MATSON, J. Plaintiff in error was convicted in the district court of Cleveland county of the crime of obtaining property under false pretenses, and was sentenced to serve a term of three years in the state penitentiary. Appeal was taken from said judgment of conviction to this court, which was lodged in this court on the 1st day of October, 1914, and subsequently submitted for decision. After the submission of said cause, and while same was pending for decision, the Attorney General filed a motion to dismiss the appeal, which is as follows: witnesses who were produced by the state. [ crime of obtaining property under false preThe defendant did not testify, nor did he of- tenses, and he appeals. Appeal dismissed. fer any witnesses in his behalf. Pruiett & Sniggs, of Oklahoma City, for [1] In substance, the state's witnesses tes-plaintiff in error. S. P. Freeling, Atty. Gen., tified to the effect that in the month of Feb- for the State. ruary, 1916, they had collected at the residence of Robert Weathers, the son-in-law of plaintiff in error, Vaughan, in Atoka county, Okl.; that Weathers was in possession of a barrel of Choctaw beer, which was intoxicating, and that several parties drank three or four gallons of this beer on that occasion. All of the parties testified that Vaughan was given a sum of money, either $1 or $2 for the amount of beer drank on that occasion, and that Weathers drew the same from the keg. The parties testified that they did not know who owned the beer; that nobody claimed it; but the evidence showed that both Weathers and Vaughan, who were jointly charged with making the sale, were in active control of this beer, and together were peddling same. There is no disputing the fact that there was a sale of intoxicating liquor, called Choctaw beer, on that occasion, and that the defendant, Vaughan, was actively participating in such sale together with his law, Weathers. This evidence stands undisputed and undenied, and is amply sufficient to sustain this verdict and judgment of con viction. "Comes S. P. Freeling, Attorney General for the state of Oklahoma, and moves the court to dismiss the appeal in the above styled and mentioned case, and for reason for so doing says: Said E. R. Brice was convicted in the district court of Cleveland county, Okl., and the verdict and judgment was appealed to this court been out of the custody of the sheriff of that October 1, 1914. Since that time said Brice has son-in-county, and on bond. Your Attorney General has learned that the said Brice (who sometimes spells his name Bryce and sometimes Brice), November, and February of 1917, and 1918, has during the existence of said bond, and during left the jurisdiction of the state of Oklahoma, and put himself under the jurisdiction of the in-courts of Texas, another and a different state. the violation of the law of each of said states. More than that, on both dates he was engaged in Thus, this court lost jurisdiction over said Brice, and his bondsmen in this state lost jurisdiction of his person, and he himself voluntarily changout of the state of Oklahoma into another ed the whole relation of all said parties by going state. As evidence of this change, your Attor. ney General files the affidavit of J. D. Key, sheriff of Wilbarger county, Texas, marked and filed as Exhibit A hereto, and the affidavit of J. M. Edwards, a constable of said county in Texas, showing the absence of said Brice from the state of Oklahoma, and of his presence in Texas, in open violation of the laws of both states, during the pendency of said bond. Wherefore, your Attorney General prays that said cause be dismissed. The affidavit of said Edwards is marked as Exhibit B hereto, and both said exhibits are made a part of this petition. [2] Under the repeated holdings of this court, the evidence will not be held to be sufficient to support a judgment of conviction, where there is any reliable evidence from which the jury might have reasonably concluded that the defendant was guilty. The court is not at liberty to substitute its judgment on questions of fact for that of juries in this state. The judgment is affirmed. (14 Okl. Cr. 456) BRYCE v. STATE (No. A-2344.) (Criminal Court of Appeals of Oklahoma. 18, 1918.) (Syllabus by the Court.) May 1. CRIMINAL LAW 1084-APPEAL-SUPERSEDEAS BOND. Where a person is convicted of crime, and perfects an appeal to the Criminal Court of Appeals, he is not entitled to give a supersedeas bond, and leave the jurisdiction without proper orders permitting him to do so. 2. CRIMINAL LAW 1131(5) BREACH OF SUPERSEDEAS BOND TION OF CASE. APPEAL DISPOSI "S. P. Freeling, Atty. Gen." This motion is supported by the affidavits of one J. D. Key, the sheriff of Wilbarger county, Tex., and one J. M. Edwards, constable of precinct No. 5 of Wilbarger county, Tex., which fully sustain all of the allegations contained in the motion to dismiss, and in addition show that this plaintiff in error has left the state of Oklahoma without leave of this court during the pendency of this appeal; that he has repeatedly since the pending of this appeal not only left the jurisdiction of this court in violation of his supersedeas bond, but that he has done so for the purpose of enabling him to violate the prohibitory Appeal from District Court, Cleveland liquor laws of this state. The conditions of County; R. McMillan, Judge. his appeal bond are provided by section When a person who has been convicted of a crime appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause, or dismiss the appeal. E. R. Bryce (Brice) was convicted of the 5995, Revised Laws 1910, as follows: Where, on motion to dismiss the appeal, a showing is made by the state such as in this case, this court, in the exercise of its discretion, may dismiss the same. "If an appeal is taken and the appeal bond supersede a judgment of conviction by the given as provided in the preceding section, said giving of an appeal bond cannot be considered bond shall be conditioned that the defendant will by appellants as a license to roam at large appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or pending such appeal, continually violating the the court in which the original judgment was criminal statutes of this state. rendered in the further progress of the cause, and will not depart without leave of the court. If no bond be given the appeal shall not stay execution of the judgment, except in capital cases or where otherwise specifically provided by law. If pending the appeal the bond be given a further execution of the judgment shall be stayed and the defendant released pending the determination of the appeal. In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penitentiary pending the appeal." The motion to dismiss the appeal was set for hearing on the 11th day of April, 1918, at which time counsel for plaintiff in error filed a reply to said motion, but admits therein that since the taking of the appeal he has left the jurisdiction of this court without obtaining any proper order permitting him to do so, but says that his absence was only temporary and for business reasons. [1, 2] In the case of Lot Ravenscraft v. State, 12 Okl. Cr. 283, 155 Pac. 198, this court held: "When a person is convicted of crime and perfects an appeal to this court, he is not entitled to give a supersedeas bond and leave the jurisdiction without proper orders permitting him to do so." Under section 5995, supra, and as held in Ravenscraft v. State, it is a condition of plaintiff in error's right to appeal that bond must be given as provided in said section, and that the judgment of conviction shall not be superseded except upon the conditions named therein. Therefore, where a supersedeas bond is given, it is strictly upon the condition that the plaintiff in error shall fully observe the conditions named in said bond, and where it is shown, as in this case, that the plaintiff in error, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his supersedeas bond, he thereby waived the right that was given him to have the judgment of conviction superseded, and it then became discretionary with this court to proceed to a determination of the cause on its merits or to dismiss said appeal for that reason. If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court's jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to For the reasons above stated, the appeal is dismissed. Mandate forthwith. DOYLE, P. J., and ARMSTRONG, J., concur. (14 Okl. Cr. 463) HOLDEN v. STATE. (No. A-3266.) (Criminal Court of Appeals of Oklahoma. May 18, 1918.) (Syllabus by the Court.) CRIMINAL LAW 1131(4) SUPERSEDEAS BOND-BREACH-DISMISSAL OF APPEAL. When a person who has been convicted of a crime appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, violates the condition of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause, or dismiss the appeal. Appeal from County Court, Oklahoma County; William H. Zwick, Judge. Charles H. Holden was convicted of a violation of the prohibitory law, and he appeals. Appeal dismissed. Prulett, Sniggs & Patterson, of Oklahoma S. P. Freeling, City, for plaintiff in error. Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. DOYLE, P. J. The plaintiff in error, Charles H. Holden, and Bert Shadrick were jointly charged, tried, and convicted under an information charging that they unlawfully transported 60 half pints of whisky, and their punishment assessed at a fine of $250, and three months in the county jail. From the judgments rendered in accordance with the verdicts, an appeal was perfected by filing in this court on February 26, 1918, a petition in error with case-made. The Attorney General has filed a motion to dismiss the appeal of plaintiff in error, Holden, on the ground that since the appeal was taken the said Holden at various times left Oklahoma without leave of court, and went to Texas for the purpose of violating the prohibition law of both states. In reply to the motion to dismiss his counsel filed affidavit of Charles H. Holden, which omitting merely formal parts, is as follows: "Plaintiff in error admits that since the making of appeal bond in this cause he has been out of the state of Oklahoma and sojourned to the state of Texas on business trips of a few hours' duration, but that at no time has he removed from the state of Oklahoma and violated the prohibition laws of the state of Texas. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Plaintiff in error says that he is now confined in the county jail at Mangum, Okl., upon order of the district judge of Jackson county, Okl., wherein he is charged with murder, and that he is also being held in jail because of failure to give an appeal bond, wherein he was sentenced at Norman, Okl., to four years' imprisonment in the state penitentiary. Plaintiff in error says that he has at no time been a fugitive from justice, and has at no time withdrawn himself from the jurisdiction of this court in order to defeat the enforcement of any judgment which might be rendered against him; that he is now within the jurisdiction of this court, and is willing to avide by the terms of his bond given in us cause; that J. M. Edwards and J. D. Key are witnesses for the state, wherein the plaintiff in error is charged with murder in Jackson county, Okl., and that said parties who made the affidavits are prejudiced against him, and have made said affidavits in order that if the plaintiff in error is granted bond upon said charge of murder, he would not be liberated from custody because of having to serve the original sentence imposed in this case if the appeal is dismissed, and thereby keep plaintiff in error in custody, and prevent him as far as possible from preparing his case for trial upon the charge of murder." Under the Constitution and the Code of Criminal Procedure of our state, an appeal may be taken to this court by any person convicted of a crime to have the judgment reversed as a matter of right, and under the Constitution the Legislature may prescribe the mode in which the right may be exercised. Our Code provides that if the crime of which the defendant is convicted be a bailable one, the defendant may give bail, and the bond shall stay execution of the sentence during the pendency of the appeal. One of the conditions of the bond as prescribed by the statute is: "That the defendant will appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of court." Section 5995, Rev. Laws. The proof on the part of the state in support of the motion to dismiss shows that plaintiff in error had violated the conditions of his bond by making frequent trips to Texas for the purpose of transporting intoxicating liquors from Texas back to this state. The plaintiff in error's affidavit also shows he had violated the conditions of his bond. And see Ex parte Holden, 172 Pac. 978, and Bryce v. State, 172 Pac. 976. While there is no express provision of the statute authorizing the dismissal of an appeal on the grounds stated, yet, in the absence of a statute to the contrary, we think it is a matter within the discretion of the court whether, under the facts and circumstances admitted, we will consider and determine the appeal. The plaintiff in error each time he left the state was in the attitude of a fugitive from justice, and thereby waived the right to have his conviction reviewed. We do not think it would subserve the ends of justice to permit a person con PER CURIAM. Plaintiff in error, E. R. Brice, was convicted in the county court of Oklahoma county on a charge that he did have possession of eight quarts of whisky, with the of the verdict the court sentenced him to be conunlawful intent to sell the same. In pursuance fined in the county jail for 30 days, and to pay a fine of $50. From the judgment an appeal 1918, a petition in error with case-made. was taken by filing in this court on January 21, On March 20, 1918, a motion to dismiss the appeal was filed by the Attorney General for the reason that since the appeal was taken the said Brice at various times went to Texas for the purpose of violating the prohibition laws of both states. In support of said motion the proof is the same, as in the case of E. R. Bryce v. State (No. A-2344) 172 Pac. 976, this day de cided. For the reason stated in the opinion in the Bryce Case, supra, we are of the opinion that have his appeal in this case considered and the plaintiff in error has waived the right to determined. The appeal herein is therefore dis missed. Mandate forthwith. (14 Okl. Cr. 691) HOLDEN v. STATE. (No. A-3049.) (Criminal Court of Appeals of Oklahoma. May 18, 1918.) Appeal from County Court, Oklahoma County; William H. Zwick, Judge. C. H. Holden was convicted of a violation of the prohibitory law, and he appeals. Appeal dismissed. Twyford & Smith, of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. Plaintiff in error, C. H. Holden, was convicted in the county court of Oklahoma county on a charge that on the 20th day of January, 1917, he did willfully and unlawfully transport, carry, and convey four quarts of whisky from a point unknown in and through and along Grand avenue, Oklahoma City, to a place known as 310 East Grand avenue. In pursuance of the verdict, the court sentenced him to be confined in the county jail for 30 days, and to pay a fine of $50. From this court on June 14, 1917, a petition in error with case-made. On March 28, 1918, a motion to dismiss the appeal was filed by the Attorney General for the reason that since the appeal was taken the said Holden has been out of the state of Oklahoma and in the state of Texas_violating the prohibition laws of both states. In support of said motion the affidavits of J. D. Key, sheriff of Wilbarger county, Tex., and of J. M. Edwards, constable in said county, and made exhibits in the case of E. R. Bryce v. State (No. A-2344) 172 Pac. 976, are referred to. Upon an examination of the motion to dismiss and the proof supporting the same, to which no response has been filed, and for the reason stated in the opinion in the Bryce Case, supra, we are of the opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal herein is therefore dismissed. Mandate forthwith. (178 Cal. 811) In re JONES' ESTATE. (L. A. 5569.) Proceeding in the matter of the estate of William H. Jones Deceased. From an order adverse to it, the Chicago Boys' Club, Incorporated, appeals. Reversed. James S. Bennett, of Los Angeles, for Chicago Boys' Club. Robert A. Waring, of Sacramento, and J. W. Carrigan and Edwin H. Pennock, both of Los Angeles, for state controller. PER CURIAM. In accord with the stipulation of the parties to this appeal, on the authority of the Estate of Fiske, Deceased (L. A. No. 5433) 172 Pac. 390, decided April 12, 1918, the order appealed from, in so far as it in any way affects or relates to the Chicago Boys' Club (a corporation), the sole appellant, is reversed. PATTEN & DAVIES LUMBER CO. v. DUR- failure to file transcript in this court within the time required by the rules, having been presented and submitted heretofore, together with the application of said Inman to be relieved from his default in that particular because of excusable neglect: It is ordered that the transcript on appeal be filed. The motion to dismiss the appeal of said Inman is denied. (36 Cal. App. 817) Ex parte CARRERA. (Cr. 739.) (District Court of Appeal, First District, California. March 25, 1918.) Petition by James Carrera for writ of habeas corpus. Petition denied. Edwin V. McKenzie and Hyman Levin, both of San Francisco, for petitioner. U. S. Webb, Atty. Gen., and Frank L. Guerena, Deputy Atty. Gen., for respondent. PER CURIAM. Pursuant to the case of Ex parte Lee, on habeas corpus, 171 Pac. 958, it is ordered that the warden of the prison at San Quentin deliver the petitioner to the sheriff of Los Angeles county, to whose custody he is remanded, and that the superior court of that county take such steps as may be necessary to bring the petitioner, James Carrera, before it, and pronounce judgment upon his conviction heretofore had. (65 Colo. 156) BECKER v. EMERSON-BRANTINGHAM Action by J. C. Becker against the EmersonBrantingham Implement Company, a corporation. Judgment for defendant, and plaintiff brings error. Supersedeas denied, and judgment affirmed. McConley & McConley, of Sterling, for plaintiff in error. Frank L. Grant, of Denver, for (District Court of Appeal, Second District, Cal- defendant in error. ifornia. April 1, 1918.) Appeal from Superior Court, Los Angeles County; Leslie R. Hewitt, Judge. Action by the Patten & Davies Lumber Company, a corporation, against William Durflinger, Charles T. Inman, and another. From the judg ment rendered, Inman appeals, and plaintiff moves to dismiss the appeal. Motion denied. H. C. Millsap, of Los Angeles, for appellant. Behymer & Craig, of Los Angeles, for respondent. PER CURIAM. Motion to dismiss the appeal of Charles T. Inman, on the ground of PER CURIAM. This action was brought by the plaintiff in error in the district court of naught a judgment rendered against him in the Logan county to have set aside and held for district court of the city and county of Denver, upon a promissory note and to recover $3,000, alleged damages growing out of the transaction in which the note was given. Upon trial to the court, the action was dismissed at the cost of the defendant. Perceiving no prejudicial error, the application for supersedeas will be denied, and the judg ment affirmed. Supersedeas denied. Judgment affirmed. (14 Okl. Cr. 690) Ex parte FOSTER. (No. A-3291.) (Criminal Court of Appeals of Oklahoma. April 11, 1918.) Application of Fred Foster for writ of habeas corpus to be let to bail. Bail denied, and petition dismissed. Park Wyatt, of Tecumseh, for petitioner. R. McMillan, Asst. Atty. Gen., and C. G. Pitman, Co. Atty., of Tecumseh, for respondent. PER CURIAM. The petitioner, Fred Foster, filed his application in this court for a writ of habeas corpus to be let to bail, and discloses the fact that he is imprisoned in the county jail of Pottawatomie county charged with_the murder of John Villines on the 9th day of February, 1918. Stipulations were filed which show that the state was ready to try the cause on the 4th day of March, 1918, but that it was continued at the instance of the defendant on the ground that he was not ready. In support of the application for bail here, a record of the proceedings had before the trial court on a similar application is offered, supplemented by the stipulations referred to, which stipulations do not contain any new statement of facts. After a careful examination of the record we conclude that the petitioner has not met the burden placed on him by law, and therefore is not entitled to be let to bail as prayed. This cause is yet to be tried on its merits. An opinion, therefore, discussing at length the issues raised and the facts disclosed, will not be written. Bail is denied, and the petition is dismissed. (88 Or. 549) DE FOE v. DE FOE. (Supreme Court of Oregon. May 21, 1918.) In Banc. Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge. Suit for divorce by Ina L. De Foe against Virn J. De Foe. Decree for plaintiff, and defendant appeals. Affirmed. See, also, 169 Pac. 128. Wells W. Wood, of Ontario (McCulloch & Wood, of Ontario, on the brief), for appellant. P. J. Gallagher, of Ontario (W. H. Brooke, of Ontario, on the brief), for respondent. PER CURIAM. The record contains a recital of the gross misconduct of the defendant, which it would serve no good purpose to spread upon the pages of the Reports. The delinquency of the defendant is admitted, and the defense is that it has been expressly forgiven and condoned. We are satisfied that there has been no such forgiveness or condonation as is contemplated by our statute. The decree was correct, and should be affirmed. (178 Cal. 202) of the lessees, and reduce the lessor's remedy, for on royalty that if the lessees fail to commence Department 2. Appeal from Superior Court, Los Angeles County; Willis I. Morrison, Judge. Action by F. H. Allen against D. C. Narver and others. From an adverse judgment and order, defendants appeal. Affirmed. A. A. Kidder, Jr., and Schweitzer & Hutton, all of Los Angeles, for appellants. Kimball Fletcher, of Los Angeles, for respondent. VICTOR E. SHAW, Judge pro tem. The judgment in favor of plaintiff and an order question presented on this appeal from a of court denying defendants' motion for a new trial involves the interpretation of a lease made by plaintiff to defendants of certain lands for use in extracting oil and other mineral substances therefrom, the express consideration therefor being a royalty of one-eighth of the mineral so extracted. [1] The provision of the lease upon which the action is based is as follows: "It is further expressly agreed and understood that in the event that the second parties [defendants] shall fail to commence operations by this lease, then and in that event the parties of the 4th day of July, 1911, under the terms of the second part [defendants] will pay the party of the first part [plaintiff] one hundred ($100) dollars per month for each and every month in which they shall make such default in the commencement of operations hereunder." The complaint alleged and the court found that defendants and each of them wholly failed and refused to commence operations on or before July 4, 1911, and from thence to March 4, 1913, continuously failed and refused so to commence operations in accordance with their covenant so to do, and likewise refused to pay the $100 per month or any part thereof during said period of default. No attack is made upon this finding; indeed, it is conceded that defendants never at any time complied or attempted to comply ALLEN v. NARVER et al. (L. A. 4246.) with their agreement in this respect. Their (Supreme Court of California. April 25, 1918.) contention is that, notwithstanding their ex1. MINES AND MINERALS 78(1)-OIL LEAS- press covenant, the lease constitutes merely ES-FAILURE TO DRILL-REMEDY OF LESSOR. an option on their part, and that plaintiff's Under a lease for extracting oil on royalty, sole remedy for breach of the agreement was binding the lessees to commence operations by a certain day, and providing that if they fail to enter upon the property and terminate the to do so they will pay lessor $100 per month lease. It is quite true that by another produring continuance of default, the further pro- vision of the lease it was provided that a vision that failure of the lessees to comply with failure on the part of the lessees to comply conditions of the lease or to diligently prosecute with the conditions thereof, or their failure the work of drilling and producing oil will render the lease null and void and of no effect, does to diligently prosecute the work of drilling not render the lease a mere option on the part and producing oil, would render the lease |