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a dangerous weapon with intent to injure such sir; right there is the scar, and here beperson, see facts stated in the opinion.

tween the places and I commenced hollering [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $8_3074_3083; Dec. Dig. as for them to, "Take him off! Take him off: 1159 ;* Assault and Battery, Cent. Dig. $8 137- and this feller Aaron grabbed the revolver, 139; Dec. Dig. $ 92.*]

and I grabbed the muzzle, and he throwed it 2. CRIMINAL LAW (8 995*)—JUDGMENT-AS- down on me, and said, 'Are you whipped ?

SAULT WITH DANGEROUS WEAPON WITH IN- Are you whipped? And I kept hollering, TENT TO INJURE-SUFFICIENCY.

"Take him off!' And two or three more ran For a judgment held to be sufficient upon a conviction for an assault with a dangerous over there and grabbed him. Q. Where weapon with intent to injure, see opinion, al- were you carrying your revolver? A. In my though said judgment is not commended in the left hip pocket, automatic Colts, and then matter of form.

[Ed. Note.--For other cases, see Criminal the conductor came in and I stayed in the Law, Cent. Dig. $S 2523-2526, 2536-2543; Dec. coach, and these other parties went in the Dig. $ 995.*]

baggage car and got me some water, and I 3. CRIMINAL LAW ($ 977*) —JUDGMENT-TIME washed and went to Wilburton, and had my -WAIVER.

head dressed. Q. Did it bleed much? A. A defendant may waive the time allowed

Right smart. by law after his conviction before judgment can

Q. You say you don't know be pronounced against him.

how many times he struck you? A. He left [Ed. Note.-For other cases, see Criminal three scars. He struck at me about five Law, Cent. Dig. $$ 2482, 2483, 2488, 2489; Dec. times with knucks, and there is three scars Dig. $ 977.*]

left on me where the doctor put the plaster Appeal from District Court, Pittsburg on those three. Q. You had a doctor to County; Presly B. Cole, Judge.

dress your head after you got to Wilburton ? Andy Kerkendall was convicted of an as- A. Yes, sir; Dr. Vance." sault with a dangerous weapon with intent

The state introduced several other witnessto do bodily harm, and he appeals. Affirmed. es whose testimony corroborated that of the

prosecuting witness. Lester & Hammond, for appellant. Smith

The defendant gives an entirely different C. Matson, Asst. Atty. Gen., for the State.

version of the difficulty. He testified as fol

lows: "When I got on the train that mornFURMAN, P. J. [1] First. The first and ing, I went back in what is called the smoksecond assignments of error challenge the er and sat down, and Mr. Pate and several sufficiency of the evidence to sustain the ver- other passengers were sitting in the rear end dict.

of the car, and I got up and walked through J. G. Pate, the prosecuting witness, testi- to get a drink of water, and, when I returnfied as follows: "I got on the train anded back, Mr. Pate says, "Say Andy, I want started to Wilburton, and I had been work to see you a minute,' and I just sat down in ing for the deputy sheriff out there, and was the seat, and he says, 'What did you go rethen, and there was a nigger. He says, 'If port me in the local, and claim that I scabyou find that nigger that day, arrest him.' bed?' And I said, “Simply because you did He had got away in the courthouse here, and scab on us at the powder plant, and I know that was my business down there that day, you did do it.' And he threw his hand back and I was sitting on the south side of the to his hip, and I hit him and knocked him coach, on the right-hand side, and Mr. Kerken-against the window. I got up and he got up, dall walked through the coach, and got a and we passed two or three licks, and I drink of water and came back, and I was sit-knocked him down, and, when I knocked him ting next to the window in the right-hand down, he fell over the seat, and his head hit side, with my head half out the window, and the bottom part of the window, and he grabhe spoke something. I never noticed what he bed the seat with his left hand, and seemsaid, and just as I turned, he struck me ed like the gun was in this pocket and his with his fist, and I commenced knocking his coat dropped down and he run his hand in licks off with one hand, and finally I slipped here, and I grabbed him by his foot and kept down, and one of my hands was on the floor, hitting him every time he would raise his and I got one hand on the back of the seat head up, and he was hollering, and, just as to keep from falling between them, and com- Mr. Aaron ran in around like that, he got menced kicking him off with my foot, and this gun just about this position, and Aaron he grabbed my foot and ran his hand in his grabbed the gun and took it away from him, pocket, and I think that was his left hand. and told me to quit, and I quit, and that was I am not very certain which hand it was, all there was to it." but anyway he run his hand in his pocket, The defendant's version of this difficulty and I said, 'Don't let him cut me, boys. I was corroborated by the testimony of sevthought he was getting a knife, and he eral other witnesses. struck me with a pair of knucks. The scar The defendant was prosecuted under secis there now, and, when he struck me there, tion 2337 of Snyder's Compiled Laws of Oklait kind of addled me, and he struck me again homa of 1909, which is as follows: "Every on the nose. Q. Is that the scar? A. Yes, I person who, with intent to do bodily harm, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

and without justifiable or excusable cause the law upon conviction of guilty heretofore commits any assault upon the person of passed upon him by the jury in this cause another with any sharp or dangerous weapon, on the Sth day of Oct., A, D. 1909, shall not or who, without such cause, shoots or at- now be pronounced against him, he says he tempts to shoot at another, with any kind has nothing further or other to say than he of firearm or air gun or other means what has heretofore said. Whereupon, the premever, with intent to injure any person, al- ises being seen, and by the court well and though without intent to kill such person or sufficiently understood, it is considered by to commit any felony, is punishable by im- the court that the said Andy Kerkendall for prisonment in the state prison not exceed- his offense aforesaid, be imprisoned in the ing five years, or by imprisonment in the county jail for Pittsburg county, situated at county jail not exceeding one year."

McAlester, Pittsburg county, Oklahoma, for We think the testimony for the state sus- the term and period of six (6) months at tains the offense charged in this statute. hard labor from this date, and thereupon the It is true that the state's evidence was con- court notified the defendant of his right of tradicted but it was for the jury to settle appeal.” While it is true that the judgment all questions as to the credibility of the in this case is not a model in form, yet we witnesses and conflicts in the testimony, and think that it sufficiently shows the essential we cannot say in the light of the record that elements of a judgment. their verdict is contrary to the evidence. Section 6487, Snyder's Comp. Laws Okl. When there is any evidence in the record 1909, is as follows: "The rule of common from which the jury could legitimately draw law that penal statutes are to be strictly the conclusion of the defendant's guilt, this construed, has no application to this chapcourt will not set aside their verdict upon the ter. This chapter establishes the law of this ground that the testimony is not sufficient state respecting the subjects to which it reto support the verdict, unless it clearly ap- lates, and its provisions and all proceedings pears from the record that the jury was under it are to be liberally construed, with influenced by improper motives in convicting a view to promote its objects, and in furtherthe defendant.

ance of justice.” The record in this case [2] Second. The third assignment of error shows that the appellant was duly arraigned is as follows: "Because there was no judg- and pleaded not guilty, and was present ment and sentence rendered in said case during the entire trial and when the verdict against the defendant as is provided by law. was rendered, and therefore that he could (A) Because the judgment and sentence does not have suffered any possible injury benot state what offense the defendant was cause at the time the judgment of the court found guilty of. (B) Because the record does was pronounced against him he was not innot show that at the time defendant ap- formed of the nature of the indictment, and peared in court for judgment and sentence of his plea to said indictment, and of the he was informed of the nature of the indict- verdict of the jury in this cause. In the ment or offense, or his plea and of the ver- light of section 6487, Snyder's Comp. Laws dict of the jury, as is required by law." Okl. 1909, we are compelled to construe the This assignment of error is based on section Code of Criminal Procedure of this state lib6910, Snyder's Comp. Laws Okl. 1909, which erally, and in furtherance of justice. This is as follows: "When the defendant ap- compels us to ignore all mere defects of pears for judgment, he must be informed by form which do not deprive the defendant of the court or by the clerk under its direction some substantial right. We think that the of the nature of the indictment, and his plea entire record shows that every right guaranand the verdict, if any thereon, and must be teed to appellant by section 6910 was accordasked whether he has any legal cause to ed him in this trial. But, even if we were to show why judgment should not be pronounc- hold the judgment in this case fatally defeced against him.” The recitals of the judg- tive because at the time it was pronounced ment are as follows: "The State of Okla- appellant was not informed by the court or homa v. Andy Kerkendall, Defendant. Judg by the clerk under its direction of the nature ment and sentence on indictment for assault of the indictment, and of his plea, and of with dangerous weapon in Pittsburg county, the verdict of the jury, we would still not state of Oklahoma. The prisoner, the above- be able to reverse this conviction on that acnamed Andy Kerkendall, defendant, being count, but would simply send the case back personally present in open court, and having for resentence. been legally convicted by a jury of twelve [3] Third. The appellant's fourth assigngood and lawful men for the offense of as- ment of error is as follows: "Because the sault with dangerous weapon, now, on this judgment and sentence of the court was at the 19th day of October, 1909, the same be- another and different time from that desing one of the regular days of October, 1909, ignated in the orders of the court." Upon terms of this said court, the said defendant, this question the record is as follows: "Comes Andy Kerkendall, was brought to the bar of on this day the defendant, Andy Kerkendall, the court in custody of the sheriff of said and, waiving the time required by law in county, and, it being demanded of him what which to pronounce sentence herein, the

Andy Kerkendall.” This absolutely disposes to be imprisoned for a period of 30 days and of appellant's fourth assignment of error, that he pay a fine of $300 and costs. From and it need not be considered.

which judgment an appeal was taken by These are all of the errors conplained of filing in this court on January 13, 1910, a by appellant in the brief filed in his behalf petition in error with case-made attached. by the counsel.

Of the various assignments of error, it is Finding no error in the record, the judg- only necessary to consider one question prement of the trial court is in all things af- sented by the record; that is, could the defirmed.

fendant be tried on the original information

when an amended information was filed and ARMSTRONG and DOYLE, JJ., concur. demurrer thereto overruled.

The only recital in the record that would

indicate that the defendant was tried upon (5 Okl. Cr. 057)

the original information appears in the cerBROWN v. STATE.

tificate of the trial judge wherein he states: (Criminal Court of Appeals of Oklahoma. I further certify that there are two inMay 23, 1911.)

formations in said case-made, one marked as (Syllabus by the Court.)

'Amended Information. The defendant in INDICTMENT AND INFORMATION ($ 45*)—SUC- the above-entitled case was tried on the

CESSIVE INFORMATIONS FILING AMENDED original information. He entered a plea of INFORMATION.

not guilty to the charge against him in the By the filing of an amended information in said information, and the said original ina misdemeanor case the original information is thereby set aside and abandoned.

formation was read to the jury before the [Ed. Note.-For other cases, see Indictment trial, and the same was treated by the atand Information, Cent. Dig. § 156; Dec. Dig. torneys and by the court during the trial $ 45.*]

as an amended information.” It is assigned Appeal from Pawnee County Court; H. T. as error: “That the court erred in adding Conley, Judge.

to the certificate of settlement of the caseOfa Brown was convicted of violating made the statement that the defendant was the prohibitory law, and appeals. Reversed. tried and found guilty under the original

D. Lafe Hubler and Geo. E. Merritt, for information treated as an amended inforplaintiff in error.

mation."

This court must consider the cause upon DOYLE, J. An information was filed in the record proper. the county court of Pawnee county on Sep- Section 6645, Snyder's St., provides: “An tember 22, 1909, charging that on the 1st information may be amended in matter of day of September, A. D. 1909, in said county substance or form at any time before the and state, one Ofa Brown did then and there defendant pleads, without leave, and may willfully, knowingly, and unlawfully have be amended after plea on order of the court in his possession certain intoxicating liquor, where the same can be done without mato wit, one barrel of bottled beer, with the terial prejudice to the right of the defendunlawful intent to then and there convey ant; no amendment shall cause any delay said intoxicating liquor from the Santa Fe of the trial, unless for good cause shown by depot in the town of Ralston to the town of affidavit.” Fairfax. Afterwards on the 24th day of

The amended information was filed, and September, 1909, there was filed an amended afterwards a demurrer thereto was information which charged that on the 1st ruled. day of September, 1909, in said county and

There is nothing in the entire record which state, Ofa Brown did then and there will shows that the amended information did not fully, knowingly, and unlawfully have in supersede the original information. By the his possession certain intoxicating liquor, to filing of an amended information in a miswit, one barrel of bottled beer, which he, the demeanor case before the defendant pleads, said Ofa Brown, was then and there carry the original information is thereby set aside ing and conveying said intoxicating liquor and abandoned, and the defendant cannot from the Santa Fé depot, in the town of be tried upon the original information. Ralston, to Fairfax. October 5th a demur- It is not a matter wherein the state can rer was filed and overruled. October 7th elect the offense for which the defendant the case was called for trial, and on the can be placed upon his trial. same day the jury returned the following In the case of Bonitzer v. State, 4 Ok]. verdict: “We, the jury, impaneled and sworn Cr. 354, 111 Pac. 980, construing section to try the issues in the above-entitled cause, 6699, Snyder's St., Presiding Judge Furman do, upon our oaths, find the defendant guilty used the following language: "The purpose as charged in the information.” Motions for of this statute is to force the state to try new trial and in arrest of judginent were but one transaction alleged to be criminal duly filed. October 23, 1909, the court over- at a time. This statute also confers a valruled said motions and sentenced defendant uable right upon the defendant. If the state

over

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

could bring several criminal accusations / Forest Cecil Mingle was convicted of muragainst the defendant in one information or der, and he appeals. Affirmed, with direcindictment, based upon more than one trans- tions. action, which might be incorporated in one indictment or information, how would it Chas. West, Atty. Gen., and Smith C. Mat

Giddings & Giddings, for' plaintiff in error. be possible for the defendant to know as to son, Asst. Atty. Gen., for the State. the particular transaction for which he will be placed upon trial, and how could he prepare his defense? This makes it clear that filed against the plaintiff in error in the dis

ARMSTRONG, J. An information was the requirement of the statute that but one transaction should be investigated at a time trict court of Oklahoma county on the 5th is based upon reason and justice, and that day of April, 1909, after he had had a preit confers a valuable right upon the defend- liminary examination as provided by law, ant. This is not only our statute law, but charging him with having murdered Mrs. it is the very substance of our Constitution Pearl Pearson in Oklahoma City on the 16th itself. Section 29 of the Bill of Rights, day of September, 1908. The case came on Bunn's Oklahoma Constitution, among other for trial on the 28th day of June, 1909, and rights secured to a defendant of which the a verdict of guilty was returned by the jury Legislature cannot deny him, we find the on July 17, 1909, fixing his punishment at following: 'He shall be informed of the na- imprisonment for life at hard labor in the ture and cause of the accusation against state penitentiary. Motions for a new trial him, and have a copy thereof.' This shows and in arrest of judgment were filed and that the Constitution limits the power of overruled, and on the 24th day of July therethe court in criminal cases to the investiga- after judgment and sentence was pronounced tion of but one accusation at a time.”

by the court in accordance with the verdict, So far as the record shows, the amended from which judgment this appeal is proseinformation superseded the original infor-cuted. mation, and, if the defendant was tried up

[2] It appears that the deceased was living on the original information without setting with her husband, Harry Pearson, and conaside and dismissing the amended informa- ducting a boarding house in Oklahoma City tion, it was error prejudicial to his substan- during September, 1908; that they were martial rights, for which the judgment must ried at lola, Kan.; that deceased was a be reversed.

daughter of J. D. Man, a hotel proprietor of For the reason stated, the judgment of the that place. About 1 o'clock on the 16th day county court of Pawnee county is hereby re of September, 1908, Mrs. Pearson left home versed, and the cause remanded, with direc- saying that she was going down town to take tion to proceed in accordance with the views treatment from a physician, and that she herein expressed.

would return about 4 o'clock; that at this

time she carried with her about $75 in monFURMAN, P. J., and ARMSTRONG, J., ley and wore two diamond rings. About 1:30 concur.

or 2 o'clock she appeared at the home of a

Mrs. Strimple in company with the plaintiff (5 Okl. Cr. 535)

in error, and they claimed to be on their MINGLE V. STATE.

way to look at some vacant lots a few blocks (Criminal Court of Appeals of Oklahoma. May further out. She was not heard from again 16, 1911.)

until about 5 o'clock in the evening, when (Syllabus by the Court.)

she came to the home of a Mr. Putman, suf1. CRIMINAL LAW (8 1130*)—APPEAL-FAIL

fering from three bullet wounds, apparently URE OF PLAINTIFF IN ERROR TO FILE BRIEFS. from a 38 caliber revolver, and in a dying

When an appeal is perfected in this court, condition. She was carried from there to and no counsel appears and no briefs are filed the hospital, and died about two or three on behalf of a plaintiff in error, this court will examine the record for fundamental errors only,

hours afterwards. and discovering none the judgment appealed While at the Strimple place, plaintiff in from will be affirmed, under rule 4 of this court error, under the name of Parker, was intro(101 Pac. vii).

duced to a man by the name of Bennett. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 2965–2970; Dec. Dig. g Mrs. Strimple testified that she was not sure 1130.*]

whether she had seen plaintiff in error be

fore at her place, but knew Mrs. Pearson. (Additional Syllabus by Editorial Staff.) 2. HOMICIDE ($250*)—MURDER-SUFFICIENCY Mrs. Strimple; but she refused them, and

They tried to borrow a buggy and horse from OF EVIDENCE.

Evidence held sufficient to support a con- they went away. Before leaving Mrs. Strimviction of murder.

ple's, plaintiff in error tried to get Mrs. [Ed. Note.--For other cases, see Homicide, Pearson to let him have her diamond rings, Cent. Dig. $8 515-517; Dec. Dig. $ 250.*]

which she refused, saying: "Not on your Appeal from District Court, Oklahoma life.” About 4:30 o'clock plaintiff in error County; John J. Carney, Judge.

came back to Mrs. Strimple's alone and tried

to get the horse and buggy, and said he want-liff at Enid; but while in the fall at Enid he ed to take Mrs. Pearson to Britton or Ed- traded the tan shoes to another prisoner for mond, and was again refused. He then went black ones. On the 20th of September, he over to a place on West Twenty-Sixth street, was turned over to the sheriff of Logan counand there arranged to hire a boy named ty, who carried him back to Guthrie, where Shaw to take him to Edmond. Shaw's horse he was released on bond on the 26th of Sepgave out, and he drove to Britton, where tember. On the 28th of September, he apother arrangements were made to go on to peared in Wichita, Kan., and said he was Edmond. When they started out from Okla- going to Enid. On the 29th he went to a homa City, plaintiff in error represented to livery stable in Enid and hired a rig, and the Shaw boy that he had a very sick broth- said he was going out northwest to see a er at Edmond and wanted to get there at friend. He drove as far as Cremlin, where once, in order to see him alive. When they he took a train, saying he was going to started north on the road to Britton, they Wichita that night. were traveling the street which goes by the A photograph had been procured of the Putman house, and near the scene of the plaintiff in error in the meantime from a tragedy. The plaintiff in error suggested sister of the deceased, Miss Man, of Iola, that they don't go that way, but that they Kan., by Sheriff Garrison, who had a large go three or four blocks west to Fiftieth number of others made from it, and sent street and back to the road leading to Brit- them over the country to various police ofton. From Britton plaintiff in error was ficers; one of them getting into the hands carried to Edmond by a boy named Willie of the police of Wichita, Kan. On the night Brown. On arriving at Edmond, he went of the 29th of September, a Wichita policeimmediately to a restaurant and tried to se- man named Thompson, with other officers, cure a drink of whisky, and failing ate sup- went out to the place where plaintiff in error per. He appeared very nervous, and inquired was living with his father-in-law. Shortly repeatedly about a freight train for the after midnight some one came from the alnorth, which came shortly, and he went on ley and went into the house. Several officers to Guthrie on the freight train. About 11 surrounded the house and demanded admito'clock that night, he appeared in a restau- tance. They were at first refused, but later rant in Guthrie and displayed two diamond admitted. When they went in, they said rings, which were later identified as the rings they were looking for a man named Harry of Mrs. Pearson. He appears to have left Parker. The plaintiff in error stepped up, Guthrie during the night, having stated that and said, “Maybe they're looking for me,” he was going to Wichita. About 8 o'clock on or "Maybe they're wanting me.” One of the the morning of the 17th of September, he officers replied, “Yes; you are the man that showed up at Crescent, saying he had walk- we want.” The photograph was produced ed all the way from Tulsa, and was on and plaintiff in error remarked, “They've got his way to Enid; was apparently in a very a picture of me. Where did you get it?” On great hurry. He procured breakfast at the looking at the photograph and discovering home of a Mrs. leming.

that a reward was written at the bottom of He was next seen at Lovell, where he pro- it, he denied that it was his. He was taken cured a team at a livery stable. When he down to the city jail in Wichita, and later procured this team he stated that he wanted delivered to Sheriff Garrison of Oklahoma to drive west; but, instead of driving west, county for extradition. After his arrest the went north. The liveryman upon learning officers went back to the residence where the this telephoned some one at Marshall to arrest was made, and found the ring worn head him off and recover the team. D. Over-by Mrs. Pearson the afternoon of the murstreet and Floyd Thorp, stockmen living in der secreted in a dictionary in the house. that neighborhood, met the plaintiff in error, The father of the deceased identified the who told them he had just moved into the plaintiff in error as the person who boarded neighborhood, and that he had recently trad. at his house during the fall of 1907, under ed for the team, and that they could satisfy the name of Harry Parker. He was identithemselves by inquiring at the livery stable. fied by many other witnesses who had been They went back to Marshall, a short dis associated with him, by his writing, and by tance, and after investigation became con- the various persons mentioned herein, and vinced that he was the party wanted and others who saw him on the day of the mur-, was driving the team belonging to the Lovell der and immediately following. liveryman, and they immediately set out in The shooting appears to have been done pursuit of him. When they came upon him, near the home of Robert Putman in the outhe got out of the buggy, turned the team skirts of Oklahoma City. Mrs. Lasley, who loose, and escaped down a ravine. The sher- was housekeeper for Putman, testified that ift of Enid was telephoned, and he captured she heard some shots and a person scream, the plaintiff in error about three miles from and this repeated twice thereafter. That she Enid and put him in jail. Plaintiff in error ran out in the yard to see what the trouble wore tan shoes when he left Oklahoma City was, and the woman, Mrs. Pearson, came up and at the time he was arrested by the sher- and fell on the other side of the house on

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