Milton filled out the printed acknowledgment on the back of the deed to sign it as notary himself, and then thought of the fact that he was not notary in Pottawatomie county, and could not take the acknowledgment. Milton told Saxon this, and told him (Saxon) that he (Saxon) would have to get out and rustle a notary public. Saxon thought of Reasor, the county judge, a friend of his, and went to a nearby white hotel and phoned and got Reasor to come down. Bringing Reasor, the county judge, seems to have kind of worried the principal actors, and it was some time before they could be gotten together again. Here, again, Saxon was separated from the other two men; Milton handling the negroes, while Saxon got the judge. The judge came down to the white hotel, and Milton joined Saxon and the judge there, and told them that Dinah Walker had gone to the hospital to see her sick child, and that they would have to wait. After some time, they went back to the negro house, and again had to wait. They finally got the woman ready again, and Reasor and Saxon were taken into the negro house. The woman came to the door of her room, with her head muffled in a shawl, stated that she was Dinah Walker, talked over the matter, and while Milton held a smoky lamp Reasor read over the deed to her and took her acknowledgment to it as Dinah Walker; she having already touched the pen to her mark and signature under the name of Dinah Walker. After the acknowledgment, one of the men was heard by the landlady of the house to tell the negro, Walker, and the woman to hurry and catch the train for Wewoka or Seminole. The transaction was concluded somewhere between 1:30 and 2 o'clock in the morning. Reasor and the two white men went back to the white hotel, and Reasor went home, taking the deed with him, for the purpose of putting his seal to the acknowledgment the next morning, which he did, and delivered the deed to Saxon the next morning; and Saxon filed it in the office of the register of deeds in Seminole county the next day, August 7th.

The deed, as introduced at the trial, had an erasure in the description, and the erasure was written over in ink. The deed was taken to Felix J. Saxon as grantee. Norton placed $600 in the bank to meet the draft, but ordered it paid to no one but Dinah Walker. Gene Walker forged Dinah Walker's name to the draft, but it was turned down. A number of witnesses testified that it was not Dinah Walker (in fact, of the witnesses, all said it was not she) who signed the deed; and a number testified that she was at home with her sick child when it was made. Dinah Walker learned of the forgery on Sunday or Monday following, and Monday started trouble. Milton and Norton heard of this on Monday night, and went before day on Tuesday morning to

money, to try and straighter up with Dinah Walker and get her to sign a second deed, although still contending that the former deed was valid. They failed; old Dinah locked herself in her house and would not talk to them; and at the time of this trial suits were pending in which she was seeking to recover her land from Norton, to whom Saxon deeded it the day after the forgery. Saxon and Walker testified for the state in the trial of Milton.

The defendant, R. D. Milton, on his own behalf as a witness, testified, in substance, as follows: That he was 38 years of age, native of Kentucky; resided at Wewoka; was a notary public; did not know Dinah Walker, and saw her for the first time August 10, 1909, at Earlsboro. Made arrangement with Felix Saxon to go to Dinah Walker's house on August 5, 1909, to buy a one-eighth interest in a 40-acre track for Judge Cobb. On August 6th went to Seminole with Felix Saxon on the train, and drove to Dinah Walker's house with Saxon, arriving there about 11 a. m. Asked where Dinah Walker and her husband were, and they said Dinah Walker was at a neighbor's house, and her husband had gone to Earlsboro. Met Walker on the road and asked him if he would help us to buy a piece of land from his wife, and he wanted to sell us her dead children's land. Arrangements were made for Walker to assist the defendant in buying the dead children's land from Dinah. That Walker told defendant to go back to Seminole and meet him that night. That Walker informed the defendant that night that his wife had gone to Shawnee with a sick girl, and Walker insisted that the defendant go to Shawnee with him to make the deal. That the defendant, Saxon, and Walker all agreed to go to Shawnee, which they did. Arriving there, they went to a negro rooming house and waited a considerable time for Walker's wife, who came upstairs after a while. After having the deed read over to her, she signed it by mark. That there was at no time any conversation between the defendant and Eugene Walker as to a misdescription in the deed and getting a woman to act as Walker's wife. The defendant denied any knowledge on his part of it not being the real Dinah Walker on the night the deed was signed. He testified to having acted in the utmost good faith in the matter, and knew nothing of the unlawful conduct of the witness Eugene Walker. He further testified that he did not believe the woman who signed the deed was the same woman that he now knew as Dinah Walker.

T. S. Cobb, as a witness for the defendant, testified, in substance, as follows: That he was county judge. Was in Des Moines, Iowa, at the time the deed was taken. He had insisted on the defendant, Milton, seeing Dinah Walker to secure a one-fifth inter

DOYLE, J. (after stating the facts as above). Upon a careful consideration of the evidence, our conclusion is that the verdict and judgment must stand, unless the court, in the course of the trial, committed error prejudicial to the substantial rights of the defendant.

It is claimed by the learned counsel for the plaintiff in error that the court erred in refusing to grant a continuance on account of the absence of the witness H. H. Rogers and the witness Mrs. Myrtle Milton, and the consequent absence of material and necessary evidence for the defendant, and on account of the denial of a continuance upon the indorsement of the names of additional witnesses upon the indictment at the commencement of the trial.

The affidavit for continuance sets forth that if witness H. H. Rogers was present he would testify that Felix Saxon told him (Rogers) that he (Saxon) signed Dinah Walker's name to the deed; that Milton witnessed it; that Milton was not acquainted with Dinah Walker; that after Dinah Walker said that she did not execute the deed Milton came to him (Saxon) and wanted him to reconvey, but that he (Saxon) said that he would not reconvey until Norton paid him; that he (Saxon) had paid all the money, and that he (Milton) was out nothing; that if Myrtle Milton was present she would testify that Felix Saxon had said to her that he (Saxon), with Milton, went to Shawnee, where they met Dinah Walker; that Dinah Walker there made her mark to the deed, and that he (Saxon) guided her hand as she did so; that he knew it was Dinah Walker, and that Milton was not acquainted with Dinah Walker; that the deed was executed properly in the presence of Eugene Walker and R. D. Milton, and acknowledged before E. D. Reasor, county judge.

The names of five witnesses were indorsed on the indictment when the case was called for trial, leave of court having been first obtained, as follows: Alexander Crane, Carry Cyrus, Blanche Miller, Henryetta Brooks, and J. G. Dodson. The first two, Alexander Crane and Carry Cyrus, did not testify at all. Henryetta Brooks and Blanche Miller testified that Dinah Walker did not leave home the night of August 6th, and consequently could not have been in Shawnee to sign the deed in question. As this was an admitted fact by the testimony of the defendant, he could not have been prejudiced by their testimony.

J. G. Dodson (T. D. Dodson), the fifth witness indorsed thereon, testified that upon the afternoon of the night of the forgery he (witness, who was then sheriff of Seminole county) was at Seminole, Okl., and saw the defendant Milton and Saxon driving away from that place, and heard the defendant, Milton, referring to the team he and Saxon were driving, remark, "This is a hell of a poor team to start a man out to steal a piece of land with." After Dodson had testified, the defendant, testifying in his own behalf, did not deny making the statement that Dodson had testified to. Dodson testified that there were 14 or 15 men who heard the defendant make the remark.

The record shows that the trial lasted three days after Dodson testified; and no effort is shown to have been made to secure the attendance of any of these persons from the town of Seminole, just a few miles from Shawnee, where the trial occurred. No attempt was made on the motion for a new trial to show that the testimony of Dodson could possibly have been rebutted. We do not think that the defendant could have been prejudiced by the ruling of the court, when he did not deny this evidence when testifying in his own behalf.

The only possible competency or material

support of the application for continuance evidence was introduced upon this point. The brief of the plaintiff in error, under this assignment, does not argue this question, and we suppose it is abandoned. Suffice it to say that at the time of the trial of this case it had been pending nearly two years, and during all that time the defendant had been represented by his present large array of counsel. During that time, the case was passed over at various terms for various reasons. The case was set for trial and prepared for trial by the defendant and his attorneys, and the witnesses subpoenaed at

[2] The rule is well settled that the granting or refusal of a continuance, particularly for causes not enumerated in the statute, is a matter largely within the sound discretion of the trial court; and nothing but the abuse of this discretion will warrant the appellate court in interfering with the judgment. We think the application for a continuance was properly overruled.

[3, 4] Several assignments of error are based upon the fact that the judge of the court administered the oath to the bailiff in charge of the jury. It is contended that: "The court, by the judge, had no authority personally to administer the necessary oaths to the jury bailiff, but should have required the clerk to administer the oaths." Our statute is silent as to designating which particular officer of the court shall administer the oath to the bailiff in charge of the jury. It is fundamental that every court has inherent power to do all things which are reasonably necessary for the administration of justice within the scope of its jurisdiction. Therefore it is not necessary that there should be a statute empowering the courts to administer oaths in the trial of cases; the judge himself may administer the oath, or he may direct the clerk or deputy clerk to administer it. “A court has inherent authority to administer an oath or affirmation; and an oath administered by an officer in open court, under the direction of the court, is administered by the court." 29 Cyc. 1300, subpar. B. ""The authority to administer oaths is, however, an incident to all courts. It belongs to all courts. Whenever a court is created, that power is also necessarily created as being a necessary incident to the court." Ferguson v. Smith, 10 Kan. 396. "We must know judicially that the court had authority to administer the oath, either by the judge, the clerk, or deputy." Keator v. People, 32 Mich. 484, 487. It was held in United States v. Ambrose (C. C.) 2 Fed. 556, that a judge of a district court of the United States had the power to administer oaths in matters arising in the court; and that such power is incident to his judicial office, although it appears from the opinion that such powers had not been vested by statute in such judge. Counsel's contention is destitute of merit. All that is necessary is that the oath was administered by the judge or the clerk of the court in the presence of the court.

To the instructions given by the court, no serious objection is made; but it is insisted by the learned counsel that these instructions did not fully define the crime of forgery.

Instruction No. 1, as given, reads as follows: "Gentlemen of the jury, the court instructs you that in this case the defendant, R. D. Milton, is prosecuted by the state of Oklahoma upon an indictment, duly and legally filed and presented in this court, charging that he did, on the 7th day of August, 1909, and within the county of Pottawatomie, state of Oklahoma, and within the jurisdiction of this court, commit the crime of forgery in manner and form as follows, to wit: That on said date R. D. Milton, Felix Saxon, and Eugene Walker then and there unlawfully, willfully, and feloniously did falsely and fraudulently make and forge a certain warranty deed, in words and figures describing certain lands, the property of Dinah Walker; that said warranty deed purports to be the act of Dinah Walker; that said warranty deed purports to convey the interest of said Dinah Walker in and to the lands therein described; that Dinah Walker did not sign said deed, and did not authorize any person to sign said deed for her; that said deed was by said persons made and forged with the unlawful, willful, and felonious intent of said persons then and there to defraud the said Dinah Walker of her interest in and to said lands described in said deed, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma. You are instructed that to the indictment herein the defendant has pleaded not guilty, and you are instructed that the state must prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of the indictment charging the offense against the defendant on trial."

Instruction No. 4 reads as follows: "You are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant, R. D. Milton, entered into an agreement with one Eugene Walker that said Walker should procure some person, not Dinah Walker, to sign and acknowledge a deed conveying the lands described in the indictment herein, and if you further find from the evidence, beyond a reasonable doubt, that, pursuant to said agreement, the said Walker, acting alone or in conjunction with the said R. D. Milton, procured and caused some person, on or about the 7th day of August, 1909, in the city of Shawnee, Pottawatomie county, Oklahoma, at the rooming house of one Sylvia Tutley, to sign and acknowledge the deed to such lands, as alleged in the indictment, and if you further find from the evidence, beyond a reasonable doubt, that such person so signing and acknowledging such deed was not Dinah Walker, and if you further find from the evidence, beyond a reasonable doubt, that the defendant, R. D. Milton, caused or procured such person, or aided and abetted in the

other place therein, the burden was upon them to introduce testimony sustaining this defense, and their failure to do this shows that they were properly convicted by the jury.

[3] Counsel for appellants reserved many objections to the instructions of the court. We have carefully read these instructions, and find them to be substantially correct, with a single exception, and this exception does not involve any fundamental error, and was not excepted to by counsel for appellants upon the trial. We therefore cannot consider it now. Where charges are erroneous, this court will not reverse a conviction thereon unless the error is fundamental, or unless proper exceptions are reserved thereto.

[4] Exception is also reserved to the remarks of the county attorney made in his closing argument with reference to the weight to be given the testimony of a convicted bootlegger. We think that the remarks of the county attorney are in harmony with the opinions heretofore rendered by this court. We reiterate what we said in the case of Hendrix v. State, 4 Okl. Cr. 611, 113 Pac. 244, as follows: "The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is an immoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the 'bootlegger' will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character." See, also, Crawford v. Ferguson, 5 Okl. Cr. 377, 115 Pac. 278.

We think that these appellants are guilty under the evidence. In fact, we do not see how the jury could have arrived at any other conclusion. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.

(7 Okl. Cr., 494)

WALKER v. STATE. (Criminal Court of Appeals of Oklahoma. June 15, 1912.)

INTOXICATING LIQUORS (§ 211*)-UNLAWFUL POSSESSION-INFORMATION.

An information charging the unlawful possession of whisky should charge possession with intent to sell without reference to a specific section, chapter, or article of any statute. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 251; Dec. Dig. § 211.*]

Error from Pawnee County Court; Fred. 8. Liscum, Judge.

Ed Walker was convicted of violating the prohibitory law, and brings error. Reversed. Orton & McNeill, of Pawnee, for plaintiff in error. Redmond S. Cole, of Pawnee, Co. Atty., for the State.

PER CURIAM. The plaintiff in error, Ed Walker, was convicted in the county court of Pawnee county at the March, 1911, term on a charge of having the unlawful possession of intoxicating liquor with the intent to violate section 3, c. 69, Session Laws 190708, and his punishment fixed at imprisonment in the county jail for a period of 36 days and a fine of $50.

The information upon which the conviction in this case is based is as follows: "I, the undersigned, county attorney of said county. in the name, by the authority, and on behalf of the state of Oklahoma, give information that on the 12th day of February, 1911, in said county of Pawnee, and state of Oklahoma, one Ed Walker, a person then and there being, did then and there willfully, knowingly, unlawfully, commit the crime of unlawful possession of intoxicating liquors in that he, the said Ed Walker, did have the possession of two cases of whisky with the knowing, willful, and unlawful intent on the part of him, the said Ed Walker, of violating the provisions of section 111, chapter 69, of the Session Laws of Oklahoma for the year 190708, contrary to the form of the statutes and the Constitution of the state of Oklahoma in such cases made and provided, and against the peace and dignity of the state of Oklahoma." A demurrer was filed to the infor

mation and overruled, and exceptions saved. It will be noted that the information charges unlawful possession of intoxicating liquor with the intent to violate the provisions of section 3, c. 69, of the Session Laws of Oklahoma for the year 1907-08. An examination of that chapter discloses the fact that it is divided into three different articles, each of which has a number of sections, all of them a section 3. Just which section 3 the county attorney was guessing at, we are not able to determine.

An information charging the unlawful possession of whisky should charge the possession with intent to sell the same without any reference to a specific section, chapter, or article of any statute. The gist of this offense is the possession coupled with the intent to sell. The possession without the intent to sell does not constitute an offense any more than an intent to sell without the possession would constitute an offense. The information is entirely too indefinite, and the demurrer thereto should have been sustained.

The facts in this case disclose possession only. No effort was made to prove intent to sell, and there is nothing disclosed by the record from which a court or jury could le