TURNER v. TURNER. (Supreme Court of Oklahoma.

(No. 7971.)

Rehearing Denied April 24, 1919.)

(Syllabus by the Court.) 1. INDIANS 15(1)—TITLE TO TOWN LOTS

OCCUPATION.

The preferential right to acquire title to town lots in the Creek Nation was by the original Creek Agreement of March 1, 1901, c. 676, 31 Stat. 861, conferred upon the person in the rightful occupation of said lots.

2. INDIANS 15(1)-TITLE TO TOWN LOTS— TRUST.

The title acquired by the son of a testator to town lots by the exercise of his preferential right under the original Creek Treaty will not be in pressed with a trust in favor of the residuary legatee, where the lots were scheduled to and the appraised value thereof paid by the son, and where in litigation thereafter, in the settlement of the estate of the testator, a stipulation was entered into whereby the son should pay the executor, who was also the residuary legatee, the original purchase price of the improvements on said lots, which sum was paid to the executor in accordance with said agreement, and a judgment was rendered upon said stipulation, decreeing said son to be the owner of said lots and improvements thereon.

On January 18, 1899, Fred E. Turner and Julia A. Turner, widow of John E. Turner, filed a bill in the United States Court for the Northern District of the Indian Territory for a construction of the will of John E. Turner, deceased. That litigation reached the United States Court of Appeals for the Indian Territory, which court rendered an opinion construing the will. Turner v. Turner, 3 Ind. T. 582, 64 S. W. 543. It appears that negotiations were had looking to a winding-up of the litigation over the estate, and a stipulation was filed in that court upon which judgment was rendered, decreeing that Fred E. Turner was the absolute owner of the property herein involved, and that deed might be issued to him therefor upon condition that he pay to Clarence W.

Action by Clarence W. Turner against Fred E. Turner. Judgment for defendant, and plaintiff brings error. Affirmed.

John D. De Bois, of Searcy, Ark., Malcolm E. Rosser, of Muskogee, and William S. Cochran and Preston C. West, both of Tulsa, for plaintiff in error.

Zevely, Givens & Stoutz, of Muskogee, for defendant in error.

HARDY, J. Clarence W. Turner commenced this action in the superior court of Tulsa county against Fred E. Turner, seeking to have a certain deed of conveyance conveying to said Fred E. Turner lot 7 and the north 13 feet of lot 6, block 119, in the city of Tulsa, reformed so as to show title in plaintiff and have defendant declared to hold same in trust for plaintiff. Judgment was for defendant, and plaintiff appeals.

The parties are brothers, and are sons of John E. Turner. In August, 1898, John E. Turner was residing at Muskogee, and had purchased a storehouse and owned a mercantile business in Tulsa. Fred E. Turner was in charge thereof, under an agreement by which he was to have the use of the building and the net profit of the business. On or about August 29, 1898, John E. Turner bought and paid for a house and lot in Tulsa, being the property involved herein, paying for same by two checks made to the order

being the original cost of the house and lot, which sum was duly paid. Previous to this settlement, the property had been scheduled by the townsite commission in the name of Fred E. Turner, and the government appraisement thereof was paid by him, and on February 2, 1905, patent was issued in his name, conveying said premises, and he has since been in continuous possession thereof and has placed valuable improvements thereon.

The grounds for equitable relief are that after the death of John E. Turner, plaintiff and Effie Kirkwood, a sister of the parties, on behalf of their minor children, under a misapprehension and a mistake of fact, and believing that a life estate in said property was conveyed to defendant, agreed to convey to defendant the interest of said minors therein for the sum of $1,100, but that plaintiff did not convey his interest, or any right in said property which he may have had as executor of the will of John E. Turner, deceased, and that defendant wrongfully and fraudulently procured title to said lots in his own name.

[1, 2] This case falls within the rule announced in Turner et al. v. Old Homestead Co. et al., 170 Pac. 904 (not yet officially reported), which litigation involved a part of the same estate. In that case the property involved was situated in the city of Muskogee, and had been listed by the townsite commission in the name of Clarence W. Tur

date of default, while in the other class the default causes the higher rate to relate back and to be chargeable from a time prior to the default.

In thus making the default give the right to collect a larger sum than could have been collected a moment before, the note created a penalty. Hallam et al. v. Telleren, 55 Neb. 255, 75 N. W. 560; Robbins v. Maddy, 95 Kan. 219, 147 Pac. 826, L. R. A. 1916E, 721, and note.

The conclusion reached by the trial court however, is not sustained by the mere determination that the notes created a penalty. A contract is not void because it imposes a penalty. Revised Laws 1910, §§ 974, 975. What then was the penalty imposed by the notes in question? As a note which provides for a higher rate of interest from maturity does not create a penalty, but a penalty does arise, when the higher rate is made retroactive, it follows that the only penalty provided by the notes in this case was the larger interest required from the time the last coupon had been paid till the time of default. In so far as the notes required a higher rate of interest after maturity than before, no penalty was created. Hallam et al. v. Telleren, 55 Neb. 255, 75 N. W. 560; Robbins v. Maddy, 95 Kan. 219, 147 Pac. 826, L. R. A. 1916E, 721, and note.

It follows that the trial court was in error in limiting the interest after maturity to 62 per cent. It was correct in holding that only 6 per cent. could be collected prior to maturity. Our conclusion, therefore, is that the plaintiff was entitled to 61⁄2 per cent, interest until default, and interest at the rate of 12 per cent. thereafter.

[2] The defendants Johnson prosecuted a cross-appeal directed against the determination of the issues between them and the defendant Orton. The question raised cannot be determined from the abstracts of the record and briefs presented by the various parties. An examination of the record goes to the extent of determining that the Johnsons purchased the property from the defendant Orton, subject to a mortgage of $750, and they received precisely what they purchased. The question raised by the cross-appeal is entirely technical, and if any errors were committed they were entirely harmless. cross-appeal is dismissed for the failure of the defendant in error to comply with rule 26 (165 Pac. IX). Neither the pleadings, summary of the evidence, or judgment involved in the case appealed are set out in the abstract, and is a very clear violation of the rules.

The

The cause is reversed and remanded, with directions to render judgment in conformity with this opinion.

PER CURIAM. Adopted in whole.

CHICAGO, R. I. & P. RY. CO. v. STATE et al. (No. 9374.)

(Supreme Court of Oklahoma. April 8, 1919.)

(Syllabus by the Court.)

RAILROADS 51⁄2, New, vol. 6A Key-No. Series-APPEAL FROM ORDER OF CORPORATION COMMISSION-CONTINUANCE OF Cause.

The Corporation Commission made an order requiring appellant to construct a modern fireproof depot in the city of Sayre, from which order appellant appeals. It appearing to the court that the United States government has taken charge of appellant's system of railway, and is now operating same, in view of this situation the order of submission is set aside, and the cause continued until further order of the court.

Appeal from Corporation Commission.

Appeal by the Chicago, Rock Island & Pacific Railway Company from an order of the Corporation Commission requiring the company to construct a modern fireproof depot within the city limits of Sayre. Order of submission set aside, and cause continued until further order of the court.

C. O. Blake, John E. Du Mars, and R. J. Roberts, all of El Reno, and W. H. Moore, of McAlester, for appellant.

OWEN, J. This is an appeal prosecuted by the railway company from an order of the Corporation Commission requiring the railway company to construct within the city limits of Sayre a modern fireproof depot. It appears the depot at Sayre was erected before the town was built, and is not within the incorporate limits of the town. It appears also the railway company had agreed with the city of Sayre to construct a suitable depot within the city limits at an agreed location, but was unable to carry out that agreement, for the reasons that the railway company was placed in the hands of a receiver, and soon thereafter placed under the control of the American Railway Association's Special Committee on National Defense, co-operating with the government of the United States, to further the prosecution of war with the Imperial government of Germany.

The facts and conditions presented by this record are very similar to the case of St. L. & S. F. Ry. Co. v. State et al. (Okl.) 170 Pac. 1146, in view of which the order of submission in that case was set aside, and the cause remanded until the further order of the court. For the reasons assigned in that case, the order of submission in the instant case is set aside, and the cause continued until the further order of the court.

HARDY, C. J., and SHARP, PITCHFORD, and MCNEILL, JJ., concur. f

INTOXICATING LIQUORS 236(7)-VIOLATION OF PROHIBITORY LIQUOR LAW-SUFFICIENCY OF EVIDENCE.

Evidence examined, and held sufficient to sustain the judgment of conviction against each of plaintiffs in error.

Appeal from County Court, Oklahoma County; William H. Zwick, Judge.

Joe Proctor, R. A. Waller, and Will Steamboat were jointly tried and convicted of a violation of the prohibitory liquor laws, and they appeal. Affirmed.

Ledru Guthrie, of Oklahoma City, for plaintiffs in error.

S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

PER CURIAM. There is but one assignment of error. Plaintiffs in error rests their entire ground for reversal upon the proposition that the evidence is insufficient to sustain the conviction.

They were jointly charged with having the unlawful possession of intoxicating liquor in Oklahoma county, on or about the 17th day of January, 1915, with intent to sell the same. Upon a joint trial, each of the defendants were found guilty. The defendant Joe Proctor was sentenced to serve a term of six months' imprisonment in the county jail and to pay a fine of $500; each of the other defendants being sentenced to three

ly to find the defendant Will Steamboat there and a broken bottle on the floor, the liquid contents of which smelled like whisky; also

behind the prescription case was found about 100 empty whisky bottles with the labels on them. In a plant upstairs, a beaten path to which, through the dust on the floor, led from the drug store, was found about 4 dozen quart bottles of whisky, some wine, and gin. The brands on these bottles of whisky tallied with that on the empty bottles found behind the prescription case in the drug store.

Immediately after the officers entered the building, the defendant Proctor went upstairs, and in a short time returned to the drug store. At the request of one of the officers, Proctor opened the iron safe belonging to the drug store, which was worked by a combination lock.

It is clear from the evidence on the part of the state, standing uncontroverted and uncontradicted, that this alleged drug store at 205 North Broadway, at the time of the raid testified to in this case, was nothing but a "booze joint," operated by the defendant Proctor, in which whisky and other liquors were possessed by him at the time, and in which the defendants Waller and Will Steamboat aided and abetted him in such possession for the purpose of selling same in violation of the laws of this state.

The evidence is clearly sufficient to sustain the separate convictions of each of these defendants, and the judgments as to each are affirmed.

Mandate forthwith.

The evidence in this case is sufficient to authorize the jury to convict each of the defendants upon the theory that the defendant Joe Proctor was the proprietor of a drug store at 205 North Broadway, Oklahoma City, Okl., which he was conducting as a "booze joint," and in which drug store and "the plant" connected therewith a large quantity of whisky and other liquors were found; the defendant R. A. Waller acting as a clerk and dispenser of the liquors over a soda fountain in said drug store, and the defendant Will Steamboat acting as a negro porter in said drug store. On the day of the raid, the officers found Waller in the act of shaking up a mixed drink of whisky. He was behind the soda water counter, and, when approached, dumped the contents of the shaker into the sink. Bill Steamboat was also behind the counter, and, when the officers approached, rushed to the rear end of the store and behind the prescription case. The officers heard a noise like broken glass, and rushed behind the prescription case, on

(Criminal Court of Appeals of Oklahoma. April 21, 1919.)

(Syllabus by Editorial Staff.)

1. INTOXICATING LIQUORS 236(5)—POSSESSION-SUFFICIENCY OF EVIDENCE.

Evidence held to sustain a conviction for having possession of intoxicating liquors with intent to violate the prohibitory liquor law. 2. CRIMINAL LAW 1159(2)-SUFFICIENCY OF EVIDENCE-REVIEW.

It is only in a case where there is no substantial evidence to support the verdict that the Criminal Court of Appeals will interfere, on the ground of insufficiency of the evidence.

The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Under an information filed in the county court of Tulsa county March 28, 1916, charging that on March 21, 1916, Mollie Stubblefield did have in her possession 8 pints and 50 half pints of “Old Patterson whisky," 16 half pints of White Mule, and one-half gallon of alcohol with intent to violate provisions of the prohibitory liquor law, the defendant, after securing several continuances, was tried and convicted on September 17, 1917, and her punishment fixed at confinement in the county jail for 30 days and a fine of $50. She has appealed from the judgment entered upon such conviction.

[1, 2] The sole question presented is the sufficiency of the evidence to sustain the conviction. The only testimony is that introduced by the state, in substance as follows:

R. R. Reynolds, deputy sheriff, testified that he knows where the defendant, Mollie Stubblefield, lives, and on the day charged he visited her place, a three-room cottage occupied by Mrs. Stubblefield and her daughter, and there found in a closet the intoxicating liquors described in the information; that the door of the closet was covered by women's wearing apparel.

Frank Wolf, deputy sheriff, testified that he assisted Mr. Reynolds in the search of defendant's place, and they found the intoxicating liquors in the closet there.

At the close of the state's evidence defendant asked the court to instruct the jury to return a verdict of acquittal.

The contention is that the verdict of the jury is against the law and the evidence of the case. It is only in a case where there is no substantial evidence to support the verdict that this court will interfere on the ground of the insufficiency of the evidence. It is apparent that the facts disclosed by the testimony in this case do not bring it within that rule.

(Additional Syllabus by Editorial Staff.) 2. CRIMINAL LAW 1048, 1186(1)-VERDICT CONTRARY TO LAW OR EVIDENCE- NEW TRIAL.

Only prejudicial error raised by exceptions reserved require a new trial, and it is only when the Criminal Court of Appeals is satis fied that a verdict was contrary to law or to the evidence, or that injustice has been done, that it can refuse a conviction, whether or not an exception has been taken in the trial court.

Appeal from County Court, Tulsa County; H. L. Standeven, Judge.

lation of the prohibitory liquor law, and appeals. Affirmed.

Mollie Stubblefield was convicted of a vio

Edward P. Marshall, of Tulsa, for plaintiff in error.

The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.

DOYLE, P. J. The information in this case was filed in the county court of Tulsa county on the 29th day of March, 1916. It charges that on the 28th day of March, 1916, Mollie Stubblefield did have in her possession certain intoxicating liquors, to wit, 2 gallons of "White Mule” and 18 half pints of “White Mule," with intent to violate provisions of the prohibitory liquor law of the state of Oklahoma.

[1, 2] It appears that the case was continued from term to term on defendant's applications until the 17th day of September, 1917. The only testimony introduced was that of R. R. Reynolds, deputy sheriff, who testified that he was acquainted with the defendant, Mollie Stubblefield; that she lived in the 400 block on East First street, Tulsa; that on the 28th day of March, 1916, he went there with a search warrant and found Mrs. Stubblefield and her daughter; that in searching the place he found 18 half pints of White Mule, or diluted alcohol, and 2 gallons of alcohol in a 5-gallon bottle; that the half pints were found between the mattress and

STUBBLEFIELD v. STATE. (No. A-3198.) (Criminal Court of Appeals of Oklahoma. April

21, 1919.)

(Syllabus by the Court.)

1. INTOXICATING LIQUORS FUL POSSESSION-SUFFICIENCY OF EVIDENCE. In a prosecution for unlawful possession of intoxicating liquor, the evidence considered, and held sufficient to support the verdict and judgment of conviction.