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nity to offer such proof, is without authority, decree had been entered up in favor of plainof law and contrary to the rules of practice tiff, made a motion in due course for a new in this state.

trial, in which he sought to have the court It was held in the case of Pico v. Sepul- vacate and set aside its findings of fact, conveda, 66 Cal. 336, 5 Pac. 515:

clusions of law, and decree theretofore enter"When the findings of fact by a court are ed, and to grant to the defendants a new erroneous in any respect, the appropriate pro-trial, upon the various grounds set forth in ceeding to have them set aside is a motion for a

the motion. The motion for a new trial did new trial."

not authorize the trial court to re-examine In the case of Prince v. Lynch, 38 Cal. 528,

the evidence offered by defendants in sup99 Am. Dec. 427, the court said: "We know of no provision of the Practice Act

port of their defense in the trial of the cause, authorizing the court to re-examine the evidence

and upon the evidence so adduced, of its own upon the motion of one of the parties, after it motion, to enter up findings of fact, concluhas once filed its findings and rendered judg- sions of law, and a decree in favor of dement, and on such re-examination to reverse fendant. its former action and substitute different findings of fact. * * * The mode provided for

From what has been said it follows that reviewing its former action by the same court, the judgment of the trial court in favor of as to the sufficiency of the evidence to justify respondents must be reversed and the cause the finding, is by motion for new trial.”

remanded, with directions to the trial court In the case of Hawxhurst v. Rathgeb, 119 to grant a new trial; and it is so ordered. Cal. 531, 51 Pac. 846, 63 Am. St. Rep. 142, Costs are awarded to appellant. that court held:

"After findings have been filed, and judgment SULLIVAN, C. J., and MORGAN, J., conentered thereon, there is but one method by

cur. which those findings can be competently changed or modified, except perhaps, in respect of a mere clerical error or misprision, and that is the

(28 Idaho, 461) mode pointed out by the statute-by the grant

Ex parte WINN. ing of a new trial. Until the findings are thus

(Supreme Court of Idaho. Jan. 29, 1916.) set aside, they must, under our present system, stand in their integrity as originally made."

1. INDICTMENT AND INFORMATION OmtIn

FORMATIONS. In the case of Wyllie v. Kent, 152 Pac, 194,

Informations are of equal dignity with inthis court lays down the following rule: | dictments, subject only to the limitations con

It is a well-established rule that where, |tained in section 8, art. 1, of the Constituthrough mistake, there has been a failure to tion, to the effect that a defendant may be only enter the judgment pronounced, the court has accused by information after commitment by a power to correct the matter and to order the magistrate, and that, “after a charge has been proper entry made. Clerical mistakes can be ignored by a grand jury, no person shall be held corrected in this manner, but judicial errors can to answer, or for trial therefor, upon informaonly be remedied by motion for a new trial ortion of the public prosecutor.” upon appeal.”

[Ed. Note. For other cases, see Indictment In the case of Wunderlin v. Cadogan, 75 and Information, Cent. Dig. 88 3, 24-27; Dec. Cal. 617, 17 Pac. 713, it appeared that the

Dig. 4.) case was tried and findings of fact signed and | 2.

| 2. INDICTMENT AND INFORMATION 4-FORM

OF ACCUSATION-INFORMATION-ACTION OF filed. No judgment was entered thereon.

GRAND JURY Upon such findings all of the defendants were When a defendant in a criminal case has entitled to judgment. Subsequently, upon the been given, or has waived, his preliminary examconsent of some of the defendants, but with

ination, and has been by the magistrate held

to answer and for trial in the district court, out notice to the others, the court set aside

and, when the prosecuting attorney, at the next the findings first filed, and substituted others session thereof, no grand jury having been callin their place, and the clerk was instructed ed nor convened, has presented, and the clerk not to enter judgment under the original | has filed, an information charging him with the

offense for which he has been so held to answer, findings, as the same were made under a mis

the court acquires jurisdiction of the defendapprehension. Judgment was entered on the ant and of the offense with which he is charglast set of findings in favor of the defended, from which it cannot be deprived by any ants who consented to the change of the

action of a grand jury convened at a subsequent

term. findings and against those who were not noti

[Ed. Note.-For other cases, see Indictment fied of such change. It was said by the Su-l and Information, Cent. Dig. 8$ 3, 24-27; Dec. preme Court in that case:

| Dig. 4.) "It is to be observed that what the court did in the first instance was not merely to supply | Habeaş corpus by Ed F. Winn. Writ an omission in the findings first filed, or change quashed. the direction for judgment, but was to substitute one set of findings of fact for another. This we | Edgington & Averitt, of Idaho Falls, for are inclined to think the court had no power plaintiff. J. H. Peterson, Atty. Cen., D. A. to do. *** These rules rest upon the the- | Dunning and Herbert Wing. Asst. Attys. ory that the modes in which a decision may be reviewed are prescribed by statute, and that the

Gen., and James S. Byers, Pros. Atty., of court has no power to substitute other modes in Idaho Falls, for the State. their place."

Counsel for defendants in this case, after MORGAN, J. The record in this case disthe findings of fact, conclusions of law, and I closes that on the 24th day of Jane, 1915, a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
154 P.-32

complaint was filed with the probate judge or on information of the public prosecutor, after of Bonneville county, in his capacity as com- a commitment by a magistrate : * * * Promitting magistrate, charging that the peti

vided, that a grand jury may be summoned upon

the order of the district court in the manner tioner, Ed F. Winn, did, on August 25, 1914, provided by law: And, provided further, that in that county, commit a public offense, to after a charge has been ignored by a grand wit, a nuisance, which consisted in maintain- jury, no person shall be held to answer or for ing and assisting in maintaining and control.

trial therefor upon information of the publie

prosecutor.' ling a certain place within a prohibition dis

Section 7600, Rev. Codes, provides that all trict where intoxicating liquors were sold and

public offenses triable in the district court otherwise disposed of in violation of law, and where persons were permitted to resort

must be prosecuted by indictment or informa

tion, except as provided in the next succeed. for the purpose of drinking intoxicating liq

| ing section, which relates to proceedings for uors as a beverage, and where intoxicating

the removal from office of certain public ofliquors were kept for sale and disposal in

ficials, and has no bearing upon this case. violation of law. Petitioner was arrested,

Section 7630 is as follows: brought before the magistrate, and waived

"The grand jury must inquire into all public preliminary examination, and was held to offenses committed or triable within the county, answer said charge in the district court. and present them to the court, either by pre

On the 8th day of July, 1915, the prosecut- / sentment or by indictment.” ing attorney in and for Bonneville county! Section 7655 provides: presented in the district court, which was "The several courts of this state shall possess then in session, and the clerk, under direction

on and may exercise the same power and jurisdic

tion to hear, try, and determine prosecutions of the court, filed an information charging

upon information for crimes, misdemeanors and petitioner with having committed the offense offenses, to issue writs and process, and to go above mentioned. At a subsequent term of all other acts therein as they possess and mas the court, and on the 8th of November, 1915, Idiomonton

exercise in cases of like prosecutions upon ina grand jury in and for that county was im-1

It will be readily seen that it was the les paneled, and on the 17th of that month it completed its labors and adjourned without

islative intent to make informations of equal

dignity with indictments, subject only to the having, so far as the record discloses, taken

limitations contained in section S, art. 1, of any action with respect to the charge pending

the Constitution, to the effect that a defendagainst petitioner. On November 9, 1915, pe

ant may be only accused by information afttitioner was arraigned and moved to quash

er commitment by a magistrate, and that: the information, which motion was overruled,

beu, ! "After a charge has been ignored by a grand and. he having refused to plead thereto, a jury, no person shall be held to answer, or for plea of not guilty was entered for him by trial therefor, upon information of the public order of the court. On December 2, 1915, | prosecutor.' the case was tried, and resulted in his con- [2] Petitioner urges that, since the grand viction and sentence that he pay a fine of jury did not indict him, it must be deemed $500, and that he be confined in the county to have ignored the charge above mentioned, jail for a period of three months, and he was and that he could not, after its adjournment, thereupon committed to the custody of the be legally held to answer, or for trial there sheriff of Bonneville county. The purpose of for, upon information. A fatal defect in this this proceeding is to procure the issuance contention arises from the fact that, concedof a writ of habeas corpus directed to the ing the grand jury did ignore the charge. sheriff commanding him to show cause why petitioner had been theretofore, instead of petitioner is being restrained of his liberty. thereafter, held to answer and for trial. The writ was issued, and counsel for the When petitioner had been given, or had wair. state, representing the sheriff in the matter, ed, his preliminary examination, and was by have moved to quash it, assigning as grounds the magistrate held to answer and for trial of their motion that the petition does not in the district court, and when the prosecutstate facts sufficient to entitle petitioner to ing attorney, at the next session thereof, no the relief demanded, or any relief whatever. grand jury having been called nor convened.

[1] It is the contention of petitioner that, had presented, and the clerk had filed, an under the Constitution and statutes of Idaho, information charging him with the offense a defendant who has been held to answer by for which he had been so held to answer, the a committing magistrate cannot be tried up court acquired jurisdiction of petitioner and on the information of the prosecuting at- of the offense with which he was charged torney when the court has convened a grand from which it could not be deprived by any jury between the time the information was action of a grand jury convened at a subse filed and the time he is arraigned and enters quent term. his plea.

The motion to quash the writ of habeas Section 8, art. 1, of the Constitution pro- corpus is sustained, and the petitioner is re vides:

manded to the custody of the sheriff of Bon"No person shall be held to answer for any neville county. felony or criminal offense of any grade. unless

(12 Okl. Cr. 243)

roadhouse east of Cushing, near the county Ex parte BIRMINGHAM. (No. A-2618.) line of Creek county, at the time of the shoot(Criminal Court of Appeals of Oklahoma.

ing. That the deceased walked up to Bir· Jan. 31, 1916.)

mingham and said, “Now is a good time to

settle our troubles;" that he had a long (Syllabus by the Court.)

spring-back knife in his hand, and Birming1. BAIL Om 49 - CRIMINAL PROSECUTIONS - ham backed up against the wall, and as the BURDEN OF PROOF-CAPITAL OFFENSE. deceased attempted to strike with the knife, On the hearing of an application for admis

She shot him; that witness then grabbed the sion to bail after commitment for a capital offense. to determine whether or not the proof of pistol; that there was present at the time guilt is evident or the presumption thereof John Phillips, Lon Anderson, Cecil Messengreat, the burden of proof is on the petitioner. ger, Ruby Bowen, and Ruth Bradley; that

[Ed. Note.-For other cases, see Bail, Cent. the shootin Dig. $8 195-208, 241, 244; Dec. Dig.

Licen't. | the shooting occurred about 11:30 that night. 49.]

The petitioner as a witness in his own behalf 2. BAIL Om 49-ADMISSION TO BAIL-SUFFI. CIENCY OF EVIDENCE-CAPITAL OFFENSE.

testified that he had known the deceased Evidence reviewed, and held sufficient to

about three years and knew his general repushow that petitioner is entitled to be admitted tation in Oklahoma City and Tulsa as to beto bail.

ing a bad and dangerous character. That [Ed. Note.-For other cases, see Bail, Cent. Dig. 88 195–208, 241, 244; Dec. Dig. Cm 49.)

he was ‘generally known as a holdup man,

and all-around tough character, who hung Application of Joseph H. Birmingham for around houses of prostitution; that petitionwrit of habeas corpus, by which he seeks to er was in the oil country at the time as an be let to bail. Bail allowed.

employé of a law and order enforcement Pruiett, Sniggs & Tripp, of Oklahoma City.

league to get data on the transportation and for petitioner. R. McMillan, Asst. Atty. Gen.,

selling of whisky and to take photographs for the State.

of the joints; that he had been there several

days and went from Pemeta to this roadPER CURIAM. This is an application by

house that night; that he went in and asked Joseph H. Birmingham for a writ of habeas for a glass of water; that as he reached for corpus, by which he seeks to be let to bail

| the glass the deceased said, “We will cut his pending the final hearing and determination

throat now," and pushed him and kicked of a charge of murder filed against him in

him; that he backed up against the wall, and Payne county, wherein upon his preliminary

the deceased came towards him with a long examination he was held to answer for the

spring-back knife in his hand and struck at murder of one Guy Phillips by shooting him

him and he drew a pistol and shot him in with a pistol on the 14th day of October,

his necessary self-defense; that some one took 1915. The petitioner avers that he is now

the pistol from him, and the deceased struck unlawfully imprisoned and restrained in the

at him again with a knife, and he pulled a common jail of Payne county, by Henry

second pistol; just then the knife fell from Townsend, sheriff of Payne county, and that his hand as he dropped to the floor. he is not guilty of the crime of murder charg. [1] By numerous decisions of this court it ed; that the proof of his guilt is not evident, / is held that upon an application for bail by nor the presumption thereof great. Attached writ of habeas corpus, after commitment for to said petition, and made a part thereof, is a capital offense by an examining magistrate, a duly certified transcript of the evidence tak the burden is upon the petitioner to show en on his application to the district court of facts sufficient to entitle him to bail, when Payne county for admission to bail in said those facts do not appear from the evidence case, which application was denied.

adduced on the part of the prosecution. Ex 121. The evidence for the state is somewhat parte Dykes, 6 Okl. Cr. 162, 117 Pac. 724; weak and uncertain, although it appears sev

In re Fraley, 3 Okl. Cr. 719, 109 Pac. 295, 139 eral persons, both male and female, were eye

| Am. St. Rep. 988. However, where the facts witnesses to the tragedy. The testimony tak

mony tak. and circumstances in evidence reasonably en on the part of the defendant is substan- support the issue that the accused acted in tially as follows: Harry E. Stege testified his necessary self-defense in taking the life that he is the superintendent of the bureau of the deceased, the petitioner should be adof identification of the police department at mitted to bail. Tulsa; that he had formerly conducted a pri- Upon a consideration of the testimony we vate detective agency at Oklahoma City, and are of the opinion that the petitioner herein knows the general reputation of the deceased is entitled to be admitted to bail. It is therethere as to being a dangerous and quarrel- fore ordered that said petitioner be admitted some and turbulent character, and that it is to bail upon the charge of murder now pendbad; that his reputation at Tulsa was the ing against him, and that his bail be, and the same; and that at Tulsa about a year ago same is, hereby fixed in the sum of $10,000. upon his conviction in the police court he Bond to be conditioned as required by law, took his Bertillion measurements. E. B. Mc- and the same to be approved by the clerk of Millen testified that he was present at the said county,

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(12 Okl. Cr. 246)

W. E. Grisso dated March 15, 1913, acknowl CUDJOE V. STATE. (No. A-2326.) edged before H. A. Born, notary public, in (Criminal Court of Appeals of Oklahoma. and for Seminole county on said date. Jan. 29, 1916.)

On the part of the state the evidence tend

ed to prove the following facts: That on the (Syllabus by the Court.)

date alleged the said Jimmie Cudjoe, with 1. FORGERY OW21—"PRINCIPAL" AND ACCES

one Willie Barkus, went to the drug store of SORY.

One who is present at the forgery of a deed, one W. E. Grisso in the town of Seminole, knowingly aiding, abetting, or assisting such | introduced said Barkus' as Ben Grayson, and forgery, is guilty as a principal, although the

stated that he wanted to sell his land; after act of signing the name with intent to forge the same was done by another person.

talking the matter over Grisso agreed to buy [Ed. Note.-For other cases, see Forgery, the land, and Barkus signed the deed as Cent. Dig. § 57; Dec. Dig. Om 21.

Ben Grayson, and acknowledged the same beFor other definitions, see Words and Phrases, fore H. A. Born, a notary public. The conFirst and Second Series, Principal.]

sideration for the deed was $250. Grisso 2. CRIMINAL LAW 742-TRIAL-QUESTIONS | also gave Jimmie Cudjoe $1. OF LAW AND FACT.

Where the evidence is conflicting as tol Ben Grayson testified that he had lived in whether a witness participated in committing Seminole county all his life; that he had the crime charged, the question as to whether known Jimmie Cudjoe for five years, that or not such witness is an accomplice is one of

they were at school together at Mekusukey; fact for the jury. But where the acts and conduct of the witness are admitted, it becomes a that the land described in said deed was his question of law for the court to say whether homestead allotment; that he had never or not those acts and facts make the witness an

authorized Willie Barkus or any one else to accomplice. [Ed. Note.-For other cases, see Criminal

sign a deed; that he was in possession of the Law, Cent. Dig. S$ 1098, 1138, 1719-1721; Dec land described in the Grisso deed on the 15th Dig. ww 742.]

day of March, 1913. 3. CRIMINAL LAW Om510_TESTIMONY OF AC H. A. Born, notary public, testified that he COMPLICE-CORROBORATION

took the acknowledgment of the deed in Under Proc. Cr. § 5884, Rev. Laws, “a conviction cannot be had upon the testimony of que

of question, and that Ben Grayson was not the an accomplice, unless he be corroborated by such person who signed the deed; that Willic other evidence as tends to connect the defend. Barkus signed the name of Grayson to tbe ant with the commission of the offense," and if

deed and Jimmie Cudjoe said at the time that two or more accomplices testify, the same cor-l: roboration is required as if there be but one: he was Ben Grayson. Willie Barkus testiAr accomplice can neither corroborate himself fied: That he had pleaded guilty to forgery nor another accomplice.

in connection with signing this deed. That [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 8$ 1124-1126; Dec. Dig. Om

he had known Jimmie Cudjoe all his life. 510.)

That on the day in question he arrived at 4. FORGERY Cm 44 - SUFFICIENCY OF Evi- the town of Seminole, and was going up the DENCE,

| street when he met Jimmie Cudjoe, who said Evidence in a prosecution for forgery, con- to him, “A fellow here wants you to sign a sidered and held to be sufficient to sustain a la conviction.

deed." And witness said, "What for?" And [Ed. Note.-For other cases, see Forgery,

Jimmie Cudjoe said, "He will give me $7 if Cent. Dig. S$ 117-121; Dec. Dig. Om44.] you can write it like he says." And he said,

“All right;" and went with Cudjoe to sign Appeal from District Court, Seminole the deed and they gave him $7, a check, and County; Frank Mathews, Judge.

a paper or two; when they left he gave the Jimmie Cudjoe was convicted of forgery, papers to Jimmie Cudjoe. The defendant, and appeals. Affirmed.

Cudjoe, as a witness in his own behalf, tes. E. L. Harris, of Wewoka, for plaintiff in tified: That he was in Shawnee a few weeks error. Chas. West, Atty. Gen., and Smith O. before the deed was signed, and a fellow Matson, Asst. Atty. Gen., for the State. walked up to him and said, "Don't you re

member Ben Grayson, that boy that went to DOYLE, P. J. This appeal is from a judg- school with you?” And he said, "Jimmie, ment of conviction for the crime of forgery do you know where a fellow could sell any in the first degree, rendered by the district land down there where you live?" and he court of Seminole county, on the 28th day of told him he thought he could; and he said, January, 1914, wherein Jimmie Cudjoe, plain- | 'I will be down there some time and see tiff in error, was sentenced to imprisonment about it." That on the day the deed was in the penitentiary for the term of 7 years. signed he was standing near the depot at The information charged Jimmie Cudjoe and Seminole, when the same fellow walked up Willie Barkus with forging a warranty deed, and said, "Hello, I have come down here to purporting to convey the following described sell that land I was talking to you about ;* land in Seminole county. The southeast and they went down to Mr. Grisso, who quarter of the northwest quarter of section bought the land. That he thought Willie 11, township 5 N., of range 5 E. The deed | Barkus was Ben Grayson, who had gone to purported to be executed by Ben Grayson to school with him at Mekusukey.

The first assignment of error is based up-, accomplices, then that one accomplice could not on the action of the court in overruling the corroborate another, and that before they could

convict the defendant they must have other tesmotion for a new trial on the ground of timony corroborating that of Barkus. Grisso. newly discovered evidence, as set forth in and Bern, tending to connect the defendant the affidavit of one Bunnie Bruner. It ap- with the commission of the offense before they

could find Cudjoe, the defendant, guilty." pears that the day before the case was call. |

This criticism is based upon the theory ed for trial, upon due notice to the defend

that the witnesses Barkus, Grisso, and Born ant and his counsel, the court permitted the

were all accomplices. There was no evicounty attorney to indorse the name of the codefendant Willie Barkus on the informa- ||

dence tending to prove that the witness Born tion. When the case was called for trial,

was an accomplice. The testimony of Barkcounsel for defendant filed an application

us, a codefendant, as to what Cudjoe said to

him just before and after the forgery was for a continuance on the ground that "nei

committed, tends to prove that Grisso was ther the defendant nor his attorneys know

an accomplice. Grisso's testimony tended to what the testimony of Willie Barkus will be,

show that he was an innocent purchaser. and had no opportunity to consult with their

When the question of an accomplice arises in client." The application was overruled. It

the trial of a case, the general and accepted is argued that the defendant was thus de

rule is for the court to instruct the jury on prived of an opportunity to show diligence

the law of accomplice testimony and leave in obtaining the attendance of the witness

the question as to whether or not the witBunnie Bruner. Under the statute every de

ness is an accomplice for the determination fendant jointly indicted or informed against

of the jury as a question of fact. But where is charged with notice that the state may,

the facts are not in dispute, or where the if it so desires, use a codefendant as a wit

acts and conduct of the witness are admitness against him. Proc. Cr. § 5879, Rev.

ted, it becomes a question of law for the Laws.

court to say whether or not those acts and Willie Barkus had entered his plea of

facts make the witness an accomplice. guilty, and had been sentenced prior to this

Where he is admitted to be such, or where trial. Bruner it appears was a neighbor of

the undisputed facts show him to be an acCudjoe; his failure to learn what Bruner

complice, the court may so charge without would testify to before the trial was a lack

invading the rule that the court should not of diligence on his part; had the defendant

comment on the credibility of any witness. exercised any diligence whatever he could Driggers v. U. S., 1 Okl. Cr. 167, 95 Pac. have secured the attendance of this witness 612, 129 Am. St. Rep. 823; Id., 21 Okl. 60, at the trial. A defendant must use all rea- 95 Pac. 612, 129 Am. St. Rep. 823, 17 Ann. sonable diligence, not only to find out what Cas. 66. See People v. Coffey, 161 Cal. 433, witnesses he will need, but also to secure 119 Pac. 901, 39 L. R. A. (N. S.) 706; Underthe attendance of such witnesses at the trial. hill on Criminal Evidence, 8 69. Davis v. State, 10 Okl. Cr. 169, 135 Pac. 438. If two or more accomplices testify, the

We think the motion for a new trial was same corroboration is required as if there be properly overruled.

but one; an accomplice can neither corrob[1-3] The second assignment is that the orate himself nor another accomplice. Whethcourt erred in giving the following instruc-er the witness Grisso was or was not an tion:

accomplice was a question of fact for the "You are further instructed that a conviction jury. The instruction objected to was amply cannot be had upon the testimony of an ac- sufficient, and fully and fairly submitted the complice, unless corroborated by other evidence tending to connect the defendant with the com- / law applicable to acci

law applicable to accomplice testimony. This mission of the offense, and the corroboration is was the only instruction objected to. It apnot sufficient if it merely shows the commission pears that the case was fairly submitted to of the offense. An accomplice, as the word is the

the jury in a clear, concise, and fully adehere used, means any one connected with the crime committed, either as principal offender, or, quate charge. as an accessory, or one who aids and abets in [4] Finally it is insisted that the evidence the commission of an offense; it includes all is insufficient to support the conviction. That persons who are connected with the crime by unlawful acts on their parts committed, either

the deed was forgery and that the defendant before or at the time of the commission of the was present when the name of Ben Grayson offense, and if you find that the deed set out was signed thereto by Barkus with intent to in the information was forged and that any wit- dofiro

- defraud was undisputed. If the defendant ness who has testifed herein against the defendant was an accomplice in said forgery. then you knowingly or intentionally aided or abetted must disregard the testimony of such witness in in the commission of the crime, he was guilty so far as the same is against said defendant, in

also, as much so as if he had forged Grayso far as the same is not corroborated as herein stated. (Excepted to by defendant, and excep

son's name himself. The testimony of Born, tion: allowed.) Frank Mathews, Judge.”

| a disinterested witness, was sufficient to show The criticism made upon this instruction

his guilt, unless it was, as the defendant tesin the defendant's brief is as follows:

tified, a case of mistaken identity, and that "The court ought to have included in the

| he believed Barkus was Grayson. The deabove instruction the further charge that if they | fendant, Cudjoe, Barkus, and Grayson are found all of the witnesses above mentioned to be Seminole negroes; and in the face of the un

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