understanding of the questions presented to this court for decision, without an examination of the record itself in this court. There was no attempt whatever to comply with this rule, but, on the contrary, counsel for defendants ignore their specific assignments of error, and contents himself by merely stating in his brief that: "The only question for review is, Was the note upon which this action was based a negotiable instrument?" The brief does not, as required by the rule, contain a sufficient statement of the record to warrant this court in saying that the court below directed a verdict against the defendants because he believed that the note sued upon was a negotiable instrument. The trial court, as we have seen, heard all the evidence, and, for aught we know, may have been of the opinion that the note was nonnegotiable, as counsel contends it is, and directed a verdict in favor of the plaintiff upon the ground that the evidence was wholly insufficient to establish the defensive matter set up by the defendants in their answer. Or it may be, as counsel for plaintiff say in their brief, that, even if the court excuses noncompliance with rule 26 and examines the record, it will disclose that: "No proof was offered showing or tending to show that the horse for which the note was given was never delivered to the seller or tendered back to the seller, and it is not pleaded, and no offer was made to prove any facts excusing the failure to return or offer to return the horse." It may be that it was upon this ground that the court below directed a verdict. On account of noncompliance with rule 26 of this court, we are unable to say, without an examination of the record, what the views of the trial court were on any of these aspects of the case, nor are we in position to say whether or not such views were erroneous. Compliance with this rule has been held to be mandatory many times by this court, and we know of no good reason for departing from these decisions in the case at bar, especially as it appears that the record is not available for examination by the court, if it desired to do so, it having been withdrawn from the files by counsel for the defendants after the submission of the case and not returned. Seavers v. Rulison, 29 Okl. 128, 116 Pac. 802; Dickson v. Lowe, 38 Okl. 216, 132 Pac. 354; Board of Med. Examiners v. State ex rel. Cherry, 45 Okl. 575, 146 Pac. 443; New Vinita Hdw. Co. v. Porter, 45 Okl. 470, 146 Pac. 14; Kelly v. State, 40 Okl. 355, 138 Pac. 167; St. L. & S. F. R. Co. v. Shepard, 40 Okl. 589, 139 Pac. 833; Collier v. Gannon, 40 Okl. 275, 137 Pac. 1179; Avants v. Bruner, 39 Okl. 730, 136 Pac. 593. For the reason stated, the judgment of the court below is affirmed. tices concur. All the Jus Where it appears that defendant is a fugitive from justice or has left the jurisdiction of the state and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by the Criminal Court of Appeals, the appeal will be summarily dismissed. Appeal from County Court, Oklahoma County; William H. Zwick, Judge. Proceeding by the State of Oklahoma against A. C. Boswell. Judgment for the State, and defendant appeals. Appeal dismissed. Charles H. Ruth, of Oklahoma City, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. The Attorney General has filed the following motion to dismiss the appeal against plaintiff in error, A. C. Boswell, in the above-entitled case: "Comes S. P. Freeling, Attorney General for the state of Oklahoma, by R. McMillan, Assistant Attorney General, and moves the court to dismiss the appeal in the above mentioned and styled cause, and as his reason for said dismissal he alleges that he is informed, believes, and so charges that the said appellant, A. C. Boswell, is no longer a resident of this jurisdiction, and is not now amenable to any order or judgment of this court; and as an evidence of said fact he here files the affidavit of John Howard, as Exhibit A hereto, and the affidavit of C. H. Bessent, as Exhibit B hereto, and he makes both said Exhibits A and B a part of this motion as though both were fully herein copied and set forth. Wherefore he prays that notice be given to the attorneys of the said appellant, A. C. Boswell, and that the said cause be dismissed." The affidavits in support of said motion are as follows: "State of Oklahoma, Oklahoma County-ss.: "John Howard, of lawful age, being duly is now in the employ of C. H. Bessent, president sworn, on his oath states that he has been and of the Security State Bank of Norman, Okl., and has been for nearly a month last past in trying to locate A. C. Boswell, and that he has been unable to locate him in and around Oklahoma City, where he, the said Boswell, has lived for several years last past; that he has talked with quite a number of parties who are well informed by one of said parties who has acted acquainted with the said Boswell, and has been as the attorney of said Boswell in certain litigation and was informed by said attorney that the said Boswell has left the country. Another had left the state of Oklahoma, and still anothparty informed this affiant that the said Boswell er party informed this affiant that he overheard parties talking who stated that the said Boswell, with two of his brothers, had gone from the United States into Mexico, and that the parties who went with him to Mexico in an automobile returned to the United States without him. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This affiant further states that he has been in- 13. CRIMINAL LAW 720(9) "Further affiant sayeth not. "[Signed] John Howard. "Subscribed and sworn to before me this 9th day of January, 1918. "E. W. Rowe, Notary Public. "My commission expires March 22, 1920." The affidavit of C. H. Bessent was to the same effect as that of John Howard. The county attorney in argument may draw all proper inferences which are deducible from the relevant and competent evidence admitted. (Additional Syllabus by Editorial Staff.) 4. CRIMINAL LAW 1159(2) — SUFFICIENCY OF EVIDENCE-INFERENCES. On the question of whether there is sufficient evidence to support a verdict, court must treat as duly established all facts warranted by the testimony of the witnesses for the state, and give the prevailing side the benefit of every faible from those facts. Appeal from District Court, Pittsburg County; R. P. De Graffenried, Special Judge. John Henry Prather was convicted of murder, and sentenced to death, and he appeals. A hearing was had upon said motion be-vorable inference fairly and legitimately deduefore the court on the 16th day of February, 1918, at which time no appearance was made for the defendant, and the evidence of John Howard and C. H. Bessent was heard in support of said motion. The effect of their testimony was that at the time said motion was heard the said A. C. Boswell was then and there a fugitive from justice from the state of Oklahoma, and his whereabouts were unknown, and said Boswell could not be found although diligent search had been made for him within this state. Under the repeated decisions of this court, when it is shown that the defendant is a fugitive from justice, or has left the juris diction of the state of Oklahoma, and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by this court, the appeal will be summarily dismissed. Vann v. State, 10 Okl. Cr. 644, 133 Pac. 1197; Billingsley v. State, 9 Okl. Cr. 734, 132 Pac. 1192; Peel v. State, 9 Okl. Cr. 234, 131 Pac. 548; Simerson V. State, 9 Okl. Cr. 119, 130 Pac. 1112; Tanner v. State, 5 Okl. Cr. 298, 114 Pac. 360; and many others. This is an appeal from the district court of Pittsburg county, wherein one John Henry Prather was convicted of the crime of murder and sentenced to death. The deceased, Charles Chapman, alias Charles Ross, and Prather were cell mates in the penitentiary located at McAlester. Their cell was number 60 in the third tier in the negro cell house. On the occasion of this difficulty, Prather had returned from work and was in the cell when Ross returned from his work between 7 and 7:30 in the evening. The evidence on the part of the state shows that as soon as Ross started to enter the cell, Prather stabbed him with a dirk knife, which apparently had been made out of one of the steel case knives used in the dining hall at the penitentiary. The wound penetrated the abdomen, and the interior of the wound was larger than the point of entrance, showIt is apparent from the evidence introducing that after the knife had been stuck into ed upon the hearing of this motion that plaintiff in error is a fugitive from justice from the state of Oklahoma, and cannot be made to respond to any affirmative judgment which this court may render in this case. The appeal of plaintiff in error therefore is dismissed. the body of the deceased, the defendant had apparently twisted it around. The wound ceased lived two or three days after being was one ordinarily considered fatal. The destabbed, and died at the hospital in the penitentiary. According to the witnesses for the state, very little was said by either party at the time of this difficulty. The nearest occupants of cells heard no scuffle or noise of any kind prior to this stabbing, testifying that apparently immediately after Ross started into the cell, he backed out with the remark to Prather, "Are you going crazy? You ought to be ashamed of yourself." The deceased made a dying statement to the warden of the penitentiary in which he stated that he and Prather had had no serious difficulty, but that a few days before this cutting, Prather had intimated to him that he intended to kill one Boyd, who was then one of the yard guards at the penitentiary. Ross, the deceased, said he remonstrated with Prather, and attempted to get him to refrain from any such conduct as that, advising him it would be best to have a good prison record. Ross stated that after that oc currence Prather seemed to be incensed, and the state to cross-examine him upon any subthat he knew of no other reason why he ject which he had detailed in his direct exshould kill him or stab him. Prather's de-amination, and, having volunteered the statefense was that he stabbed Ross in order to protect himself from an assault about to be committed by Ross with a knife. He claims that Ross had threatened to kill him for revenge, because some other negro about the color of Prather had previously murdered his brother. When the deceased was taken to the hospital immediately after the stabbing, no weapon of any kind was found upon his person. The knife used by the defendant was found concealed in the toilet in the cell. The defendant at the time of this occurrence was serving a life term for murder. The deceased was serving a 16-year term for assault with intent to kill. Cad Mathis, of McAlester, for plaintiff in MATSON, J. (after stating the facts as above). [1] It is first contended that the court erred, over the objection and exception of counsel for defendant, in permitting the county attorney, in the cross-examination of the defendant, to ask him concerning a former conviction for murder committed in Oklahoma county. The record on this assignment is as follows: "Q. Charley Ross just had 10 or 15 years ahead of him, didn't he? A. Sir? Q. Charley Ross wasn't a lifer? A. No, sir; doing 16 years. Q. You said a while ago you were in there for life? A. Yes, sir. Q. For killing a white man in Oklahoma county? "Mr. Mathis: Object. "The Court: You have a right to show he was convicted. "Mr. Mathis: Yes, sir; but not the circum stances. "The Court: Q. You were charged with and convicted of murder? A. Yes, sir. "The County Attorney: Q. In Oklahoma county? A. Yes, sir. Q. You were sentenced to be hung? "Mr. Mathis: Object to that as incompetent, irrelevant, and immaterial, and doesn't tend to prove any issue in this case. The Court: I think he can ask him if he was convicted for murder and sent to the penitentiary for life. "The Court: Q. What was your sentence? A. I was sentenced to death. "The County Attorney: Q. That was afterwards commuted, was it? "Mr. Mathis: I except to all of that, and ask that it be stricken from the record. "The Court: All of which? "Mr. Mathis: About his being sentenced to death and about it being commuted. "The Court: Overruled, because that is what the sentence of the court was. "The County Attorney: Q. You say your sentence was commuted to life? A. Yes, sir." It will be noticed that on his direct examination, the defendant, in detailing the facts and circumstances surrounding the difficulty with the deceased which ended in this fatal stabbing, testified to the effect that he had a life sentence in the penitentiary, and had no way to get pardoned or paroled. It was certainly competent, therefore, on the part of ment that he was a life termer in the penitentiary, it became competent for the state on cross-examination to inquire into the nature of the crime for which he had been previously convicted and sentenced. It has been repeatedly held by this court that such is a proper inquiry to affect the credibility of any witness including a defendant. McDaniel v. State, 8 Okl. Cr. 209, 127 Pac. 358; Slater v. U. S., 1 Okl. Cr. 275, 98 Pac. 110; White v. State, 4 Okl. Cr. 143, 111 Pac. 1010; Fowler v. State, 8 Okl. Cr. 130, 126 Pac. 831; Manning v. State, 7 Okl. Cr. 367, 123 Pac. 1029. [2] But we believe it was also competent in this case to establish the status of the de fendant as a prisoner in the penitentiary. If he was then serving a term of life imprisonment, it would be no punishment for him for the jury to assess another penalty of life imprisonment, or any other punishment less than death. Section 2319, Revised Laws 1910, is as follows: death, or imprisonment at hard labor in the "Any person convicted of murder shall suffer state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same." Section 5954, Id., provides: "After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct." It is apparent from the foregoing provisions of our statutes that the punishment for murder is either death or imprisonment in the state penitentiary at hard labor for life. Where the defendant stands trial, it is necessary for the jury to designate in the verdict, if that be one of guilty, what the punishment shall be, and the judgment of the court must be in accordance therewith. It is equally apparent that, if the defendant pleaded guilty, the court must pass sentence, and may, before rendering judgment, examine into the circumstances surrounding the killing and inquire into any proper matter which either tends to aggravate or mitigate the punishment that should be inflicted. The only necessity for the provisions of section 5954, supra, is that upon a plea of guilty ordinarily no testimony is heard, and therefore without such statute the court would be left wholly ignorant of the circumstances of the crime, while on the other hand, upon a trial, matters in aggravation or mitigation of the punishment may be properly developed. In Walburn v. Territory, 9 Okl. 23, in the cody of the opinion at page 29, 59 Pac. 972, | Opinion of the Judges, 6 Okl. Cr. 18, 115 Pac. 974, the territorial Supreme Court, speaking 1028; also Holmes v. State, 6 Okl. Cr. 541, through Burford, C. J., said: 119 Pac. 430, 120 Pac. 300. In the former case it was said of one of his previous crimes: "Where the jury assesses the punishment on verdict of guilty, it is proper to admit evidence which goes only in mitigation or aggravation." "Upon a careful examination of the record we Some states have gone so far as to pass find that the information sufficiently and corstatutes that the punishment shall be death rectly charges the crime of murder. The dewhere a person is convicted of murder with fendant had the benefit of counsel, and the rec a life penalty in force against him. In the ord shows that said defendant made a voluntary written confession which details the facts of the absence of such a statute, however, there murder of W. H. Archie, as charged in the incan be no doubt that inquiry as to the status formation, wherein defendant states that after of a person imprisoned in the state peniten- he and his codefendants robbed said Archie, iary who commits murder while so imprison-shot him. The record further shows that this he, the defendant, with a 44-caliber revolver, ed is a proper subject of inquiry by the jury defendant, being called as a witness on the trial upon a trial therefor in order to determine of his codefendants, and being first duly sworn, what degree of punishment should be inflict- testified that he held the revolver in his hand ed in the event said defendant is found guilty he stated that he had been convicted of a felwhen it was discharged. On cross-examination of such crime. Under the provisions of secony and served a term of imprisonment in the tion 2319, supra, the jury was required to penitentiary. * The record shows that assess the punishment in this case. There the defendant, John Henry Prather, is guilty fore it in the opinion of this court that there of a wanton and deliberate murder. It would seem that never was a murderer more guilty. was no error committed by the trial court in All good citizens must acknowledge the justice permitting the defendant to be cross-examin- of the penalty of the law in such a case. ed as to his former conviction of murder: (1) are of opinion that the defendant, John Henry Because it was proper to affect his credibility penalty of the law in the manner prescribed by Prather, has been adjudged to suffer the just as a witness; (2) because it was a matter law, and upon his trial the formalities of law about which he had voluntarily testified in essential to the taking of human life have been his examination in chief; (3) because the fully observed." status of the defendant as a prisoner in the state penitentiary was a proper subject-matter of inquiry in this case independent of the fact that he became a witness in his own behalf. [3] It is also contended that the court permitted the county attorney to make certain prejudicial remarks in his closing argument. We have carefully examined the record with relation to these remarks, a great part of the closing argument of the county attorney being embodied in the case-made. The argument complained of related to the question of punishment to be inflicted, and the county attorney in effect argued that the defendant, having once been convicted of murder, given the death penalty, which was commuted to life, was a hardened criminal, that the fact that he was now serving a life sentence had not been a deterrent for the commission of this crime, and that if the death penalty were not inflicted his natural inclination to murder would probably assert itself in the future. We think these inferences were properly deducible from the evidence in this case. This was a case either of murder or justifiable homicide, and the issue of fact having been decided by the jury against this defendant, we assume as true the evidence on the part of the state which disclosed a deliberate, willful, and premeditated homicide, and no intelligent or honest jury, under the circumstances disclosed by this record, would have been justified in returning a verdict assessing less than the most extreme penalty of the law. This defendant is not unknown to this court. His criminal conduct already forms a We [4] It is also contended that the trial court erred in overruling the defendant's motion for a new trial. Under this assignment, it is contended that the verdict of the jury is not sustained by the evidence. There appears to be no merit in this contention. While the evidence is conflicting, we cannot sustain this contention. We do not mean to say that the evidence demanded a finding of the particular facts which the jury found were true; but, in dealing with the question of whether or not there is sufficient evidence to support a verdict, we are constrained to treat as duly established all facts warranted by the testimony of the witnesses for the state, and to give the prevailing side the benefit of every inference favorable to it which is fairly and legitimately deducible from those facts. This is the course heretofore pursued by this court. Davis v. State, 10 Okl. Cr. 169, 135 Pac. 438; Calvert v. State, 10 Okl. Cr. 185, 135 Pac. 737; Maggard v. State, 9 Okl. Cr. 236, 131 Pac. 549; Stephens v. State, 12 Okl. Cr. 90, 152 Pac. 138; Flowers v. State, 12 Okl. Cr. 320, 155 Pac. 904. This is a capital case, and for that reason the court has been painstaking in examining, not only the contentions of counsel for defendant, but also has given the entire record a very careful perusal. The instructions of the court were fair to the defendant, and nowhere is it disclosed in the entire proceeding that any matter which affected the substantial rights of this defendant to his prejudice was permitted to occur. This defendant has twice faced a jury of his peers for the taking of human life, the first time this time for the killing of a member of his own race. In both instances the verdict of the jury has been that he shall suffer death. The mercy of the Governor in the first instance had no effect to reform or restrain him, and although confined within the walls of the state's prison, and under the eyes of the guards thereof, he was, by reason of his cunning, able to slay his cell mate as he returned from his day's labor in the dusk of the evening, unsuspecting and unarmed. We agree with the Court of Appeals that the facts of this case do not justify a presumption that it was intended that the grantee in the original deed should take title to the central line of Cherry creek. The probate judge was a trustee, under the statute, for those who were actually occupying land at the date the town site was entered, and, as to them, only to the extent of such occupancy. The rule invoked by plaintiff has no application to such a case. There is no diThe judgment of conviction, assessing the rect evidence to show under which survey death penalty, is affirmed, and the warden of the conveyance was made, and we are left to the state penitentiary at McAlester is hereby determine the question by inference from the ordered and directed to carry into effect facts as stipulated. The Court of Appeals against this defendant the judgment and sen- was of the opinion that the findings of the tence of the district court of Pittsburg coun- | trial court were sustained by. competent evity that he suffer death; said penalty to be dence, and we cannot say that it was wrong executed on the 3d day of May, 1918, in the in thus concluding. manner provided by the laws of this state. DOYLE, P. J., and ARMSTRONG, J., con cur. (64 Colo. 141) EISENHART v. CITY AND COUNTY OF (Supreme Court of Colorado. Jan. 7, 1918. PANCY OF LAND. Under the statute the probate judge was a trustee for those who were actually occupying the land at the date the townsite was entered by him in the United States land office, and only to the extent of such occupancy. En Banc. Error to Court of Appeals. Action by Ellen Eisenhart against the City and County of Denver. Judgment for defendant was affirmed by the Court of Appeals (27 Colo. App. 470, 150 Pac. 729), and plaintiff brings error. Affirmed. Hilliard, Lilyard & Finnicum and J. R. Allphin, all of Denver, for plaintiff in error. J. A. Marsh and G. Q. Richmond, both of Denver, for defendant in error. TELLER, J. This cause is before us on error to the Court of Appeals which affirmed a judgment of the district court in favor of the defendant in an action brought by the plaintiff in error to recover possession of real estate. The judgment is therefore affirmed, and the cause remanded to the district court. Judgment affirmed. (87 Or. 543) ANGUS v. HOLBROOKE et al. (Supreme Court of Oregon. Feb. 26, 1918.) 1. MORTGAGES 33(4)-ABSOLUTE DEED. Giving a deed to secure a debt, and receiving an agreement to reconvey on payment of the debt, make the transaction a mortgage, although the giving of a deed in satisfaction of a debt, and at the same time receiving an agreement to convey, would not constitute a mort gage. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Mortgage.] 2. MORTGAGES 216-INJURY TO PREMISES— ACTION TENDER. Where plaintiffs deeded land to secure a debt, and defendant agreed to reconvey the land in the condition in which received, it was not necessary to make a tender before suit for damages, where defendant had committed waste and refused to restore it when demanded under the terms of the contract. Department 1. Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge. Action by F. W. Angus against Helen B. Holbrooke and H. Morton Holbrooke, her husband. Judgment for defendants, and plaintiff appeals. Reversed and remanded. The substance of the complaint in this action to recover damages for breach of conThe facts are fully set forth in the opinion tract is that prior to January 18, 1915, plainof the Court of Appeals (27 Colo. App. 470, tiff was the owner and in possession of cer150 Pac. 729). The principal controversy is tain real property in Hood River county. On due to a difference between two surveys, the the date mentioned the defendant Helen B. plaintiff claiming that the original convey- Holbrooke was the assignee of two mortance by the probate judge under the town- gages which were liens upon the property in site act of 1864 was according to a survey question to secure an aggregate indebtedness made in 1859, while the defendant contends of about $9,000. In order to avoid the exthat it was made under a survey made in pense of a legal foreclosure, and to further 1865. By the latter survey a large part of secure the creditor, the plaintiff conveyed the the land platted in the first survey as lots, premises to defendant Helen B. Holbrooke, 8, 9, and 10 of block 103, East division of and received from defendant a written agree. Denver, is placed in the bed of Cherry creek.ment to the effect that they would preserve For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |