a dangerous weapon with intent to injure such | sir; right there is the scar, and here beperson, see facts stated in the opinion.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means what ever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the state prison not exceed ing five years, or by imprisonment in the county jail not exceeding one year."

We think the testimony for the state sustains the offense charged in this statute. It is true that the state's evidence was contradicted but it was for the jury to settle all questions as to the credibility of the witnesses and conflicts in the testimony, and we cannot say in the light of the record that their verdict is contrary to the evidence. When there is any evidence in the record from which the jury could legitimately draw the conclusion of the defendant's guilt, this court will not set aside their verdict upon the ground that the testimony is not sufficient to support the verdict, unless it clearly appears from the record that the jury was influenced by improper motives in convicting the defendant.

the law upon conviction of guilty heretofore passed upon him by the jury in this cause on the 8th day of Oct., A. D. 1909, shall not now be pronounced against him, he says he has nothing further or other to say than he has heretofore said. Whereupon, the premises being seen, and by the court well and sufficiently understood, it is considered by the court that the said Andy Kerkendall for his offense aforesaid, be imprisoned in the county jail for Pittsburg county, situated at McAlester, Pittsburg county, Oklahoma, for the term and period of six (6) months at hard labor from this date, and thereupon the court notified the defendant of his right of appeal." While it is true that the judgment in this case is not a model in form, yet we think that it sufficiently shows the essential elements of a judgment.

Section 6487, Snyder's Comp. Laws Okl. 1909, is as follows: "The rule of common law that penal statutes are to be strictly construed, has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice." The record in this case shows that the appellant was duly arraigned and pleaded not guilty, and was present during the entire trial and when the verdict was rendered, and therefore that he could not have suffered any possible injury because at the time the judgment of the court was pronounced against him he was not informed of the nature of the indictment, and of his plea to said indictment, and of the verdict of the jury in this cause. In the light of section 6487, Snyder's Comp. Laws Okl. 1909, we are compelled to construe the Code of Criminal Procedure of this state liberally, and in furtherance of justice. This compels us to ignore all mere defects of form which do not deprive the defendant of some substantial right. We think that the entire record shows that every right guaranteed to appellant by section 6910 was accorded him in this trial. But, even if we were to hold the judgment in this case fatally defective because at the time it was pronounced appellant was not informed by the court or by the clerk under its direction of the nature of the indictment, and of his plea, and of the verdict of the jury, we would still not be able to reverse this conviction on that account, but would simply send the case back for resentence.

[2] Second. The third assignment of error is as follows: "Because there was no judgment and sentence rendered in said case against the defendant as is provided by law. (A) Because the judgment and sentence does not state what offense the defendant was found guilty of. (B) Because the record does not show that at the time defendant appeared in court for judgment and sentence he was informed of the nature of the indictment or offense, or his plea and of the verdict of the jury, as is required by law." This assignment of error is based on section 6910, Snyder's Comp. Laws Okl. 1909, which is as follows: "When the defendant appears for judgment, he must be informed by the court or by the clerk under its direction of the nature of the indictment, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." The recitals of the judgment are as follows: "The State of Oklahoma v. Andy Kerkendall, Defendant. Judg ment and sentence on indictment for assault with dangerous weapon in Pittsburg county, state of Oklahoma. The prisoner, the abovenamed Andy Kerkendall, defendant, being personally present in open court, and having been legally convicted by a jury of twelve [3] Third. The appellant's fourth assigngood and lawful men for the offense of as- ment of error is as follows: "Because the sault with dangerous weapon, now, on this judgment and sentence of the court was at the 19th day of October, 1909, the same be- another and different time from that desing one of the regular days of October, 1909, ignated in the orders of the court." Upon terms of this said court, the said defendant, this question the record is as follows: "Comes Andy Kerkendall, was brought to the bar of on this day the defendant, Andy Kerkendall, the court in custody of the sheriff of said and, waiving the time required by law in county, and, it being demanded of him what which to pronounce sentence herein, the

to be imprisoned for a period of 30 days and that he pay a fine of $300 and costs. From which judgment an appeal was taken by filing in this court on January 13, 1910, a petition in error with case-made attached.

Of the various assignments of error, it is only necessary to consider one question presented by the record; that is, could the defendant be tried on the original information when an amended information was filed and demurrer thereto overruled.

The only recital in the record that would indicate that the defendant was tried upon the original information appears in the certificate of the trial judge wherein he states: "I further certify that there are two informations in said case-made, one marked as 'Amended Information.' The defendant in

the above-entitled case was tried on the original information. He entered a plea of not guilty to the charge against him in the said information, and the said original information was read to the jury before the trial, and the same was treated by the attorneys and by the court during the trial as an amended information." It is assigned

Appeal from Pawnee County Court; H. T. as error: "That the court erred in adding Conley, Judge.

Ofa Brown was convicted of violating the prohibitory law, and appeals. Reversed. D. Lafe Hubler and Geo. E. Merritt, for plaintiff in error.

to the certificate of settlement of the casemade the statement that the defendant was tried and found guilty under the original information treated as an amended infor

mation."

This court must consider the cause upon the record proper.

Section 6645, Snyder's St., provides: "An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit."

The amended information was filed, and afterwards a demurrer thereto was over ruled.

DOYLE, J. An information was filed in the county court of Pawnee county on September 22, 1909, charging that on the 1st day of September, A. D. 1909, in said county and state, one Ofa Brown did then and there willfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit, one barrel of bottled beer, with the unlawful intent to then and there convey said intoxicating liquor from the Santa Fe depot in the town of Ralston to the town of Fairfax. Afterwards on the 24th day of September, 1909, there was filed an amended information which charged that on the 1st day of September, 1909, in said county and state, Ofa Brown did then and there willfully, knowingly, and unlawfully have in his possession certain intoxicating liquor, to wit, one barrel of bottled beer, which he, the said Ofa Brown, was then and there carrying and conveying said intoxicating liquor from the Santa Fé depot, in the town of Ralston, to Fairfax. October 5th a demurrer was filed and overruled. October 7th the case was called for trial, and on the same day the jury returned the following In the case of Bonitzer v. State, 4 Okl. verdict: "We, the jury, impaneled and sworn Cr. 354, 111 Pac. 980, construing section to try the issues in the above-entitled cause, 6699, Snyder's St., Presiding Judge Furman do, upon our oaths, find the defendant guilty used the following language: "The purpose as charged in the information." Motions for of this statute is to force the state to try new trial and in arrest of judgment were but one transaction alleged to be criminal duly filed. October 23, 1909, the court over- at a time. This statute also confers a valruled said motions and sentenced defendant uable right upon the defendant. If the state

There is nothing in the entire record which shows that the amended information did not supersede the original information. By the filing of an amended information in a misdemeanor case before the defendant pleads, the original information is thereby set aside and abandoned, and the defendant cannot be tried upon the original information.

It is not a matter wherein the state can elect the offense for which the defendant can be placed upon his trial.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Giddings & Giddings, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

could bring several criminal accusations Forest Cecil Mingle was convicted of muragainst the defendant in one information order, and he appeals. Affirmed, with direcindictment, based upon more than one trans- tions. action, which might be incorporated in one indictment or information, how would it be possible for the defendant to know as to the particular transaction for which he will be placed upon trial, and how could he prepare his defense? This makes it clear that the requirement of the statute that but one transaction should be investigated at a time

ARMSTRONG, J. An information was filed against the plaintiff in error in the district court of Oklahoma county on the 5th is based upon reason and justice, and that day of April, 1909, after he had had a preit confers a valuable right upon the defend- liminary examination as provided by law, ant. This is not only our statute law, but charging him with having murdered Mrs. it is the very substance of our Constitution Pearl Pearson in Oklahoma City on the 16th itself. Section 29 of the Bill of Rights, day of September, 1908. The case came on Bunn's Oklahoma Constitution, among other for trial on the 28th day of June, 1909, and rights secured to a defendant of which the a verdict of guilty was returned by the jury Legislature cannot deny him, we find the on July 17, 1909, fixing his punishment at following: 'He shall be informed of the na-imprisonment for life at hard labor in the ture and cause of the accusation against state penitentiary. Motions for a new trial him, and have a copy thereof.' This shows and in arrest of judgment were filed and that the Constitution limits the power of overruled, and on the 24th day of July therethe court in criminal cases to the investiga- after judgment and sentence was pronounced by the court in accordance with the verdict, from which judgment this appeal is prosecuted.

tion of but one accusation at a time."

So far as the record shows, the amended information superseded the original information, and, if the defendant was tried upon the original information without setting aside and dismissing the amended information, it was error prejudicial to his substantial rights, for which the judgment must be reversed.

For the reason stated, the judgment of the county court of Pawnee county is hereby reversed, and the cause remanded, with direction to proceed in accordance with the views herein expressed.

[2] It appears that the deceased was living with her husband, Harry Pearson, and conducting a boarding house in Oklahoma City during September, 1908; that they were married at Iola, Kan.; that deceased was a daughter of J. D. Man, a hotel proprietor of that place. About 1 o'clock on the 16th day of September, 1908, Mrs. Pearson left home saying that she was going down town to take treatment from a physician, and that she would return about 4 o'clock; that at this time she carried with her about $75 in mon

FURMAN, P. J., and ARMSTRONG, J., ey and wore two diamond rings. About 1:30

concur.

(5 Okl. Cr. 535)

MINGLE v. STATE.

(Criminal Court of Appeals of Oklahoma. 16, 1911.)

(Syllabus by the Court.)

or 2 o'clock she appeared at the home of a Mrs. Strimple in company with the plaintiff in error, and they claimed to be on their way to look at some vacant lots a few blocks May further out. She was not heard from again until about 5 o'clock in the evening, when she came to the home of a Mr. Putman, suffering from three bullet wounds, apparently from a 38 caliber revolver, and in a dying condition. She was carried from there to the hospital, and died about two or three hours afterwards.

1. CRIMINAL LAW (§ 1130*)-APPEAL-FAILURE OF PLAINTIFF IN ERROR TO FILE BRIEFS. When an appeal is perfected in this court, and no counsel appears and no briefs are filed on behalf of a plaintiff in error, this court will examine the record for fundamental errors only, and discovering none the judgment appealed I from will be affirmed, under rule 4 of this court (101 Pac. vii).

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2965-2970; Dec. Dig. § 1130.*]

(Additional Syllabus by Editorial Staff.) 2. HOMICIDE (§ 250*)—MURDER-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to support a conviction of murder.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.*]

Appeal from District Court, Oklahoma County; John J. Carney, Judge.

While at the Strimple place, plaintiff in error, under the name of Parker, was introduced to a man by the name of Bennett. Mrs. Strimple testified that she was not sure whether she had seen plaintiff in error before at her place, but knew Mrs. Pearson. They tried to borrow a buggy and horse from Mrs. Strimple; but she refused them, and they went away. Before leaving Mrs. Strimple's, plaintiff in error tried to get Mrs. Pearson to let him have her diamond rings, which she refused, saying: "Not on your life." About 4:30 o'clock plaintiff in error came back to Mrs. Strimple's alone and tried

was turned over to the sheriff of Logan county, who carried him back to Guthrie, where he was released on bond on the 26th of September. On the 28th of September, he appeared in Wichita, Kan., and said he was going to Enid. On the 29th he went to a livery stable in Enid and hired a rig, and said he was going out northwest to see a friend. He drove as far as Cremlin, where he took a train, saying he was going to Wichita that night.

to get the horse and buggy, and said he want- | iff at Enid; but while in the jail at Enid he ed to take Mrs. Pearson to Britton or Ed-traded the tan shoes to another prisoner for mond, and was again refused. He then went black ones. On the 20th of September, he over to a place on West Twenty-Sixth street, and there arranged to hire a boy named Shaw to take him to Edmond. Shaw's horse gave out, and he drove to Britton, where other arrangements were made to go on to Edmond. When they started out from Oklahoma City, plaintiff in error represented to the Shaw boy that he had a very sick brother at Edmond and wanted to get there at once, in order to see him alive. When they started north on the road to Britton, they were traveling the street which goes by the Putman house, and near the scene of the tragedy. The plaintiff in error suggested that they don't go that way, but that they go three or four blocks west to Fiftieth street and back to the road leading to Britton. From Britton plaintiff in error was carried to Edmond by a boy named Willie Brown. On arriving at Edmond, he went immediately to a restaurant and tried to secure a drink of whisky, and failing ate supper. He appeared very nervous, and inquired repeatedly about a freight train for the north, which came shortly, and he went on to Guthrie on the freight train. About 11 o'clock that night, he appeared in a restaurant in Guthrie and displayed two diamond rings, which were later identified as the rings of Mrs. Pearson. He appears to have left Guthrie during the night, having stated that he was going to Wichita. About 8 o'clock on the morning of the 17th of September, he showed up at Crescent, saying he had walked all the way from Tulsa, and was on his way to Enid; was apparently in a very great hurry. He procured breakfast at the home of a Mrs. rleming.

He was next seen at Lovell, where he procured a team at a livery stable. When he procured this team he stated that he wanted to drive west; but, instead of driving west, went north. The liveryman upon learning this telephoned some one at Marshall to head him off and recover the team. D. Overstreet and Floyd Thorp, stockmen living in that neighborhood, met the plaintiff in error, who told them he had just moved into the neighborhood, and that he had recently traded for the team, and that they could satisfy themselves by inquiring at the livery stable. They went back to Marshall, a short distance, and after investigation became convinced that he was the party wanted and was driving the team belonging to the Lovell liveryman, and they immediately set out in pursuit of him. When they came upon him, he got out of the buggy, turned the team loose, and escaped down a ravine. The sheriff of Enid was telephoned, and he captured the plaintiff in error about three miles from Enid and put him in jail. Plaintiff in error wore tan shoes when he left Oklahoma City and at the time he was arrested by the sher

A photograph had been procured of the plaintiff in error in the meantime from a sister of the deceased, Miss Man, of Iola, Kan., by Sheriff Garrison, who had a large number of others made from it, and sent them over the country to various police officers; one of them getting into the hands of the police of Wichita, Kan. On the night of the 29th of September, a Wichita policeman named Thompson, with other officers, went out to the place where plaintiff in error was living with his father-in-law. Shortly after midnight some one came from the alley and went into the house. Several officers surrounded the house and demanded admittance. They were at first refused, but later admitted. When they went in, they said they were looking for a man named Harry Parker. The plaintiff in error stepped up, and said, "Maybe they're looking for me," or "Maybe they're wanting me." One of the officers replied, "Yes; you are the man that we want." The photograph was produced and plaintiff in error remarked, "They've got a picture of me. Where did you get it?" On looking at the photograph and discovering that a reward was written at the bottom of it, he denied that it was his. He was taken down to the city jail in Wichita, and later delivered to Sheriff Garrison of Oklahoma county for extradition. After his arrest the officers went back to the residence where the arrest was made, and found the ring worn by Mrs. Pearson the afternoon of the murder secreted in a dictionary in the house. The father of the deceased identified the plaintiff in error as the person who boarded at his house during the fall of 1907, under the name of Harry Parker. He was identified by many other witnesses who had been associated with him, by his writing, and by the various persons mentioned herein, and others who saw him on the day of the murder and immediately following.

The shooting appears to have been done near the home of Robert Putman in the outskirts of Oklahoma City. Mrs. Lasley, who was housekeeper for Putman, testified that she heard some shots and a person scream, and this repeated twice thereafter. That she ran out in the yard to see what the trouble was, and the woman, Mrs. Pearson, came up and fell on the other side of the house on