certain instrument of writing, being and pur- | for said county and territory, on this 31st porting to be the act of other persons, to wit, | day of August, 1906, personally appeared J. one John Rossiter, one J. C. Rossiter, and one Julia Rossiter which said instrument of writing, as aforesaid, was and is in language, words, and figures, and of the following purport and effect, to wit: "From J. M. Rossiter et al. to Elwood Rossiter. Territory of Oklahoma, Blaine County-ss.: This instrument was filed for record on the 1st day of Sept., A. D. 1906, at 1:30 o'clock p. m., and duly recorded in Book D 19. page 198. Fee, $1.15. P. J. Leowen, Register of Deeds, Deputy. [Seal.] ""This indenture, made this 31st day of August, A. D. 1906, between J. M. Rossiter and Julia Rossiter, his wife, and J. C. Rossiter, a single man, of Blaine county, in the territory of Oklahoma, of the first part, and Elwood Rossiter, of the second part. Witnesseth: The said parties of the first part, in consideration of the sum of two thousand ($2.000.00) and no/100 dollars, the receipt whereof is hereby acknowledged, do by these presents, grant, bargain, sell and convey unto said party of the second part, his heirs and assigns all of the following described real estate, situated in the county of Blaine, and territory of Oklahoma, to wit: All of the northwest (N. W. 4) quarter of section twenty-nine (sec. 29), township seventeen (17), range thirteen (13) W., I. M., containing one hundred sixty (160) acres, more or less, according to the U. S. survey. To have and to hold the same, together with all and singular the tenements, hereditaments, and appurtenances, thereto belonging, or in any wise appertaining forever. And said grantors, J. M. Rossiter and Julia Rossiter and J. C. Rossiter, for themselves, and heirs, executors or administrators, do hereby covenant, promise and agree to and with said party of the second part, that at the delivery of these presents that they are lawfully seised in their own right of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances, of what nature or kind soever: Except one certain mtg. of eight hundred ($800.00) which grantee accepts and agrees to pay, and that they will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same. In witness whereof, parties of the first part have hereunto set their hands the day and year first above written. J. M. Rossiter. Julia Rossiter, J. C. Rossiter. ""Territory of Oklahoma, Blaine County M. Rossiter and Julia Rossiter and J. C. Rossiter, to me known to be the identical persons who executed the within and foregoing instrument, and acknowledged to me that they executed the same as their free and voluntary act and deed, for the uses and purposes therein set forth. Calvin Ford, Justice of the Peace. Commission expires 190-. ""Territory of Oklahoma, Blaine Countyss.: I, John M. Tyler, county clerk of said county, hereby certify that Calvin Ford of Arapahoe township in said county is a duly elected, qualified and acting justice of the peace, in and for said county, and that his term of office began on the 1st day of Jan., 1905, and will end on the 31st day of December, 1906. Witness my hand and official seal at Watonga in said county of Blaine this 1st day of Sept., 1906. John M. Tyler, County Clerk of said County. [Seal.]' "With the unlawful, willful, fraudulent, and felonious intent of him, the said J. C. Evans, and of him, the said P. F. Tyler, and of him, the said W. S. Wishard, to then and there cheat and defraud the said John Rossiter and the said J. C. Rossiter, and the said Julia Rossiter, and the said instrument of writing, so forged and counterfeited as aforesaid, being then and there an instrument of writing, by which the rights and property of the said John Rossiter and the said J. C. Rossiter and of the said Julia Rossiter were, are, and purport to be diminished and affected, and by which said false, fraudulent, and felonious making, forging, and counterfeiting of said instrument of writing, as aforesaid, the said John Rossiter and the said J. C. Rossiter and the said Julia Rossiter may be, and were, affected, bound, and injured in their property, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma." Said indictment was presented and filed in open court on December 11, 1908. April 1, 1909, defendant filed a general demurrer, which was overruled and exception allowed. Thereupon defendant entered his plea of not guilty and demanded a severance. October 5th his case was called for trial. On October 9th, the case having been submitted to the jury, the jury returned into open court, all parties present. Thereupon the court inquired of the jury if they had arrived at a verdict. Whereupon one of their number stated: "We disagree in finding the cause of this forgery." Whereupon the court informed them that, if they had not agreed, they could return to their jury room for further deliberation, and also stated that, "If they could not agree, they had all of the next week in which to deliberate." On October 11th the jury returned a verdict of guilty. Motions for new trial and in arrest of judg Upon the part of the state evidence was given tending to establish the following facts: This defendant, a white man, and his codefendants, negroes, were members of the Blaine county bar, and this defendant was appointed and occasionally acted as deputy county attorney during the year 1906, and as such official filed complaints against certain members of the Rossiter family, and then shared the fees received by his codefendant Tyler, acting as attorney for the Rossiters. That, in pursuance of this conspiracy to defraud the Rossiters, the signatures to the alleged deed were forged, and the grantee named therein, Elwood Rossiter, immediately deeded said land to the defendants named in the indictment. said motions were overruled, and the defend-, that for us and would get it. He said for ant was sentenced to serve a term of seven us to wait a few days and not to put any years at hard labor in the state penitentiary. costs on to it, and that he would see the Defendant appealed by filing in this court negroes, and for us to come back in a few on April 9, 1910, his petition in error and days, and that he would pay us for the place, case-made. and would not cause any trouble about the place. Q. Was there anything further said in that conversation in reference to Evans or Tyler? A. He said: 'We sent Evans and Tyler out there.' He says: 'We will get together and pay up on the place, and you ones can make us a deed to the place, and that will be all that is to it.' He said, 'We don't want any trouble.' We told him we wanted the place, and that is what we would want for it, and that we would sell it to him. Q. Did you have any conversations with Wishard after that? A. We did in about a week. Q. Where was that conversation? A. In his office. Q. Who was there then? A. John C. Rossiter, myself, and Mr. Wishard. Q. What was said between you at that time? A. We wanted to speak to The testimony of J. M. Rossiter, first wit- him about this deed that he claimed that ness called by the state, was to the effect that they had, and he told us that he could not in 1906 he lived on the land in question, do anything for us, that the negroes would about 16 miles northwest of Watonga; that not do anything, and that he could not in June of that year he went to Kansas, and stand it all himself and would not settle returned the 11th of September; that the with us and would not pay us for the place, land described in the alleged forged deed and we told him we would have to bring suit belonged to witness J. M. Rossiter and his and set their deed aside." Cross-examined, brother J. C. Rossiter, and identified a war- he stated that his wife, Julia Rossiter, his ranty deed (Exhibit 1), which deed had been brother, John C. Rossiter, and his father, A. filed for record on October 23, 1905, in the S. Rossiter, went with him to Kansas, leavoffice of register of deeds of Blaine county, ing his mother, his brother, and some sisters Okl., showing their title; that he had not on the farm; that his brother J. C. Rossiter signed the deed in question, and had no is "John," and that witness J. M. Rossiter knowledge of its execution until after his is "Jesse." He was then asked if the signareturn from Kansas; that Julia Rossiterture on an appearance bond given by him on was his wife, and went with him to Kansas and returned with him; that the grantee named therein, Elwood Rossiter, was his brother; that, with his brother J. (John) C. Rossiter, he went to defendant's law office shortly after his return from Kansas. The record here reads as follows: "Q. Did you have any conversation with Wishard then and there? A. We did. Q. What was that conversation? A. We went to Mr. Wishard's office, and asked him what he was going to do with that paper or deed that he claimed to have on the place, that they claimed to hold. At first Mr. Wishard said he didn't have any such a paper, and knew nothing of any such a paper. We told him we didn't see why his name should be on that paper and him know nothing about it, and then he said, at last, that he did know about the paper, but he said it was a forged deed, and that it was no good anyway, and that he didn't like to have anything done with it; that it would cause him and the others trouble; and we told him we would settle it with him, we would make him over a deed of our own if he would pay us for the place. He asked us what we would want for the place, and we told him it was worth about $1,700. He said he believed he could get the 27th day of June, 1906, upon a charge preferred against him for the offense of perjury upon which he was held to the district court, and marked "Defendant's Exhibit A," was his signature. He answered that it was. Julia Rossiter's testimony was, in effect, that she was the wife of J. M. Rossiter, and that John or J. C. Rossiter lived with them on their farm; that they were all in Kansas on August 31, 1906; that she never signed the alleged forged deed; that Cora Jones was her sister-in-law, and Elwood Rossiter was her brother-in-law, and that she never authorized Elwood Rossiter or Cora Jones or any of the Rossiters to cause her name to be signed to such deed; that she had not seen Elwood Rossiter for a year, and did not know where he was. J. C. Rossiter's testimony was to the effect that he lived in Blaine county 15 years; that in the year 1906 he was living on the land described in the alleged forged deed with his brother J. M. Rossiter; that together they owned this land under the deed marked "Exhibit 1," which deed is dated October 25, 1905, reciting that, in consideration of the sum of $5,000, the N. W. 4 of section 29, township 17, range 13 W., I. M., is hereby conveyed to J. M. and J. C. Rossiter, which | S. Wishard, naming a consideration of $2,deed was filed for record in the office of the 500, conveying the N. W. 4, section 29, townregister of Blaine county, on the date of its ship 17 N., of range 13 W., I. M., the acexecution; that they were the owners of said knowledgment was taken by I, H. Lookaland on the 31st day of August, 1906; and baugh, a notary public, and the instrument that the alleged forged deed was executed filed for record on September 1, 1906, at and delivered without his knowledge or con- 1:40 o'clock p. m. Also from said record a sent; that on said date he was with J. M. deed purporting to have been executed on Rossiter and Julia Rossiter in the state of the 1st day of September, 1906, by W. S. Kansas; that he was with his brother at the Wishard and P. F. Tyler and J. C. Evans, office of the defendant Wishard, and, in sub- conveying the aforesaid described land to stance, repeated the conversation had, as Eliza A. Kelly for the named consideration testified to by his brother. of $800. The acknowledgment of W. S. Wishard, P. F. Tyler, and J. C. Evans were taken by W. R. Kelly, notary public. The instrument was filed of record on September 1, 1906, at 1:50 o'clock p. m. Theodore Graalman testified that he was register of deeds of Blaine county, and was asked to produce the record showing a deed of conveyance purporting to be signed by Elwood Rossiter, conveying to P. F. Tyler, J. C. Evans, and W. S. Wishard title to the land in question, said deed purporting to be executed August 31, 1906, the acknowledgment of the signatures to the deed taken before I. H. Lookabaugh. He answered he could. He was then asked if the record showed to whom this deed was delivered after it was recorded, and answered that W. R. Kelly received said deed. W. R. Kelly's testimony was, in effect: That he knew the defendants and Elwood Rossiter, and was then asked: "Q. State whether or not you ever had in your possession a deed of conveyance purporting to be signed by Elwood Rossiter conveying to P. F. Tyler, J. C. Evans, and W. S. Wishard the title to the N. W. 4 of section 29, township` 17, range 13 W., I. M., Blaine county, Okl., purporting to have been done August 31, 1906. A. Yes, sir." That he obtained said deed from Wishard, Tyler, and Evans, and placed it of record, and that he was the W. R. Kelly who received it from the register of deeds after it was recorded. He was then asked if he had in his possession a deed of conveyance signed by W. S. Wishard, P. F. Tyler, and J. C. Evans, conveying the same land to Eliza A. Kelly, and said that he had not; that he at one time had possession of said deed and placed it of record, and received it from the register of deeds after it was recorded, but did not know where the deed was at this time. On cross-examination he stated that he might have sent the deed to his sister Eliza A. Kelly, now living at Oklahoma City; that Tyler, Evans, and Wishard were present when he received the deed from them; that he was the notary public who took the acknowledgment of the signatures of Wishard, Tyler, and Evans of their deed to Eliza A. Kelly; that this deed was made after Elwood Rossiter had made his deed to Wishard, Tyler, and Evans. Theodore Graalman recalled testified that as register of deeds he had in his possession deed record No. 19, and over the objection of the defendant the record of a deed purporting to have been executed on the 31st day of August, 1906, by Elwood Rossiter, a single Emma Brown's testimony was, substantially, that on the 31st day of August she was at home with her mother on the land in question, and her name then was Emma Rossiter; that she is the sister of J. C. and J. M. Rossiter; that on August 31, 1906, J. C. Evans and P. F. Tyler were at their home; that Evans commenced writing a deed; that Evans signed John Rossiter's name to the same; that they all went to Calvin Ford's, Pete Tyler, J. C. Evans, witness, her sister Cora, and brother Elwood, and Gene Perryman; that Pete Tyler told Calvin Ford to sign the paper without reading it; that Tyler and Evans said then that they were going to town, and her brother Elwood and Gene Perryman started with them to watonga. Cora Jones' testimony was, substantially, that she was a sister of J. M. Rossiter and J. C. Rossiter, and was living at home on the place in question on the 31st day of August; that P. F. Tyler and J. C. Evans were at the place on that day; that Evans brought some papers there and wanted her to sign them, and that she wrote the name of Julia Rossiter, as they told her to do, and Evans then took the papers with him; that Evans, Tyler, Perryman, and Elwood and Emma Rossiter and the witness then went to Calvin Ford's, a justice of the peace, about four miles distant; that Calvin Ford started to read the paper, and Tyler would not let him read it, and told him to sign it, which he did. Cross-examined, she stated that her brother Elwood put one of the signatures on the deed, and that they went down to Calvin Ford's to acknowledge a paper; that she did not know at that time what the paper was; that Tyler and Evans said they wanted a paper fixed up so that her father could come back. The state rested. Thereupon defendant demurred to the sufficiency of the evidence, and moved the court to direct the jury to return a verdict of not guilty, which was overruled by the court, and exceptions allowed. The theory of the defense in this case was that defendant did not procure and had nothing to do with procuring the forgery of the signatures of J. M. Rossiter, Julia Rossiter, and J. C. Rossiter to the alleged deed, and, curred, he could not be guilty of the crime | seal on another paper. On cross-examination of forgery as charged. he admitted that he had also been in Wishard's office several times before this transaction. The first witness for the defendant was J. C. Evans, his codefendant, who had been tried and found guilty as charged in this indictment. His testimony was to the effect that he went with P. F. Tyler on August 31, 1906, to the home of the Rossiters, and there wrote the body of the deed set forth in the indictment; that one Rossiter present represented himself as J. M. Rossiter, and a woman represented herself to be Julia Rossiter, and other persons present he took to be John Rossiter and Elwood Rossiter and their mother; that he did not see the name J. C. Rossiter written on the deed; that the deed was made to Elwood Rossiter, with the understanding that he was to come in to town and make arrangements for the fee, and have a bond signed for J. M. Rossiter and A. S. Rossiter, who were then under a charge; that Tyler said for them to come over to Calvin Ford's, when the acknowledgment was there taken; that he then returned to Watonga with Tyler and Elwood Rossiter and Gene Perryman; that, arriving there, he left them; that he did not know that Elwood Rossiter was going to make a deed to W. S. Wishard, P. F. Tyler, and witness; that the next day he met Tyler, who said that Elwood could not make the arrangements, and "he decided to deed the land to us, and said, "The land is deeded to Wishard, you, and myself" "; that he had not been employed as an attorney in the Rossiter cases. On cross-examination witness said that he had since learned that it was Cora Jones who signed the name of Julia Rossiter, but he could not identify the Rossiter who signed the other name; that they reached Watonga about half past 10 o'clock that night. As he understood it, Tyler was to receive $300 as a fee, and witness was to receive a part of this money as his fee; that the Rossiters were on the "hike," but J. M. and John were supposed to have come home at that time; that, in addition to the fee, they were supposed to arrange for W. R. Kelly to sign the Rossiter bonds, and that Wishard, Tyler, and witness deeded the land the next day to Eliza Kelly; that at that time the three were together, and "Tyler said Elwood has deeded this land to us," and they then went to Kelly's office and Wishard there signed the deed with Tyler and witness; that he did not know what arrangement Wishard had with Tyler. Eugene Perryman's testimony was, in effect, that he knew the Rossiter family for about 15 years; that he was present at their home on August 31, 1906, and went with Elwood Rossiter that night to Watonga; that Tyler and Evans came there that day on his request; that Elwood Rossiter asked him to bring them there, and he went there with them; that, when they reached Watonga, they went to Mr. Lookabaugh's office; that it was then about 11 o'clock; that Tyler had the deed with him, and Lookabaugh put his 115 P.-51 I. H. Lookabaugh's testimony was in effect that P. F. Tyler, Eugene Perryman, and Elwood Rossiter came to his office for the purpose of taking an acknowledgment to a deed, purporting to convey the land hereinbefore described; that the defendant Wishard was not with them; that he took the acknowledgment of Elwood Rossiter; that the deed was blank as to the names of the grantees, and he called their attention to this, and they said they had not determined on that yet. Miss Laura Ogan's testimony was, in effect, that she was working as a stenographer for defendant Wishard during the year 1906; that late in the fall J. M. and J. C. Rossiter came in his office and asked where he was; that Mr. Wishard came in, and they said that they had some trouble some way, and they wanted to employ him to take charge of the case for them, and he told them that they would have to bring all the papers in before he could tell them what he would charge them; that there was nothing said about the Evans and Tyler deal pertaining to the Rossiter farm; that there was nothing said about paying $1,700 for the farm, and that was the only time that the Rossiters were in the office. W. S. Wishard, defendant, took the stand on his own behalf, and testified that he was an attorney actively engaged in the practice of law at Watonga for the past five years, had known his codefendant Tyler nine or ten years, and codefendant Evans five years; that he did not sign or ask any person to sign the names to the alleged forged deed; that the deed given by Elwood Rossiter to Tyler, Evans, and witness was without his knowledge. The record then shows: "Q. When did you first receive information that your name was in that instrument? A. The afternoon on my return home. I was walking up on Noble avenue, and Mr. Tyler and, I think, Mr. Evans, called to me. They said they had a deed there to us, and I said I didn't want any real estate, and especially partnership real estate. Q. I will ask you what reason they gave to you for putting your name in that deed. A. Mr. Tyler done the principal part of the talking. They said that they were to make arrangements with Mr. Wheelock for money, but could not do so, and they simply made it to us. Q. Had you been employed in any matter up to that time for the Rossiters? A. I had not. Q. What did he say was his reason for putting your name in there in advance of seeing you about it? A. Well, the reason, he said, to put it in there because they failed to get the money, and they said my name was put in there, and we would have the land. Q. I want to know what he said was the reason you had not been employed before that time? A. He said they had to have a white man as that? A. Well, I never gave any bonds. Q. Were you appointed by him as deputy county attorney? A. I was at one time; yes, sir. Q. Did you act as deputy in June, 1906, if Mr. Lowary was absent? A. Well, yes. Q. If Mr. Lowary was gone in June, were you acting in his absence? A. I might have act attorney in July, August, and September of that year? A. No, sir; I would not say I was. I would generally send in my resignation when he would come back so as not to hamper the business. I didn't get no salary for it and I didn't act only in his absence. I prosecuted two cases, and he was with re in one case. Q. Wasn't it a fact that you were the only acting deputy county attorney Mr. Lowary had? A. I was not acting only when he was away out of the state. I acted for him, but, as soon as he would return, I would hand in my resignation again. Q. You had authority to act when you did act? A. I suppose I did. Q. Were you not regularly appointed in writing? A. Yes; in the first place, I was appointed in writing. Q. Mr. Wishard, is it not a fact that you and Pete Tyler had some business dealing with the Rossiters or some of them relative to some litigation in August, 1906? A. Why, I rather think so; yes, I think so. Q. You did? A. Yes, sir. Q. That was the deal that you got $200 out of the Rossiters, you and Pete? A. I got $100 for services, I think, in the old man Rossiter's case. Q. A. S. Rossiter's case? A. Yes, sir. Q. I understood you to say you did not know whether you knew him in August? A. It was not with him. I didn't see him in August that attorney in this case. He said they were white men and he was colored, and they had to have a white lawyer. Q. Had they spoken to you prior to this time to represent them? A. I hardly think they did. I think not. Q. Were you present at Mr. Lookabaugh's office when that deed was acknowledged or executed? A. I was not. Q. Were you presented for him. Q. You still were deputy county and saw your name at any time placed into that instrument? A. I did not. Q. Did you have any knowledge or information that either of those acts were going to be done before they were consummated? A. I did not. Q. I will ask you if you ever talked with Mr. Evans or Pete Tyler or either of them or both of them with relation to undertaking the making of any of these deeds prior to the time they were down and presented it to you. A. I did not. Q. You went on that same day and made a deed over to Mrs. Kelly, did you? A. Yes, sir. Q. I will ask you why that was done? A. Well, I don't know anything further than I said to them, 'I don't want any real estate, and especially partnership real estate.' They said, 'Sell it then.' I said, ‘All right,' and they went and talked with Mr. Kelly, and I made the deed with them. Pete Tyler done the talking and came back, and said they had made the deal. Q. I will ask you if you have any recollection of the occurrence of J. C. Rossiter or these two Rossiter boys coming into your office on the 10th of December, 1906? A. I cannot fix the date. They were there one time, and I presume that is about correct. I recollect the incident. Q. Tell the jury what they came for, and what they said, and what you said, and who was present. A. Miss Ogan, J. C., and Jesse Rossiter. They were in the office and I came up. When I came in the office, they introduced themselves to me. Then I sat down, and they had some matter out there in the country with some one. I was not acquainted with but very few out there then. It seemed to be some trouble, but I cannot think what it was, but, at all events, there was papers connected with it. They wanted to know what I would take the case for, and I told them they had better come in and bring the papers. Then I could tell them more about it. Q. Was there anything in that conversation that pertained to this deed or matters involved in this land trouble that is involved in this indictment? A. There was not one single word said about that. Q. Did you at any time ever tell them that you laid the plans for this forgery and that this deed was a forgery? A. I never did." I know of. Q. Were you acting as his attorney? A. His son came to me, and wanted me to represent him. Q. In what matter was that? A. That was the matter in which this complaint was filed against him. Q. Do you recollect what he was charged with in that case? A. No; I don't remember. I think it was perjury, though. Q. Grand larceny? A. I think there was one grand larceny and one for perjury, too. Q. Were you and Pete employed generally in that case to get him a bond? A. No; Pete took the bond part. I was simply to represent him in court. That was all. Q. I now hand you 'Exhibit D,' and ask you to examine that carefully. Now, is that the case in which this bond was given by A. S. Rossiter that you were employed by his son to look after his interests? A. Why, I can't just tell. There was two cases. Q. Was it this one then? A. This 'Exhibit D' was the case On cross-examination the record is as fol- where W. B. Delly signed the bond; yes, sir. lows: "Q. What official position did you Q. Is that the same case? A. It seems not. hold in the county along in June, 1906? A. That was a $500 bond, and this $1,000. Q. I sometimes acted for Mr. Lowary in his They are both cases of perjury? A. Yes, sir. absence, but I never acted for him when he Q. Did you look up these matters at that was here and could act. Q. That does not time? A. I tried to. Q. Did you? A. Yes; answer the question. A. I suppose when II went out there; yes, sir. Q. You knew Elacted for him I acted as deputy county at- wood, then, did you? A. Never saw him un |