In the statute relating to assault with intent to rob, and an indictment following its language, the term "rob," is used in its com

mon-law sense.

sary that this fact should be shown by di- (Additional Syllabus by Editorial Staff.) rect proof, it is competent to establish it by 4. ROBBERY (§ 19*)-INDICTMENT-"ROB." direct declarations of the prosecutor, and, in the absence of direct proof, it may be inferred from the facts and circumstances proved. Under our statute, it is necessary, before the defendant can be convicted, where the false pretense was expressed in language alone, that it be proven by the testimony of at least two witnesses, or of one, witness and corroborating circumstances."

or

Section 6837 (Snyder's Sts.) of Criminal Procedure provides, in prosecutions for false pretenses, that: "Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token | or writing, unless the pretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. But this section does not apply to prosecution for falsely representing or personating another, and in such assumed character, marrying or receiving money or property."

[Ed. Note.-For other cases, see Robbery, Cent. Dig. § 25; Dec. Dig. § 19.*

For other definitions, see Words and Phrases, vol. 6, p. 6257.]

Appeal from District Court, Garvin County; Robinson McMillan, Judge.

Sonny Tyson was convicted of assault with intent to rob, and appeals. Affirmed.

Carr & Field, of Pauls Valley, for plaintiff
in error.
Chas. West, Atty. Gen., and Smith
C. Matson, Asst. Atty. Gen., for the United
States.

'DOYLE J. The plaintiff in error was convicted in the district court of Garvin county of the crime of assult with intent to rob, and was sentenced to serve a term of three years in the state penitentiary. The judgment was entered May 13, 1909.

The record shows that the conviction was had on an indictment returned by a grand jury in the United States court in the Indian Territory for the Southern district of said territory, at the October term, 1906, and that the case was pending in the said court at the time of the admission of Oklahoma as a state. That the case was assigned for trial at the March, 1909, term of the district court of Garvin county, and the defendant defaulted The recFor the reasons stated, the judgment is and was subsequently re-arrested. reversed.

Applying the test which the statute prescribes, the pretenses alleged were not sufficiently corroborated.

ord further shows that upon arraignment defendant entered a plea of not guilty, that

FURMAN, P. J., and ARMSTRONG, J. subsequently, without permission to with

concur.

(7 Okl. Cr. 433)

TYSON v. UNITED STATES. (Criminal Court of Appeals of Oklahoma. April 10, 1912.)

(Syllabus by the Court.)

1. ROBBERY (§ 24*)-CRIMINAL PROSECUTION -SUFFICIENCY OF EVIDENCE.

In a prosecution for assault with intent to rob, the evidence is held sufficient to support the verdict and that no reversible error was committed on the trial.

[Ed. Note. For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.*] 2. ROBBERY (§ 19*)-INDICTMENT WITH INTENT TO ROB.

ASSAULT

An indictment for assault with intent to rob need not state what the defendant intended to take, nor that he intended to deprive the owner thereof, nor is it necessary to allege ownership in the party assaulted; mere possession in him being sufficient.

draw his plea, a general demurrer to the indictment was filed, which demurrer was overruled.

[2] The Supreme Court of Arkansas directly passed upon the sufficiency of an indictment in nearly the identical language employed herein, holding the indictment good. Traver v. State, 72 Ark. 524, 81 S. W. 615. See, also, McClain, Criminal Law, pars. 228 and 281. [4] The prosecution here was under the The indictment follows Arkansas statute. the language of the statute. The term "rob" is used therein in its common-law sense and has a well-defined meaning. 2 Russell on Cr. par. 76. The indictment is sufficient and the demurrer thereto was properly overruled.

[1] The second assignment is that: "The court erred in refusing to sustain the demurrer of the defendant to the evidence introduced in support of said indictment."

On the part of the prosecution, John C. Roberts, who it is alleged in the indictment

[Ed. Note. For other cases, see Robbery, the defendant assaulted with a pistol with Cent. Dig. § 25; Dec. Dig. § 19.*]

3. INSTRUCTIONS OF COURT-SUFFICIENCY.

The instructions of the court, taken as a whole, fairly stated the rules and principles of law applicable to the issues involved.

intent to rob, testified that at the time in question he was bookkeeper for the Butts Lumber Company at Wynnewood, Ind. T., that he had known the defendant seven or

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

Where there is evidence tending to prove that the defendant committed the offense charged in the information, it is not error for the court to overrule a motion at the close of the evidence, requesting the court to advise the jury evidence is insufficient to warrant a conviction. to acquit the defendant on the ground that the

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1716, 1717, 1728; Dec. Dig. § 741.*]

eight years, that the day before the assault | 2. CRIMINAL LAW (§ 741*)-TRIAL-DIRECTING the defendant sat around the lumber office VERDICT. all the afternoon and watched witness make up $200 or $300 in $5 and $10 bills, and put it in the safe. That the next night about 8 o'clock witness was working in the office with the door locked and the safe open and the blinds up, when some person rattled the door, and the defendant said: "Let me in, please, the door is locked." That he knew the defendant's voice and opened the door to let him in. As the defendant came in he had a gun in his hand and witness pushed the door to and caught him in the door, that they scuffled until the glass was broken out of the door; that the defendant finally got loose, rushed in and said, “God damn you, I got you where I want you, throw up your hands, or I will blow your brains out," that the defendant rushed out the door, and several people hearing him hallowing appeared upon the scene.

The defendant's counsel insist that the proof wholly fails to show what the intent of the defendant was in making the assault. The court in overruling the demurrer said: "The jury have the right to judge from all the surrounding circumstances the intent of the defendant."

What intent existed in the mind of the defendant at the time of the assault can only be determined by his acts, manner, and conduct at the time, together with the surrounding circumstances. His intent was therefore a question of fact for the jury. The demurrer to the evidence was very properly overruled by the trial court.

[3] The instructions given correctly state the law of the case, and the objections thereto are without merit.

Perceiving no prejudicial error in the record, the judgment of the district court of Garvin county is affirmed, and the cause remanded thereto forthwith, with direction to enforce its judgment and sentence therein.

Appeal from District Court, Okfuskee County; John Caruthers, Judge.

Mose Caido was convicted of larceny, and appeals. Affirmed.

C. B. Conner and W. A. Huser, both of
Chas. West,
Okemah, for plaintiff in error.
Atty. Gen., and Smith C. Matson, Asst. Atty.
Gen., for the State.

DOYLE, J. The plaintiff in error was tried, convicted, and sentenced to serve a term of 13 months' imprisonment in the state penitentiary on an information, the charging part of which reads as follows: "That within said county of Okfuskee and state of Oklahoma, on the 6th day of April, 1909, one Mose Caido unlawfully, fraudulently, stealthily, and feloniously did take, steal and carry away from the possession of the owner, Chas. Puffin, one domestic animal, to wit, one two year old heifer calf, without the knowledge or consent of him, the said Chas. Puffin, and with the felonious intent of him, the said Mose Caido, to deprive the owner thereof, and with the intent to convert the same to the use of him, the said Mose Caido, contrary to," etc.

[1] There are but two alleged errors relied on for a reversal in this case. First, that the court erred in overruling the demurrer to the information. It is insisted by the defendant's counsel that the information is fatally defective in that it does not charge that the animal was taken with the felonious intent

FURMAN, P. J., and ARMSTRONG, J., to convert the same to the use of the taker.

concur.

(7 Okl. Cr. 139)

CAIDO v. STATE.

(Criminal Court of Appeals of Oklahoma.

April 10, 1912.)

(Syllabus by the Court.)

1. LARCENY (§ 34*)

CIENCY.

In a prosecution for larceny of a domestic animal, an information which charges that the defendant "unlawfully, fraudulently, stealthily, and feloniously did take, steal, and carry away from the possession of the owner" certain personal property, "without the knowledge or consent of the owner, and with the felonious intent to deprive the owner thereof, and with the intent to convert the same to the use of the taker," sufficiently charges a felonious intent to convert the same to his (the taker's) own use. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 61, 94, 95; Dec. Dig. § 34.*]

We are of opinion that the information in this case sufficiently alleges the unlawful and felonious intent to deprive the owner of the property, and with the felonious intent to convert the same to the taker's own use. Barbe v. Territory, 16 Okl. 562, 86 Pac. 61; Crowell v. State, 6 Okl. Cr. 148, 117 Pac. 883.

[2] At the close of the state's evidence, the defendant entered a demurrer to the evidence and moved the court to direct the jury to return a verdict of not guilty, which was overruled and denied by the court, and the ruling of the court is assigned as error. This assignment is without merit.

The sufficiency of the evidence to show the commission of the crime and the guilt of the defendant is not a question in the discretion of the court. If there is any evidence tending to prove that the defendant had committed the crime charged in the information, it is not error for the court to overrule a de

6. APPEAL AND ERROR (§ 927*)—Review— FINDINGS OF FACT.

On appeal from a judgment for plaintiff in libel, the court will, in reviewing the propriety of denying a directed verdict, assume as true the evidence of the witnesses for the plaintiff.. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 4024; Dec. Dig. § 927.*]

FURMAN, P. J., and ARMSTRONG, J., 7. LIBEL AND SLANDER (§ 7*)-MATTERS LI

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

Appeal from District Court, Silver Bow of the trial, the defendant objected to the County; John B. McClernan, Judge. introduction of evidence, on the ground that,

Action by Jenny Kelly, administratrix, it appearing from the complaint that the against the Independent Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

tion alleged is the publication by defendant, in the Helena Daily Independent, on the morning of February 21, 1907, of and concerning the plaintiff the following article:

At the close of the

publication was made on February 21, 1907,
and that the complaint was not filed until
February 23, 1909, the action was barred
The ob-
by the provision of the statute.
jection was overruled.
evidence, the defendant requested the court
to direct a verdict in its favor. The request
was denied. The contentions made in this
court are based upon these two rulings.
Some technical questions arising upon the
form of the plea of the statute and the
reply thereto are argued in the brief. We
shall not notice these, because they do not
affect the merits of these appeals.

It was admitted in the district court, nd also at the argument in this court, that the article in question was published on the morning of February 21, 1907, and that "Mother Accused by Her Children. this action was commenced on February "Mrs. F. E. Miller of Butte, is arrested on 23, 1909. February 21, 1909, fell on Sunday, charge of assault, at the instance of Otto a holiday. The following day was also a holiday. The position of counsel for deSchoenfeld, executive officer of the state bureau of child and animal protection, who fendant is that in computing the two-year was hurriedly summoned to Butte Tuesday period of limitation prescribed by the statnight by W. H. Orr, of the Silver Bow Coun-ute for actions for libel (Rev. Codes, § 6448) ty Humane Society. Mrs. F. E. Miller was the day of publication must be included, arrested and placed in the county jail this afternoon on the charge of assault upon her fifteen year old daughter. The charge is but nominal and behind is a story of horrible brutality and a peculiar condition of domestic affairs, according to the three children of the woman. It is alleged by the older daughter who goes by the name of Ruth Harris, the latter the name of the woman's second husband, that the younger | daughter, Helen, eleven years of age, has been compelled, at the command of the mother, to submit to unspeakable indignities forced upon her by men who have been repeatedly invited to their home at 1121 South Wyoming street, where the most indecent orgies are alleged to have been continued through the night.

"Threatened Their Lives.

"The mother, Mrs. Miller, is said to be a confirmed drunkard. It is alleged that on several occasions she has thrown a huge butcher knife at the children and has threatened to kill them if they were taken from

her.

The two girls were taken from school this afternoon by Mr. Schoenfeld, and they have been placed temporarily in the Paul Clark Home. The matter will be taken up

before Judge Donlan to-morrow morning and

action barred.

because the right of action accrues on that have sustained the objection and held the day. Hence that the district court should If counsel's assumption is correct, their conclusion is also; for if the two-year period be computed, either in calendar years, or in years of 365 days each, excluding the added day of the year 1908, rule relied on by counsel, the limitation exa leap year (Rev. Codes, § 2029), by the pired at midnight on February 20, 1909. From this point of view, of course, the two holidays following are entirely outside of the limitation period and need not

be considered.

The question, therefore, is, first, whether in computing the limitation period the first day is to be excluded; and, if so, second, whether the two holidays are to be excluded also.

[1] For most purposes, the law regards the day as an individual unit. It is only when it becomes necessary to inquire into the order of sequence of two or more events occurring on the same day, for the purpose of determining a question of priority of only one day or less, that departure from right, or when the computation includes this rule is permitted. Harmon v. Comstock Horse & Cattle Co., 9 Mont. 243, 23 Pac. 470; Rev. Codes, § 8071. In Lester v. Gar

land, 15 Ves. Jr. 248, it was said: "Our

the girls will probably be sent to the Or-law rejects fractions of a day more gen

phans' Home in Helena. There is also a boy twelve years of age, and what disposition

erally than the civil law does. The effect

will be made of him has not yet been de- is to render the day a sort of indivisible

cided."

Among other defenses, the defendant pleaded the statute of limitations. Plaintiff in

point, so that an act done in the compass of it is no more referable to any one than to any other portion of it; but the act and day are coextensive, and therefore the act

[2] There is some confusion in the de- | distinction should be made. The statute cisions of the courts upon the subject. In provides: "The time in which any act prothe case cited, the conclusion was reached vided by law is to be done is computed by that no general rule can be laid down, be- excluding the first day and including the cause cases would occur the reason of which last, unless the last day is a holiday, and would require exceptions to be made. The then it is also excluded." Rev. Codes, § result of this decision, however, was that 8067. It was pointed out in Perkins v. earlier cases (Norris v. Gawtry, Hob. 139; Jennings and Grant v. Paddock, supra, that Bellasis v. Hester, 1 Ld. Raym. 280; Rex the purpose of this provision was to esv. Adderley, 2 Dougl. 463; Castle v. Burditt, tablish a general rule for the computation 3 T. E. 623, 100 Eng. Rep. Reprint, 768), of time, in order that confusion may be which held that the computation was to be avoided and harmony prevail. We think made from the act done, and that the day this is the correct view, because it furnishes on which the act was done should be in- a certain guide for the computation of time cluded, were overruled. The rule applied as applied to the statute of limitations in in the cases last mentioned has been adopted all cases, and also as applied to matters of by some of the courts in this country, as procedure in the courts. The words "any is shown by the following cases: Geneva act provided by law," as used in the statCooperage Co. v. Brown, 124 Ky. 16, 96 S. ute, do not refer to acts which the law proW. 279, 124 Am. St. Rep. 388; Aultman & vides shall be done, but to acts which may Taylor Co. v. Syme, 163 N. Y. 54, 57 N. E. be done within a specified time. The sec168, 79 Am. St. Rep. 565; Peterson v. Geor- tion has always been held by this court to gia R. R. & Banking Co., 97 Ga. 798, 25 S. apply to the time within which an appeal E. 370; Shinn v. Tucker, 33 Ark. 421. This may be taken, to the time within which was formerly the rule in Massachusetts; a notice of intention to move for a new the court basing its decision on Norris v. trial may be given, or to the time within Gawtry, supra (Presbrey v. Williams, 15 which any other motion or proceeding may Mass. 193); but in the case of Seward v. be had in the course of litigation in courts Hayden, 150 Mass. 158, 22 N. E. 629, 5 L. (Jackway v. Hymer, 42 Mont. 169, 111 Pac. R. A. 844, 15 Am. St. Rep. 183, Presbrey v. 720, and cases cited); and yet the doing of Williams was overruled. The court said: any of these things is not compulsory, be"But in computing time under statutes and cause required by law to be done, but are to contracts the law disregards fractions of be done at the option of the parties. If a day, unless, on account of the subject- the provision has no application to the time matter, or for other important reasons, within which an action must be brought, justice requires that they should be regard- then, by the same rule, it has no application ed. This rule is universally held applicable to matters of procedure, and must be applied to computations under the statute of limita- only to acts enjoined by law. tions." The current of authority supports the rule thus stated. Owen v. Slatter, 26 Ala. 547, 62 Am. Dec. 745; Blackman v. Nearing, 43 Conn. 56, 21 Am. Rep. 634; McCulloch v. Hopper, 47 N. J. Law, 189, 54 Am. Rep. 146; Perkins v. Jennings, 27 Wash. 145, 67 Pac. 590; Warren v. Slade, 23 Mich. 1, 9 Am. Rep. 70; Grant v. Paddock, 30 Or. 312, 47 Pac. 712; Menges v. Frick, 73 Pa. 137, 13 Am. Rep. 731; Pugh v. Reat, 107 Ill. 440; Cowan v. Donaldson, 95 Tenn. 322, 32 S. W. 457; Spencer v. Haug, 45 Minn. 231, 47 N. W. 794; Nebola v. Minnesota Iron Co., 102 Minn. 89, 112 N. W. 880. A collection of cases will be found in a note appended to the last case cited, in 12 Ann. Cas. 56.

Most of the foregoing cases are founded upon contract. But, if the day is to be regarded as a unit, there is no reason why the rule, as applied to actions ex contractu, should not apply to actions ex delicto also; otherwise there is a lack of uniformity in its application, and the result is that in the latter class of cases the period of limitation is shortened by the portion of the day which has expired before the doing of the wrong out of which the cause of action arises. There is no sound reason why the 122 P.-47

[3, 4] The rule of exclusion of the last day of the limitation when it falls on a holiday was recognized in this jurisdiction prior to the enactment of any legislation on the subject. Schnepel v. Mellen, 3 Mont. 118. We think the purpose of the legislation was also to settle the rule in this behalf, so that a person having a right to bring an action, or to do any other act in the course of legal proceedings, might have the whole of a legal day at the end of the prescribed period in which to exercise his option. In any event, it settles the rule of computation in both respects. The district court properly applied it to the exclusion of the day of publication, and also the two holidays appearing in succession on the 21st and 22d of February, 1909.

[5] The second contention of counsel is that the court erred in refusing to direct a verdict for defendant, because the evidence disclosed that the publication of the article was privileged. Section 3604, Revised Codes, declares: "A privileged publication is one made: * 4. By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof." The argument is that the article