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understanding of the questions presented to
(14 Okl. Cr. 336) this court for decision, without an examina- BOSWELL V. STATE. (No. A-3250.) tion of the record itself in this court. There
(Criminal Court of Appeals of Oklahoma. was no attempt whatever to comply with
March 4, 1918.) this rule, but, on the contrary, counsel for defendants ignore their specific assignments
(Syllabus by Editorial Staff.) of error, and contents himself by merely CRIMINAL LAW Ow1131(5)—APPEAL-DISMISSstating in his brief that:
AL-GROUNDS. “The only question for review is, Was the Where it appears that defendant is a fuginote upon which this action was based a nego- tive from justice or has left the jurisdiction of tiable instrument?”
the state and cannot be made to answer any
judgment upon the merits of his appeal which The brief does not, as required by the rule, may be rendered by the Criminal Court of Apcontain a sufficient statement of the record peals, the appeal will be summarily dismissed. to warrant this court in saying that the court Appeal from County Court, Oklahoma below directed a verdict against the defend- County; William H. Zwick, Judge. ants because he believed that the note sued Proceeding by the State of Oklahoma upon was a negotiable instrument. The against A. C. Boswell. Judgment for the trial court, as we have seen, heard all the State, and defendant appeals. Appeal disevidence, and, for aught we know, may have missed. been of the opinion that the note was non
Charles H. Ruth, of Oklahoma City, for negotiable, as counsel contends it is, and di. rected a verdict in favor of the plaintiff up- and R. McMillan, Asst. Atty. Gen., for the
plaintiff in error. S. P. Freeling, Atty. Gen., on the ground that the evidence was wholly
State. insufficient to establish the defensive matter set up by the defendants in their answer.
PER CURIAM. The Attorney General has Or it may be, as counsel for plaintiff say in filed the following motion to dismiss the aptheir brief, that, even if the court excuses peal against plaintiff in error, A. C. Boswell, noncompliance with rule 26 and examines
in the above-entitled case: the record, it will disclose that:
“Comes S. P. Freeling, Attorney General for “No proof was offered showing or tending to the state of Oklahoma, by R. McMillan, Assistshow that the horse for which the note was ant Attorney General, and moves the court to given was never delivered to the seller or ten- dismiss the appeal in the above mentioned and dered back to the seller, and it is not pleaded, styled cause, and as his reason for said dismissal and no offer was made to prove any facts ex- he alleges that he is informed, believes, and so cusing the failure to return or offer to return charges that the said appellant, A. C. Boswell, the horse."
is no longer a resident of this jurisdiction, and
is not now amenable to any order or judgment It may be that it was upon this ground of this court; and as an evidence of said fact that the court below directed a verdict. On he here files the affidavit of John Howard, as account of noncompliance with rule 26 of Exhibit a hereto, and the affidavit of C.' H.
Bessent, as Exbibit B hereto, and he makes this court, we are unable to say, without an
both said Exhibits A and B a part of this moexamination of the record, what the views of tion as though both were fully herein copied the trial court were on any of these aspects and set forth. Wherefore he prays that notice of the case, nor are we in position to say
be given to the attorneys of the said appellant, whether or not such views were erroneous missed."
A. C. Boswell, and that the said cause be disCompliance with this rule has been held to be mandatory many times by this court, and
The affidavits in support of said motion we know of no good reason for departing are as follows: from these decisions in the case at bar, es
“State of Oklahoma, Oklahoma County-88.:
“John Howard, of lawful age, being duly pecially as it appears that the record is not available for examination by the court, if is now in the employ of C. H. Bessent, president
sworn, on his oath states that he has been and it desired to do so, it having been withdrawn of the Security State Bank of Norman, Okl., from the files by counsel for the defendants and has been for nearly a month last past in after the submission of the case and not re- trying to locate A. C. Boswell, and that he has
been unable to locate him in and around Oklaturned. Seavers v. Rulison, 29 Okl. 128, 116 homa City, where he, the said Boswell, has lived Pac. 802; Dickson v. Lowe, 38 Okl. 216, 132 for several years last past; that he has talked · Pac. 354; Board of Med. Examiners v. State with quite a number of parties who are well ex rel. Cherry, 45 Okl. 575, 146 Pac. 443; | informed by one of said parties who has acted
acquainted with the said Boswell, and has been New Vinita Hdw. Co. v. Porter, 45 Okl. 470, as the attorney of said Boswell in certain liti146 Pac. 14; Kelly v. State, 40 Okl. 355, 138 gation and was informed by said attorney that Pac. 167; St. L. & S. F. R. Co. v. Shepard, the said Boswell has left the country. Another 40 Okl. 589, 139 Pac. 833; Collier v. Gannon, had left the state of Oklahoma, and still anoth
party informed this affiant that the said Boswell 40 Okl. 275, 137 Pac. 1179; Avants v. Bruner, er party informed this affiant that he overheard 39 Okl. 730, 136 Pac. 593.
parties talking who stated that the said Boswell, For the reason stated, the judgment of with two of his brothers, had gone from the
United States into Mexico, and that the parties the court below is a tfirmed. All the Jus- who went with him to Mexico in an automobile tices concur.
returned to the United States without him.
Om 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) – ARGUMENT formed that the sheriff of Canadian county, Okl., INFERENCES. has in his hands a warrant for the arrest of the The county attorney in argument may draw said Boswell for disposing of mortgaged prop- | all proper inferences which are deducible from erty, and that said sheriff has been unable to the relevant and competent evidence admitted. locate him. "Further affiant sayeth not.
(Additional Syllabus by Editorial Staff.) “[Signed] John Howard.
4. CRIMINAL LAW 1159(2) - SUFFICIENCY “Subscribed and sworn to before me this 9th
OF EVIDENCE-INFERENCES. day of January, 1918.
On the question of whether there is sufficient "E. W. Rowe, Notary Public. “My commission expires March 22, 1920."
evidence to support a verdict, court must treat
as duly established all facts warranted by the The affidavit of C. H. Bessent was to the testimony of the witnesses for the state, and same effect as that of John Howard.
give the prevailing side the benefit of every faA hearing was had upon said motion be- vorable inference fairly and legitimately deduc
ible from those facts. fore the court on the 16th day of February, 1918, at which time no appearance was made Appeal from District Court, Pittsburg for the defendant, and the evidence of John County; R. P. De Graffenried, Special Judge. Howard and C. H. Bessent was heard in sup John Henry Prather was convicted of mur. port of said motion. The effect of their tes- der, and sentenced to death, and he appeals. timony was that at the time said motion was
This is an appeal from the district court heard the said A. C. Boswell was then and of Pittsburg county, wherein one John Henry there a fugitive from justice from the state Prather was convicted of the crime of murder of Oklahoma, and his whereabouts were un
and sentenced to death. The deceased, known, and said Boswell could not be found Charles Chapman, alias Charles Ross, and although diligent search had been made for Prather were cell mates in the penitentiary him within this state.
located at McAlester. Their cell was number Under the repeated decisions of this court, 60 in the third tier in the negro cell house. when it is shown that the defendant is a On the occasion of this difficulty, Prather fugitive from justice, or has left the juris- bad returned from work and was in the cell diction of the state of Oklahoma, and can. when Ross returned from his work between not be made to answer any judgment upon 7 and 7:30 in the evening. The evidence the merits of his appeal which may be ren
on the part of the state shows that as soon dered by this court, the appeal will be sum
as Ross started to enter the cell, Prather marily dismissed. Vann v. State, 10 Okl. stabbed him with a dirk knife, which apparCr. 644, 133 Pac. 1197; Billingsley v. State, ently had been made out of one of the steel 9 Okl. Cr. 734, 132 Pac. 1192; Peel v. State, case knives used in the dining hall at the 9 Okl. Cr. 234, 131 Pac. 548; Simerson v.
penitentiary. State, 9 Okl. Cr. 119, 130 Pac. 1112; Tan-abdomen, and the interior of the wound
The wound penetrated the ner v. State, 5 Okl. Cr. 298, 114 Pac. 360; was larger than the point of entrance, showand many others.
ing that after the knife had been stuck into It is apparent from the evidence introduc- the body of the deceased, the defendant had ed upon the hearing of this motion that
The wound plaintiff in error is a fugitive from justice apparently twisted it around. from the state of Oklahoma, and cannot be ceased lived two or three days after being
was one ordinarily considered fatal. The demade to respond to any affirmative judgment
stabbed, and died at the hospital in the peni. which this court may render in this case.
tentiary. The appeal of plaintiff in error therefore is dismissed.
According to the witnesses for the state, very little was said by either party at the
time of this difficulty. The nearest occupants (14 Okl. Cr. 327) PRATHER v. STATE. (No. A-3135.)
of cells heard no scuffle or noise of any kind
prior to this stabbing, testifying that ap(Criminal Court of Appeals of Oklahoma. March 2, 1918.)
parently immediately after Ross started into
the cell, he backed out with the remark to (Syllabus by the Court.)
Prather, "Are you going crazy? You ought WITNESSES C277 (2) CROSS-EXAMINA- to be ashamed of yourself.” TION OF ACCUSED-SCOPE.
The deceased made a dying statement to On a trial for murder committed by an inmate of the state penitentiary, where the defend the warden of the penitentiary in which he ant, testifying in his own behalf, volunteered stated that he and Prather had had no seri. the statement that he was serving a life term, it ous difficulty, but that a few days before was competent on cross-examination to show the this cutting, Prather had intimated to him nature of the crime for which he was then serve that he intended to kill one Boyd, who was ing such term. 2. CRIMINAL LAW Ow338(1)—FIXING OF Pun- then one of the yard guards at the peniten
· MATTERS OF MITIGATION OR AG- tiary. Ross, the deceased, said he remonstrat. GRAVATION-STATUTE.
ed with Prather, and attempted to get him Where the jury assesses the punishment, to refrain from any such conduct as that, matters to be considered in mitigation or aggravation of the punishment may be properly re- advising him it would be best to have a good ceived in evidence on the trial."
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 deamination, and, having volunteered the statefense was that he stabbed Ross in order to ment that he was a life termer in the peniprotect himself from an assault about to be tentiary, it became competent for the state committed by Ross with a knife. He claims on cross-examination to inquire into the nathat Ross had threatened to kill him for re- ture of the crime for which he had been prevenge, because some other negro about the viously convicted and sentenced. It has been color of Prather had previously murdered repeatedly held by this court that such is a his brother. When the deceased was taken proper inquiry to affect the credibility of any to the hospital immediately after the stab- witness including a defendant. McDaniel v. bing, no weapon of any kind was found upon State, 8 Okl. Cr. 209, 127 Pac. 358; Slater v. his person. The knife used by the defend- | U, S., 1 Okl. Cr. 275, 98 Pac. 110; White v. ant was found concealed in the toilet in the State, 4 Okl. Cr. 143, 111 Pac. 1010; Fowler cell. The defendant at the time of this occur- v. State, 8 Okl. Cr. 130, 126 Pac. 831; Manrence was serving a life term for murder. ning v. State, 7 Okl. Cr. 367, 123 Pac. 1029. The deceased was serving a 16-year term for  But we believe it was also competent assault with intent to kill.
in this case to establish the status of the deCad Mathis, of McAlester, for plaintiff in fendant as a prisoner in the penitentiary. If
S. P. Freeling, Atty. Gen., and R. he was then serving a term of life imprisonMcMillan, Asst. Atty. Gen., for the State.
ment, it would be no punishment for him for
the jury to assess another penalty of life imMATSON, J. (after stating the facts as
prisonment, or any other punishment less
than death. Section 2319, Revised Laws 1910, above).  It is first contended that the
is as follows: court erred, over the objection and exception of counsel for defendant, in permitting the death, or imprisonment at hard labor in the
“Any person convicted of murder shall suffer county attorney, in the cross-examination of state penitentiary for life, at the discretion of the defendant, to ask him concerning a for- the jury.. Upon trial of an indictment for murmer conviction for murder committed in Okla- der, the jury, if they find the defendant guilty, homa county. The record on this assign- be punished by death or imprisonment for life
must designate in their verdict whether he shall ment is as follows:
at hard labor, and the judgment of the court "Q. Charley Ross just had 10 or 15 years shall be in accordance therewith. But upon a ahead of him, didn't he? A. Sir? Q. Charley plea of guilty the court shall determine the Ross wasn't a lifer? A. No, sir; doing 16 same." years. Q. You said a while ago you were in
Section 5954, Id., provides: there for life? A. Yes, sir. Q. For killing a white man in Oklahoma county?
"After a plea or verdict of guilty in a case "Mr. Mathis: Object.
where the extent of the punishment is left with “The Court: You have a right to show he the court, the court, upon the suggestion of eiwas convicted.
ther party that there are circumstances which “Mr. Mathis: Yes, sir; but not the circum- may be properly taken into view, either in agstances.
gravation or mitigation of the punishment, may "The Court: Q. You were charged with and in its discretion hear the same summarily at a convicted of murder? A. Yes, sir.
specified time and upon such notice to the ad“The County Attorney: Q. In Oklahoma verse party as it may direct." county? A. Yes, sir. Q. You were sentenced
It is apparent from the foregoing provito be hung?
"Mr. Mathis :. Object to that as incompetent, sions of our statutes that the punishment for irrelevant, and immaterial, and doesn't tend to murder is either death or imprisonment in prove any issue in this case. The Court: I think he can ask him if he was where the defendant stands trial, it is neces
the state penitentiary at hard labor for life. convicted for murder and sent to the penitentiary for life.
sary for the jury to designate in the verdict, "The Court: Q. What was your sentence? if that be one of guilty, what the punishment A. I was sentenced to death.
shall be, and the judgment of the court must “The County Attorney: Q. That was after be in accordance therewith. It is equally wards commuted, was it?
“Mr. Mathis: 1 except to all of that, and ask apparent that, if the defendant pleaded that it be stricken from the record.
guilty, the court must pass sentence, and "The Court: All of which? "Mr. Mathis: About bis being sentenced to to the circumstances surrounding the killing
may, before rendering judgment, examine indeath and about it being commuted.
“The Court: Overruled, because that is what and inquire into any proper matter which the sentence of the court was.
either tends to aggravate or mitigate the “The County Attorney:. Q. You say your sen. punishment that should be inflicted. The tence was commuted to life ? A. Yes, sir."
only necessity for the provisions of section It will be noticed that on his direct exami- 5954, supra, is that upon a plea of guilty nation, the defendant, in detailing the facts ordinarily no testimony is heard, and there and circumstances surrounding the difficulty fore without such statute the court would be with the deceased which ended in this fatal left wholly ignorant of the circumstances of stabbing, testified to the effect that he had a the crime, while on the other hand, upon a life sentence in the penitentiary, and had trial, matters in aggravation or mitigation of no way to get pardoned or paroled. It was the punishment may be properly developed. certainly competent, therefore, on the part of 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 "Where the jury assesses the punishment on case it was said of one of his previous revict of guilty, it is proper to ar'mit evidence
crimes: wbich goes only in mitigation or aggravation." Some states have gone so far as to pass find that the information sufficiently and cor
"Upon a careful examination of the record we statutes 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 written confession which details the facts of the
ord shows that said defendant made a voluntary 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, viary who commits murder while so imprison be, the defendant, with a 44-caliber revolver,
The record further shows that this 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 fel
when it was discharged. On cross-examination of such crime. Under the provisions of sec ony 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 is 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. We 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, bas 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  It is also contended that the trial state penitentiary was a proper subject-mat- court erred in overruling the defendant's ter of inquiry in this case independent of the motion for a new trial. Under this assignfact that he became a witness in his own ment, it is contended that the verdict of the behalf.
jury is not sustained by the evidence. There  It is also contended that the court per- appears to be no merit in this contention. mitted the county attorney to make certain While the evidence is conflicting, we cannot prejudicial remarks in his closing argument. sustain this contention. We do not mean to We have carefully examined the record with say that the evidence demanded a finding of relation to these remarks, a great part of the the particular facts which the jury found closing argument of the county attorney be were true; but, in dealing with the question ing embodied in the case-made. The argu- of whether or not there is sufficient evidence ment complained of related to the question to support a verdict, we are constrained to of punishment to be inflicted, and the county treat as duly established all facts warranted attorney in effect argued that the defendant, by the testimony of the witnesses for the having once been convicted of murder, given state, and to give the prevailing side the the death penalty, which was commuted to benefit of every inference favorable to it life, was a hardened criminal, that the fact which is fairly and legitimately deducible that he was now serving a life sentence had from those facts. This is the course hereto not been a deterrent for the commission of fore pursued by this court. Davis v. State, this crime, and that if the death penalty were 10 Okl. Cr. 169, 135 Pac. 438; Calvert S. not inflicted his natural inclination to murder State, 10 Okl. Cr. 185, 135 Pac. 737; Mag. would probably assert itself in the future. gard v. State, 9 Okl. Cr. 236, 131 Pac. 549; We think these inferences were properly Stephens v. State, 12 Okl. Cr. 90, 152 Pac. deducible from the evidence in this case. 138; Flowers v. State, 12 Okl. Cr. 320, 155 This was a case either of murder or justifia- Pac. 904. ble homicide, and the issue of fact having This is a capital case, and for that reason been decided by the jury against this defend the court has been painstaking in examinant, we assume as true the evidence on the ing, not only the contentions of counsel for part of the state which disclosed a deliber- defendant, but also has given the entire recate, willful, and premeditated homicide, and ord a very careful perusal. The instructions no intelligent or honest jury, under the cir- of the court were fair to the defendant, and cumstances disclosed by this record, would nowhere is it disclosed in the entire prohave been justified in returning a verdict ceeding that any matter which affected the assessing less than the most extreme penalty substantial rights of this defendant to his of the law.
prejudice was permitted to occur. This de This defendant is not unknown to this fendant has twice faced a jury of his peers court. His criminal conduct already forms a for the taking of human life, the first time
this time for the killing of a member of his We agree with the Court of Appeals that Own race. In both instances the verdict of the facts of this case do not justify a prethe jury has been that he shall suffer death. sumption that it was intended that the granThe mercy of the Governor in the first in- tee in the original deed should take title to stance had no effect to reform or restrain the central line of Cherry creek. The prohim, and although confined within the walls bate judge was a trustee, under the statute, of the state's prison, and under the eyes of for those who were actually occupying land the guards thereof, he was, by reason of his at the date the town site was entered, and, cunning, able to slay his cell mate as he re- as to them, only to the extent of such occuturned from his day's labor in the dusk of pancy. The rule invoked by plaintiff has no the evening, unsuspecting and unarmed. application to such a case. There is no di
The 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 countrial court were sustained by. competent evi. ty 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. The judgment is therefore affirmed, and
the cause remanded to the district court. DOYLE, P. J., and ARMSTRONG, J., con- Judgment affirmed.
(64 Colo. 141)
(87 Or. 543)
ANGUS v. HOLBROOKE et al.
(Supreme Court of Oregon. Feb. 26, 1918.) (Supreme Court of Colorado. Jan. 7, 1918. 1. MORTGAGES 3 -ABSOLUTE DEED. Rehearing Denied March 4, 1918.)
Giving a deed to secure a debt, and receiv
ing an agreement to reconvey on payment of PUBLIC LANDS Om39(5)—Town SITES-OCCU- the debt, make the transaction a mortgage, alPANCY OF LAND.
though the giving of a deed in satisfaction of Under the statute the probate judge was a trustee for those who were actually occupying ment to convey, would not constitute a mort
a debt, and at the same time receiving an agreethe land at the date the townsite was entered
gage. by him in the United States land office, and only
[Ed. Note.-For other definitions, see Words to the extent of such occupancy.
and Phrases, First and Second Series, MortEn Banc. Error to Court of Appeals.
gage.] Action by Ellen Eisenhart against the City 2. MORTGAGES OM 216—INJURY TO PREMISES
ACTION–TENDER. and County of Denver. Judgment for de
Where plaintiffs deeded land to secure a fendant was affirmed by the Court of Ap- debt, and defendant agreed to reconvey the land peals (27 Colo. App. 470, 150 Pac. 729), and in the condition in which received, it was not plaintiff brings error. Affirmed.
necessary to make a tender before suit for dam
ages, where defendant had committed waste and Hilliard, Lilyard & Finnicum and J. R. refused to restore it when demanded under the
terms of the contract. Allphin, all of Denver, for plaintiff in error. J. A. Marsh and G. Q. Richmond, both of Department 1. Appeal from Circuit Court, Denver, for defendant in error.
Hood River County ; W. L Bradshaw,
Judge. TELLER, J. This cause is before us on Action by F. W. Angus against Helen B. error to the Court of Appeals which affirmed Holbrooke and H. Morton Holbrooke, her a judgment the district court in favor of husband. Judgment for defendants, and the defendant in an action brought by the plaintiff appeals. Reversed and remanded. plaintiff in error to recover possession of The substance of the complaint in this acreal estate.
tion 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 agreeDenver, is placed in the bed of Cherry creek. I ment to the effect that they would preserve
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes