the case shall stand for hearing, and no costs or fees shall be taxed for making a complete record in such case, except when the same shall be made at the request of a party to the cause at his own costs. (5998 R. L. 1910.) 19. When Appeal to Be Tried-An appeal shall stand for trial immediately after filing the transcript if the criminal court of appeals is in session, if not in session, at the next term thereafter on proof of notice of appeal to the appellee. (6001 R. L. 1910.) 20. Power of Appellate Court--The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time, and in the manner to be prescribed by rule of the court. (6003 R. L. 1910.) Appellate court has authority to modify and affirm judgment appealed from. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Hall v. State, 7 Okla. Cr. 126, 122 Pac. 729; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; McSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72; Foster v. State, 11 Okla. Cr. 25, 141 Pac. 449; Lyon v. State, 11 Okla. Cr. 407, 146 Pac. 1084;. Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Robinson v. State, 13 Okla. Cr. 466, 165 Pac. 616; Brewer v. State, 13 Okla. Cr. 515, 165 Pac. 634; Fletcher v. State, 13 Okla. Cr. 563, 165 Pac. 907; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Davidson v. State, 15 Okla. Cr. 86, 175 Pac. 120; Childs v. State, 15 Okla. Cr. 57, 175 Pac. 59; Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Johnson v. State, 12 Okla. Cr. 260, 154 Pac. 1004; Maddox v. State, 12 Okla. Cr. 463, 158 Pac. 883; Anthony v. State, 12 Okla. Cr. 494, 159 Pac. 934; Sanders v. State, 13 Okla. Cr. 135, 162 Pac. 676; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Beaubein v. State, 13 Okla. Cr. 440, 165 Pac. 213. 21. Duty of Court in Certain Cases-When a judgment against the defendant is reversed, and it appears that no offense whatever has been committed, the criminal court of appeals must direct that the defendant be discharged; but if it appears that the defendant is guilty of an offense although defectively charged in the indictment, the criminal court of appeals must direct the prisoner to be returned and delivered over to the jailer of the proper county, thereto abide the order of the court in which he was convicted. (6004 R. L. 1910.) 22. Harmless Error-No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless. in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. (6005 R. L. 1910) Only those questions decided against defendant can be considered on appeal, unless jurisdictional. Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112. Where no briefs are filed, nor oral arguments made, record will be searched for fundamental errors only, and if none appear, case will be affirmed. Steel v. Terr., 4 Okla. 497; Terr. v. Brady, 4 Okla. 514; Foust v. Terr., 10 Okla. 214; White v. Terr,, 11 Okla. 172; Hiatt v. Terr., 14 Okla. 363; Manning v. U. S.. 14 Okla. 604; Flinchum v. State, 14 Okla. Cr. 7. 166 Pac. 752; Cook v. State, 14 Okla. Cr. 119, 168 Pac. 248; Osborne v. State, 14 Okla. Cr. 173, 169 Pac. 270; Montgomery v. State, 14 Okla. Cr. 298, 170 Pac. 519; Blanck v. State, 14 Okla. Cr. 339, 169 Pac. 1130; Southerland v. State, 15 Okla. Cr. 517, 178 Pac. 698; Brown v. State, 15 Okla. Cr. 518, 178 Pac. 700; Gill v. State, 15 Okla. Cr. 596, 179 Pac. 618; Morrow v. State, 15 Okla. Cr. 605; Sharp v. State, 15 Okla. Cr. 607, 179 Pac. 768. Where defendant has had a fair and impartial trial, the spirit of the law is that cause should be affirmed. Ross v. State, 15 Okla. Cr. 113; 175 Pac. 129; Lebrecht v. State, 15 Okla. Cr. 124, 175 Pac. 119; Lloyd v. State, 15 Okla. Cr. 130, 175 Pac. 374. The burden is on defendant to show error in the trial of a case. Collins v. State, 15 Okla. Cr. '96, 175 Pac. 124. That defendant was unintentionally denied a fair trial is inexcusable. Gilber v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 129 Pac. 671. Cause will not be reversed unless alleged errors affect substantial right. Harris v. State, 14 Okla. Cr. 489, 173 Pac. 958; Blake v. State, 14 Okla. Cr. 532, 173 Pac. 963; Brewer v. State, 13 Okla. Cr. 514, 165 Pac. 634; Eccleston v. State, 12 Okla. Cr. 106, 152 Pac. 337; Brown v. State, 9 Okla. Cr. 384, 132 Pac. 359; Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Koozer v. State, 7 Okla. Cr. 336, 123 Pac. 554; Rau v. State, 7 Okla. Cr. 349, 123 Pac. 1037; Steiles v. State, 7 Okla. Cr. 391, 124 Pac. 76; Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029; Starr v. State, 7 Okla. Cr. 574, 124 Pac. 1104; Campbell v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052; Buck v. Terr., 1 Okla. Cr. 517, 98 Pac. 1017; Major v. U. S., 1 Okla. Cr. 590, 98 Pac. 1021; Byars v. Terr., 1 Okla. Cr. 678, 100 Pac. 261; Roper v. U. S., 1 Okla. Cr. 712, 97 Pac. 1022; Hendrix v. U. S. 2 Okla. Cr. 241, 101 Pac. 125; Reeves v. Terr,. 2 Okla. Cr. 351, 101 Pac. 1039; Moody v. U. S., 2 Okla. Cr. 665; Atchison v. State, 3 Okla. Cr. 296, 105 Pac. 387; Jolly v. State, 5 Okla. Cr. 302; Hodge v. Terr., 12 Okla. 109; New v. Terr., 12 Okla. 173; Martin v. Terr., 14 Okla. 598; Sparks v. Terr., 16 Okla. 127; Provens v. Terr., 17 Okla. 512; Bethel v. State, 8 Okla. Cr. 61, 126 Pac. 698, McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Rogers v. State, 8 Okla. Cr. 228, 127 Pac. 365; Scrobner v. State, 9 Okla. Cr. 466, 132 Pac. 933; Lowdermilk v. State, 11 Okla. Cr. 281, 145 Pac. 1110. A suggestion as to preparation of briefs. Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Price v. State, 10 Okla. Cr. 427, 137 Pac. 736. Brief should cite page of record upon which counsel rely in support of assignment of error. Ellis v. State, 8 Okla. Cr. 522, 128 Pac. 1095. Briefs should cite the volume and page of the Oklahoma Reports of decisions relied on. Johnson v. State, 8 Okla. Cr. 585, 129 Pac. 451; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Tucker v. State, 9 Okla. Cr. 555; 132 Pac. 689; Henry v. State, 10 Okla. Cr. 369, 136 Pac. 982. An index should be attached to transcript of record, citing its contents by page, to enable appellate court to find that portion of the record which it is claimed presents errors relied on. Steil v. State, 8 Okla. Cr. 425, 128 Pac. 177; Ellis v. State, 8 Okla. Cr. 522, 128 Pac. 1095; Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657. The right of appeal is a privilege granted by the laws of the state, and it is the right of an appellant to dismiss such appeal at his own election. Nash v. State, 13 Okla. Cr. 211, 163 Pac. 330; Huber v. State, 13 Okla. Cr. 209, 163 Pac. 329. As to whether an erroneous instruction is grounds for reversal depends upon the character of the evidence to which such instruction is applied as well as upon the abstract inaccuracy of the instruction itself. See rule of Hodge v. Terr, 12 Okla. 108. 23. Appeal Not Dismissed for Informality-An appeal shall not be dismissed for any informality or defect in the taking thereof. If the same be corrected in a reasonable time after an appeal has been dismissed, another appeal may be taken. (6006 R. L. 1910.) Question of incompleteness of record cannot be raised for first time on motion for rehearing. Benefield v. U. S., 2 Okla. Cr. 47, 102 Pac. 647. 24. Judgment to Be Executed on Affirmance-On a judgment of affirmance against the defendant, the original judgment must be carried into execution, as the appellate court may direct. (6007 R. L. 1910.) 25. Opinions to Be Recorded-All opinions of the criminal court of appeals must be given in writing and recorded in the journal. (6008 R. L. 1910.) For additional powers, duties, and jurisdictional authority of Criminal Court of Appeals see ch. 18, R. L. 1910. (RULES OF THE CRIMINAL COURT OF APPEALS. 12 CR. REP.) 26. Terms, When-The regular terms of this court will be held as follows: January term, the first Tuesday after the second Monday in January. March term, the first Tuesday in March. May term, the first Tuesday in May. July term, the first Tuesday in July. September term, the first Tuesday in September. Special sessions of the court may be held at any time upon the call of the Presiding Judge. At the opening of the term, court shall convene at two o'clock p. m. The sessions there after shall convene at ten o'clock a. m., and two o'clock p. m. (1) 27. Petition in Error-Counsel for plaintiff in error shall number the pages of the petition in error and case-made before filing the same, and shall attach thereto a complete and correct index, indicating the pages of the record, showing the pleadings, names and testimony of the witnesses for the state, their cross-examination and the names and the testimony of witnesses for the defendant and their cross-examination, and shall file with the original petition in error and case-made a copy of the same for the use of counsel. (2) 28. Clerk to Keep Records-The clerk shall not permit any original record to be taken from the court room, or from the office of the clerk without an order from the court or one of the judges. (3) 29. Certificate to Transcript-Transcripts may be certified by the court clerk substantially in the following form: State of Oklahoma, County of___. I - --SS. Court Clerk for said county, do hereby certify that the foregoing is a full, true and correct transcript of the record in the above entitled cause. In testimony whereof I have hereunto set my hand and the seal of this court this day of--19____ Court Clerk. (4) 30. Certificate to Case-Made A certificate of the settlement of a case-made may be substantially in the following form: I, the undersigned, Judge of the District or (Superior or County) Court of --district (or county) of Oklahoma, hereby certify that the foregoing was presented to me as a case-made in the above entitled cause (here state the facts with reference to the appearance of parties and suggestion of amendments) and I now settle and sign the same as a true and correct case-made and direct that it be attested and filed by the Court Clerk. Witness my hand at Oklahoma, this -----day of_ Attest: in. county, 19____ District Judge. Court Clerk. (5) 31. Briefs Service of-In each cause filed in this court, counsel for plaintiff in error shall, unless otherwise ordered by the court, serve his brief upon the Attorney General within sixty days after filing his petition in error and shall at the same time file five copies of said brief with the clerk of this court, and the Attorney General shall, unless otherwise directed by the court, have thirty days after service on him of plaintiff in error's brief in which to serve and file his answer briefs. The briefs are not required to be printed, but when so desired may be printed. Proof of service of briefs may be filed with the clerk of this court within ten days after service. In habeas corpus proceedings, briefs shall be prepared and served as may be directed by the court in each cause. (6) 32. Briefs Contents-The brief of plaintiff in error shall contain: First: A concise abstract, or statement of the case, presenting succinctly the questions involved and the manner in which they are raised. Second: A specification of the errors relied upon, specifically and particularly setting out each error asserted and intended to be urged. When the error alleged relates to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, stating specifically the objections thereto. When the error alleged is to the instructions of the court the specifications shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. Abstracts shall be indexed and shall refer to the pages of the record. Third: A brief of the argument, exhibiting a clear statement of the point of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. In citing cases from the courts of this state, counsel are required to cite volume and page of the official state report in which the case is reported. (7) 33. Briefs-Additional-The court may at any time after á cause is submitted request counsel for either or both parties to file with the court within the time fixed by the court in its request, additional authorities if any they have upon any proposition involved in the cause. (8) 34. When No Appearance-When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment. (9) 35. Arguments and Motions-No argument or motion filed or made in this court shall contain language showing disrespect for or contempt of the trial court. (10) 36. Cases Assigned-Notice of-All cases shall be assigned for oral argument in the order in which they are filed and will be heard in the order assigned unless the court on proper motion and showing shall order otherwise. At least fifteen |