to the completion of the hotel. And, further, giving the testimony of the defendant its reasonable force and effect, it is more favorable to the plaintiff than to the defendants, and tends more reasonably to support the plaintiff's claim than it does the defendants'. The evidence as a whole is not such that reasonable minds may arrive at a different conclusion. Taking it as a whole, there is but one conclusion to be reached, and that conclusion must be in favor of the plaintiff. When the evidence of a party is so unsatisfactory, inconsistent, and contradictory that it has within itself no substantial worth, and in particular when it is more favorable to the other party than to the party in whose behalf it is introduced, the court or the jury is not justified in rendering judgment on such evidence, and the court or jury should refuse to follow it. National Union v. Kelley, 42 Okl. 98, 140 Pac. 1157. Therefore the trial judge should have sustained the motion of the plaintiff for judgment non obstante veredicto.

Block and the corporation from any liability | Block had contributed an appreciable amount by reason of the amounts claimed than to establish his contention under his present answer that there was an agreement that this amount should and was contributed as the pro rata share of the plaintiff to the hotel company. The defendant Block further testifies that the hotel cost $96,000, but when he attempts to disclose the actual expenditure, he cannot account for but $46,000 that was actually put into the hotel; $31,000 for the cost of completing the building, and about $15,000 for furniture. When called upon to explain the $50,000 difference between $46,000 and $96,000, he says that he and Schafer always held the original property as purchased by the Midland Hotel Company at a value of $50,000 in case they should want to sell, and that the only way to make the hotel cost $96,000 is to add this $50,000 to the $46,000. In a statement as to the cost and indebtedness of the hotel made by Block to Schafer, Block makes a statement that the hotel company owed him $6,310.94; says that this advancement to the hotel was in material and in cash both; that this included all that the hotel owed him. In another statement and in his answer he claims that he had advanced $24,226, but is unable to explain where, when, or in any manner whatever how he put this money into the hotel, having accounted practically for all of the $46,000, which he says the hotel and furnishings thereof actually cost, to have been received from other sources. He had been served with notice by the plaintiff to produce all the books, he having had the books in charge, showing all of the record of the indebtedness of the hotel, including the advancements that he claimed to have made to the hotel. produced the books of the hotel, and when questioned about the advancements he claimed to have made, the only response he was able to make was that the books would show, and when he would be unable to show Application by Callis Shirley and Sam by the books that he had made the advance- Stevenson for a writ of habeas corpus to be ments he would evade the questions by say-let to bail. Application granted, and, on giving that his lumber yard books would show ing and approval of proper bond, petitioners to be discharged.

what he had advanced.

He

This cause should be reversed, with directions to the trial court to enter judgment for the plaintiff.

PER CURIAM. Adopted in whole.

(14 Okl. Cr. 367)

Ex parte SHIRLEY et al. (No. A-3280.) (Criminal Court of Appeals of Oklahoma. March 16, 1918.)

(Syllabus by Editorial Staff.) HABEAS CORPUS 110-ADMISSION TO BAIL. On habeas corpus to be let to bail, where it appeared that applicants were held on a charge of having been present at a quarrel in which deceased had been killed by another who had been admitted to bail in the sum of $5.000, apand, on the giving and approval of a proper plicants would be granted bail in the same sum, bond, discharged.

opposed.

PER CURIAM. This is an application by Callis Shirley and Sam Stevenson for a writ of habeas corpus to be let to bail.

Taking the testimony of the defendant Stanley & Osborn, of Pauls Valley, for alone, and giving it all of the reasonable inferences and deductions that may be drawn petitioners. R. McMillan, Asst. Atty. Gen., from it, it is so inconsistent and contradictory within itself that it totally fails to establish the defense of the defendants that there was an agreement between Block and Schafer that they would contribute equal An examination of the record discloses the amounts necessary for the completion of fact that Ollie Prince was killed on the 9th the hotel, or that there was an agreement day of February, 1918, in the vicinity of by Schafer that he would release Block Katie, in Garvin county. A number of ne and the hotel company, at the time Schafer groes were in the party. There had been a sold to Block, from any liability by reason gambling game and whisky drinking carousal of any advancements or indebtedness which in effect for considerable time on the day of Schafer might claim against the hotel com- the homicide. A brother-in-law of the depany, or against Block, or to show that ceased during the time the carousal was in

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

progress became engaged in a controversy | the determination of the jury. These queswith a negro named Stevenson. A fistic en- tions were determined adversely to the wishcounter ensued wherein both parties were es and contentions of the plaintiff in error, knocked down. Immediately following this but in our judgment, properly determined. difficulty Simp Stevenson shot the deceased, There are no errors sufficient to warrant a Prince. A large number of shots were fired reversal of the judgment. It is therefore afby various persons. Simp Stevenson admit- firmed. ted that he did the king; that the others took part in the fight after he had fired the fatal shot.

discloses ample testimony to support the con-toxicating liquors, and he appeals. Affirmed. clusion reached, the judgment will not be reversed in the absence of substantial error of law.

Mason & Church, of Miami, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. Mc

Appeal from County Court, Pottawatomie Millan, Asst. Atty. Gen., for the State. County; Hal Johnson, Judge.

John Hester was convicted of violating the prohibitory liquor law, and he appeals. Affirmed.

Mark Goode, of Shawnee, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

CONVICTION-STATUTE.

prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.

introduced a certified copy of the United 15. WITNESSES 359-CREDIBILITY - PRIOR States internal revenue record, showing the Section 5046, Rev. Laws, permits the proof payment of the special tax required from of a prior conviction of a defendant in a crimiretail liquor dealers, issued November 8, nal case for the purpose of affecting his cred1915, to G. Helms; place, lots 1 and 2, block ibility. This proof may be made either by the 1, Cardin, Okl. record or by the cross-examination of the deThere was no testimony fendant, and cross-examination as to other sepoffered on the part of the defendant. arate and distinct transactions and offenses is [1, 2] Considering the various errors assign-not permissible, unless such testimony tends to ed, we find that the information is sufficient. As to the sufficiency of the evidence to sustain the verdict, all persons who take part, participate, or engage in an offense are guilty as principals. The evidence showing that the party selling the intoxicating liquor was an employé of the defendant is uncontradicted. [3] After a careful examination of the record, we are clearly of the opinion that the appeal is destitute of merit. The Attorney General has filed a motion to dismiss the appeal on the ground that the case-made does not contain a copy of the judgment rendered.

The record shows an informal judgment rendered in pursuance of the verdict. It shows that judgment was rendered by the court, when rendered, against whom, for what offense, and that sentence was pro

nounced in accordance with the verdict. This is all that is necessary. Ex parte Earl Howard, 2 Okl. Cr. 563, 103 Pac. 663.

6. CRIMINAL LAW ~785(1) TRIAL INSTRUCTION-IMPEACHMENT OF WITNESSES.

Where a conviction depends upon the testimony of an accomplice who is a confessed perjurer and a convict, and another witness was a convict, and several of the witnesses whose testimony was relied upon to corroborate the accomplice were confessed perjurers and who were impeached by testimony showing that their general reputation for truth and veracity was bad, it was error to refuse to instruct the jury on the law applicable to the impeachment of wit

nesses.

Appeal from District Court, Washita County; G. A. Brown, Judge.

James H. Smith was convicted of the theft of two mules, and he appeals. Reversed.

On July 11, 1913, the county attorney of Washita county filed an information in the district court of said county charging James The record does not disclose any reversible Smith with the theft of two mules, the perThe judgment of conviction is there-sonal property of the Colony Mercantile Comfore affirmed.

error.

pany, and alleging that said crime was committed about the 30th of November, 1910.

ARMSTRONG and MATSON, JJ., concur. Upon his trial he was found guilty and his

(14 Okl. Cr. 348)

SMITH V. STATE. (No. A-2235.) (Criminal Court of Appeals of Oklahoma. March 14, 1918.)

(Syllabus by the Court.)

1. CRIMINAL LAW 121, 1150-DISCRETION OF TRIAL COURT-CHANGE OF VENUE-REVIEW.

A petition for a change of venue is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue.

2. CRIMINAL LAW603(11)—APPLICATION FOR CONTINUANCE-ABSENCE OF WITNESS. An application for continuance because of the absence of a witness should show due dili

gence.

3. CRIMINAL LAW ER OFFENSES.

369(1)-EVIDENCE-ОTH

Evidence of an offense other than the one

charged is admissible only when it tends to
prove the offense charged. To be competent
and admissible, it must have some logical con-
nection with the offense charged.
4. WITNESSES
PRIVILEGE
-IMPEACHMENT.

305(2)

CONSTITUTIONAL

WAIVER-CROSS-EXAMINATION

A defendant, by availing himself of the privilege of testifying in his own behalf, thus waives his constitutional privilege and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.

punishment fixed at five years' imprisonment in the penitentiary. The evidence shows that the pair of mules were stolen from the Colony Mercantile Company on the night of the 30th of November, 1910; that the mules were found west of Mayfield, Kan., and the harness taken with the mules found at Alva, and also a buggy taken from Weatherford with the mules was found at Alva.

The evidence connecting and tending to connect the defendant Smith, briefly stated, was as follows:

John Samples testified: That at the time in question he lived in Weatherford, and had been in the livery business there with the defendant, but is now in the penitentiary at McAlester, serving a ten-year term for stealing the said mules. That on the night of November 30, 1910, he went south from Weatherford about three-quarters of a mile and waited until Smith came, and they went on to Colony; each riding a bay horse. They reached Colony about 8 o'clock. That they met two rigs on the way, one south of Weatherford at the jog, and the other about four miles north of Colony. That they first took the harness, and afterwards Smith led the mules out while witness held their horses. They then went west two or three miles and met some one driving an automobile, then went on to Weatherford, and witness stopped at the creamery while Smith fetched an old buggy

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Mr. Samples, going south; that he was traveling in a hack and they were horseback; that as they passed they separated and one went on one side and the other on the other side; that he had known Samples and Smith for several years. On cross-examination he stated that Jess Hitt was with him; that he did his trading at Colony, and the next morning attended a sale near there and heard about the mules being stolen; knew that John Samples was arrested for stealing the mules, but never spoke about meeting him and Smith; never told anybody that he had seen Samples and Smith that night until today on the witness stand; that Samples and Smith as they passed him said, "How do you do?"

that had belonged to Pete Cates, and witness | miles out from Colony he met Mr. Smith and hitched the mules to it. That witness drove the mules to Alva and sold the mules, buggy, and harness to one Pruitt for $330. That he kept $30 and deposited $300 in the bank there in the name of J. H. Smith. That a short time afterwards he drew out the money and bought a ticket for Geary, and from there went to El Reno, and then went to Hydro, and there telephoned to Smith, and he met him at Hydro and took him to Weatherford, and on the way he gave Smith $100 of the money. That, when he was arrested for stealing the mules, Smith helped to frame a defense for him. That George Lama was to swear that he saw witness at El Reno, and that Smith was to get witness out of the penitentiary. That Smith wrote him several letters while he was in the penitentiary, which letters were Leroy Griggs testified that he lived about produced and read in evidence. The tenor of three miles northwest of Colony; that on the the letters is that Smith was the friend of night of November 30th he met two fellows John Samples and was trying to help him by on horseback about a mile north of Colony. sending him money and trying to get a par- and as they passed both of them said, "How don for him. On cross-examination he testi- do you do?" and that he recognized John fied that Smith that day had been driving Samples and Mr. Smith by their voices; that Mr. Near; "that he got back before bedtime," it was then between 8 and 9 o'clock. On and took Mr. Near to the hotel, and came cross-examination he stated that he attendback to the barn, and then they started on the trip to Colony; that a mile and a half out they met a wagon or buggy and spoke, and within three or four miles of Colony they met another rig; that witness went to one side and Smith to the other, and they spoke to the person driving; that no one went with him on his way to Alva. The transcript of his former testimony was read, contradicting his statements on this trial.

ed a sale near Colony the next morning and heard that the mules were stolen and knew about John Samples' arrest and trial for stealing the mules, but had never said anything to anybody about seeing these men that night.

George Lama testified that he lived at El Reno on or about November 30, 1910, and had a conversation with John Samples and Jim Smith after Samples' arrest, and they

ples that he saw John Samples in El Reno on the 2d and 3d days of December, and that as a witness he did so testify, and that his testimony was false; that he had been convicted for gambling and carrying a sixshooter.

Carl Samples, a brother of John Samples, testified that he is now serving a three-year sentence in the penitentiary at McAlester for cattle theft in Caddo county; that after his brother John was convicted and sent to the

Eddy Keyes testified that, when John Sam-wanted him to testify as a witness for Samples was prosecuted for stealing the mules, he had a conversation with John Samples and Jim Smith about his testimony as a witness in Samples' trial, and they wanted him to swear that he saw John Samples in El Reno about the time the mules were stolen, and it was not true; that he heard Smith tell John Samples to stand pat and not to turn him, and he would help Samples; that after John Samples had gone to the penitentiary he was present when Jim Smith told Carl Samples to take a team of horses to apply on John's law-penitentiary he had several "talks" with the yer fee, and Carl Samples asked witness to go with him to the pasture to get the team, and they went out to the pasture and brought the horses in and put them in Samples' barn. His cross-examination shows that he had been a bootlegger, had been convicted of theft, and at the time in question was living with a prostitute.

Roy Hahn testified that he was cashier of a bank at Alva, and on December 3, 1910, cashed a check drawn on the First National Bank of Alva for $300, payable to J. H. Smith, and signed by J. H. Pruitt; that John Samples was the man who presented the check.

W. M. Griggs testified that he lived north of Colony, and on the night of November 30,

defendant Smith; that he was sitting in Smith's barn office and heard Smith say to Norman Henry and others that John Samples ought to have been in the penitentiary ten years sooner, and he stepped up and Smith apologized to him; that Smith told him he paid part of the lawyer's fee, and he told Smith he was just as guilty as John was, and he said at first he was not, but finally admitted that he was in it; that another time Smith told him he just got $20 out of the mule deal; that Smith told him he had a team that he would give to Connell; the lawyer and witness went with Eddie Keyes to the pasture and got the horses and turned them over to his father. On crossexamination he stated that on the night the

Pete Cates testified that a short time prior to November 30th he sold an old buggy with a tongue in it to John Samples.

B. E. Duvall testified that on the evening of November 30th he saw John Samples east of Weatherford riding a black horse.

county; that he knew when his brother John | John Samples' interest in the livery busitook the trip to Alva; that the defendant ness with Smith in July, 1910; that Jim Smith tried to hire him to testify as a wit- Smith was driving with Mr. Near on the ness for his brother John; that Ted Bailey 30th of November and John Samples was is his brother-in-law and visited him two or around the barn that evening; that he slept three times while he was in jail at Arapaho; at the barn and heard a rig come in during that he did not tell Ted Bailey that witness the night; that John Samples was there the and George Lama were the fellows that took next morning in bed with a man by the name those mules away from Colony. of Wright; that there was a rig taken out of the barn that night, and the barn account showed a charge against George Casey. The charge against George Casey was submitted to the jury, and defendant's attorney, knowing that the county attorney had a magnifying glass, called for it, and turned it and the A stipulation by the state and the defend-book over to the jury with the request that ant was filed that in 1910 the 30th of No- they examine a particular item, the one that vember was Wednesday, and the defendant Mr. Smith, special counsel for the state, said waives his constitutional right to be con- had been erased, and the jury examined the fronted with witness Walter F. Dickens, book with the glass. agreeing that the questions and answers may George Casey testified that he had been be read as the evidence of said witness if he acquainted with Jim Smith and John Sam. were present. The testimony of the witness ples for years; that he is a farmer and lives is as follows: That he resides at Red Lake, out from Weatherford; in the early winter Minn.; on November 30th lived at Colony, of 1910 he made a drive from Weatherford Okl., and was superintendent of Indian to his home; he had been to Clinton and arschool there; was west of Colony on the rived at Weatherford at 9 o'clock or later night of the theft; met two men about 10 in the night; got the rig at Smith's stable, o'clock, each riding a small horse, and each and John Samples did the driving; it was was leading a mule with harness on; wit-six miles out; after John Samples was ar ness was in an automobile; had been ac- rested, he came to witness' place and asked quainted with Jim Smith for a long time pri-him if he remembered him driving him home or to that; saw Jim Smith the next morn- on the night of the 30th of November, and ing in the vicinity of Colony in company witness said he did not know the date of with Mr. Near; witness told Smith and Near that drive. about the mules having been stolen.

Barney Davis, ex-sheriff of Custer county, For the defense, C. E. Near testified that testified that he was acquainted with the he is a collector for the International Har-general reputation of George Lama, Carl vester Company; his territory includes Cus- Samples, and John Samples for truth and ter county; that he was in Weatherford on veracity, and their reputations were bad. the 29th and 30th of November and made a

drive in the afternoon with Jim Smith, and got back about 6 o'clock; went to the Smith barn between 8 and 9 o'clock that evening to outline a drive for the next day, and talked with Jim Smith; was at the barn until 10 o'clock or later; that John Samples was there at 9 o'clock, but witness did not see Samples after the train came in; walked to the Park Hotel with Jim Smith after 10 o'clock, and Smith went on in the direction of his home; left Weatherford with Jim Smith the next morning, and they drove to wards Colony; met Mr. Dickens west of Colony, and Mr. Dickens spoke of the mules having been stolen the night before; about 8 o'clock that evening he and Smith got back to Weatherford, and witness stayed at the Park Hotel that night.

Charles C. Penn testified that in 1910 he was in the hotel business at Weatherford; was acquainted with C. E. Near; produced his hotel register showing that Mr. Near registered there on the 29th of November, 1910, and identified the signature; that he knows the general reputation of George Lama for truth and veracity; and that it was bad.

Ed Austin testified that he bought out

Tom Hudgins testified that he was acquainted with Jim Smith and C. E. Near, and on the 1st day of December, 1910, he met them at a sale near Colony.

H. W. Morrison testified that he knows the

reputation of George Lama, Carl Samples, and John Samples for truth and veracity, and their reputations were bad.

To the same effect was the testimony of George E. Lindley and Walker Moore.

Mack W. Litzman testified that he had a

talk with George Lama after Jim Smith was arrested, and Lama said:

99

"We have got to drag him in if we want to clear John Samples." "No, Jim is not guilty And, of the charge any more than you are.' "Jim is not guilty. John Samples never got them, because Carl and I led them away."

C. L. Gasseway testified that he talked with Eddie Keyes about the Smith case, and Keyes said:

"We had to turn against Smith." "Old man Samples offered me $100 to swear against him, and I called Jim up and told him that if he would furnish me enough money I would get out of the country, and that Samples had offered him $100, and that in Smith's preliminary he (Keyes) had sworn to lies against Smith."