(182 P.)

there is a total failure of evidence to show that Jethro Pigford poured the contents from the bottle with the intention of causing the horse to disturb the said religious meeting, except the act itself.

fines and costs are not paid, to remain in jail [ that Jethro Pigford intended to do so, and one day for each dollar due the state. To reverse the judgment rendered, the defendants Jethro Pigford, Sam Pigford, and Bill Messinger jointly prosecute this appeal. The charging part of the information is: "That the said Jethro Pigford, Sam Pigford, Roy Goods, and Bill Messinger, on or about the 28th day of August, 1916, in Harmon county, Okl., did knowingly, willfully, unlawfully, and voluntarily disturb religious worship at Wildcat Church by making loud and boisterous noises and frightening a horse, which greatly disturbed a public religious service then in progress."

The owner of the horse, who was a member of said congregation at the time, testified he was disturbed by his horse being "highlifed." Another member of the congregation testified that he was disturbed by the defendants coming in and going out of the meeting as much as twice.

The defendants earnestly insist that the court committed reversible error in overrulThe defendant demurred to the informa- ing the demurrer to the information. With tion upon the ground:

"(1) Because it does not charge any offense to have been committed in Harmon county; (2) that more than one offense is charged in the information; (3) that the facts stated in said information do not constitute a public offense; (4) that the court has no jurisdiction to try the offense of highlifing a horse."

The court overruled the demurrer, and the defendant excepted.

[1] The uncontradicted evidence is that there was a revival meeting in progress at the time and place named in the information; that the defendants attended the said meet

this contention we are not in accord.

The information clearly points out the offense which the defendants are brought to the bar to answer, "disturbing religious worship." The information is not duplicitous, as it charges but one offense, and avers two ways by which the said offense was committed-by making loud and boisterous noises and by frightening a horse. In one count an offense may be properly charged as being committed by two separate and distinct acts on the part of the accused done at the same time.

The ground of demurrer that the court has no jurisdiction to try the offense of "highlifing" a horse is not germane to a legitimate attack upon said information, as the information cannot be contorted so as to charge such offense; the "highlifing" of the horse being only one of the acts by which the of

ing, remaining a short time, and while the meeting was still in progress left in the same vehicle in which they came; but there is no evidence that either of the defendants, while attending the meeting, or while the meeting was in progress, willfully disturbed the said religious worship by making loud and bois-fense charged-disturbing religious worship terous noises.

-was committed. While the information does not command our approval as a model pleading, we are of the opinion that it was sufficient, and the court did not err in overruling the demurrer thereto.

We think instructions No. 3 and No. 6, given by the court and excepted to by the defendants, were as favorable to them as they were entitled to. The requested instruction which was refused by the court we think was properly refused, because fully covered by the general instructions.

There is no evidence that either of the defendants, except Jethro Pigford, were in any

There was a horse tied about 15 feet from the arbor under which the meeting was being conducted, and one of the defendants, Jethro Pigford, as the hack in which he was riding passed the said horse, poured some substance from a beer bottle upon the horse, and the horse immediately became greatly excited and endeavored to get loose, and thereby caused considerable excitement among the people attending the said meeting. A bottle was found the next morning near the place where the horse had been tied which contained a few drops of what is commonly known as "highlife." There was also evidence tend-way connected with the pouring of the said ing to show that the substance which was poured upon the horse was "highlife." The evidence also discloses the fact that "highlife," as the phrase is commonly used, is carbon bisulphide. There is no evidence in the case as to what effect the pouring of "highlife" would have upon a horse. There is no evidence whatever that there existed a conspiracy by the defendant to disturb the religious worship, or that either of the other defendants, Sam Pigford or Bill Messinger, advised Jethro Pigford or were in any wise connected with the pouring of the contents of the bottle upon the horse, or even were advised

substance from the said beer bottle upon the said horse, or had any knowledge that Jethro Pigford intended to do so, and the only averment in the information as to how the said religious meeting was disturbed that is sustained by the evidence was the act of the said Jethro Pigford in frightening the said horse, and therefore the court committed reversible error in not directing, as requested, a verdict of acquittal for the defendants except the said Jethro Pigford. The horse being tied within 15 feet of the arbor under which the said religious worship was being conducted, Jethro Pigford must be presumed to have

known that his act would frighten the horse | firm the judgment for failure to diligently and cause him to become so excited as to dis- prosecute the appeal is sustained, and the turb the said religious meeting, as is shown judgment of conviction is affirmed. Mandate by the evidence it did. It is also to be pre- forthwith. sumed that he intended the natural consequences of his act. The evidence was sufficient to sustain his conviction, and the court did not err in refusing to direct the jury to acquit him.

In accord with the views expressed in this opinion, the judgment herein rendered is reversed as to Sam Pigford and as to Bill Messinger. The judgment rendered against Jethro Pigford is affirmed.

DOYLE, P. J., and MATSON, J., concur.

(16 Okl. Cr. 696)

KEETER v. STATE. (No. A-3238.) (Criminal Court of Appeals of Oklahoma. Aug. 12, 1919.)

(Syllabus by Editorial Staff.) CRIMINAL LAW 1131(4)—APPEAL And ErROR-ABANDONMENT OF APPEAL.

Where an appeal in a prosecution for unlawfully possessing intoxicating liquors was pending from January 9, 1918, and called for submission June 3, 1919, but no appearance made or brief filed, the appeal will be deemed to have been abandoned; several extensions of time having been granted for the purpose of briefing the cause.

Appeal from County Court, Cotton County; J. C. Norman, Judge.

Lester Keeter was convicted of the crime

of unlawful possession of intoxicating liquors,

and sentenced to pay a fine of $200 and to serve 60 days in the county jail, and appeals. Judgment affirmed.

(108 Wash. 700)

MILLER V. BRANCH et al. (No. 15102.) (Supreme Court of Washington. 1919.)

Department 1.

Aug. 5.

Action by John R. Miller against George B. Branch and others. Judgment for plaintiff, and defendants appeal. Reversed.

PER CURIAM. This case is in all respects like the case of Miller v. Kemper, 181 Pac. 859. All the questions presented in this case are decided in that case adversely to the contention of respondent.

For the reasons therein stated, the judgment is reversed.

SHADRICK v. STATE. (No. A-3246.) (Criminal Court of Appeals of Oklahoma. Sept. 11, 1919.)

Appeal from County Court, Oklahoma County; Wm. H. Zwick, Judge.

Allison Shadrick was convicted of a violation of the prohibitory liquor law and appeals. Affirmed.

Twyford, Smith & Crowe, of Oklahoma City, for plaintiff in error.

The Attorney General and W. C. Hall,

Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error, Allison Shadrick, was convicted on an information

Lon Morris, of Walters, for plaintiff in er- charging that on the 9th day of December,

ror.

The Attorney General, for the State.

PER CURIAM. This appeal has been pending in this court since the 9th day of January, 1918. On the 3d day of June, 1919, the case was called for submission. No appearance was made at that time by counsel representing plaintiff in error to orally argue the cause, nor has any brief been filed in behalf of plaintiff in error. At the time the cause was submitted, the Attorney General filed a motion to affirm the same for failure to diligently prosecute the appeal.

It is apparent that this appeal has been abandoned, as several extensions of time were granted to counsel for plaintiff in error for the purpose of briefing the cause, but no brief has been filed.

A. D. 1916, he carried and transported in a certain Buick automobile, 12 quarts of whisky, from a point unknown, through and along Lindsay street, to a point at the intersection of said Lindsay street with First street in Oklahoma City, and in accordance with the verdict was sentenced to be confined in the county jail for 90 days and to pay a fine of $100. From the judgment an appeal was taken by filing in this court on January 21, 1918, a petition in error with case-made.

The only testimony is that of two witnesses introduced by the state and supports the allegations of the information. From a careful examination of the whole case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain.

The judgment is therefore affirmed. Man

The motion of the Attorney General to af- date forthwith.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

LEWIS V. STATE. (No. A-3308.) (Criminal Court of Appeals of Oklahoma. Aug. 19, 1919.)

Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

W. T. Lewis was convicted of a violation of the prohibitory liquor law, and he appeals. Affirmed.

P. A. Gavin, of Muskogee, for plaintiff in

error.

The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.

legal right entitled to be admitted to bail, and it was ordered and adjudged that the writ be denied, and bail refused.

MCCAIN V. STATE. (No. A-3329.)

(Criminal Court of Appeals of Oklahoma. June 30, 1919.)

Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

John McCain was convicted of murder, and he appeals. Appeal dismissed.

H. A. Wilkinson, of Oklahoma City, for plaintiff in error.

PER CURIAM. Plaintiff in error was convicted on a charge that he did have unlawfully in his possession six one-gallon cans of alcohol, with the intention of selling the PER CURIAM. Plaintiff in error, John same. His punishment was fixed at 30 days' | McCain, was by indictment duly returned in confinement in the county jail, and a fine of the district court of Oklahoma county, charg$200. From the judgment rendered in pursu-ed with the murder of one M. B. Hill, alleged ance of the verdict an appeal was perfected by filing in this court on March 30, 1918, a petition in error with case-made.

No briefs have been filed. When the case was called for final submission, no appearance was made in behalf of the plaintiff in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal.

to have been committed in said county on the 19th day of June, 1917, by shooting her with a pistol, and upon his trial the jury found him guilty and assessed the punishment at imprisonment for life. Judgment was rendered in accordance with the verdict on Noveinber 10, 1917, from which judgment an appeal was perfected by filing in this court on April 24, 1918, a petition in error with case

Finding no available error in the record, made. the judgment herein is affirmed.

Ex parte LITTRELL. (No. A-3064.) (Criminal Court of Appeals of Oklahoma. July 12, 1919.)

Petition by Jess Littrell for writ of habeas corpus to be let to bail. Denied, and bail refused.

Carr & Henderson, of Pauls Valley, and A. B. Burris, of Okemah, for petitioner.

R. McMillan, Asst. Atty. Gen., for respondent.

PER CURIAM. The petitioner, Jess Littrell, filed his petition in this court on the 5th day of July, 1917, praying that a writ of habeas corpus issue for the purpose of being admitted to bail, being in custody under an order of commitment by an examining magistrate on a charge of having murdered one L. M. Boulware.

Petitioner avers that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the charge of murder is not evident, nor the presumption thereof great.

Plaintiff in error by his counsel of record has filed motion to dismiss the appeal; said motion being filed by request of plaintiff in error. It is therefore considered and ordered that said motion be sustained, and the appeal herein dismissed.

MCINTOSH v. STATE. (No. A-3424.)

(Criminal Court of Appeals of Oklahoma. July 31, 1919.)

Appeal from District Court, Haskell County; W. H. Brown, Judge.

Monroe McIntosh was convicted of murder, and he appeals. Dismissed.

E. O. Clark, of Stigler, for plaintiff in error.

PER CURIAM. The plaintiff in error, Monroe Mcintosh, and Alice Dodd, were jointly charged with the murder of one Solon Dodd, alleged to have been committed in Haskell county on or about the 25th day of August, 1917, by giving and administering 71⁄2 grains of a certain deadly poison, to wit, "bichloride of mercury."

A severance was asked and granted. Upon On August 7, 1917, a supplemental petition his separate trial the plaintiff in error was was filed, at which time, upon consideration convicted and his punishment assessed at imof the petitions, it was the opinion of the prisonment in the penitentiary for life at court that petitioner was not as a matter of | hard labor. From the judgment and sentence

rendered in accordance with the verdict on |2. CRIMINAL LAW 394-EVIDENCE-DOCUthe 7th day of February, 1918, plaintiff in error appealed by filing in this court on August 7, 1918, a petition in error with casemade.

Plaintiff in error by his counsel of record has filed a motion to dismiss his appeal, which motion is sustained; and it is ordered and adjudged that the appeal herein be dismissed.

Ex parte MUSIC. (No. A-3122.) (Criminal Court of Appeals of Oklahoma. July 12, 1919.)

Application of John W. Music for release upon bail by writ of habeas corpus. Bail allowed.

John L. Gleason, of Guymon, for petitioner. R. McMillan, Asst. Atty. Gen., and I. E. Hill, Co. Atty., of Boise City, for the State.

PER CURIAM. The petitioner, John W. Music, filed his petition in this court August 25, 1917, for the purpose of being admitted to bail pending the final hearing and determination of a charge of murder filed against him in Cimarron county, wherein upon his preliminary examination before the county judge he

was held to answer for the murder of one Wade Burnett, on the 2d day of July, 1917. Attached to said petition and made a part thereof is a stipulation as to the facts which the evidence tended to show, and that the judge of the district court of Cimarron county has been absent from the state; also the statement of E. B. McMahan, county judge, recommending that petitioner be admitted to

bail.

In consideration of said stipulation it was on the 25th day of August, 1917, ordered and adjudged that said petitioner be admitted to bail, and the same is fixed in the sum of $12,000, bond to be conditioned as required by law. Upon giving bond in this sum, the same to be approved by the court clerk of Cimarron county, the petitioner to be released from custody.

(16 Okl. Cr. 291)

KNIGHT v. STATE. (No. A-2890.) (Criminal Court of Appeals of Oklahoma. Aug. 8, 1919.)

(Syllabus by the Court.)

1. HOMICIDE 22(2)-MURDER IN FIRST DEGREE EVIDENCE.

Evidence of previous malice and premeditation not necessary to sustain a conviction of manslaughter in the first degree, where a homicide is committed in the heat of passion with a deadly weapon, per se.

MENTARY EVIDENCE-ILLEGAL SEARCH. Documentary evidence secured by illegal search of the room of another is not thereby rendered inadmissible as violative of the Constitution of this state.

3. HOMICIDE 269-EXPRESSED MALICE RESTORATION OF FRIENDLY RELATIONS.

Where there is evidence of previously expressed malice, and that friendly relations are thereafter apparently restored, upon the trial of a defendant for the murder of the person against whom the malice was expressed, it is a question of fact, under proper instructions, for the jury as to whether or not the restoration of friendly relations between the parties at the time of the homicide, was in good faith on the part of the slayer.

4. HOMICIDE ~338(5)—EXPRessed Malice.

In the trial of a murder charge, erroneous admission of evidence tending to show malice and premeditated design, even though such evidence should be incompetent and prejudicial, becomes harmless, when a verdict of manslaughter is returned by the jury. 5. INSTRUCTIONS.

The instruction given and the requested instructions refused carefully considered, and found free from error.

S. P. Freeling, Atty. Gen., and R. McMil

lan, Asst. Atty. Gen., for the State.

ARMSTRONG, J. The plaintiff in error, Jesse Knight, hereinafter called defendant, was informed against jointly with his brother for the murder of George E. Long, a severance was granted, and the defendant tried and convicted of manslaughter in the first degree, and sentenced to imprisonment at To reMcAlester for a term of 20 years. verse the judgment rendered, he prosecutes this appeal.

The defendant in his brief does not abstract the evidence as required by the rules of this court, and does not seriously contend that the evidence is insufficient to sustain the conviction of manslaughter in the first degree, had in this case. We therefore feel it is unnecessary to recite the voluminous evidence in this case, except in so far as it may be necessary to an intelligent consideration of the fundamental errors alleged to have intervened in the trial of the case. The said evidence is that the defendant, Jesse Knight, and John Knight were brothers, and that a very commendable brotherly affection existed between them, especially on the part

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(182 P.)

that the deceased seized a fire nozzle and held it in a position to strike, and that the deceased was then seized and pulled back by the defendant, who immediately drew his pistol and shot the deceased through the head, and that deceased fell and immediately expired; that the defendant immediately said, in explanation as to why he shot the deceased, "that the deceased was trying to knock his head off with the nozzle, that he could not stand for that, that he could not stand for a thing like that," and shortly thereafter left the fire hall, went to Texas, and thence to his parents' home in Tennessee, returned to Oklahoma, and surrendered.

The defendant testified that he killed the deceased in order to protect his brother from being killed or receiving great bodily harm; that at the time he shot the deceased he entertained no unkindly feelings toward him, and that when he wrote the said letters to his brother, which were in evidence, that he was mad and worried, and did not intend to advise his brother to kill the deceased, nor did he intend to threaten the deceased; that his object in writing his brother said letters was to cause him to be careful and to keep him out of trouble; and that at the time said letters were written he had never seen and did not know the deceased.

[3] The defendant excepted to the giving of paragraph 15 of the instructions given the jury, which paragraph reads:

of the defendant to John, that the defendant and apparently in a very weak condition; resided in Texas and John in this state, that the deceased was fire chief of the S. & S. Company, located at Packingtown, Okl., and had authority to employ all help needed in the fire department of the said company, and that John Knight was employed by him in the said fire department, and that while so employed he contracted syphilis and was discharged, and at the time of being discharged he was abused and kicked by the deceased, and bad blood thereby engendered; that of this and of his physical condition, John fully advised the defendant by letter, and informed him that his having contracted syphilis was due to the evil advice of the deceased; that subsequently John's physical condition improved, and the unfriendly relations between him and the deceased were adjusted, and John was again employed by the deceased in his former position; that it was while the unkindly feelings existed between them that the letters put in evidence, to which the defendant duly excepted, were written by the defendant to John, which said letters expressed great malice toward the deceased, and a determination on the part of the defendant to avenge the wrongs done John by the deceased, saying "that he (defendant) still had his automatic oiled and in good shape." The defendant visited his brother in Packingtown, where for a short time he was employed, and returned to Texas. Subsequently he returned to Packingtown, and some months thereafter he and John visited their parents in Tennessee, where they remained about 60 days and then returned to Packingtown, and John found that his former place in the fire department, in which he desired re-employment, had been filled by another, and John frequently asked others connected with the deceased as to whether or not the deceased intended to again employ him, and as to what he intended to do about it; that on the night of the homicide the defendant and his brother visited the fire hall of the S. & S. Company, in which hall the deceased had his bed, and on which he was then lying partly undressed, with his shoes off; that the defendant and his brother John engaged with others in a game of cards; that while they were so engaged the deceased got up, and in his stocking feet went into the toilet which adjoined said fire hall, and that John, having gotten another to take his place in the card game, immediately followed the deceased into said toilet; that in about a minute the deceased called "Tom," who was an employé of said fire department, and who was also engaged in the said game of cards, several times, and immediately thereafter the deceased and John returned to the fire hall, and that John had hold of deceased and was striking at him; that the deceased was severely cut about the face, and bleeding very profusely,

"Threats made by the defendant, if any, and all declarations of personal hostility of the defendant, if any, against the deceased, are proper for your consideration, to determine the question of malice or criminal intent of the defendant, if any, at time of the fatal difficulty; but if you find from the facts and circumstances in evidence in the case that the defendant and deceased, after any such threats or declarations of hostility, if any, made up good friends, and each forgave the other, all past differences and animosities, and no new threats or hostilities could be considered, by the jury as evidence of malice; but if the jury believes from the evidence beyond a reasonable doubt that the defendant had not in good faith forgiven deceased, and made up good friends, prior to the fatal difficulty, then the jury has the right to consider the past threats or expressions of hostility of the defendant, if any there were, for the purpose, with the other evidence in the cause, of determining the question of malice."

The defendant complains of the action of the court in refusing to give requested instruction No. —, and which said refusal was excepted to. The instruction is as follows:

"What is or is not an overt action-that is, what act upon the part of the person slain will justify the person taking his life-varies with the circumstances of each particular case. Under some circumstances the slightest movement may justify instant action on the part of the person threatened with danger, under other