substantially the same mistake as to the law, is not sufficient to establish a mutual mistake of law on the part of the principal. (Syllabus by the Court.) M. D. Libby, for Plaintiff in error Opinion by RITTENHOUSE, C. K. S. HAMMETT and S. S. KOURI, Plaintiff in Error, VS. STATE OF OKLAHOMA, Defendant in Error. (Rendered May 9, 1914.) Error from District Court of Jackson County. Frank Mathews trial Judge. No. 3188 Affirmed 1. Evidence examined and held sufficient to establish the crime alleged by a preponderance of the evidence. A request for an instruction that the crime alleged in the petition must be proved beyond a reasonable doubt is properly refused. All that is required of the State in civil actions for the recovery of a penalty under Section 4191, Snyder's Comp. Laws, 1909, is to prove the crime by a preponderance of the evidence, 3. In a civil action for the recovery of a penalty, evidence of general reputation of the defendants, as law abiding citizens, was inadmissible, and the court properly excluded such evidence. 4. Conversations had by the defendants with third parties were not admissible, as they were self serving declarations. 5. This court will not reverse a case on the grourd that leading questions were asked, unless it is shown that there was a flagrant abuse of judicial discretion. (Syllabus by the Court.) W. G. McCONNELL, Plaintiff in Error, VS. F. M. WATKINS, Defendant in Error. (Rendered May 9, 1914.) Error from County Court of Osage County. No. 3537 Affirmed 1. Where there is competent evidence reasonably tending to support the verdict of a jury, under proper instructions from the court, this court will not disturb the verdict. 2. A verdict in an action of replevin which describes the animal sued for as "one three year old dark gray filly", sufficiently identifies the animal in controversy, and a judgment based on such verdict will not be set aside on the ground that the identification of the animal is insufficient. (Syllabus by the court.) SCHOOL DISTRICT No. 38 Le FLORE SCHOOL DISTRICT No. 92, Le FLORE (Rendered May 9, 1914.) No. 3578 1. Where a case made upon appeal does not contain a statement that it contains all the evidence presented upon the trial, no error assigned which requires an examination and review of the evidence can be reviewed by this court. 2. Where a motion for a new trial is filed, and the judge who tried the cause retires from the bench leaving such motion pending and undisposed of, his successor will, ordinarily, grant a new trial, where the motion involves a review of the evidence taken upon the trial, and the proceedings before the former judge, and the same has not been preserved by case-made or other record so the new judge can review the grounds of the new trial. W. M. KING, Plaintiff in Error, VS. HOWETH and CO., et al., Defendants in Error, (Rendered May 9, 1914.) No. 3462 Error from the Superior Court of Oklahoma County. E. D. Oldfield Judge. Affirmed 1. To substantiate the allegation of fraud, the plaintiff must prove that the defendant made a material representation which was false, and known to be false at the time, and made with the intention that it should be acted upon by the plaintiff, and that plaintiff relied upon such false representation to his injury. Evidence examined and held not sufficient to support the allegation of fraud. 3. A domestic life insurance company has the author. ity to accept a contract of subscription to its capital stook after its incorporation and before it has been granted, a license to commence business under Sec. 3756, Comp. Laws, 1909, such acceptance being necessary in order to show that the corporation has a paid up capital of not less than one hundred thousand dollara, as provided by Section 3785, Comp. Laws, 1909,. The acceptance of such subscription to the capital stook being a part of the company, and not the doing of business is contemplated by Sec. 9756, supra. After a valid subscription to the capital stock of a corporation has been made, either before or after organization of the corporation, and which subscription has been accepted by the organized corporation, there can be no cancellation or withdrawal from the obligation without the consent of the corporation and all the stockholders, except on the grounds of fraud or mistake. Syllabus by the court.) Opinion by RITTEN HOUSE, C. THE CRIMINAL COURT OF APPEALS OF OKLAHOMA. ELMER JOHNSON and JOHN GARRETT Plaintiffs in Error. T'S. STATE OF OKLAHOMA, Defendant in Error. (Rendered May 7, 1914.) No. A-1747 Appeal from the County Court of Oklahoma County 1. (A) It is not essential to the validity of an information based on Sec. 2498 Rev. Laws, which was Sec. 2422 Comp. Laws. that it contain an allegation or averment that the person charged with conducting a gambling game did so for money, checks, or other representatives of value. The contrary doctrine announced in Proctor v. Ter. 18 Okla. 378, is overruled for the reasons set forth in opinion. (B) Any person, whether he be owner, employee, or a bystander acting as a matter of accommodation, who conducts any such prohibited game or assists in conducting the same, is subject to indictinent and conviction for 0 doing, whether he acts for compensation or not. 2. (A) It is not essential to the validity of an indictment or information that it set out the capacity in which the person acted who conducted the prohibited game, nor that he received compensation for his acts. It is sufficient that the information charge that a prohibited game was conducted, which game was played at by other persons for money or other representatives of value. (B) For an information properly drawn under the statute and which is proof against demurrer and objection, and which is in proper form under the statute, see opinion. 3. Uncontradicted evidence which clearly establishes a violation of the law, and connects the accused directly with such violation, is sufficient to sustain a conviction. Syllabus by the court.) Reardon & Hereford, for Plaintiffs in Error. Smith C. Matson. Assisstant Atty. Gen. for the State. Opinion of the Court by ARMSTRONG. P. J. The Plaintiffs in Error, Elmer Johnson and John Garrett, were convicted at the March 1912 term of the County Court of Oklahoma County, on a charge of conducting a roulette game, and their punishment fixed at a fine of $500.00 and confinement in the County jail for a period of sixty days. The information upon which the conviction is based is as follows: "In the name and by the Authority of the State of Oklahoma, comes now Sam Hooker the duly qualified and acting County Attorney in and for Oklahoma County, and State of Oklahoma, and on his official oath gives the County Court in and for said Oklahoma County and State of Oklahoma to know and be informed that the above named Elmer Johnson and John Garrett did, in Oklahom... County, and in the State of Oklahoma, on the 8th day of March, in the year A. D. 1912, commit the crime of conducting a game of roulette in manner and form as follows; for that they did then and there unlawfully and wrongfully conduct a game commonly called roulette, the same being played for money and other representatives of value, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State." The proof on behalf of the State conclusively establishes the fact that the Plaintiffs in Error conducted a gambling game, to-wit-roulette, on the date alleged at 109 1-2 North Broadway, in Oklahoma City. and that Plaintiff in Error Garrett was owner of said place. State's witness Seward testified that he was in the place on that day; that Plaintiff in Error Johnson was also there and |