds and Moss after the order was procured; but, at any rate, it is clear that Mr. Moss was experiencing some difficulty in getting the money. He himself testified that on November 15, 1910, he offered to pay enough money to take up the stock, and was told by Reynolds that Judge Fox had instructed him not to surrender the stock until the notes were paid, whereupon ber 21, 1910, the notes and stock not having been sold to Moss, the receiver presented to Judge Fox a petition wherein he set forth that the former order of the judge had not been complied with; "that such proposition has not been fulfilled, and now your petitioner has a proposition offered to pay in full liquidation and payment of the obligations of the Gazette Printing Company to the defendant for the capital stock now held by the bank and carried on its books at the sum of $6,001 the sum of $15,000; that your petitioner now desires to submit this proposition to the court, and, if in the judgment of the court or judge thereof such sale should be made, your petitioner asks for an order to sell," etc. The court thereupon ordered the sale to be made in accordance with the terms set forth in the petition last mentioned. The sale was accordingly made to Odell W. McConnell, the appellant; and the notes and certificates of stock were transferred to him. On December 3, 1910, a petition was filed in the district court of Yellowstone county in behalf of the Gazette Printing Company, verified by P. B. Moss, and entitled, "In the Matter of the Receivership of the First Trust & Savings Bank of Billings, Montana." The petition recites the facts substantially as hereinbefore set forth,' and alleges that the second order of sale was made nothwithstanding the prior order, "and notwithstanding the said P. B. Moss was ready, able, and willing to take up said indebtedness and receive said notes and shares of stock, and without giving any notice or warning whatever to said Moss or the Gazette Printing Company." It is therein further alleged: "That on the 24th day of November, 1910, the Gazette Printing Company, by P. B. Moss, its president, and also by and through O. F. Goddard, Esq., its attorney, made demand upon the receiver that he call in said notes and certificates of stock, and that the printing company was ready to pay over the full amount of the indebtedness held by said trust against it, but the receiver refused to do so; that on the 29th day of November, 1910, the Gazette Printing Company, by P. B. Moss, its president, made a formal tender to the receiver of $19,036.38, being the amount due, principal and interest, on said promissory notes, and also including $6,001, for which the said receiver had the said 297 shares of stock, which amount the receiver 'took into his possession,' but has refused to deliver the notes and shares of stock; that, unless the last-mentioned order [the McConnell order] is rescinded, the creditors of said trust will be damaged in the sum of $4,036.38, and the Gazette Printing Company will be irreparably injured and defrauded of its property, and great injury will be done." The prayer was that the court set aside the order by virtue of which the appellant purchased |