evidence to sustain the judgment of the court, we do not think that position is well taken. The findings of the court below as to the facts have the same binding effect upon this court as if the case had been tried by a jury. If there is sufficient testimony tending to sustain the finding of the court below it will not be disturbed by this court on appeal. Finding no errors affecting the substantial rights of the appellant, the judgment of the court below is affirmed. FURMAN, P. J., and DOYLE, J., concur. Okl. Cr. 68) RICE v. STATE. This appears that the barrel was not his. to have been the Nrst time that he had seen the drayman after the delivery of the barrel to his residence. A deputy sheriff was in town the day the barrel was delivered, and was informed that a suspicious barrel had been delivered at the house of the appellant, whereupon he secured a search warrant and went to the home of the appellant, seized the barrel, opened it, and found that it contained pint bottles of whisky. The appellant was not at home on the day in question, and was not arrested until two or three days later. Upon the trial the state undertook to show that he had received other shipments of whisky, but the testimony fails to show that the packages delivered (Criminal Court of Appeals of Oklahoma. Feb. contained whisky. 6, 1911.) (Syllabus by the Court.) INTOXICATING LIQUORS (§ 236*)-POSSESSION OF WHISKY EVIDENCE. There is nothing in this record to show that the appellant ordered the barrel in question or had anything to do with it. There is nothing in the record to show that Mere possession of whisky, without proof he was ever, at any time, charged with sellof the purpose for which it is held, is insuffi- ing whisky. The evidence is wholly incient to sustain a conviction of one charged sufficient to sustain a conviction upon this with having whisky in his possession for un-charge. The state had a right to show, as lawful purposes. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 309; Dec. Dig. § 236.*] Appeal from Grady County Court; N. M. Williams, Judge. R. E. Rice was convicted of having in his possession spirituous liquors with intent to sell, and appeals. Reversed and remanded. Bond & Melton, for appellant. ARMSTRONG, J. The plaintiff in error was convicted in the county court of Grady county on a charge of having in his possession spirituous liquors for the purpose of selling the same. Upon arraignment he filed a motion to set aside the information, which motion was overruled, and he excepted. The case went to trial before a jury, and, at the close of the state's testimony, he requested the court to advise the jury to return a verdict of not guilty, which was denied, and he excepted. The evidence introduced in this case on the part of the state shows that one Hobbs went to the Rock Island depot in Rush Springs in March, 1909, and found a barrel marked to R. E. Rice, Sterling, Okl., via Rush Springs. Sterling appears to be an inland town about 15 miles from the railroad. Hobbs loaded the barrel on his wagon and drove away from the station, and had gone but a short distance when he met a drayman by the name of Fourt, and delivered the barrel over to Fourt. Fourt carried it to the house of the appellant and left it. The record does not show that either of the parties had any instruction or order from the appellant to get the barrel, but does show, from the state's witnesses, that, after his arrest, the appellant told the drayman this court has heretofore held, any previous unlawful sale of intoxicants by the appellant, if he had made any such sales, for the purpose of tending to establish intent. See Hill v. State, 3 Okl. Cr. 686, 109 Pac. 291. The state did not offer to make any such showing in this case. The mere possession of whisky is not in itself sufficient to justify the conviction of a person for having whisky in his possession for unlawful purposes. It is necessary for the state to establish the purpose for which the whisky is held. The testimony on the part of the state indicates that this was a shipment from Ft. Worth, Tex., and, if that is true, it was an interstate shipment. This court has repeatedly held that persons residing in this state have a right to receive interstate shipments for their own use, and, while an unusual quantity might be a circumstance to be considered against one on trial on a charge of this kind, that of itself would not warrant a conviction. The proof must go further and establish the intent and purpose of the person charged. Alexander v. State, 3 Okl. Cr. 478, 106 Pac. 988. At the close of the state's testimony, the defendant below requested the court to advise a verdict for him, which was denied by the court, and he excepted; and, after conviction, he filed a motion for a new trial, which was overruled. The trial court committed error in refusing the request of the appellant for the instruction. The motion for a new trial should have been sustained. Judgment reversed and the cause remanded, with directions to the court below to grant a new trial. FURMAN, P. J., and DOYLE, J., concur. (5 Okl. Cr. 67) SMITH V. STATE. (Criminal Court of Appeals of Oklahoma. Feb. 6, 1911.) (Syllabus by the Court.) CRIMINAL LAW (§ 369*) - ILLEGAL SALE PROSECUTION-ADMISSIBILITY OF EVIDENCE -PROOF OF OTHER SALES. Where the state charges and relies upon a particular sale to constitute a violation of the prohibition law, it is error for the court to permit proof of other sales, and to instruct the jury that the same was admitted for the purpose of showing whether or not the defendant sold the intoxicants to the particular person named in the information. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 822-824; Dec. Dig. § 369;* Intoxicating Liquors, Cent. Dig. § 286.] State, 7 South. (Miss.) 500; McClure v. State, 148 Ala. 625, 42 South. 813. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says that "to permit such evidence would be to put a man's whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet." 1 Bish. Crim. Proc. par. 1124. The appellant excepted to the foregoing instruction at the time it was given, and filed a motion for a new trial, complaining of it in that motion. A new trial should have been granted. This cause is reversed and remanded, with directions to the court below to grant the Appeal from Leflore County Court; Jas. L. appellant a new trial. Hale, Judge. T. N. Smith was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded, with directions. Day, Du Bois & Taylor, for appellant. ARMSTRONG, J. The plaintiff in error, T. N. Smith, was convicted on the 4th day of May, 1909, in the county court of Leflore county, on the charge of selling intoxicating liquor, and sentenced to 30 days in jail and a fine of $75, and has perfected his appeal to this court. The only substantial error we find in this record is in the instructions of the court, which instructions appear to have been given orally and taken down by the stenographer, and not numbered in this record; the instruction in question being as follows: "There is testimony allowed to come before you, showing the sale, or tending to show the sale, to another party about the same time of this alleged sale-to one Cluck. This is allowed to come before you, gentlemen of the jury, as a circumstance in the case showing whether or not this man had whisky there at his place of business for the purpose of sale, and further to show whether or not he sold it to Dr. Hays and received the money, or its equivalent, for it." We think this instruction is clearly erroneous, and is sufficient to entitle this appellant to a new trial. Where the state charges and relies upon a particular sale, the general rule is that proof of other sales, for the purpose of establishing the particular sale charged, is not admissible. The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. par. 104; 1 Bish. Crim. Proc. par. 1120; State v. Hughes, 3 Kan. App. 95, 45 Pac. 94; King v. State, 66 Miss. 502, 6 South. 188; Stone v. FURMAN, P. J., and DOYLE, J., concur. (4 Okl. Cr. 544) LEM SING et al. v. STATE. (Criminal Court of Appeals of Oklahoma. Dec. 13, 1910. On Motion for Rehearing, Dec. 22, 1910.) (Syllabus by the Court.) 1. CRIMINAL LAW (§ 1056*)-APPEAL-REVIEW-INSTRUCTIONS. Where two defendants are jointly charged and jointly tried for the commission of an offense, in the absence of exceptions to instructions given, and where the evidence clearly shows that both of the defendants are guilty as charged, a conviction will not be reversed because the court failed to instruct the jury that they might convict one of the defendants and acquit the other. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2668; Dec. Dig. § 1056.*] On Motion for Rehearing. 2. CRIMINAL LAW (8 1097*)-APPEAL-RECORD- CASE-MADE MATTERS OCCURRING DURING TRIAL. Matters occurring during the trial of a case which counsel desire to assign as error must appear by proper recitals in the casemade duly certified to as the law provides, independently of the motion for a new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2862; Dec. Dig. 1097.*] Appeal from Carter County Court; I. R. Mason, Judge. Lem Sing and another were convicted of violating the prohibition liquor law, and they appeal. Affirmed, with directions. Cruce, Cruce & Bleakmore and William Pfieffer, for appellants. Fred S. Caldwell, for the State. FURMAN, P. J. We have carefully considered the brief of counsel for appellants, and have examined the entire record in this case. We find that all of the material questions involved in this case have been decided adversely to the contention of appellants, ex cept as to one question. It would therefore be a useless consumption of time and space to repeat here what we have previously decided. (4 Okl. Cr. 472) BIRDWELL et al v. UNITED STATES. (Criminal Court of Appeals of Oklahoma. Dec. 14, 1910.) (Syllabus by the Court.) The thirteenth assignment of error complains that the court erred in its charge to the jury in not authorizing them to convict 1. WITNESSES (8 77*)—COMPETENCY-OBLIGA TION OF OATH-CHILDREN. one of the defendants and acquit the other. In the Indian Territory persons 14 years No exception was reserved to the instruc- of age and over were presumed to be competent tions of the court upon this ground. Neither as witnesses in a criminal case; but, before a person under the age of 14 years was permitdid the defendants request a special instructed to testify in a criminal action, it was intion upon this proposition. The evidence cumbent upon the party offering him as a witcontained in the record is overwhelming and ness to show that he understood the nature and effect of an oath. conclusive as to the guilt of both of the defendants. We therefore hold that the court did not commit reversible error in failing to instruct the jury that they might acquit one of the defendants, even though they found the other guilty. The judgment of the lower court is therefore affirmed, with directions to the sheriff of Carter county to proceed with the execution of the judgment. DOYLE and RICHARDSON, JJ., concur. On Motion for Rehearing. PER CURIAM. It is contended by counsel for appellants that the record shows that exceptions were reserved at the time of this trial to the instructions given to the jury, and in support of this contention they cite us to page 61 of the transcript of the record. We find that the motion for a new trial begins on page 60, and extends to page 62 of the transcript of the record, and that the sixth ground relied upon in said motion states that exceptions were reserved to the instructions. Matters occurring during the trial of a case cannot be presented to this court solely by recitals contained in the motion for a new trial. A defendant may put anything in his motion for a new trial he desires, but, before it can be considered by this court, it must be sustained and supported by proper statements contained in the case-made, duly certified to as the law directs. Defendant attaches to his motion for a rehearing a certificate of the county judge dated on the 16th day of December, 1910, to the effect that upon the trial of this case exceptions were reserved at the time of the trial by counsel for the defendant to each and every paragraph of the court's charge. Exceptions cannot be shown in this way. We know of no law authorizing the review of a case upon the certificate of the trial judge. Exceptions can be shown only by case-made or bill of exceptions, and cannot be proved by evidence aliunde. If lawyers will exercise more care in the preparation of their case-mades and transcripts of the record, they will save themselves and this court a great deal of trouble. Motion for rehearing denied. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 196; Dec. Dig. § 77.*] 2. STATUTES (§ 277*)-WITNESSES (§ 77*)— COMPETENCY-OBLIGATION OF OATH-CHIL DREN. Where, in a trial for an offense committed in the Indian Territory before statehood, the prosecution introduced as a witness a girl only 11 years of age, and the defendant objected to her testifying on the ground that it did not appear that she was competent, it was error for the court to peremptorily overrule the objection, and permit the witness to testify without attempting to ascertain whether she understood the nature and effect of an oath. [Ed. Note. For other cases, see Statutes, Dec. Dig. § 277;* Witnesses, Dec. Dig. § 77.*] 3. HOMICIDE (§ 188*)-MURDER-ADMISSIBILITY OF EVIDENCE. In a prosecution for murder, evidence that the deceased had the reputation of being a person who insulted and slandered women is not competent. [Ed. Note. For other cases, see Homicide, Dec. Dig. § 188.*] Appeal from District Court, Pontotoc County; A. T. West, Judge. Tom Birdwell and another were convicted of manslaughter on a charge of murder, and appeal from an order overruling a motion for new trial. Reversed and remanded, with directions. I. M. King, Duke Stone, and Crawford & Bolen, for plaintiffs in error. Chas. West, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. RICHARDSON, J. In the trial of this case Costa Bowerman, a girl 11 years of age, was introduced as a witness in behalf of the prosecution. Plaintiffs in error objected to her testifying because she was not of the age at and after which persons are presumed competent to testify, and because she had not been shown to be a competent witness. The court peremptorily overruled the objection, and without any examination of the witness whatever as to her competency, and without any showing of any kind or character that she knew the nature, obligation, or effect of an oath, permitted her to testify. She gave damaging testimony against plaintiffs in error. The latter saved an exception to the ruling of the court, and assign the ruling as error. We think the assignment well taken. This homicide was committed prior to statehood; and under Act Cong. March 4, 1907, c. 2911, § 3, 34 Stat. 1287, amending section 20 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277), the terms of which were accepted by section 28 of the schedule of our Constitution, plaintiffs in error were entitled to be tried under the laws in force in the Indian said information is bad for duplicity, and a [Ed. Note. For other cases, see Indictment Appeal from Coal County Court; R. H. Wells, Judge. Angelo Gretti was convicted of pointing a deadly weapon at another, and appeals. Reversed and remanded. See, also, 111 Pac. 1101. A. D. Brown, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. DOYLE, J. Angelo Gretti, plaintiff in error, was convicted in the county court of Coal county for the crime of pointing a deadly weapon at another person. The jury assessed his punishment at a fine of $100 and be imprisoned three months in the county jail. The judgment and sentence was entered on August 23, 1909, from which judgment an appeal was perfected by filing in this court on October 23, 1909, a petition in error with case-made attached. The information, omitting the title and verification, reads as follows: "In the name and by the authority of the state of Okla Territory at the time of the admission of the state into the Union. Hawkins v. United States, 3 Okl. Cr. 651, 108 Pac. 561. Under the law in the Indian Territory persons 14 years of age and over were presumed to be competent witnesses. But the law indulged | Atty. Gen., for the State. no such presumption as to persons under the age of 14 years; and, before a person under that age was entitled to testify in a criminal case, it was incumbent upon the party offering him as a witness to show that he understood the nature, obligation, and effect of an oath. Flanagin v. State, 25 Ark. 94. See, also, Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244, wherein appellant was charged with murder committed in the Indian Territory; and State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A. 605, and note. In this case the witness was not put upon her voir dire as to her competency, and there is not a syllable of testimony in the record tend-homa, now comes J. R. Wood, the duly ing to show that she understood the nature and effect of an oath. After the objection was made, it became the court's duty to ascertain that the witness possessed this qualification before permitting her to testify, and the court committed error in not doing so. The next assignment is that "the court erred in excluding the testimony of Clay Roper concerning the reputation of the deceased for offering insults to ladies and slandering their character." It is stated in the brief that the question at issue was whether the deceased had slandered Birdwell's wife, but this is not true. The plea was selfdefense. No quarrel preceded the killing, no words were spoken. The offered evidence was not competent, and would not have been competent even if the question whether deceased had slandered Birdwell's wife had been legitimately in the case. For the error indicated, the cause is reversed and remanded, with directions to set aside the judgment and grant plaintiffs in error a new trial. All concur. (4 Okl. Cr. 574) GRETTI v. STATE. qualified and acting county attorney in and for Coal county, state of Oklahoma, upon his official oath, and gives the county court of Coal county, state of Oklahoma, to know and be informed that one Angelo Gretti did, in Coal county, state of Oklahoma, on or about the 3d day of April, in the year of our Lord, nineteen hundred and nine, commit the crime of carrying and pointing a deadly weapon in the manner and form, as follows: That the said Angelo Gretti did willfully and maliciously carry a certain deadly weapon, to wit, a double-barrel shotgun, with the intent of him, the said Angelo Gretti, then and there to injure his fellow man, to wit, the said Elizabeth Catarello, and for the avowed purpose of him, the said Angelo Gretti, then and there to injure her, the said Elizabeth Catarello. And your informant does further say that on the said 3d day of April, 1909, in said county of Coal and state of Oklahoma, the said Angelo Gretti did then and there unlawfully, willfully, and maliciously point a deadly weapon, to wit, a double-barrel shot gun, at another person, to wit, the said Elizabeth Catarello, contrary to the form of the statutes in such cases made and provided, and against the (Criminal Court of Appeals of Oklahoma. Dec. peace and dignity of the state." 24, 1910.) (Syllabus by the Court.). INDICTMENT AND INFORMATION (§ 125*)-DuPLICITY-CHARGING SEPARATE OFFENSES. Where the defendant was charged in the information with carrying a deadly weapon with the intent of injuring his fellow man, and in the same count also charged with unlawfully pointing a deadly weapon at another person, Upon arraignment the defendant filed a demurrer, on the ground that more than one offense is charged in the information; "that said information charges the said defendant with having committed two separate and distinct offenses, in this, to wit: That in violation of section 2751, Snyder's Statutes, the defendant did carry a deadly weapon with intent to injure his fellow man'; that in violation of section 2752, Snyder's Statutes, 'the defendant did unlawfully point a deadly weapon at another person." Which demurrer was by the court overruled, and exception allowed. We can see no reason why the information is not bad for duplicity. It charges two substantive offenses in the same count. It follows that the demurrer to the information was well taken, and it was error to overrule the same. The question presented has been frequently passed upon by this court. Wells v. Territory, 1 Okl. Cr. 469, 98 Pac. 483; Sturgis v. State, 2 Okl. Cr. 362, 102 Pac. 57; De Graff v. State, 2 Okl. Cr. 519, 103 Pac. 538. The judgment of conviction is therefore reversed, and the cause remanded. Charles West, Atty. Gen., and Ben F. Franklin, Co. Atty., for the State. J. F. Sharp, for appellee. FURMAN, P. J. (after stating the facts as above). First. This indictment was found by the grand jury at the June, 1909, term of the district court of McClain county. The record shows that, when the grand jury was first impaneled, R. E. Stone and R. L. Robertson, being duly summoned to serve on said grand jury, were excused by the court. After said grand jury had been in session some two weeks, it was discovered that one member of the grand jury was a minor. Thereupon said minor was discharged from the grand jury, and the court entered the following order: "In re grand jury. The court orders that the clerk of this court issue a venire for R. E. Stone and R. L. Robertson, FURMAN, P. J., and RICHARDSON, J., two of the grand jurors who were heretofore concur. (5 Okl. Cr. 26) STATE v. POLLOCK. summoned as such, and who were excused by the court until they were otherwise needed." The grand jury was then reorganized, and the said R. E. Stone and R. L. Robertson became members of the reorganized grand jury, (Criminal Court of Appeals of Oklahoma. Feb. as appears from the following order of the 6, 1911.) (Syllabus by the Court.) 1. GRAND JURY (§ 20*)-SELECTION AND IM PANELING. A substantial compliance with the statute with reference to the manner of selecting and impaneling a grand jury is all the law requires. [Ed. Note. For other cases, see Grand Jury, Dec. Dig. § 20.*] 2. GRAND JURY (§ 11*)-EXCUSING GRAND JUROR-REPLACING ON PANEL. For facts held to be a substantial compliance with the statutes in drawing and impaneling a grand jury see opinion. [Ed. Note. For other cases, see Grand Jury, Dec. Dig. § 11.*] Appeal from McClain County Court; George W. Welch, Special Judge. W. T. Pollock was indicted for gaming. On an order setting aside the indictment, the State appeals. Reversed and remanded. court: "It now appearing to the court that G. Albert, M. S. Robertson, D. Wynn, N. G. Derrick, A. C. McEldery, R. C. Abernathy, An indictment was returned by the grand R. J. Wardlow, G. W. Clopton, R. E. Stone, jury of McClain county at the June, 1909, and R. L. Robertson." The indictment in term of the district court, against appellee, this case was returned in the district court by wherein he was charged with being the own- this reorganized grand jury. Appellee claims er of a certain building located in the city that the district court erred in having R. E. of Purcell, in McClain county, and that he Stone and R. L. Robertson summoned on the knowingly and designedly permitted one A. panel of the reorganized grand jury after S. Jones to set up in said building a gam- they had been excused by the court. Standbling device, namely, a poker table, to be ing alone, the first entry in the record which used for the purpose of gambling. This in- shows that R. E. Stone and R. L. Robertson dictment was duly transferred from the dis- were excused would strongly indicate that trict court to the county court of McClain they were discharged, and that their relation county for trial. Appellee filed a motion in to the court as jurors had terminated, but the county court to set aside this indictment. the other entry in the record shows that they The grounds upon which this motion is based were only excused by the court until they are stated in the opinion. The county judge were otherwise needed. There is no conflict sustained the motion to set aside the indict-between these orders of the court. The second ment. order merely makes plain what was obscure |