in need of money, loaned it a large sum, and received as security for repayment accounts against third persons guarranteed by the corporation, it is held, In re Cyclopean Co., 21 Am. B. R. 679, that he is entitled to such security against the trustee in bankruptcy, though with other creditors of the bankrupt he, without stating any amount, signs a so-called liquidation agreement for settling the indebtedness of the corporation.

BANKRUPT CONFINED IN HOSPITAL FOR CRIMINAL INSANE-Examination under section 7.In the case of In re Thaw (C. C. A, 3rd Circuit), 21 Am. B. R. 561, it has been held, that though under section 7 of the bankruptcy Act, 1898, it is the duty of a bankrupt to attend the first meeting of creditors, his attendance thereat may not be compelled by them as a right by a writ of habeas corpus ad testificandum, the granting of which is matter of discretion. It was further held that, where a person, while legally confined.in New York hospital for the criminal insane, was adjudicated a bankrupt in Pennsylvania, an order quashing a writ of habeas corpus ad testificandum to obtain his presence as a witness at the first meeting of creditors was, in the circumstances, properly quashed in the exercise of judicial discretion.

DOWER-Wife of Bankrupt Consented to Sale of the Real-Estate.—

Where a bankrupt's wife, in a letter to his trustees, authorizes them to apply to the court for leave to sell his real estate and pay her a sum named in settlement of her dower interest, it is held in Matter of Acritelli (D. C., N. Y.), 21 Am. B. R. 537, the real estate may be sold free from her inchoate right of dower.

CURRENT DECISIONS OF THE CRIMINAL COURT

OF APPEALS OF THE STATE OF OKLAHOMA.

TOM PHILLIPS, Appellant.

VS.

THE UNITED STATES, Appellee.

NO. 70

Appeal from District Court of Pittsburg County. Hon. P. B. Cole, Trial Judge.

Affirmed.

First. When the case-made does not contain a copy of the instructions of the court to the jury, a statement contained in a motion for a new trial, purporting to give such instructions, will not supply the omission, and alleged error in the instructions given or to the refusal of the court to give instructions requested, will not be considered on appeal.

Second. (a) The rule is that when there is any evidence in the record from which the jury could legitimately draw the conclusion of guilt, a conviction will not be set aside upon the ground that the verdict is not supported by the testimony.

(b) When a person fires a gun into a crowd, not caring who he may kill, with the intention of killing some one of them, it is an assault with intent to kill each one of them.

(c) For facts constituting an assault with intent to kill when the defendant fired a Winchester into a crowd although no specific intention was proven to kill the particular person who was wounded by such shot, see facts stated in the opinion.

(Syllabus by the Court.)

A. S. McKinnon, Attorney for Appellant,

Chas. Moore, Assist. Attorney-General, for Appellee.

STATEMENT OF THE CASE.

On May 7th, 1907, Tom Philipps, (hereinafter called the defendant), was indicted by the grand jury of the Central District of the Indian Territory, sitting at South McAlester, for assault to kill. The case was transferred to the district court of Pittsburg County, upon the incom ing of statehood. The defendant was tried and convicted on said indictment in said state court, and the case is regularly before us on appeal.

Opinion of the Court by

FURMAN, Presiding Judge:

First. The case-made does not contain the instructions of the court to the jury.

The motion for a new trial does set out what is claimed to be the instructions given. From the high character of the counsel for the defendant, we are satisfied that the instructions were copied correctly in the motion for the new trial, but we are without power to consider any objections to the instructions given or to pass upon the instructions requested and refused unless they appear properly in the record. It would be a most dangerous precedent to establish to pass upon such questions as these from statements contained in a motion for a new trial. The instructions themselves should be incorporated in the case-made, or presented by a transcript of the record, and it must appear by the certificate of the judge or the attestation of the clerk that they are a true and correct copy of the instructions given, or requested and refused, as they appear of record in the trial court. Owing to this defect in the case-made, we cannot pass upon any question relating to the instructions given or to the instructions requested and refused.

Second. The only question we can consider is as to the sufficiency of the evidence to sustain the verdict. The following is a condensed statement of the evidence introduced upon the trial:

"Defendant married the daughter of Ben Thompsonthey had been separated for several months-the defendant then living with Man Hatridge about two and one

half miles from Thompson's-that on Saturday evening, Jan. 26, 1907, a number of young people assembled at said Thompson's residence, near Blanco, now in Pittsburg county, Oklahoma, to have an Indian dance-all being Indians-some eight visitors, defendant among them all took supper and then built a fire in the yard, and began to dance; that the defendant lead the dance. Thompson had four children, three girls and one boythe youngest, Maggie, 13 years old-all of whom were at the dance-that about 8 or 9 o'clock, a boy named Silman Moore, who was in the dance, said in fun, "I am about drunk”-defendant said, "Is it?" and when Moore came around defendant struck him very hard in the breast with his fist. Thompson came out and said to defendant, "I wish you did not have anything like that, I want it to have all the fun you can." Defendant shook his head and went off-about midnight the dancers were in about half circle holding hands dancing around the ring when a gun fired about 30 yards away, Maggie 'hollored" and sat down-her older sister was holding her hand and looked around and saw defendant going away Both bones of Maggie's right leg were broken just below the knee, by a gun shot, Silman Moore was beyond Mag gie from where the gun fired and a little to her left-defendant had some week or ten days before this bought a thirty-eight 'Winchester' rifle of Pane Wood, who lived about a mile and a quarter from Thompson's and left the gun with Wood until he would call for it-he went that night to Wood's house to get the gun about 10 o'clock, and Wood asked if he had been or was about to get in trouble, and he said no, that he wanted to kill a wolf the next morning-the next morning defendant carried the gun back to Wood's before sun up, said he did not go home that night-defendant went to his home at Man Hatridge's on Sunday evening, and in the first part of the week Hatridge heard that they were making up a mob and were going to mob defendant and he told him if he was guilty he had better be hitting the road or he was going to get into it-defendant said he was sorry and would not have done the shooting except that he was

drunk, that he drank one or two bottles of Peruna Saturday evening-that he would pay all doctor's bills and expenses,-Maggie Thompson testified that she and defendant were friendly at the time of the trouble."

The rule is that where there is any evidence in a case from which the jury could legitimately draw the conclusion of guilt, a conviction will not be reversed upon the ground that the verdict is not supported by the evidence.

If the woman shot had died, beyond all question it would have been murder under the United States law, then in force in the Indian Territory. The contention that the defendant was so drunk as not to know what he was doing and that he was incapable of forming any intention to kill, is without support in the evidence. The only testimony which even suggests the idea is the selfserving declaration made some days later, that he was drinking, and the statement that he was sorry This evidence was clearly incompetent and should not have been admitted. Every criminal is sorry when he finds that he will be prosecuted for his crime. No one who was with the defendant the night of the shooting testified that he was drunk. The defendant left the dance and went a mile and a quarter after the gun, with which he did the shooting, and upon being asked if he was about to get into trouble, said 'no,' but he wanted to kill a wolf the next morning. These things show conclusively that the defendant knew what he was doing, and that he acted with deliberation and was so bent on his deadly purpose as to divert suspicion from his intention, so as to prevent interference which might prevent its accomlishment. No man who is so drunk as to lessen his responsibility for what he does ever acts in this way. There is no escaping the conclusion that the defendant was legally responsible for his conduct when he fired the shot for which he is now being prosecuted. The defendant deliberately fired a winchester into a crowd, who were bent only on enjoying themselves. He did not care who he killed. Under the common law, which governed in murder cases in the Indian Territory at the time of the commission of this offense, this act would have constitut