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sufficient to charge murder. If the defendant can be said to have been prejudiced, it can only be claimed upon the theory that the defendant was tried for a higher degree of homicide than that of which she was found guilty. No one would claim that that fact alone prejudiced her. If so, then it would prejudice a defendant to charge him with murder, if the evidence on the trial only established manslaughter. Such is not the law. The rule is that where one is on trial for a crime which is divided into degrees, and a court commits error in instructing the jury upon the law applicable to the higher degree of such crime, but properly instructs the jury as to the lower degree, and the jury returns a verdict of guilty of the lower degree, the defendant cannot complain. One can only complain of error which may have affected his rights. The following cases support the law as stated: State v. Grote, 109 Mo. 345, 19 S. W. 93; State v. Keeland, 2 Mo. 337, 2 S. W. 442; People v. Nichol, 34 Cal. 211; Gant v. State, 115 Ga. 205. 41 S. E. 698: State v. Castello, 62 Iowa, 404, 17 N. W. 605; State v. Richardson, 47 S. C. 18. 24 S. E. 1028: Jackson v. State, 91 Wis. 253, 64 N. W. 838. In 12 Cyc. p. 931, it is said that error in instructions as to a higher degree of crime is harmless, where the defendant is convicted of the lower degree. To the same effect are the following cases: Colvin v. Commonwealth, 22 Ky. Law Rep. 1407, 60 S. W. 701; Stephenson v. State (Tex. ('r. App.) 24 S. W. 645; Blackwell v. State, 33 Tex. 278, 26 S. W. 397; Rutledge v. State (Tex. Cr. App.) 33 S. W. 347: McCarty v. State (Tex. Cr. App.) 58 S. W. 77; State v. Stockwell, 106 Mo. 36, 16 S. W. 888; State v. Gates, 130 Mo. 351. 32 S. W. 971; People v. Boling, 83 Cal. 380, 23 Pac. 421.

It is next insisted that the trial court erred in admitting in evidence testimony regarding a conversation between the defendant and her daughter after the homicide. The testimony was that the witness heard the defendant say that she shot the deceased, and the defendant's daughter asked her mother why she killed the deceased, to which the defendant replied that she had to, and the daughter then said to her mother, "No, mainma, you didn't have to." The record fails to show that the defendant made any reply to this statement. The jury were entitled to have the whole conversation, and then determine, from the whole of it as to whether or not any portions of it were admissions on the part of the defendant against her interest. The counsel for the defendant could have shown any reply which the defendant may have made to the statement of her daughter, but they did not see fit to inquire further as to the conversation. It was properly admitted.

The evidence supports the verdict and the judgment is hereby affirmed. All of the Justices concurring, except BURFORD, C.

J., who presided at the trial, below, not sitting, and IRWIN and GARBER, JJ., absent.

(19 Okl. 345)


Treasurer, et al.

(Supreme Court of Oklahoma. Sept. 5, 1907. Rehearing Denied Oct. 12. 1907.)


Personal property, assessed in another state on January 1st of a given year, and brought in and acquiring a situs in this territory prior to the 1st day of March of the same year, is assessable and liable for taxes for that year in Oklahoma.

2. SAME.

The territory has the right to tax property brought into the territory for the same year that it has paid taxes in another state or territory. (Syllabus by the Court.)

Error from District Court. Roger Mills County; before Justice Clinton F. Irwin.

Action by the Spaulding Manufacturing Company against W. D. Kendall, treasurer, and S. A. Elliott, sheriff. Judgment for defendants, and plaintiff brings error. Affirmed.

D. B. Welty, for plaintiff in error.

BURFORD, C. J. On the 1st day of March, 1905, the Spaulding Manufacturing Company, of Grinnell, Iowa, was the owner of a stock of vehicles, buggies, and carriages in Sayre, Roger Mills county, Okl., and said property was assessed for the year 1905 in that county. By the laws of the state of Iowa such property is assessable for taxation as of the 1st day of January of each year. The property in question, with other property, was assessed in Poweshiek county, Iowa, for the year 1905, before it was removed to Oklahoma, and at the time of the trial the first half of the taxes had been paid for 1905 in the state of Iowa. The plaintiff in error claims exemption from taxes on its property in Oklahoma for the year 1905, for the reason that it has been assessed and is liable for taxes on the same property for the same period in another state. This is the sole issue in this case. The district court of Roger Mills county held that the property was liable for taxes, and rendered judgment against the plaintiff in error for costs; hence this appeal.

Our revenue laws (section 5931, Wilson's Rev. & Ann. St. 1903) require that "all taxable property, real and personal, shall be listed and assessed each year in the name of the owner thereof on the 1st day of March of each year, as soon as practicable on or after the first Monday in March, including all property owned on the 1st day of March of that year." Under this statute the property in question was assessable for the year 1905 in Roger Mills county, and there liable for taxation. Counsel for plaintiff in error contends that, if the property in question

is at all liable for taxes in Oklahoma, it must be under section 5919, Wilson's Rev. & Ann. St. 1903, which is a part of what is known as the "transient property act" of 1895, and herein lies the error of his position. That law only includes transient property which is brought into the territory after the 1st day of March and before the 1st day of September of any year; that is, after the time for assessment under the general law has expired. This property was in the territory and had acquired a situs prior to the 1st day of March of the year in which it was assessed, and comes within the provisions of the regular revenue laws. In the case of Collins et al. v. Green, 10 Okl. 244, 62 Pac. 813, Mr. Justice Burwell, speaking for the court, said: "A state or territory has the right to tax property brought into it, even though such property may have been taxed for the same year in the state or territory from which it came. The proposition is too well settled by decisions and textwriters to admit of discussion." This is the established law, and is applicable to this case, and decisive of it under the facts appearing in the record. The questions argued and authorities cited by counsel in his brief have no application to the case made by his proof.

The judgment of the district court is affirmed, at the costs of the plaintiff in error. All the justices concur, except IRWIN, J., trial judge, not sitting.

(19 Okl. 589)

MOULDIN v. RICE et al. (Supreme Court of Oklahoma. Sept. 5, 1907. Rehearing Denied Oct. 12, 1907.) VENUE-ACTION TO RECOVER REAL ESTATE.

By virtue of section 10 of the organic act 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.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Venue, § 7.]

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice John H. Burford.

Action by L. M. Rice and others against George W. Mouldin. Judgment for plaintiffs. Defendant brings error. Affirmed.

Devereux & Hildreth, for plaintiff in error. Cotteral & Hornor, for defendants in error.

PER CURIAM. This was an action brought in the district court of Logan county by L. M. Rice, S. T. Rice, and Estalla Bradford against George W. Mouldin, a resident of Logan county, to recover the possession of a quarter section of land situated in Garfield county, Okl. To this petition the defendant interposed a demurrer, on the ground that the court had no jurisdiction of the subject-matter of the action, and because the petition failed to state facts sufficient to constitute a cause of action. This demurrer was

overruled, to which action the defendant at the time duly excepted, declined to plead further, and elected to stand upon the demurrer. Thereupon the court entered judgment upon the pleadings in favor of the plaintiff and against the defendant to recover the possession of the land, as prayed for in the petition, from which ruling and judgment, the defendant brings the case here for review on a certified transcript of the record.

There was no error in overruling the demurrer to the petition, since the court had jurisdiction of the subject-matter of the action, and the petition stated facts sufficient to constitute a cause of action for the recovery of real estate under our Code. On the question of jurisdiction of the subjectmatter of the action, the case of Burke v. Malaby, 14 Okl. 650, 78 Pac. 105, is decisive, in which case it was held that "an action affecting an interest in real estate in this territory, where the real estate is situated in one county and the defendant resides in a different county, must be instituted in the county where the defendant resides." In this case the defendant resided in Logan county, and the right of the plaintiffs' action depended upon the interpretation of an antenuptial marriage contract.

We therefore hold that the court had jurisdiction of the subject-matter of the action, and that the petition stated facts sufficient to constitute a cause of action, and the defendant's demurrer was therefore properly overruled.

The judgment of the court below is affirmed.

BURFORD, C. J., who presided in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(19 Okl. 496)


One accused of a crime cannot be convicted upon the uncorroborated testimony of an accomplice, and the corroboration required must be the proof of substantial facts tending to incriminate the accused, aside from and without the aid of the testimony of the accomplice.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1124-1128.] 2. SAME-WEIGHT OF EVIDENCE.

Where there is competent corroborating evidence tending to connect the accused with the commission of the crime charged, the weight of such evidence is a matter for the jury; but, where the corroborating evidence is of such an. uncertain and unsatisfactory character as not to warrant a reasonable inference of guilt, the court should set aside the verdict.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1713-1721.] (Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette.

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BURFORD, C. J. The plaintiff in error, Charlie Cooper, was charged by indictment jointly with Harry Cooper, Dave Ellis, and Richard Ellis with the crime of horse stealing. The defendants Harry Cooper, Dave Ellis, and Richard Ellis pleaded guilty to the charge, and the plaintiff in error pleaded not guilty. He was tried to a jury, a verdict of guilty returned, and sentenced by the judgment of the court to three years' imprisonment in the penitentiary.

The contention of plaintiff in error is that he was convicted upon the uncorroborated evidence of accomplices. The defendants were all boys residing in Comanche county, where the crime was committed. The horses stolen belonged to a German farmer named Andrew Zach, and were kept in a pasture near his house. On Sunday night, November

13, 1904, two of the horses were stolen from the pasture, and were traced to near Foss, in Washita county, and there found in the possession of John Pruitt and Robert Ellis. The evidence for the prosecution consisted of the testimony of Andrew Zach, the owner of the horses, John Pruitt, who testified that he participated in the larceny, and had not been indicted, Dave Ellis, a codefendant, who pleaded guilty to the crime, C. R. Saunders, the officer who made the arrest of the plaintiff in error, Albert Dillon, a neighbor of Zach's, and John Ellis, the father of the Ellis boys who were implicated in the crime. The witness Zach testified only as to the loss and recovery of the horses. He gave no testimony as to the parties charged with the crime. John Pruitt testified that on the Sunday the horses were stolen he and Charlie Cooper, Harry Cooper, Dave Ellis, and Richard Ellis entered into an agreement to stea! some horses, and that, pursuant to this agreement, they went to the pasture of old man Zach after night, and stole the two horses in question; that Charlie Cooper was present and assisted in catching the horses and in taking them out of the pasture, and on the road they were turned over to him and Robert Ellis to take away and dispose of. He also stated that he and Charlie Cooper and Robert Ellis rode together to the place where the horses were stolen, while Dave Ellis and Harry Cooper went another direction to look for some Indian ponies, but met them again and they all were at the pasture when the horses were taken from the pasture. He also testified that Charlie took off his belt and put it on the neck of one of the horses, and the belt was dropped and lost. This lost belt was found by Mr. Zach, and was produced at the trial, but there was

a disputed question as to whose belt it was. He also testified that Charlie Cooper wore boots on the night of the larceny with tacks in the soles. Dave Ellis testified to substantially the same state of facts, admitted that he and Harry Cooper went away from the Cooper place first, and afterwards met the other three, Charlie Cooper, John Pruitt, and Robert Ellis, and went together to the Zach pasture, and stole the horses. He also testified that a glove which was found at the place of the larceny was dropped by Harry Cooper. Albert Dillon testified that

he lived about three-fourths of a mile south of the Zach place, and that he saw Harry Cooper and Dave Ellis pass his place, going south, about dark. Charles R. Saunders testified that he was deputy sheriff and made the arrest of the plaintiff in error; that on Tuesday after the larceny he went to Zach's place, and made an examination of the pas

ture and the fences; that he found where a post was broken down and found horse tracks, and the track of a person at the point where the post was down; that in the tracks of the person there were the imprints of

nails in the sole of the shoe or boot; that the bottom was full of nails or tacks; that the track was about the size of a six or seven shoe; that two or three weeks later he arrested Charlie Cooper at his home, and that the boots he was wearing were boots that would make about the sized track as the one found in the Zach pasture, and that he had the bottom of his boo's full of nails. He made no measurement of either the boots or the tracks, but estimated the size by putting his own foot in the tracks. John Ellis, father of Robert and Dave, testified that he had seen Charlie Cooper frequently, and that he usually wore a belt, but that he had seen him wear different ones, and he would not state whether the one exhibited was his or not. He also testified that his son Robert was then in the penitentiary for this same offense, and David was present as a witness for the territory.

Upon this testimony the territory rested. The defendant then went upon the stand in his own behalf and testified: That Pruitt, the two Ellis boys, and his brother Harry left his father's house about 12 or 1 o'clock p. m. on Sunday, and that he did not go with them. That he stayed at home until about 4 o'clock, when he went to Mr. Richardson's, and stayed until about dark. He then returned directly home, and went to bed with his brother George, who was in bed at the time. That he had an intimation that these boys were getting his younger brother, Harry. into some difficulty, and after Harry Cooper and Dave Ellis left he ordered Pruitt and Robert Ellis off his father's place. That he found out they were going to do something, but did not know what it was, and had nc knowledge of the larceny until after it became public. He also stated: That at the

time of the larceny he was wearing boots with tacks in the bottoms, that no one ever examined his boots after he was arrested. Harry Cooper testified that he was 14 years of age, a brother of the accused; that he had pleaded guilty to the charge in the indictment. That he, Dave Ellis, John Pruitt, and Robert Ellis stole the horses from the Zach pasture, and that his brother, Charlie, was not present. That the belt and glove found in the pasture were his, and that he was wearing them at the time of the larceny. That he had nails in the bottoms of his shoes, and made the tracks testified about. He exhibited the shoes worn at the time, with tacks in the soles. That he and Dave Ellis left the Cooper home about 12 o'clock on Sunday afternoon, and rode north to see about some Indian horses. That, when they returned. they met John Pruitt and Robert Ellis abou a mile north of the Cooper place with three horses, leading one and riding two. Robert Ellis had left the horse he rode away in the afternoon, and was riding a gray horse. He left the others about 11 o'clock and returned to his home and got there about 12 o'clock. It is seven miles to the Zach place, where the horses were stolen. George R. Cooper testified that he is a brother of the defendants, and lived with his father at the Cooper home. He left home on Sunday morning and went to visit an uncle six miles away, and remained until about dark; that he went to bed early and his brother Charlie came in about 8 or 9 o'clock and went to bed with him; that the brother Harry and Dave Ellis came in after he had been asleep three or four hours he was unable to give the time, but it was very late. He also identified the belt in evidence as belonging to his brother Harry. W. A. Richardson testified that he is a farmer and lives in the Cooper neighborhood; that Charlie Cooper came to his place on Sunday, the 13th of November, about 3 o'clock in the afternoon, and remained there until about dark or until a little after. ward Isbell testified that he lives about 115 miles from Cooper's place; that he saw Charlie Cooper at Richardson's place on the afternoon of Sunday, the 13th of November. between 5 and 6 o'clock. He also testified that Charlie Cooper's reputation for truth and honesty was good in the neighborhood. Mrs. S. J. Fulcher testified to the good reputation of Charlie Cooper for truth and honesty. William Naggs, a neighbor of the Coopers, testified to the good reputation of Charlie for truth and honesty. The foregoing testimony embraces all the substantial facts in evidence. No witness for the prosecution, other than the confessed accomplices. have in any way connected the accused with tbe commission of the crime, and no witness has put him in company with them at any time or place after they left the Cooper home. The only facts relied upon as corroboration of the accomplices are the belt and tack prints in the tracks. The belt was not shown


to be his by any of the witnesses, and there was positive testimony to the effect that it was not his, while the tack prints could have as easily been made by some of the guilty criminals.

The law forbids the conviction of one accused of crime upon the uncorroborated evidence of accomplices, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. To warrant a conviction upon the testimony of an accomplice, there must be corroborating evidence tending to incriminate the accused aside from and without the aid of the testimony of the accomplice. The corroboration will not be sufficient if it tends merely to raise a suspicion as to the guilt of the accused. People v. Ames, 39 Cal. 403; People v. Warren, 39 Cal. 661; People v. Thompson, 50 Cal. 481. This court said, in Hill v. Territory, 15 Okl. 212, 79 Pac. 757: "In a prosecution for burglary, where the evidence of an accomplice is corroborated by other evidence which tends to connect the defendant with the commission of the offense, the weight of such corroborating evidence is a matter for the jury. After verdict found based upon such evidence, this court will not disturb the judgment." It must be understood that what was there meant is that there is some substantial evidence corroborating the accomplice and tending to connect the accused with the commission of the offense; but, where the corroborating evidence is of such a slight, uncertain, and unsatisfactory character as not to warrant a reasonable inference of guilt, the court should not permit a verdict to stand. We think the corroborating evidence in this case is of this character, and it was error to overrule the motion for new trial.

The judgment of the district court is reversed and cause remanded, with directions to the district court of Comanche county to grant a new trial.

All the Justices concur, except GILLETTE, J.. who tried the case below, not sitting, and PANCOAST and GARBER, JJ., absent.

(19 Okl. 514)

METROPOLITAN RY. CO. v. MARTIN. (Supreme Court of Oklahoma. Sept. 20, 1907.) 1. APPEAL-REVIEW-QUESTIONS OF FACT.

Where there is evidence in the case which reasonably tends to support the special findings of the jury and the general verdict, the decision will not be reversed on a question of fact. [Ed. Note.-For cases in point. see Cent. Dig. vol. 3. Appeal and Error, § 3928.]


Where there is a reasonable theory, deducible from the evidence in the case, upon which the special findings of the jury and their general verdict are sustained, the court will not disturb the general verdict, because another theory may be drawn from the evidence with which the special findings and the general verdiet are inconsistent. The court will not examine the evidence with a view to ascertaining if


it is possible to evolve from the evidence a theory upon which an inconsistency may be discovered between the special findings and the general verdict.

[Ed. Note.-For cases in point. see C'ent. Dig. vol. 3, Appeal and Error, $$ 3755-3761.]

(Syllabus by the Court.)

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by J. T. Martin against the Metropolitan Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

This was an action begun by J. T. Martin against the Metropolitan Railway Company in the district court of Oklahoma county on December 16, 1903. The petition claims damages for personal injuries received by the plaintiff by being thrown from a car of the defendant by the negligence of the defendant in running their car at an unusual high rate of speed around a curve, and running by the usual stopping place for passengers after the signal had been given to stop. and that in consequence of such high rate of speed at that point, and the running by the usual stopping place, and the fact of the car going around a curve, caused the plaintiff to be thrown from the car and injured. To this petition defendant filed an answer, said answer containing a general denial of the allegations of the petition, and also allegations of contributory negligence on the part of the plaintiff, to which answer the plaintiff filed a reply of general denial. Upon these pleadings the case was tried to a jury, and a verdict rendered for $1,250 in favor of the plaintiff. Motion for new trial was filed in due time, overruled, and exceptions saved, and judgment pronounced on the verdict, and the case is brought here for review.

Shartel, Keaton & Wells, for plaintiff in error. S. A. Byers and Grant & McAdams, for defendant in error.

IRWIN, J. (after stating the facts as above). The first assignment of error urged by plaintiff in error for a reversal of this case is that special findings Nos. 2 and 4 are not supported by any evidence in this case. Special finding No. 2 is: "Was the car on which plaintiff was riding operated at a dangerous rate of speed at or about the time of the accident? Answer: Yes." Special finding No. 4 is: "Was there any more swaying or jarring of the car at or about the time of plaintiff's injury than was incident to operating the same in the usual or ordinary manner on approaching the curve curve near Seventeenth street? Answer: Yes." But it is contended by plaintiff in error that there is no evidence tending to support either one of these findings. Under the well-recognized rule of this court, if an examination of the record does show that there is evidence which reasonably tends to support the find

ing of the jury, the same will not be disturbed on a question of fact. At page 10 of the record, in the testimony of the plaintiff, Martin, he testifies that after passing Sixteenth street he rang the bell, giving the signal to the motorman to stop at the next stopping place. He then. on approaching Seventeenth street, went out on the platform and told the conductor he wanted off. The conductor gave the motorman the signal to stop. He testified the place where he asked to be allowed to get off was where he had often been permitted to get off the car. testified the car did not stop at the usual place. Seventeenth street, but ran by at full speed, and that the place where he was thrown from the car was on a curve, and that the stopping place was on a curve. The witness Davis, at page 67 of the record, testified that the car was going at about the usual rate of speed. Now we think a fair inference to be drawn from the testimony of Davis that they were going about the usual rate of speed would mean the usual rate of speed between stopping places, and not mean the usual rate of speed on approaching a stopping place, particularly where that stopping place was on a curve. place was on a curve. Now we think it will not be seriously contended that if this car, at the time of the accident, was approaching a stopping place, and was on a curve, and was running at full speed, as testified to by Martin, this would not be negligence on the part of the company. As against this proposition, and the testimony of Martin and Davis, is the testimony of the motorman and conductor in charge of the car. Now it was the province of the jury to determine from this evidence, which was conflicting and contradictory. as to where the burden of proof was. They had a right to take into consideration, and no doubt did take into consideration, the appearance and demeanor of the witnesses on the stand, their interest in the result of the suit, and, from all the circumstances surrounding the testimony, determine on which side was the burden of proof. They had a right to take in consideration and no doubt did, the fact that if this car was run in a negligent manner, and injury was the result of negligence, it was the negligence of either the motorman or conductor; and, with this conflict of testimony before the jury, we are not prepared to say there was no evidence which reasonably tends to support the finding of the jury.

We have, in addition to the testimony of these two witnesses, Martin and Davis, other physical facts developed by the evidence which tend to corroborate Martin as to the rate of speed at which the car was running. Martin testified that he was dragged not less than 30 yards from where he first fell from the car to where he was jerked loose from it, and where he lay until he was picked up unconscious. Livingston swears that it was from 40 to 50 yards from where he

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