CRIMINAL COURT OF APPEALS

OF THE STATE OF OKLAHOMA.

ALF HUNTER, Alias James Kingsbury.

VS.

THE STATE OF OKLAHOMA.

Case No. 439.

1. Where a writ of Certiorari is used to complete the record on appeal, by adding thereto the examination of the trial jurors on their voir dire, and it appears that the case-made was settled without suggesting this amendment, the application will be denied.

2. An application for leave to withdraw plea for the purposee of filing demurrer is properly denied, where no demurrer is presented and no defect in the indictment is pointed out.

3. The defendant having entered a plea of not guilty, when the case was called for trial asked leave to withdraw his plea for the purpose of presenting a motion to set aside the indictment, which motion alleged mere conclusions of law and was not verified. HELD, That where it is plain that substantial justice will not be promoted, nor the substantial rights of the defendant prejudiced, the application for leave to withdraw the plea should be denied. The application was addressed to the discretion of the trial court and was properly overruled.

4. When the case was called for trial, defendant filed an unverified motion for continuance on the sole ground that his counsel had not sufficient time to prepare for trial. The offense was committed on June 5th, 1908, the defendant was arrested sixteen months later; was arraigned, plea entered, and the case by consent set for trial a week later. HELD, It is apparent from the nature and character of the case, as shown by the record that

the defendant had ample time to prepare for trial, and that this ground was not sufficient.

5. Evidence which is relevant to the issue by tending to explain or characterize the act in question on a criminal trial is not incompetent or inadmissible because it also tends to prove the accused guilty of another crime. 6. The court did not err in refusing to give instructions based upon a theory that there was no evidence to support.

7. The instructions in the case reviewed and found to be more favorable to the defendant than the law demands (Syllabus by the Court.)

OPINION of the Court by DOYLE, Judge.

REN WOOD, Plaintiff in Error

vs. STATE OF OKLAHOMA, Defendant in Error.
Filed March 8th, 1910.
Case No. 147.

1. It is well settled in this state that a person charged with a felony, may be tried in a court having jurisdiction of such offense by information, having first had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

2. It is not necessary for an information charging a felony to allege that defendant has had a preliminary examination before an officer authorized by law to hear the same and has been bound over to await final trial thereon, or has waived such examination.

3. A charge in an information that "W", on the 4th day of April, 1908, had a preliminary examination on said charge before "I", a duly elected, qualified and acting magistrate of Roger Mills County, State of Okla. homa, and he the said "W", was by "I", on the 4th day of April 1908, committed and held in the common jail of said county and state to await the action of the District Court on said above charge, is not in conflict with that portion of Art. 19 of the constitution of the State which provides "All indictments, informations and complaints

shall conclude 'Against the peace and dignity of the State'", but is a matter wholly foreign and irrelevant to the information and may be treated as surplusage. 4. A challenge to a petit jury panel must be predicated on facts from which defendant has suffered material injury.

5. While it is the duty of a trial court when a challenge to a petit jury panel is presented to it, to try the issue of facts, when the same is properly denied, yet it is not error for the court to overrule such challenge where it fails to state facts sufficient to justify the court in discharging the jury, if true.

EDITORIALS.

Judge D. A. Richardson of Durant, has been appointed to fill the place made vacant in the Criminal Court of Appeals, due to the resignation of Judge Owen. Judge Richardson has always been considered one of the very strong District Judges of the State, and we deem his selection to the bench of the Criminal Court of Appeals a happy one.

Governor C. N. Haskell, has issued a proclamation for a special election on the 11th day of June, 1910, for the purpose of permanently locating the Capitol.

Judge David J. Brewer, of the Supreme Court of the United States, died last night (March 28th, 1910,) as a result of a stroke of apoplexy. He died almost instantly.

MOORE on FACTS, continues to receive not only the fullest appreciation from the Profession, but from the legal periodicals. An able attorney a few days ago said, "I never knew my power as a trial lawyer until I began to study this work."

Send us your check for a set of this great work. It sells for $12. You need it. It will add fifty per cent to your case winning capacity.

REVIEWS.

WALD'S POLLOCK ON CONTRACTS.

By Samuel Williston, Professor of the Law of Contracts. Published by Baker, Voorhis & Company,

New York.

This work is now printed in one large volume containing eleven hundred and forty pages. and is the third American from the seventh English edition of the celebrated author Sir Fredrick Pollock. The fame of Sir Pollock is world-wide and since William Blackstone, perhaps no other English law writer has so forcibly impressed the profession. His opinions on legal topics are cited by all legal writers; and the fact of the universal esteem for him has been sufficient incentive to enlist such eminent writers as Wald and now Professor Williston, to bring this work down to date and adapt it to the needs of the American practitioner. While Addison, Parsons, and later the exhaustive treatise of Page is in the field, this work as a one volume book, for convenien. ce, conciseness and completeness will attract universal attention of the Bench and Bar. It is systematic, orderly and logically arranged into 14 chapters. The first of these discusses Agreement, poised, as it were, and balanced by its essential elements-proposal and acceptance as a key stone to the whole, which exihits to the intelligent reader the work of a master-mind; this is followed by the other three important elements in the composition of the great compound we call a contract-capacity of parties, consideration and form of the contract. The 5th, 6th, 7th, and 8th, chapters follow each other in the same orderly way unfolding the law and exhibiting the principles upon which it rests, making this book not only most desirable to student but valuable and indispensable to the trial lawyer, either in office or court room. The notes as well as the text have been brought down to date, English and American, and so appended to each subject as to fully illucidate the application of the law, as it is, clear and pointedly; making this book as one volume work the most useful before the profession.

The many friends of Supreme Court Judge, S. W. Hayes will learn with deepest sorrow of the death of his estimable wife and feel the sincerest sympathy at the Judge's great loss. The daily papers have justly and deservedly spoken of her beautiful life and little can be added that has not been truthfully told of this good and lovable wife, mother and christian lady, whose loss is felt by all who knew her. To her heart-broken husband, though sympathy runs as deep as the ocean, words fail in power to soothe so severe and unexpected blow; and aside from the hope of an eternal reunion, we can only recall to him the beautiful lines of the poet which so appropriately fit her case:

She died in beauty, like a rose blown from its parent stem:
She died in beauty, like a pearl dropped from some diadem:
She died in beauty, like a song along a moon lit lake:
She died in beauty, like the notes of birds amid the brake:
She died in beauty, like the snow on flowers dissolved away:
She died in beauty, like a star lost on the brow of day:--
She lives in glory, like Night's gems set round the silver moon;
She lives in glory, like the sun amid the blue of June.

A LAW PRACTICE.-Every experienced lawyer will corroborate the statement that however.well equipped an attorney may be in legal and literary attainment, that the growth and development of a law practice is of slow growth. In a sense, they cannot advertise themselves into business as do merchants. Inconsistent as it may seem they have to show victories before they can get cases. However, while the above is true, occasionally opportunities present themselves where by force of circumstances an established and well qualified lawyer has to surrender the labor and accumulation of years of industrious toil into which a proper and suitable new attorney to the locality can slip in and secure that which otherwise would have cost him several years of his best concentrated efforts. Such an opportunity is at this time presented by an ad entitled a "Practice and Library for Sale" in the third ad page of this Journal. As there gathered from the ad Mr. Hunt offers to sell not only the library