mation that John Charles was dead, and however, was not to be denied, nor was he that Joanna and Thompson Charles were his sole heirs. With this information in hand, he undertook to procure the approval of the county court of Adair county to a sale of said lands, and agreed with the heirs to purchase the property for the sum of $800, attorney's fees and court costs. He employed an attorney for this purpose and had started the proceedings about the time that this plaintiff in error, F. A. Blanck, learned of John Charles' death and of the proposed sale of his lands. Blanck immediately approached Wyly about this matter, and Wyly agreed that, if he would give him the sum of $90, which equaled $1 per acre, and pay all the court costs and attorney's fees occasioned by the sale, he would relinquish any bid he intended to make on the land and let Blanck buy it. Blanck represented at that time that he had a purchaser for the land, and it appears that Blanck was making a deal for one Green, who lived at Wann in Washington county, near where the land was located. Green appeared to be representing one J. W. Reese of that locality, who was to be the actual purchaser of the land. It appears that Reese was willing to give $18 an acre, or a total of $1,620, in full payment for the 90 acres of land.

It was the purpose of Blanck to buy this land in for $800, the price that the heirs had agreed to take if he could obtain the approval of the county court, to pay Wyly $90, and to pay all attorney's fees and court costs, and to keep for himself, for putting through the deal, the balance that would be left out of $1,620, which he intended to obtain from Reese. However, this arrangement fell through. On the date that the land was advertised for sale, Reese attempted to get into communication with Blanck by long-distance telephone, but was unable to make the connection. He thereupon called up the judge of the county court of Adair county, and asked him if it would be too late to put in a bid on this land, this being the day same was set for sale. The county judge informed him that it would not, and he thereupon informed the county judge that he desired to bid $1,620 for the land, and that he would wire the money immediately to the First National Bank of Stilwell to the credit of the county judge, to be checked upon if he was the successful bidder in the sale.

Before the hour set for the sale, it appears that the plaintiff in error learned of the fact that Reese had wired this money to the county judge, and had placed a bid upon the land. This, of course, necessitated his making other arrangements with Wyly, and he immediately notified Wyly that the Ideal had fallen through, that Reese had "pulled a bonehead" by interposing, without his knowledge, the full amount that was intended should be paid for the land by no

discouraged, by the collapse of Blanck's arrangements. He told Blanck that he believed, notwithstanding the fact that his deal had fallen through, that he could get the heirs to pay a commission if Blanck would agree to let him use Reese's bid for that purpose. This Blanck agreed to do, and, according to the state's case, Wyly by representing to the heirs that the sale could not be completed unless the heirs each paid him a commission of $300 for the sale; that the sale would be stopped and they would get no money. By this means, he procured a check from each of them for $300, payable to himself, drawn on the First National Bank of Stilwell. This was all done prior to the hour of the sale, but on the date of the sale, and without the knowledge of the county judge or the probate attorney of that district. The sale was subsequently approved, and the land sold to Reese for the bid of $1,620, which was apparently a fair value for the land, but not the total appraised value thereof, which included some $225 of value for oil and gas purposes. However, the county judge approved the sale for this amount, and the probate attorney, after investigation, agreed that the sale ought to be confirmed.

Wyly and Blanck placed these $300 checks in possession of the First National Bank of Stilwell, and as soon as the heirs brought in their checks of $810 each, being half of the price paid for the land, to said bank, they obtained the payment of the $300 checks, and Wyly and Blanck divided the money $300 each.

Separate trials were had, and Wyly had been convicted some time prior to this trial in which Blanck was convicted. Numerous assignments of error are set forth in the brief of counsel for plaintiff in error, but we deem it unnecessary to discuss at length each and every of these assignments.

[1] Some of said assignments are supported by neither argument nor authority. Counsel for plaintiff in error assert error, but fail to put their finger on the place that hurts, or show that the plaintiff in error was injured by what is alleged to be error. This court has repeatedly held that briefs of counsel for plaintiff in error must not only assert that error was committed, but must specifically point out the error and support same by argument and authority. The crowded condition of this docket precludes the court from searching the record for error, or the books for authorities in support thereof.

[2] Among other things, it is urgently ar gued that the evidence is insufficient to support the conviction. While the evidence of the existence of a conspiracy between T. E. Wyly and the plaintiff in error, F. A. Blanck, to defraud Joanna and Thompson Charles is not as explicit and clearly proven

Said opinion is fully supported by argument and numerous authorities, and the rule there adopted as to civil cases is equally applicable in criminal.

yet we deem same sufficient. The plaintiff in error admits that he agreed with Wyly that they should endeavor to get a commission out of these Indians for the sale of the land, and this was done after they both It is also contended that the court erred knew that the bid of J. W. Reese of $1,620 in permitting the witness Thompson Charles for said land was in the possession of the to testify relative to a transaction which is court. Their effort to secure a commission | alleged to have occurred between him and T. was wrongful, and a charge unauthorized by E. Wyly subsequent to the preliminary trial law, as they both well knew, and the fact in this case without first showing that the that Blanck agreed that Wyly should secure defendant, F. A. Blanck, was in some way said commission with the knowledge that the connected with, or responsible for, said consame was wrongful and unsupported in law versation, or was present at the time it was as against these full-blood Indians, and his made. It is admitted that, concerning the subsequent participation in the proceeds of transaction referred to, Thompson Charles, such an act was, in the opinion of this court, one of the prosecuting witnesses, was brought an authorization for Wyly to procure said to T. E. Wyly's office from his home in the checks in the manner in which he did, and country in the conveyance that belonged to showed clearly a collusion between the two F. A. Blanck, and the record shows that the sufficient to sustain and support the theory witness Thompson Charles on cross-examinathat a conspiracy existed. Blanck knew that tion testified that F. A. Blanck was present Wyly, except by false and fraudulent repre- in Wyly's office on the occasion that the sentations, could not obtain a commission transaction complained about took place. from said Indians. The entire scheme was This testimony was sufficient to authorize conceived in iniquity. This court has re- the court to admit the evidence. Blanck depeatedly held that the least degree of con- nied he was present on said occasion, and cert of action or collusion makes the act of other witnesses said they did not remember one conspirator the act of all, and each con- whether he was present or not. It was solespirator is liable for the act of each other ly a question of fact for the jury to deterconspirator done in pursuance of such con- mine whether or not he was present. spiracy. Holmes v. State, 6 Okl. Cr. 542, 119 Pac. 430, 120 Pac. 300; Ex parte Hayes, 6 Okl. Cr. 321, 118 Pac. 609; Wishard v. State, 5 Okl. Cr. 611, 115 Pac. 796; Burns v. State, 8 Okl. Cr. 554, 129 Pac. 657; Stockton v. State, 5 Okl. Cr. 310, 114 Pac. 626; 2 Rice on Evidence, 866, § 333; 1 Greenleaf on Evidence (13th Ed.) § 111; Starr v. State, 5 Okl. Cr. 460, 115 Pac. 356.

[3] It is also contended that the court erred in permitting Joanna Charles and Thompson Charles to testify in detail to statements made to them by T. E. Wyly, it having been first shown that each was a fullblood Cherokee Indian and speaks only the Cherokee language, and that the conversation with the said Wyly was through an interpreter at the time of the execution of the checks, when it is claimed that the false pretenses were made upon which this conviction is based, without showing that the interpreter was dead or absent from the county. We deem this assignment without merit. In the case of Terrapin v. Barker, 26 Okl. 93, 109 Pac. 931, the Supreme Court of this state, where the same question was raised,

[4] It is also contended that the court erred in refusing to permit the counsel for plaintiff in error to cross-examine the state's witness, T. E. Wyly, with reference as to whether or not there was any agreement or common understanding between said witness and the plaintiff in error on the day of the sale or prior thereto, to secure the execution of the check upon which this prosecution is based, by false or fraudulent representations to the prosecuting witness, Thompson Charles. We are of the opinion that the court's ruling in this respect was erroneous, but whatever error was committed was cured by plaintiff in error's own act in placing said T. E. Wyly upon the witness stand in his own behalf; said Wyly testifying fully and favorably to the plaintiff in error in respect to said matter. In Rogers v. State, 9 Okl. Cr. 277, 131 Pac. 941, this court held:

which, in the light of subsequent developments "The admission or exclusion of testimony during the trial, indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment."

[5] It is also contended that the informaWe have tion in this case is insufficient. carefully examined same, and have reached the conclusion that all necessary averments to make out the crime of false pretenses are contained therein with sufficient definiteness and clearness to indicate to the defendant the crime with which he was charged. There was an alleged false representation by the defendant of an existing fact, with knowledge of its falsity, and alleged reliance therewhich it is alleged that the signature to the on by the person defrauded, by means of

check, setting out the same, was obtained. | the plaintiff in error has died pending the deterThis was sufficient under the statutes.

It is also contended that the court erred in refusing to give certain requested instructions, and in giving certain instructions on his own motion. After a thorough examination of the instructions requested, and those given, we are of the opinion that the court fully covered the law in this case in the instructions given, and that the same were as favorable to the defendant as his testimony would warrant.

We find no substantial error in this rec

mination of his appeal the cause will be abated."

It is therefore adjudged and ordered that the proceedings in this cause do abate, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect.

ord. The judgment is therefore accordingly (Criminal Court of Appeals of Oklahoma. Jan.

affirmed.

26, 1918.)

(Syllabus by the Court.)

DOYLE, P. J., and ARMSTRONG, J., con- CRIMINAL LAW 510- ACCOMPLICE TESTI

cur.

In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death, and, where it is made to appear to this court that a plaintiff in error has died pending the determination of his appeal, the cause will be abated.

Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

Jasper Reed was convicted of keeping and maintaining a place where intoxicating liquors were kept for sale, and he appeals. Order that proceedings abate.

P. A. Gavin, of Muskogee, for plaintiff in error. The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.

MONY-SUFFICIENCY.

The uncorroborated statement of an accomplice which tends to connect another with the commission of a crime is insufficient to support a judgment of conviction.

Appeal from District Court, Garvin County; F. B. Swank, Judge.

Exie Jones was convicted of forgery in the first degree, and he appeals. Reversed and remanded, with direction to grant a new trial.

Cruce, Potter & Cruce, of Ardmore, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the

State.

ARMSTRONG, J. The plaintiff in error, Exie Jones, was convicted at the September, 1915, term of the district court of Garvin county, on a charge of forgery in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of ten years.

Richard Lewis, Emma Clemmons, and Exie Jones were jointly charged by information in the district court of Garvin county with forging a warranty deed to lands belonging DOYLE, P. J. The plaintiff in error, Jas- to Alta Grimmett. The parties were all per Reed, was convicted in the superior negroes. Richard Lewis appears to have court of Muskogee county under an indict-been dealing in freedman lands in Garvin ment charging that in said county on or county, and had sold a number of tracts to about December 1, 1915, Jasper Reed willful- C. M. Dorchester at Pauls Valley. The proof ly and feloniously kept and maintained a on behalf of the state indicates that Lewis place at 706 N. Third St. in the city of Mus- coerced Emma Clemmons into impersonating kogee, where intoxicating liquors were kept the Grimmett woman when the deed was for the purpose of selling the same, and in executed to C. M. Dorchester. The jury, howpursuance of the verdict he was sentenced to ever, convicted her along with Lewis and imprisonment for one year in the penitenti- Jones as a principal in the crime. The deed ary and to pay a fine of $100 and costs. To was signed by mark only. The Lewis negro reverse the judgment an appeal was per- owed Dorchester some money and went to fected. him with a proposition to sell the land in question. Dorchester offered to give him the debt and $50 cash in addition. The land amounted to 30 acres and the total purchase price under this agreement amounted to $70. No witnesses were introduced on behalf of the state at the trial whose testimony connects Exie Jones with the forgery directly or indirectly in any way, except a statement made by the codefendant, Emma Clemmons.

The Attorney General has filed a statement showing that since the appeal was taken the plaintiff in error was killed in a fight. His death having been suggested, the proceedings abate. In Carson v. State, 12 Okl. Cr. 461, 158 Pac. 639, it is said:

"In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death, and where it is made to appear that

MURRER.

In a suit in the nature of a creditors' bill, held, that it was error for the court to sustain a demurrer to the evidence.

She made a statement to the county attorney | 4. CREDITORS' SUIT 48-EVIDENCE-Deprior to the trial, and also testified at the trial to the effect that Richard Lewis forced her to go with him to the post office building in Pauls Valley to execute the deed; that she passed Exie Jones as she entered the post office; that he was standing in front of the building; that he said to her that he wanted her to go into the post office and touch the pen, and that she asked him what for, and he replied that it did not make any difference just so she touched it. Dorchester thought he was getting good title to the land, and did not know that the deed he was taking was a forgery. The Clemmons woman appears to have received $5 for her part in the transaction.

Appeal from District Court, Morris County. Suit in the nature of a creditors' bill by A. R. Kinkel against Fred F. Chase and Mabel Judgment for defendants, and P. Chase. plaintiff appeals. Reversed and remanded. Anderson & Lindquist, of Council Grove, for appellant. Nicholson & Pirtle, of Council Grove, for appellees.

PORTER, J. This is a suit in the nature of a creditors' bill. The court gave judgment in favor of the defendant, and the plaintiff appeals.

There is no proof that Jones received anything out of the transaction; that he ever On the 23d of June, 1915, a judgment was talked to any one who was interested or was rendered in the district court of Morris counin any wise connected with the transaction, ty in an action on a promissory note against except the statement of the codefendant, Em-A. R. Kinkel, the plaintiff in the present suit, ma Clemmons, above quoted. This statement W. J. Kinkel and Dyson Jackson, and the is not corroborated, and there are no other facts and circumstances sufficient to connect the plaintiff in error, Exie Jones, with the forgery. The judgment of conviction imposes ten years' imprisonment on the plaintiff in error. The uncorroborated statement of the codefendant that the plaintiff in error desired her to touch the pen, with no other facts connecting him with the transaction, is insufficient to support the judgment.

For this reason, the judgment must be reversed, and the cause remanded, with directions to grant a new trial. Reversed.

DOYLE, P. J., and MATSON, J., concur.

KINKEL v. CHASE et al. (No. 21220.) (Supreme Court of Kansas. Jan. 12, 1918.)

(Syllabus by the Court.)

1. JUDGMENT 293-FAILURE TO RECORD JUDGMENT-EFFECT.

The omission of the clerk to perform the ministerial duty of recording a judgment does not destroy the judgment, nor does its validity or effect remain in abeyance until it is formally

entered on the journal.

2. JUDGMENT 632-BAR-PERSONS ENTITLED TO TAKE ADVANTAGE OF.

A judgment against the defendant in a suit in the nature of a creditors' bill will not inure to the benefit of another creditor of defendant who is neither party nor privy to the judgment. 3. SUBROGATION 31(4)-SATISFACTION OF JUDGMENT AGAINST PRINCIPAL-REMEDIES OF SURETY.

A surety who satisfies a judgment against his principal, and files with the clerk notice of his intention to claim repayment under section 474 of the Civil Code (Gen. St. 1915, § 7378), has all the rights and remedies of an owner of the judgment for the purpose of enforcing repayment.

court made an order that if the judgment was paid by either of the Kinkels they should be subrogated to the rights of the plaintiff in the action. Later, on July 17th, A. R. Kinkel satisfied the judgment as to himself and W. J. Kinkel by paying the sum of $383.50, and duly filed with the clerk of the court a notice claiming contribution and the right of subrogation under section 474 of the Civil Code. Gen. Stat. 1915, § 7378. On June 23, 1915, the same day the judgment was rendered against the Kinkels and Dyson Jackson, a judgment was rendered in the same court in another action in the nature of a creditors' bill brought by J. B. Lamb and S. H. Crowley against Dyson Jackson, Annie Jackson, his wife, and Samuel M. Jackson, his son, and other defendants. The petition in that case alleged that Dyson Jackson was the owner of 420 acres of land and other real estate in Morris county, and had taken the title in the name of his wife and his son with the intent to hinder and delay his creditors. The judgment sustained all the allegations of the petition, and the court held that Dyson Jackson was the owner of the land, and decreed that the title thereto be vested in him for the use and benefit of his creditors, and that his wife and son be devested of any right or interest under the conveyance to them. No journal entry of this judgment was entered by the clerk of the court, but the entries on the judge's trial docket of that date showed the nature of the judgment rendered.

On the 26th of October, 1915, Dyson Jackson sold the land to Fred F. Chase. The warranty deed recited a consideration of $25,000, and it was executed not only by Dyson Jackson, but by his wife and son, in whom the legal title had rested prior to the rendition of the judgment in the suit brought by Lamb and Crowley.

had any interest in or lien thereon, and that therefor he must be held to have purchased without notice of any such lien or claim on the part of Kinkel, and the court further held that there were no judgments which were liens against the land at the time Chase purchased, except those pleaded in the first creditors' suit.

The petition in the present case recited find nothing of record indicating that Kinkel the foregoing facts, and alleged that the judgment which A. R. Kinkel had satisfied became a lien on the 420 acres of land, not only by virtue of the judgment rendered in the case of Lamb and Crowley v. Dyson Jackson et al., but for the further reason that the land, in fact, belonged to Dyson Jackson at that time; and, further, that Fred F. Chase, defendant in this case, purchased the real estate with full knowledge that the judgment for $383.50 had been rendered, and that it was a valid and binding lien thereon. Incidental to the suit, Kinkel asked the court to "make a nunc pro tune judgment" in the old case of Lamb and Crowley v. Jackson et al., as of June 23, 1915, devesting Samuel M. Jackson and Annie Jackson of all their title to the real estate, and vesting the title thereto in Dyson Jackson for the use of his creditors. The defendant Chase filed an answer denying that plaintiff Kinkel ever had any lien on the land adverse to his, and alleging that he purchased the land and gave full value without notice, actual or constructive, of any lien or claimed lien on behalf of Kinkel.

On the trial the records, papers, and files in the former suits and the various conveyances affecting the title were introduced in evidence. Plaintiffs also offered oral evidence to show that parties representing defendant Chase before the conveyance to him was made came to Kinkel and offered him $60 for a release of his judgment, and told him that if he refused to take that they would recommend to Mr. Chase that he close the deal anyway. There was evidence also that the liens of the other creditors in the former suit were satisfied out of the purchase money paid by Chase. The trial court entered a nunc pro tune judgment in the case of Lamb and Crowley v. Jackson et al., as of June 23, 1915, setting forth in full the terms of the judgment actually rendered on that date. The defendant demurred to the plaintiff's evidence, and the court sustained the demurrer.

In a written opinion the trial court stated the reasons for sustaining the demurrer, which were that inasmuch as the plaintiffs in the first creditors' bill had not brought their suit for the use and benefit of other creditors that might desire to come in and set up claims, the judgment declaring the conveyance of the real estate to the wife and son of Dyson Jackson fraudulent and void was solely for the benefit of the plaintiff's and other parties to that suit, and that since Kinkel was not a party he could derive no benefit from the judgment. In stating the grounds for sustaining the demurrer the court laid considerable stress on the fact that there was no journal entry of the judgment on record in the Lamb and Crowley case, and held that for this reason, Chase,

[1] So far as the judgment sustaining the demurrer rests on the failure to have a journal entry recorded in the first creditors' bill brought by Lamb and Crowley, the court was in error. The judgment was rendered on the 23d day of June, 1915, and it was no less a judgment because the clerk failed to prepare and file a journal entry. "The omission to enter it does not destroy it, nor does its vitality remain in abeyance until it is put upon the record." Black on Judgments, 106. It was therefore not necessary for the plaintiff in the present case to obtain from the court an order for a nunc pro tunc judgment. The ruling of the court making what is called such a judgment amounts to nothing more, however, than the approval of a journal entry reciting the details of the decree. If Kinkel could predicate any rights by virtue of the judgment in the first creditors' suit, he is not in any sense deprived of that right because of the failure of the clerk to perform a ministerial duty. If Chase when he purchased the land desired to know the nature and terms of the judgment that had been rendered against Dyson Jackson in the first case, and could find no journal entry of record, he was bound to examine the pleadings in the case, and finding a judgment in favor of plaintiff against the defendant, he was bound, in the absence of any other information to assume that every material averment of the petition was found against Dyson Jackson and the other defendants.

[2] The law is well settled that one who is neither a party nor privy to an action is not only not bound by the judgment therein, but he can derive no benefit from it. Manley v. Debentures Co., 64 Kan. 573, 68 Pac. 31; Ervin v. Morris, 26 Kan. 664. Where, however, a judgment or decree operates in law as a conveyance, one who is not party or privy to the action may avail himself of the effect of the judgment as a transfer to the same extent that he may rely upon a voluntary conveyance of the title. In Lockwood v. Meade, 71 Kan. 739, 741, 81 Pac. 496, it was said in reference to cases which properly include an order for one party to convey to another whatever interest he may have in the real estate involved: "Such a decree would, of course, effect a transfer of title as effectually as a voluntary conveyance. Woolworth v. Root (C. C.) 40 Fed. 723, 726." The decree in the first creditors' suit specifically declared that the title to the real estate should be vested in Dyson Jackson. It was