that without this incompetent testimony, the jury would have found the verdict for the state; this testimony may have made the complement of proof which satisfied their minds. In that case, plaintiff in error would have been convicted upon illegal evidence. Again, it is contended that the court erred by propounding to the witness Hal Buie a series of questions relative to a conversation had by the trial judge with said witness. It appears from the record that witness Buie testified that he made a written statement, implicating plaintiff in error, between the time of his conviction and before he was sentenced, at the instance of the sheriff and the county attorney, and that he talked with the trial judge at that time in their presence. The record then recites: EXAMINATION BY THE COURT: Q. You sent word by Mr. Trammel and Mr. Grim that you would like to talk to the court? A. Yes, sir. Q. You were carried to Mr. Grim's office for that purpose? A. Yes, sir. Q. Didn't I tell you that if anybody else was in this offense, that we wanted them all? A. I believe that is the way it was mentioned. Q. If you knew any facts that would esfablish the guilt of any one else, why, you could tell them to Mr. Trammel and Mr. Grim? A. Yes, sir. Q. That we didn't want any untruth; didn't want any foolishness? A. That is the way you expressed it, didn't want any foolishness. Q. I told you that the Court had heard the evidence; that from the nature of it, it established the fact that you was the leader in the robbery A. That is what you said; you said that you intended to give me the full extent of the law, which would be fifty years. Q. The evidence showed that you was the leader and that I intended to give you fifty years? A. Yes, sir. Q. But if you knew any facts and would tell them to the officers and substantiate them by the evidence, that I would take that into consideration in fixing your punishment? A. You did; yes, sir. Q. Then I told you to go ahead and talk with the officers? A. Yes, sir, and left the room." By this series of questions and the answers thereto, it would seem that the learned trial judge unintentionally indicated to the jury that the witness was worthy of belief, because in his conversation with him he admonished him that the officers wanted no untruth. In Hicks v. U. S. 2 Okla. Cr. 626, 103 Pac. 873, Furman, Presiding Judge, delivering the opinion of the court said: "Trial courts cannot be too careful and guarded in their courts to avoid allowing the juries to discover the opinion of the judge as to the weight of the evidence and the credibility of the witnesses. No judge has the right to throw his opinion as to the credibility of any witness for the state or the defendant as a firebrand into the jury box. 'Absolute fairness to all who have business here' should be written over the portals of every court in Oklahoma; and this principle should control every action and every ruling of our trial courts." In the case of Murphy v. State, 58 S. W. 967, the Court of Criminal Appeals of Texas says: “Judges are as much judges for the defendant as for the state, and are supposed to sit fairly and impartially between the rights of the State, on the one hand, and the defendant, on the other. To become a partisan either for the state or defendant is to desert the high position to which the judge is elevated, and assume the role of the advocate.” We cannot say that the jury was not inflenced by this series of questions to the prejudice of the defendant. Again, it is contended that the court erred in its charge to the jury, and particularily in mis-stating the issue. The part of instruction number eight complained of is as follows: 66✯ ⭑ and satisfy your minds to a certainty, and beyond a reasonable doubt, that Charley Koontz and Hal Buic, alias R. F. Graham, on or about the 19th day of November, 1910, in Roger Mills County, in the State of Oklahoma, robbed the Cotton Exchange Bank, in the town of Crawford, and that the defendant, Dave Koontz, aided and abetted the said Charley Koontz and Hal Buie, alias R. F. Graham, in the commission of said offense, then you are instructed that the law regulating the competency and character of circumstantial evidence will be satisfied, and in that event the said Dave Koontz was and is equally guilty with the said Charley Koontz and Hal Buie, alias, R. F. Graham, as a principal in the commission of said offense, although he may not actually and personally have been present at said bank at the time of the robbery thereof." Instruction No. 11, is as follows: "And if you further believe from the evidence, beyond a reasonable doubt, that the defendant, (Continued on page 513.) CURRENT DECISIONS OF THE SUPREME COURT OF OKLAHOMA, J. H. BRAKE, Plaintiff in Error, VS. W. S. BLAIN, Defendant in Error. (Rendered March 24, 1914.) No. 3066 Error from Superior Court of Pottawatomie County. Geo. C. Abernaty trial Judge. Reversed and Remanded. 1. Where in a case of an entry upon the public lands by a homesteader who has made proof before a local land office of the government and has paid for the same, and his certificate of purchase and proofs forwarded to the commissioner of the general land office and such officer rejected the proofs and cancelled the filing by said. homesteader. It is HELD that any sale or contract of alienation of said land by the entryman is void as being against public policy. 2. The consideration mentioned in the deed from the homesteader to another, being an instrument they had no right to make, cannot form the basis of a suit for damages. (Syllabus by the Court.) J. H. Miley & J. H. Woods, for Plaintiff in Error. Opinion of the Court by RUSSELL, J. The plaintiff in error, defendant below, owned a homestead filing consisting of 160 acres of land in Cimarron County, and for which he had paid to the government land office the full sum required of him and received a receipt and certificate therefor from the Register. W. S. Blain, the defendant in error, lived in Pottawa tomie County and owned a farm upon which there was a mortgage indebtedness of $2300.00. These two persons began negotiations to exchange farms. Brake's certificate was issued to him on September 23, 1909, and is as follows: "It is hereby certified that in pursuance of law, James H. Brake, residing at Bertrand, Cimarron County, State of Oklahoma, on this day purchased of the register of this office, the S. E. 4 of Section No. 33, in Township No. 1 N. Range 4 East Cimarron, the principal meridian, Oklahoma, containing 160 acres, at the rate of one dollar and twenty five cents per acre, amounting to two hundred dollars, for which the said James H. Brake, has made full payment as required by law. Now therefore be it known that, on presentation of this certificate to the commissioner of the general land office, the said James H. Brake, shall be entitled to receive a patent for the above lot described. George D. Owen, Register." Before Blain saw the farm of Brake, yet while the certificate was before them they entered into the followins, sometime between October 12th and 20th, 1909, which we will designate as Contract "A": "This agreement made Between J. H. Brake and W. S. Blain, both of Shawnee, Oklahoma. W. 8. Blain agrees to trade the northeast one quarter (4), Section thirty three (33), Township ten (10), Range three (3) East in Pottawatomie County Oklahoma, for the southeast quarter (4) Section thirty-three (33), Township one (1), Range four (4) East, in Cimarron County, Oklahoma, as follows: J. H. Brake assumes mortgage now resting on land in Pottawatomie County of twent-three hundred ($2300.00) dollars, and deeds his land named in Cimmarron County If, however, the deed is not good and the final proof of the said J. H. Brake is not passed on favorably by the |