. v.

sufficient to charge murder. If the defendant J., who presided at the trial, below, not sitcan be said to have been prejudiced, it can ting, and IRWIN and GARBER, JJ., abonly be claimed upon the theory that the le- sent. tendant was tried for a higher degree of homicide than that of which she was found guilty. No one would claim that that fact alone

(19 Okl. 345) prejudiced her. If so, then it would preju

SPAI'LDING MFG. CO. V. KENDALL,

Treasur, et al. dice a defen:lant to charge him with murder, if the evidence on the trial only establish

(Supreme Court of Oklahoma. Sept. 5, 1907.

Rehearing Denied Oct. 12. 1907.) en manslaughter. Such is not the law. The

1. TAXATION PROPERTY SUBJECT. rule is that where one is on trial for a

Personal property, assessed in another state crime which is divided into degrees, and a

on January 1st of a given year, and brought in court commits error in instructing the jury and acquiring a situs in this territory prior to upon the law applicable to the higher degree

the 1st day of March of the same year, is as

sessable and liable for taxes for that year in of such crime, but properly iustructs the

Oklahoma. jury as to the lower degree, and the jury re

2. SAME. turns a verdict of guilty of the lower degree, The territory has the right to tax property the defendant cannot complain. One can

brought into the territory for the same year that

it has paid taxes in another state or territory. only complain of error which may have af

(Srllabus by the Court.) fected his rights. The following cases support the law' as stated: State v. Grote, 109 Error from District Court. Roger Mills Mo. 345, 19 S. W. 93; State v. Keeland, 2 County; before Justice Clinton F. Irwin. Mo. 337, 2 S. W. 4+2; People v. Nichol, 3+ Action by the Spaulding Manufacturing Cal. 211; Gant v. State, 115 Ga. 20.7. 41 S. Company against W. D. Kendall, treasurer, E. 698: State r. Castello, 62 Iowa, 404, 17 and S. A. Elliott, sheriff. Judgment for deN. W. 605; State v. Richardson, 17 S. C. 18, fendants, and plaintiff brings error. Ar24 S. E. 1029; Jacksou v. State, 91 Wis. 2013, firmed. 64 N. W. 838. In 12 Cyc. p. 931, it is said

D. B. Welty, for plaintiff in error. that error in instructions as to a higher degree of crime is harmless, where the defend

DI'RFORD, C. J. On the 1st day of ant is convicted of the lower degree. To the

March, 1903, the Spaulding Manufacturing same effect are the following cases: Colvin

Company, of Grinnell, Iowa, was the owner v. Commonwealth, 22 Ky. Law Rep. 1407, (il)

of a stock of vehicles, buggies, and carriages S. W. 701; Stephenson v. State Tex. (°r.

('

in Sayre, Roger Mills county, Okl., and said App.) 24 S. W. 645; Blackwell v. State, 33

property was assessed for the year 1903 in Tex. 278, 26 S. W. 397; Rutledge v. State

that county. By the laws of the state of (Tex. Cr. App.) 33 S. W. 317; McCarty v.

Iowa such property is assessable for taxaState (Tes. Cr. App.) 58 S. W'. 77; State r.

tion as of the 1st day of January of each Stockwell, 106 Mo. 36, 16 S. W. SSS; State y.

ye:ir. The property in question, with other Gates, 130 Mo. 351, 32 S. W. 971; People property, was assessed in I'oweshiek county, v. Boling, 83 Cal. 380, 23 Pac. 421.

Iowa, for the year 190.), before it was reIt is next insisted that the trial court err

moved to Oklahoma, and at the time of the ed in admitting in evidence testimony regard- trial the first half of the taxes had been ing a conversation between the defendant

paid for 190J in the state of Iowa. The ind her daughter after the homicide. The

plaintiff in error claims exemption from taxtestimony was that the witness heard the de

es on its property in Oklahoma for the year fendant say that she shot the deceased, and 190., for the reason that it has been assessed the defendant's daughter asked her mother and is liable for taxes on the same property why she killed the deceaser, to which the for the same period in another state. This defendant replied that she had to, and the is the sole issue in this case. The district dlaughter then said to her mother, Yo, mam- court of Roger Mills county held that the ma, you didn't have to." The record fails to property was liable for taxes, and rendered show that the defendant made any reply to judgment against the plaintiff in error for this statement. The jury were entitled to costs; hence this appeal. have the whole conversation, and then de- Our rerenue laws (sertion 3:31, Wilson's termine, from the whole of it as to whether Rev. & Ann. St. 1.903) require that "all taxor not any portions of it were admissions on able property, real and personal, shall be the part of the defendant against her inter- listed and assessed each year in the name est. The counsel for the defendant could of the owner thereof on the 1st day of March have shown any reply which the defendant i of each year, as soon as practicable on or may have made to the statenient of her after the first Monday in March, including daughter, but they did not see fit to inquire all property owned on the 1st day of March further as to the conversation. It was prop- of that year.” Under this statute the properly admitted

erty in question was assessable for the year The evidence supports the verdict and the 1990.7 in Roger Mills county, and there liable judgment is hereby affirmed. All of the for taxation. ('ounsel for plaintiff in erro! Justices concurring, except BURFORD, C. contends that, if the property in question

is at all liable for taxes in Oklahoma, it, overruled, to which action the defendant at must be under section 5919, Wilson's Rev. the time duly excepted, declined to plead fur& Ann, St. 1903, which is a part of what is ther, and elected to stand upon the demurrer. known as the “transient property act” of Thereupon the court entered judgment upon 1895, and herein lies the error of his posi- the pleadings in favor of the plaintiff and tion. That law only includes transient prop- against the defendant to recover the posseserty which is brought into the territory aft- sion of the land, as prayed for in the petier the 1st day of March and before the 1st tion, from which ruling and judgment, the day of September of any year; that is, after defendant brings the case here for review the time for assessment under the general on a certified transcript of the record. law has expired. This property was in the There was no error in overruling the deterritory and had acquired a situs prior to murrer to the petition, since the court had the 1st day of March of the year in which jurisdiction of the subject-matter of the acit was assessed, and comes within the pro- tion, and the petition stated facts sufficient visions of the regular revenue laws. In the to constitute a cause of action for the recase of Collins et al. v. Green, 10 Okl. 244, covery of real estate under our Code. 62 Pac. 813, Mr. Justice Burwell, speaking the question of jurisdiction of the subjectfor the court, said: "A state or territory has matter of the action, the case of Burke v. the right to tax property brought into it, Malaby, 14 Okl. 050, 78 Pac. 105, is decieven though such property may have been sive, in which case it was held that "an actaxed for the same year in the state or ter- tion affecting an interest in real estate in ritory from which it came. The proposi- this territory, where the real estate is sittion is too well settled by decisions and text- uated in one county and the defendant rewriters to admit of discussion.” This is sides in a different county, must be institutthe established law, and is applicable to this ed in the county where the defendant recase, and decisive of it under the facts ap- sides.” In this case the defendant resided pearing in the record. The questions ar- in Logan county, and the right of the plaingued and authorities cited by counsel in his tiffs' action depended upon the interpretabrief have no application to the case made tion of an antenuptial marriage contract. by his proof.

We therefore hold that the court had juThe judgment of the district court is af

risdiction of the subject-matter of the acfirmed, at the costs of the plaintiff in error.

tion, and that the petition stated facts suffiAll the justices concur, except IRWIN, J., cient to constitute a cause of action, and the trial judge, not sitting.

defendant's demurrer was therefore properly overruled.

The judgment of the court below is af(19 Okl. 589)

firmed. MOULDIN V. RICE et al. (Supreme Court of Oklahoma. Sept. 5, 1907. Rehearing Denied Oct. 12, 1907.)

BURFORD, C. J., who presided in the VENUE-ACTION TO RECOVER REAL ESTATE.

court below, not sitting. All the other JusBy virtue of section 10 of the organic act tices concurring, except IRWIN, J., absent. of this territory, an action to recover the possession of real estate must be instituted in the county where the defendants or either of them reside or may be found.

(19 Okl. 496) [Ed. Note.-For cases in point, see Cent. Dig.

COOPER v. TERRITORY. vol. 48, Venue, $ 7.]

(Supreme Court of Oklahoma. Sept. 20, 1907.) (Syllabus by the Court.)

1. CRIMINAL LAW-TESTIMONY OF ACCOMPLICE Error from District Court, Logan County;

-CORROBORATION.

One accused of a crime cannot be convicted before Justice John H. Burford.

upon the uncorroborated testimony of an acAction by L. M. Rice and others against complice, and the corroboration required must George W. Mouldin. Judgment for plaintiffs.

be the proof of substantial facts tending to in

criminate the accused, aside from and without Defendant brings error. Affirmed.

the aid of the testimony of the accomplice. Devereux & Hildreth, for plaintiff in error. [Ed. Note.-For cases in point, see Cent. Dig. Cotteral & Hornor, for defendants in error.

vol. 14, Criminal Law, $$ 1124-1128.]

2. SAME-WEIGIIT OF EVIDENCE. PER CURIAM. This was an action Where there is competent corroborating evibrought in the district court of Logan coun

dence tending to connect the accused with the

commission of the crime charged, the weight of ty by L. M. Rice, S. T. Rice, and Estalla

such evidence is a matter for the jury; but, Bradford against George W. Mouldin, a resi- where the corroborating evidence is of such an. dent of Logan county, to recover the posses

uncertain and unsatisfactory character as not sion of a quarter section of land situated in

to warrant a reasonable inference of guilt, the

court should set aside the verdict. Garfield county, Okl. To this petition the de

[Ed. Note.-For cases in point, see Cent, Dig. fendant interposed a demurrer, on the ground | vol. 14, Criminal Law, $8 1713–1721.] that the court had no jurisdiction of the sub- (Syllabus by the Court.) ject-matter of the action, and because the petition failed to state facts sufficient to con- Error from District Court, Comanche Counstitute a cause of action. This demurrer was ty; before Justice Frank E. Gillette,

Charlie Cooper was convicted of horse a disputed question as to whose belt it was. stealing, and brings error. Reversed and re- He also testified that Charlie Cooper wore manded.

boots on the night of the larceny with tacks Al J. Jennings, for plaintiff in error. P.

in the soles. Dave Ellis testified to subC. Simons, Atty. Gen., and Don C. Smith, stantially the same state of facts, admitted Asst. Atty. Gen., for the Territory.

that he and Harry Cooper went away from the Cooper place first, and afterwards met

the other three, Charlie Cooper, John Pruitt, BURFORD, C. J. The plaintiff in error,

and Robert Ellis, and went together to the Charlie Cooper, was charged by indictment

Zach pasture, and stole the horses. He also jointly with Harry Cooper, Dave Ellis, and

testified that a glove which was found at Richard Ellis with the crime of horse steal

the place of the larceny was dropped by ing. The defendants Harry Cooper, Dave

Harry Cooper. Albert Dillon testified that Ellis, and Richard Ellis pleaded guilty to the

he lived about three-fourths of a mile south charge, and the plaintiff in error pleaded not

of the Zach place, and that he saw Harry guilty. He was tried to a jury, a verdict of

Cooper and Dare Ellis pass his place, going guilty returned, and sentenced by the judg

south, about dark. Charles R. Saunders tesment of the court to three years' imprison

tified that he was deputy sheriff and made ment in the penitentiary. The contention of plaintiff in error is that

the arrest of the plaintiff in error; that on he was convicted upon the uncorroborated

Tuesday after the larceny he went to Zach's evidence of accomplices. The defendants

place, and made an examination of the pas

ture and the fences; that he found where a were all boys residing in Comanche county, where the crime was committed. The horses

post was broken down and found horse stolen belonged to a German farmer named

tracks, and the track of a person at the point Andrew Zach, and were kept in a pasture

where the post was down; that in the tracks near his house. On Sunday night, November

of the person there were the imprints of 13, 1904, two of the horses were stolen from

nails in the sole of the shoe or boot; that the pasture, and were traced to near Foss,

the bottom was full of nails or tacks; that in Washita county, and there found in the

the track was about the size of a six or seven possession of John Pruitt and Robert Ellis.

shoe; that two or three weeks later he arThe evidence for the prosecution consisted

rested Charlie Cooper at his home, and that of the testimony of Andrew Zach, the owner

the boots he was wearing were boots that of the horses, John Pruitt, who testified that

would make about the sized track as the one he participated in the larceny, and had not

found in the Zach pasture, and that he had been indicted, Dave Ellis, a codefendant, who

the bottom of his boos full of nails. He pleaded guilty to the crime, C. R. Saunders, made no measurement of either the boots or the officer who made the arrest of the plain

the tracks, but estimated the size by putting tiff in error, Albert Dillon, a neighbor of

his own foot in the tracks. John Ellis, Zach's, and John Ellis, the father of the Ellis · father of Robert and Dave, testified that he boys who were implicated in the crime. The had seen Charlie Cooper frequently, and that witness Zach testified only as to the loss and he usually wore a belt, but that he had seen recovery of the horses. He gave no testi

him wear different ones, and he would not mony as to the parties charged with the state whether the one exhibited was bis or crime. John Pruitt testified that on the Sun. not. He also testified that his son Robert day the horses were stolen he and Charlie was then in the penitentiary for this same Cooper, Harry Cooper, Dave Ellis, and Rich-offense, and David was present as a witness ard Ellis entered into an agreement to stea! for the territory. some horses, and that, pursuant to this agree- Upon this testimony the territory rested, ment, they went to the pasture of old man The defendant then went upon the stand in Zach after night, and stole the two horses in his own behalf and testified: That Pruitt, question; that Charlie Cooper was present the two Ellis boys, and his brother Harry and assisted in catching the horses and in left his father's house about 12 or 1 o'clock taking them out of the pasture, and on the p. m. on Sunday, and that he did not go with road they were turned over to him and them. That he stayed at home until about Robert Ellis to take away and dispose of. 4 o'clock, when he went to Mr. Richardson's, He also stated that he and Charlie Cooper and stayed until about dark. He then reand Robert Ellis rode together to the place tur:ied directly home, and went to bed with where the horses were stolen, while Dave his brother George, who was in bed at the Ellis and Harry Cooper went another direc- time. That he had an intimation that these tion to look for some Indian ponies, but met boys were getting his younger brother, Harry. them again and they all were at the pasture into some difficulty, and after Harry Cooper when the horses were taken from the pasture. and Dave Ellis left he ordered Pruitt and He also testified that Charlie took off his Robert Ellis off his father's place. That be belt and put it on the neck of one of the found out they were going to do something. horses, and the belt was dropped and lost. but did not know what it was, and had nc This lost belt was found by Mr. Zach, and knowledge of the larceny until after it bewas produced at the trial, but there was came public. He also stated: That at the

time of the larceny he was wearing boots to be his by any of the witnesses, and there
with tacks in the bottoms, that no one ever was positive testimony to the effect that it
examined his boots after he was arrested. was not bis, while the tack prints could have
Harry Cooper testified that he was 14 years as easily been made by some of the guilty
of age, a brother of the accused; that he had criminals.
pleaded guilty to the charge in the indict- The law forbids the conviction of one ac-
ment. That he, Dave Ellis, John Pruitt, and cused of crime upon the uncorroborated evi
Robert Ellis stole the horses from the Zach dence of accomplices, and the corroboration
pasture, and that his brother, Charlie, was is not sufficient if it merely shows the com-
not present. That the belt and glove found mission of the offeuse or the circumstances
in the pasture were his, and that he was thereof. To warrant a conviction upon the
wearing them at the time of the larceny. testimony of an accomplice, there must be
That he had nails in the bottoms of his shoes, corroborating evidence tending to incriminate
and made the tracks testified about. He ex- the accused aside from and without the
hibited the shoes worn at the time, with tacks aid of the testimony of the accomplice. The
in the soles. That he and Dave Ellis left corroboration will not be sufficient if it tends
the Cooper home about 12 o'clock on Sunday merely to raise a suspicion as to the guilt
afternoon, and rode north to see about some of the accused. People v. Ames, 39 Cal. 403;
Indian horses. That, when they returned. People v. Warren, 39 Cal. 661; People v.
they met John Pruitt and Robert Ellis abou' Thompson, 50 Cal. 181. This court said, in
a mile north of the Cooper place with three Hill v. Territory, 15 Okl. 212, 79 Pac. 757:
horses, leading one and riding two. Robert "In a prosecution for burglary, where the
Ellis had left the horse be rode away in the evidence of an accomplice is corroborated by
afternoon, and was riding a gray horse. He other evidence which tends to connect the
left the others about 11 o'clock and returned defendant with the commission of the offense,
to his home and got there about 12 o'clock. the weight of such corroborating evidence is
It is seven miles to the Zach place, where the a matter for the jury. After verdict found
horses were stolen. George R. Cooper testi- based upon such evidence, this court will not
fied that he is a brother of the defendants, disturb the judgment." It must be under-
and lived with his father at the Cooper home. stood that what was there meant is that
He left home on Sunday morning and went there is some substantial evidence corrobo-
to visit an uncle six miles away, and re- rating the accomplice and tending to con-
mained until about dark: that he went to nect the accused with the commission of the
bed early and his brother Charlie came in offense; but, where the corroborating evi-
about 8 or 9 o'clock and went to bed with dence is of such a slight, uncertain, and un-
him; that the brother Harry and Dave Ellis satisfactory character as not to warrant a
came in after he had been asleep three or reasonable inference of guilt, the court should
four hours—he was unable to give the time, not permit a verdict to stand. We think the
but it was very late. He also identified the corroboratiny evidence in this case is of this
belt in evidence as belonging to his brother character, and it wils error to overrule the
Harry. W. A. Richardson testified that he motion for new trial.
is a farmer and lives in the Cooper neigh- The judgment of the district court is re-
borhood; that Charlie Cooper came to his versed and cause remanded, with directions
place on Sunday, the 13th of November, about to the district court of Comanche county to
3 o'clock in the afternoon, and remained there grant a new trial.
until about dark or until a little after. Ed-
ward Isbell testified that he lives about 111 All the Justices concur, except GILLETTE,
miles from Cooper's place; that he saw J., who triell the case below, not sitting, and
Charlie Cooper at Richardson's place on the PANCOAST and GARBER, JJ., absent.
afternoon of Sunday, the 13th of November,
between 5 and 6 o'clock. He also testified
that Charlie Cooper's reputation for truth

(19 Okl. 511)
and honesty was good in the neighborhood. METROPOLITAX RY. CO. V. MARTIN.
Mrs. S. J. Fulcher testified to the good repu- (Supreme Court of Oklahoma. Sept. 20, 1907.)
tation of Charlie Cooper for truth and hon- 1. APPEAL-REVIEW-QUESTIONS of FACT.
esty. William Naggs, a neighbor of the Coo- Where there is evidence in the case which
pers, testified to the good reputation of
,

reasonably tends to support the special findings

of the jury and the general verdict, the deriCharlie for truth and honesty. The forego

sion will not be reversell on a question of fact. ing testimony embraces all the substantial

[Ed. Yote.--For cases in point. see Cent. Dig. faits in evidence. No witness for the prose- vol. 3, Appeal and Error, $3928.1 cution, other than the confessed accomplices. 2. SAME-IXCOXSISTEXT FINDINGS. have in any way connected the accused with Where there is a reasonable theory, detbs commission of the crime, anil no witness

ducible from the evidence in the case, upon

which the special findings of the jury and their has put him in company with them at any

general verdict are sustained, the court will not ticie or place after they left the Cooper home. listurb the general verdict, because another Tie only facts relied upon as corroboration

theory may be drawn from the pridence with

which the special findings and the general verof the accomplices are the belt an tack

niet are inconsistent. The court will not examprints in the tracks. The belt was not shown ine the evidence with a view to ascertaining if

1

it is possible to evolve from the evidence a ing of the jury, the same will not be distheory upon which an inconsistency may be

turbed on a question of fact. At page 10 of discovered between the special findings and the general verdict.

the record, in the testimony of the plain[Ed. Note.-For cases in point. see ('ent. Dig.

tiff, Martin, he testities that after passing vol. 3, Appeal and Error, $$ 3753-3761.]

Sixteenth street he rang the bell, giving the (Syllabus by the Court.)

signal to the motorman to stop at the next

stopping place. He then. on approaching Error from District Court, Oklahoma

Seventeenth street, went out on the platform County; before Justice B. F. Burwell.

and told the conductor he wanted off. The Action by J. T. Martin against the Metro

conductor gave the motorman the signal to politan Railway Company. Judgment for

stop. He testified the place where he asked plaintiff, and defendant brings error. Af

to be allowed to get off was where he had firmed.

often been permitted to get off the car. This was an action begun by J. T. Martin testified the car did not stop at the usuai against the Metropolitan Railway Company place, Seventeenth street, but ran by at full in the district court of Oklahoma county on speed, and that the place where he was December 16, 1903. The petition claims thrown from the car was on a curve, and damages for personal injuries received by that the stopping place was on a curve. The the plaintiff by being thrown from a car of witness Davis, at page 67 of the record, testhe defendant by the negligence of the de- tified that the car was going at about the fendant in running their car at an unusual usual rate of speed. Now we think a fair high rate of speed around a curve, and run- inference to be drawn from the testimony of ning by the usual stopping place for passen- Davis that they were going about the usual gers after the signal had been given to stop, rate of speed would mean the usual rate of and that in consequence of such high rate speed between stopping places, and not mean of speed at that point, and the running by the usual rate of speed on approaching a stopthe usual stopping place, and the fact of the ping place, particularly where that stopping car going around a curve, caused the plain- place was on a curve.

place was on a curve. Now we think it will tiff to be thrown from the car and injured. not be seriously contended that if this car, To this petition defendant filed an answer, at the time of the accident, was approaching said answer containing a general denial of

a stopping place, and was on a curve, and the allegations of the petition, and also alle

was running at full speed, as testified to by gations of contributory negligence on the Martin, this would not be negligence on the part of the plaintiff, to which answer the part of the company. As against this propplaintiff filed a reply of general denial. t'p

osition, and the testimony of Martin and on these pleadings the case was tried to a Davis, is the testimony of the motorinan and jury, and a verdict rendered for $1,250 in

conductor in charge of the car. Now it was favor of the plaintiff. Motion for new trial

the province of the jury to determine from was filed in due time, overruled, and excep

this evidence, which was conflicting and tions saved, and judgment pronounced on the contradictory, as to where the burden of verdict, and the case is brought here for

proof was. They had a right to take into review.

consideration, and no doubt did take into Shartel, Keaton & Wells, for plaintiff in consideration, the appearance and demeanor error. S. A. Byers and Grant & McAdams, of the witnesses on the stand, their interest for defendant in error.

in the result of the suit, and, from all the

circumstances surrounding the testimony, deIRWIN, J. (after stating the facts as termine on which side was the burden of above). The first assignment of error urged proof. They had a right to take in considerby plaintiff in error for a reversal of this ation and no doubt did, the fact that if this case is that special findings Nos. 2 and 4 are car was run in a negligent manner, and innot supported by any evidence in this case. jury was the result of negligence, it was Special finding No. 2 is: “Was the car on the negligence of either the motorman or which plaintiff was riding operated at a conductor; and, with this conflict of testidangerous rate of speed at or about the time mony before the jury, we are not prepared to of the accident? Answer: Yes.” Special say there was no evidence which reasonably finding No. 4 is: "Was there any more sway- tends to support the finding of the jury. ing or jarring of the car at or about the time We have, in addition to the testimony of of plaintiff's injury than was incident to these two witnesses, Martin and Davis, otirer operating the same in the usual or ordinary physical facts developed by the evidence manner on

on approaching the curve near which tend to corroborate Martin as to the Seventeenth street? Answer: Yes." But it rate of speed at which the car was running. is contended by plaintiff in error that there Martin testified that he was dragged not is no evidence tending to support either one less than 30 yards from where he first fell of these findings. Under the well-recogniz- from the car to where he was jerked loose ed rule of this court, if an examination of from it, and where he lay until he was pickthe record does show that there is evidence ed up unconscious. Livingston swears that which reasonably tends to support the find- it was from 40 to 50 yards from where he