ings.

§ 29. On a contest of a county seat election in the Supreme Court, any additional necessary parties may be brought in on proper application, though more than 30 days from the election.-Incorporated Town of Westville V. Incorporated Town of Stilwell (Okl.) 664.

§ 29. Jurisdiction of a proceeding to contest a county seat election under Sess. Laws 190708, p. 378, c. 31, art. 4, is acquired by the Supreme Court when the application therefor is filed within 30 days after such election has been held.-Incorporated Town of Westville v. Incorporated Town of Stilwell (Okl.) 664.

III. PROPERTY, CONTRACTS, AND

LIABILITIES.

(B) Contracts. Laws impairing obligation of contract with persons employed to discover property not listed for taxation, see Constitutional Law, § 121.

See Forcible Entry and Detainer, § 16; Habeas Corpus, §§ 85-113; Insolvency, § 16; Mandamus, 151; Prohibition, §§ 17, 29.

Criminal prosecutions, see Criminal Law, § 83. Special jurisdictions and particular classes of courts.

See Criminal Law, § 83.

I. NATURE, EXTENT, AND EXERCISE OF JURISDICTION IN GENERAL.

§ 1. Where the judicial power of courts, either original or appellate, is fixed by the Constitution, the Legislature cannot either limit or extend that jurisdiction.-Chinn v. Superior Court of San Joaquin County (Cal.) 580.

II. ESTABLISHMENT, ORGANIZATION, AND PROCEDURE IN

GENERAL.

(A) Creation and Constitution, and Court

Officers.

Notes of court reporter as evidence in subsequent trial or proceeding, see Evidence, § 582.

§ 42. Const. art. 7, § 10, relating to the number of judges of the Supreme Court, construed in view of Bill of Rights, § 10, and

Authority of district attorney to incur expenses on behalf of county, see District and Prosecuting Attorneys, § 7.

V. CLAIMS AGAINST COUNTY. $204. Determination of the necessity of an expenditure by county attorney in enforcement of the criminal law under County Government Act (St. 1897, p. 459, c. 277) § 25, subd. 11, held conclusive.-Yolo County v. Joyce (Cal.) 125.

§ 204. A district attorney's authority to incur expense in the prosecution of criminal cases, under County Government Act (St. 1897, p. 575, c. 277) § 228, subd. 2, is a matter for the board of supervisors, so far as necessity is concerned under section 25, subd. 11 (page 459).Yolo County v. Joyce (Cal.) 125.

884.

§ 42. Laws 1909, p. 99, c. 50, increasing the number of judges of the Supreme Court from three to five, held constitutional under the preamble of the Constitution, and Bill of Rights, & 10.-State v. Cochran (Or.) 884.

held to make the seal of the probate court of § 48. Schedule of the Constitution, § 24. Oklahoma Territory, in the absence of legislation, the official seal of the county court.-Stewart v. State (Okl. Cr. App.) 374.

§ 50. The jurisdiction of a department of the ed is not exclusive, but the case may be transsuperior court to which a case has been assignferred to another department for trial, and such transfer does not affect previous orders made in the department.-People v. Carantan (Cal. App.)

768.

§ 50. That preliminary orders were made in departments of superior court other than that which tried a criminal case held not to affect its jurisdiction.-Ex parte Newcomb (Wash.) 1042.

(B) Terms, Vacations, Place and Time of Holding Court, Courthouses, and

Accommodations.

$74. The jurisdiction of a county court in criminal cases is the same whether its sessions are held at the county seat or at a county court town.-Ex parte Brown (Okl. Cr. App.) 577.

(C) Rules of Court and Conduct of Business.

Rules of court as part of record, see Appeal and Error, 516.

$ 78. The Supreme Court had power to prescribe rules for the transaction of business.Zeuske v. Zeuske (Or.) 249.

$80. The district court of the territory of Oklahoma held without power to impose a rule requiring a party appealing to the district court to deposit with the clerk of the district court a specified sum for clerk's costs.-Stone v. Clogston (Okl.) 642.

$ 85. The rules of the Supreme Court for the government of appellate practice are as much a part of the system of procedure as the rules promulgated for that purpose by the Legislature, and they must be complied with.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

$97. The several sections of Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), making it unlawful for railroads to use cars not equipped with specified appliances, are framed upon the same general plan, and a declaration by the United States Supreme Court that one of them imposes on the railroad the absolute duty of repair determines that a like interpretation is to be given to the others. -Brinkmeier v. Missouri Pac. Ry. Co. (Kan.)

221.

III. COURTS OF GENERAL ORIGINAL JURISDICTION.

(A) Grounds of Jurisdiction in General. $122. Under Sess. Laws 1905, p. 87, c. 7, art. 3, § 2, authorizing a municipality to have the amount of the outstanding legal indebtedness determined, held, that the jurisdiction of the probate or district court depended on the allegations of the petition, and not the amount of the outstanding indebtedness as finally decided. -Farmers' & Merchants' Nat. Bank of Hobart v. School Dist. No. 56 (Okl.) 641.

IV. COURTS OF LIMITED OR INFERIOR JURISDICTION.

§ 169. In an action for the recovery of money only, the jurisdiction of the city court of Wichita is fixed by the amount claimed, and not the amount of indebtedness.-Mery wethers v. Youmans (Kan.) 545.

$169. A creditor remitting a part of his debt to bring it within the jurisdiction of the court forgives the excess of the debt.-Merywethers v. Youmans (Kan.) 545.

V. COURTS OF PROBATE JURISDIC

TION.

Power to punish for contempt, see Contempt, § 34.

$202. Where an appeal from probate is properly taken, and the certificate to the transcript is defective, appellant may have the same corrected.-Queen Ins. Co. of America v. Cotney (Okl.) 651.

$202. On appeal from a prebate court under Wilson's Rev. & Ann. St. 1901, § 1881. it is not necessary that the certified transcript be filed within the time for appeal.-Queen Ins. Co. of America v. Cotney (Okl.) 651.

§ 202. Under Wilson's Rev. & Ann. St. 1903, § 1881, an appeal from a judgment of a probate court involving questions of fact may be taken within 10 days by the execution of a sufficient bond.-Queen Ins. Co. of America v. Cotney (Okl.) 651.

$212. The board of supervisors of a county held not an inferior court within Const. art. 6, § 5.-Chinn v. Superior Court of San Joaquin County (Cal.) 580.

§ 212. Irrigation Act (St. 1897, p. 254, c. 189) 8,4, relating to appeals to the superior court, held in conflict with Const. art. 6, § 5.Chinn v. Superior Court of San Joaquin County (Cal.) 580.

$2402. The Supreme Court, and not the Criminal Court of Appeals, has jurisdiction to review a proceeding for contempt in violating an injunction in a civil action.-Ex parte Fowler (Okl. Cr. App.) 180.

VII. UNITED STATES COURTS.

(K) Territorial and Provisional Courts. all criminal jurisdiction previously vested in $ 431. The Criminal Court of Appeals has the Supreme Court, together with the right to pass on matters referred pursuant to Wilson's Rev. & Ann. St. 1903, $$ 5588, 5589.-In re Opinion of the Judges (Okl.) 325.

§ 435. Under the practice in Indian Territory prior to the admission of the state, where a special verdict was returned, and judgment was not ordered thereon, and a motion to amend duly filed, was continued by agreement until the next term, the issues were not finally determined until disposition of the motion and judgment on the verdict ordered by the court. -Leforce v. Haymes (Okl.) 644.

COVENANTS.

Parol evidence to vary covenant against incumbrances, see Evidence, § 390.

II. CONSTRUCTION AND OPERA

TION.

(B) Covenants of Title.

Parol evidence to vary covenant against incumbrances, see Evidence, § 390.

§ 39. Notice of an outstanding lease at the time grantees accepted a deed did not estop them from suing for breach of covenant against incumbrances by reason of such lease.-O'Connor v. Enos (Wash.) 1039.

(D) Covenants Running with the Land.

Party wall agreement, see Party Walls, § 9.

III. PERFORMANCE OR BREACH. Waiver of breach of covenant in lease, see Landlord and Tenant, § 76.

DICTION.

(A) Grounds of Jurisdiction in General. $ 205. The Supreme Court will take jurisdiction of a collateral attack on the constitutionality of the offices of certain of its members.-State v. Cochran (Or.) 884.

§ 208. An opinion in response to a requirement of the Governor, as authorized by Snyder's St. § 6928, has not the force of an adjudication, and is at most advisory.-Opinion of the Judges (Okl. Cr. App.) 681.

(B) Courts of Particular States. Validity of statutory provisions relating to appeals in drainage proceedings, see Drains, § 2. § 212. Under Const. art. 6, §§ 1, 5, the Legislature held not authorized to grant the right of appeal to the superior court from tribunals

IV. ACTIONS FOR BREACH. Parol evidence, see Evidence, § 390.

§ 108. If an outstanding lease is in fact au incumbrance, grantees, under a deed covenanting against incumbrances, are entitled to damages for its breach, though they may be unable to recover the premises from the tenants in possession.-O'Connor v. Enos (Wash.) 1039.

§ 127. For breach of covenant against incumbrances, based on an outstanding lease, plaintiffs cannot recover costs and expenses incurred in a prior action against the lessees where the court ruled that they were estopped to maintain it.-O'Connor v. Enos (Wash.) 1039.

1039.

Bail, see Bail, $ 89. Conviction of offense included in that charged, see Indictment and Information, §§ 189, 191. Costs in criminal prosecutions, see Costs. § 284. Indictment, information, or complaint, see Indictment and Information. Pardon, see l'ardon.

Prosecuting officers, see District and Prosecuting Attorneys.

Restraining criminal acts by injunction, see Injunction, § 102.

Offenses by particular classes of persons. See Carriers, § 21.

Particular offenses. See Abortion; Adultery; Burglary; Conspiracy, $$ 25-43; Contempt; Embezzlement; False Pretenses; Gaming, $$ 63-98; Homicide; Larceny; Perjury; Rape; Weapons. Against liquor laws, see Intoxicating Liquors, §§ 134, 224-239.

Against patent laws, see Patents. § 225. Violation of game laws, see Game, §§ 7, 9. Violations of municipal ordinances, see Municipal Corporations, §§ 636. 643.

I. NATURE AND ELEMENTS OF
CRIME AND DEFENSES
IN GENERAL.

§ 1. "Offense" defined.-Chicago, R. I. & P. Ry. Co. v. Territory of Oklahoma (Okl.) 677. $ 13. In view of Pen. Code, § 4, section 337a, prohibiting pool selling and a complaint charging an offense under it. held sufficiently definite.-Ex parte O'Shea (Cal. App.) 776.

III. PARTIES TO OFFENSES.

$ 59. Persons who are "principals" under Snyder's Comp. Laws 1909. § 2045 (Wilson's Rev. & Ann. St. 1903, § 1948). stated.-Greenwood v. State (Okl. Cr. App.) 371.

IV. JURISDICTION.

Transfer of causes on admission of territory as state, see States, § 9.

$83. When there is jurisdiction of the party and of the offense, the decision of all other questions in the case is but an exercise of that jurisdiction.-Ex parte Brown (Okl. Cr. App.)

577.

V. VENUE.

(B) Change of Venue.

$ 125. In approving the verdict on prior trial. an expression of conviction that accused was

change of venue for the prejudice of the judge, $137. The court is not bound to grant a though accused's affidavit is not contradicted.State v. Tawney (Kan.) 218.

VII. FORMER JEOPARDY.

§ 173. Jeopardy attaches when a full jury is sworn and all the preliminary matters of record are ready for trial, and the court is so clothed with authority that a judgment on a verdict would be valid.-State v. Kinghorn (Wash.) 234.

$178. The dismissal of an information held, under the circumstances, a bar to another prosecution (Pen. Code, §§ 1385, 1387).-People v. Disperati (Cal. App.) 617.

§ 178. Certain grounds held not sufficient to warrant the dismissal of an information under Pen. Code, § 1385.-People v. Disperati (Cal. App.) 617.

$ 180. A dismissal of an information held no bar to another prosecution (Pen. Code, §§ 1385, 1387).-People v. Disperati (Cal. App.) 617.

former jeopardy.-State v. Kinghorn (Wash.) § 182. Evidence held to sustain a plea of

234.

§ 265. That a jury was sworn, and the state began the examination of prosecutrix before accused had been arraigned and pleaded, held not ground for mistrial.-State v. Kinghorn (Wash.) 234.

$270. Under Laws 1907, p. 33, c. 30, § 2, providing that a plea of insanity may be entered "in addition to the plea or pleas required or permitted by other laws than this," such a plea is severable from others entered, so that its withdrawal would not affect other pleas.-State V. Quinn (Wash.) 818.

§ 292. A plea of former jeopardy held sufficient. Pen. Code, § 1017, subd. 4.-People v. Disperati (Cal. App.) 617.

$308. Accused is presumed innocent until his guilt is shown beyond a reasonable doubt.-Rea v. State (Okl. Cr. App.) 381.

§ 327. Burden held on state to establish guilt beyond reasonable doubt.-Rea v. State (Okl. Cr. App.) 381.

(C) Other Offenses, and Character of Ac1 cused.

§ 369. Evidence of other trials, indictments, or convictions not connected with the matter on trial should not be received.-Rea v. State (Okl. Cr. App.) 381.

§ 369. Evidence of other acts of intercourse held admissible in statutory rape.-People v. Soto (Cal. App.) 420.

$369. That evidence admissible in a prosecution for aiding and abetting in recording a bet on a horse race tended to prove other of fenses held immaterial.-State v. Sylvester (Mont.) 86.

(D) Materiality and Competency in General.

§ 390. In prosecution for violation of Sess. Laws 1903, p. 168, c. 15, § 3, it was error to refuse to allow defendant to show his intent as to the quail in his possession.-Snow v. State (Okl. Cr. App.) 575.

(E) Best and Secondary and Demonstra

tive Evidence.

§ 404. Exhibition of child held not allowable under the rule of showing other acts of intercourse in statutory rape.-People v. Soto (Cal. App.) 420.

say.

port a conviction.-Greenwood v. State (Okl. Cr. App.) 371.

(K) Confessions.

§ 516. "Confession" defined.-State v. Brinkley (Or.) 708.

§ 516. A statement by a married woman to the sheriff after arrest for adultery while the sheriff was obtaining the information required by Comp. Laws 1907, § 575, subd. 6, that she was the wife of M., held admissible to prove marriage.-State v. Moore (Utah) 293.

§ 519. A confession by one accused of grand larceny held voluntary.-People v. Piner (Cal. App.) 780.

(M) Weight and Sufficiency.

See Burglary. §§ 41, 42; Embezzlement, §_44; In particular criminal prosecutions. Gaming, $98; Larceny, § 64; Rape, § 51. Violations of liquors laws, see Intoxicating Liquors, § 236.

ered as affecting his credibility as a witness.§ 554. The interest of accused may be considState v. Menz (Kan.) 24.

§ 561. "Reasonable doubt" defined.-Vance v. Territory (Okl. Cr. App.) 307.

§ 565. Held not necessary for state to prove beyond reasonable doubt that prosecution is not barred by limitation.-Rea v. State (Okl. Cr. App.) 386.

XI. TIME OF TRIAL AND CONTINUANCE.

§ 406. Admissions by accused of extraneous facts not involving guilt held competent to prove the corpus delicti.-State v. Brinkley (Or.) 708. §§ 419, 420. In a prosecution for criminal conspiracy, a a letter held hearsay.-State v. Blake (Utah) 910.

§§ 419, 420. Testimony in a murder case held not inadmissible as hearsay, in view of other testimony given.-State v. Quinn (Wash.) 818. (H) Documentary Evidence and Exclusion of Parol Evidence Thereby.

§ 442. In a prosecution for criminal conspiracy by inducing the purchase of worthless mining stock by false representations contained in letters written to the purchaser, stating that the stock was valuable and urging him to buy it for resale, such letters held not admissible in evidence.-State v. Blake (Utah) 910.

§ 442. In a prosecution for criminal conspiracy by inducing the purchase of mining stock by false representations in letters written to the purchaser, evidence held not to show that the letters were written with the knowledge or procurement of the conspirators.-State v. Blake (Utah) 910.

(I) Opinion Evidence.

§ 452. A nonexpert held competent to testify as to the mental condition of accused.-State v. Rumble (Kan.) 1.

§ 456. That a number of instances of peculiar conduct on the part of accused, detailed by a nonexpert insanity witness, did not in themselves justify an inference of insanity, was insufficient to exclude his opinion.-State v. Rumble (Kan.) 1.

(J) Testimony of Accomplices and Codefendants.

§ 507. Certain person held not an accomplice, whose uncorroborated testimony would not sup

§ 586. Application for continuance held addressed to the trial court's discretion.-Rhea v. Territory (Okl. Cr. App.) 314.

§ 593. A request for a continuance of a criminal case where the trial was set for a time requested by defendant and made after a jury was present and prosecution ready with witnesses, held properly refused.-People v. Russell (Cal.) 416.

$594. A continuance will not be granted in order to obtain a deposition from a person. whose whereabouts is not known and as to which there is no apparent probability that any knowledge could be obtained.-People v. Russell (Cal.) 416.

§ 603. Motion for continuance must allege residence of witness, if known, and the probability of procuring his testimony.-Vance v. Territory (Okl. Cr. App.) 307.

§ 603. An application for a continuance cannot be aided by inference.-Rhea v. Territory (Okl. Cr. App.) 314.

§ 603. An application for a continuance must not only state the facts expected to be proved by the absent witness, but enough to enable the court to understand the materiality thereof.Rhea v. Territory (Okl. Cr. App.) 314.

§ 603. Application for a continuance of murder case held insufficient.-Rhea v. Territory (Okl. Cr. App.) 314.

XII. TRIAL.

In particular criminal prosecutions. See Embezzlement, §§ 47, 48; Homicide, §§ 286309; Larceny, §§ 68-79; Rape, § 59. Violations of game law, see Game, § 9. Violations of liquor laws, see Intoxicating Liq. uors, § 239.

(A) Preliminary Proceedings. § 627. Const. art. 1, § 22, and Pierce's Code, § 2131 (Ballinger's Ann. Codes & St. § 6879), under which an accused may demand a copy of the accusation against him, held waived where an accused, being regularly arraigned, voluntarily pleads without service of a written copy of the charge.-State v. Quinn (Wash.) 818.

§ 628. Under Wilson's Rev. & Ann. St. 1903, $5352, names of additional witnesses may be indorsed on indictment after jury is impaneled. -Vance v. Territory (Okl. Cr. App.) 307.

(B) Course and Conduct of Trial in General.

§ 655. A trial judge should abstain from indicating his opinion on a material question of fact.-State v. Tawney (Kan.) 218.

(C) Reception of Evidence.

§ 662. In a prosecution for larceny by embezzlement, held not error to receive in evidence certain certified tax receipts.-State v. Nilson (Wash.) 829.

§ 670. Where an offer is made to prove several things grouped together, and the court refuses to hear the proof, the ruling will be sustained if the proof of any one of the things was inadmissible.-People v. Hogan (Cal. App.) 938.

§ 678. The election between the acts for which defendant in statutory rape should be tried held sufficient.-People v. Soto (Cal. App.) 420.

(D) Objections to Evidence, Motions to Strike Out, and Exceptions.

§ 693. An objection to a question asked a witness, not made until after the answer, comes too late, unless the answer was made before there was an opportunity to object.-State v. Rhys (Mont.) 494.

(E) Arguments and Conduct of Counsel. §706. To constitute misconduct on the part of the prosecuting attorney in the examination of witnesses, the questions must be manifestly improper and wholly unjustifiable.-State v. Rhys (Mont.) 494.

$706. Questions asked accused on cross-examination and questions asked his wife held not to justify the inference of misconduct on the part of the prosecuting attorney.-State v. Rhys (Mont.) 494.

§ 720. A statement by the prosecuting attorney that the prosecuting witness had been tampered with, and bought, held reversible error. -State v. Montgomery (Wash.) 1035.

§ 722. In a prosecution for homicide, statement of the prosecuting attorney in argument held erroneous.-O'Barr v. United States (Okl. Cr. App.) 988.

§ 730. An instruction held to sufficiently guard the rights of accused notwithstanding questions asked on cross-examination.-State v. Rhys (Mont.) 494.

(F) Province of Court and Jury in Gen

eral.

In prosecution for larceny, see Larceny, § 68. $757. Under Wilson's Rev. & Ann. St. 1903, § 5518, making a jury the exclusive judge of questions of fact, held error to instruct that it was bound to accept an impeached witness' testimony, if corroborated.-Rea v. State (Okl. Cr. App.) 381.

$759. It is improper to suggest to the jury what inference might arise from defendant's failure to call his wife as a witness.-Rhea v. Territory (Okl. Cr. App.) 314.

(G) Necessity, Requisites, and Sufficiency of Instructions.

See

In particular criminal prosecutions. Embezzlement, § 48; Homicide, §§ 286-309; Larceny, §§ 75-79; Rape, § 59. Violations of game law, see Game, § 9. Violations of liquor laws, see Intoxicating Liquors, § 239.

§ 778. An instruction held not subject to the objection that under it the evidence of insanity must come from defendant alone, and the jury could disregard such evidence brought out by the prosecution.-People v. Carantan (Cal. App.) 768.

of a voluntary confession held improper.-People 781. An instruction as to the admissibility v. Piner (Cal. App.) 780.

§ 782. An instruction that the jury "subject to the control of the court" are the judges of the evidence, etc., held proper.-People v. Carantan (Cal. App.) 768.

§ 788. Held not improper to instruct that the wife is not a competent witness against her Rhea v. Territory (Okl. Cr. App.) 314. husband, but that he may call her if he desires.

§ 789. "Reasonable doubt" defined.-Chandler v. State (Okl. Cr. App.) 375.

$789. A charge on reasonable doubt in a murder case held sufficient.-State v. Quinn (Wash.) 818.

§ 796. Instruction to jury to fix the punishment, not requested by defendant, held improper. Chandler v. State (Okl. Cr. App.) 375.

801. The court may before the jury has retired give additional instructions.-Rhea v. Territory (Okl. Cr. App.) 314.

§ 804. It is best to give written instructions. -Rea v. State (Okl. Cr. App.) 386.

§ 811. An instruction, in a prosecution for grand larceny, that evidence of previous good character was to be considered with great caution, held erroneous.-People v. Piner (Cal. App.) 780.

§ 811. An instruction held erroneous as singling out a particular portion of the evidence and emphasizing it.-State v. Tawney (Kan.) 218.

§ 822. In ascertaining whether defendant was prejudiced thereby, instructions must be considered as a whole.-People v. Carantan (Cal. App.) 768.

§ 823. Error in an instruction based upon certain evidence held cured by an instruction withdrawing it from the jury.-State v. Menz (Kan.) 24.

(H) Requests for Instructions.

824. The court should instruct on each degree of homicide which the evidence tends to prove. Atchison v. State (Okl. Cr. App.) 387.

$825. Failure to explain the instruction defining manslaughter in the first degree held not prejudicial error.-Atchison v. State (Okl. Cr. App.) 387.

by one given.-People v. Kwpr Singh (Cal. App.) § 829. Requested instructions held covered

423.

§ 834. An instruction on the credibility of witnesses held properly modified.-People v. Carantan (Cal. App.) 768.

(K) Verdict.

§ 875. Where accused was tried on a "complaint," it was not material that the verdict found him guilty "as charged in the information."--State v. McCormick (Wash.) 1037.

§ 875. 2 Ballinger's Ann. Codes & St. & 6981 (Pierce's Code, § 2210), providing the