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disputed facts, that the defendant and Bark- / Having reviewed the errors assigned, and us had known each other from childhood, finding no substantial error in the record, and that both had attended school with Gray- the judgment is affirmed. son several years, we are inclined to think the defense attempted to be made was with
FURMAN and ARMSTRONG, JJ., concur, out merit.
It would seem that the defendant, Cudjoe, was the archconspirator, and that “Barkus
HOLMES 5. STATE. (No. A-2279.) was willing.” We think the evidence was (Criminal Court of Appeals of Oklahoma amply sufficient for the purpose of convic
Feb. 5, 1916.) tion. Having reviewed the errors assigned On rehearing. Former judgment modified and finding no error in the record, the judg- and affirmed. For former opinion, see 11 ment is affirmed.
Okl. Cr. 715, 148 Pac. 1147. FURMAN and ARMSTRONG, JJ., concur.
Fogg & Bennett, of El Reno, for plaintifi
in error. R. McMillan, Asst. Atty. Gen., for (12 Okl. Cr. 252)
the State. RENTIE V. STATE. (No. A-2452.)
PER CURIAM. Upon rehearing it is urg(Criminal Court of Appeals of Oklahoma. Feb.
ed that the evidence introduced in this cause 5, 1916.)
on behalf of the state is legally of doubtful (Syllabus by the Court.)
competency. In fact, all of the direct eri. HOMICIDE 332 - APPEAL - VERDICT-Evi- dence, under strict adherence to the rules of DENCE.
law governing the introduction of testimony, Record and evidence examined, and held | sufficient to sustain a conviction for assault
should probably have been excluded. Takwith intent to kill, and that no reversible error en as a whole, however, and considering all was committed on the trial.
the facts and circumstances introduced in [Ed. Note.-For other cases, see Homicide, the case, we entertain no doubt that the Cent. Dig. 88 699-704; Dec. Dig. Om 332.)
jury's verdict finding defendant guilty was Appeal from District Court, Okmulgee just. County; Wade S. Standfield, Judge.
There are errors of law urged in the brief Clifford Rentie was convicted of assault and argument which are of more or less with intent to kill, and appeals. Affirmed. merit, but sufficient prejudice does not apE. M. Carter and C. L. Phillips, both of
pear to warrant a reversal of this judgment. Okmulgee, for plaintiff in error. R. McMil There is no proof disclosed by the record lan, Asst. Atty. Gen., for the State.
that the plaintiff in error was ever indict
ed, or convicted, of a similar offense. There DOYLE, P. J. Clifford Rentie. plaintiff was no proof offered by the plaintiff in error in error, was convicted of assault with in- | in his defense. He chose to stand on techtent to kill T. L. Dunigan, and was sentenced
nical errors of law. to imprisonment in the penitentiary for the Upon a re-examination of the record we term of three years. From the judgment are of opinion that the irregularities coman appeal was taken by filing in this court
plained of tended reasonably to prejudice on May 4, 1915, a petition in error with case
the jury in the matter of assessing the pun. made. The errors assigned are:
ishment. A fine of $250 was imposed and a (1) That the court erred in overruling the jail sentence of 90 days. A new trial in this motion for a new trial.
cause would probably result in another con(2) That the verdict is contrary to law viction; but, if tried according to law, a and the evidence and is based wholly upon | lighter punishment would probably be impassion and prejudice.
posed. (3) That the court erred in giving instruc
| It is therefore the judgment of the court tion No. 6 to the jury.
that the ends of justice warrant a modifica. It appears that the plaintiff in error, a tion of this judgment by reducing the fine negro, assaulted the prosecuting witness from $250 to $150, and imprisonment from 90 Dunigan with a knife, inflicting nine wounds, days to 60 days. It is therefore so ordered. one of which penetrated the pleural cavity. As modified, the judgment, on rehearing,
No briefs have been filed, and when the is affirmed. Mandate ordered forthwith. case was called for final submission no appearance was made in behalf of the plaintiff
(12 Okl. Cr. *) in error. The case was thereupon submitted WINGO v. STATE. (No. A-2457.) on the record. We have carefully examined (Criminal Court of Appeals of Oklahoma. Feb. the record, and find that it is exceptionally
5, 1916.) free of error, and we find no reason to think
(Syllabus by the Court.) that the verdict was the result of passion or
CRIMINAL LAW Ow1172-HARMLESS ERRORprejudice. No objection was made or ex
INSTRUCTIONS. ception taken to the instructions given by The letter and spirit of the law is that, if the court.
i the defendant had had a fair trial, and if this
court is satisfied that the verdict against the , zen, when charged with crime, is entitled to defendant was not reached by error, or as the a fair trial according to the due and orderly result of passion or prejudice, the conviction should be affirmed. In this case the erroneous
course of the law, but he cannot be heard to instruction was harmless, for the reason that complain if an error is committed that canthe evidence did not leave the guilt of the de- not operate to his prejudice. Cooper v. State, fendant in doubt. No defense was made, and no 12 Okl. Cr. — 152 Pac. 608. prejudice could have resulted. [Ed. Note.--For other cases, see Criminal
Upon the undisputed facts and the law as Law, Cent. Dig. $$ 3128. 3154-3157, 3159-3163, we understand it, the plaintiff in error was 3169; Dec. Dig. Om 1172.]
rightfully and legally convicted. Appeal from County Court, Grady County;
The judgment of the county court of Grady R. E. Davenport, Judge.
county herein is therefore affirmed. Bud Wingo was convicted of a violation of the prohibitory law, and appeals. Affirmed.
FURMAN and ARMSTRONG, JJ., concur. Holding & Herr, of Chickasha, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
(54 Okl. 672) DOYLE, P. J. The plaintiff in error, Bud
MISSOURI, O. & G. RY. CO. v. DAVIS.. Wingo, was convicted in the county court of
(No. 5444.) Grady county on an information charging (Supreme Court of Oklahoma. Nov. 30, 1915. that in said county on or about the 10th day
On Rehearing, Jan, 18, 1916.) of November, 1914, he did then and there willfully and unlawfully have in his posses
(Syllabus by the Court.j sion 360 gallons of whisky with the unlawful 1.
1. TRIAL Om 200 - INSTRUCTIONS - ISSUES OF
FACT. intent to violate provisions of the prohibitory! Where the evidence raises a question of law. Judgment was rendered on the 13th fact, for the jury to pass upon, it is the duty day of March, 1915, and he was sentenced to of the court to instruct the jury as to the law pay a fine of $100 and to be confined in the applicable to the issue of fact raised by the evi
dence. county jail of Grady county for a period of
[Ed. Note. For other cases, see Trial, Cent. 30 days. From the judgment an appeal was | Dig. & 471: Dec. Dig. Em 2001 taken by filing in this court on May 10, 1915, 1.
"2. TRIAL m260REFUSAL OF INSTRUCTIONS a petition in error with case-made.
COVERED. The evidence for the state shows that the Where the instructions given by the court defendant was found driving through the clearly and fairly cover the law as to a particcountry south of Chickasha with two wag
ular phase of a case, it is not error to refuse
requested instructions on the same phase of the ons; he driving one team and his little boy
case. another; that in one wagon was four barrels
[Ed. Note.-For other cases, see Trial, Cent. of whisky, and in the other three barrels Dig. $$ 651-659; Dec. Dig. 260.) and a case of whisky, and, when arrested,
3. MASTER AND SERVANT 125 – INJURY TO the defendant produced what he called a bill SERVANT-DEFECTIVE MACHINERY-LIABILIof lading purporting to show that the whisky TY OF MASTER. had been delivered to him at Wichita Falls Where an employé is injured by the breakand consigned to one John Jackson at Hope, mg Tohn loc son at ono ing of defective machinery, the fact that the
| master purchased the machinery from a repuArk. There was no evidence offered on the
table dealer is only one ingredient of evidence on part of the defense. The errors assigned are the question of whether he has exercised reabased upon the refusal of the court to give sonable care. He should also resort to such
tests as are reasonable and practicable, considcertain requested instructions, and on an ex
ering the character of the machinery and the ception taken to one of the instructions given.
Ime instructions given. | danger connected with its operation. The instructions requested were properly [Ed. Note.--For other cases, see Master and refused. The instruction excepted to was in- Servant, Cent. Dig. $$ 243-251; Dec. Dig. Como correct. Similar instructions have been con
125.] demned by this court in the case of Huff v.
Where what is called the U-bolt in a wreck
| ing machine breaks, causing the boom pole to However, upon a consideration of the record, foi
| fall upon an employé and injure him, and there we are of the opinion that on the undisputed is evidence that the foreman of the wrecking facts of this case the defendant could not be crew, immediately after it had broken, remarkprejudiced by the instruction complained of,
ed "that he was expecting that to break," held,
that such remark by the vice principal tends for the reason that the evidence did not leave to charge the employer with knowledce of the the guilt of the defendant in doubt. This defective condition of this particular part of court has often held, where the case is clear the machine, and that it was proper to submit
this evidence, together with other evidence tendly made out against the defendant, and their
ing to show knowledge of this particular dejury has so found, the judgment will not be | fect, to the jury. reversed for errors which do not affect thel (Ed. Note.-For other cases, see Evidence, substantial merits of the case. Every citi. Cent. Dig. $8 916-936; Dec. Dig. Om 244.)
motor other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Commissioners' Opinion, Division No. 2., The complaint is that this portion of the Error from District Court, Hughes County; instruction is inapplicable to the facts in the John Caruthers, Judge.
case; that there was no evidence as to the Action by Hiram L. Davis against the Mis- | defective condition of the machinery offered souri, Oklahoma & Gulf Railway Company. by the plaintiff. But this contention is not Judgment for plaintiff, and defendant brings supported by the record. One witness witherror, Affirmed and rehearing denied. out objection testified that, immediately folE. R. Jones and J. C. Wilhoit, both of Mus.
lowing the injury of the plaintiff, the fore
man said: kogee (Arthur Miller, of Kansas City, Mo., of
"I told them if they did not fix that thing op, counsel), for plaintiff in error. Crump & somebody would get killed. Q. What was he Skinner and W. T. Anglin, all of Holdenville, talking about? A. The wrecker, I reckon; for defendant in error.
said he told them fellows if they did not fix that, that it was going to kill somebody. Q. What
did he say; anything else? A. Yes, sir. He BRETT. C. This action was commenced said it come pretty nigh killing somebody last in the district court of Hughes county by the defendant in error, Hiram L. Davis, as plain
Several other witnesses testified to these tiff. against the Missouri. Oklahoma & Gulf same remarks. We think this evidence clear. Railway Company, as defendant, to recover
ly raised the question of the condition of the damage for alleged personal injuries. The machinery, and justified the instruction commaterial facts are: That Hiram L. Davis, plained of. But this instruction, among other the plaintiff in the lower court, was a section
precautionary admonitions, further charged hand in the employ of the defendant, and as
the jury that: such was called out in May, 1912, by the de
“The railroad company is not to be held as
guaranteeing or warranting absolute safety to fendant to assist in clearing away a wreck
the plaintiff, nor is it bound to furnish the saf. which had occurred on defendant's road. est machinery nor to provide the best methods The pleadings and evidence show that at the for its operation in order to save itself from re time the alleged injuries were received plain
sponsibility to accidents resulting from its use. tiff was acting under the directions of the dinary safe character, properly equipped with
If the machinery and appliances used be of or foreman of the wrecking crew. While doing reasonably safe appliances, and in sound repair, this the wrecking machine broke, and caused and such as can, with reasonable care be used the injuries complained of. Plaintiff by prop
without danger to its employés, that is all that is
required, and when it has exercised that degree er pleadings alleges that the machinery was of prudence and care that an ordinary reasoddefective, and charges negligence on the part able prudent man would provide in guarding of the defendant in furnishing dangerous and against accidents or injuries himself under like
circumstances, it has exercised all the duty that defective machinery with which to do this
the law has imposed upon it to the plaintiff." work. There being no question raised in this
The instruction, taken as a whole, we think, court as to the pleadings, it is unnecessary
was very clear, accurate, and fairly stated to further set them out. The cause was tried
the law applicable to the facts in the case. to the court and a jury. The defendant de
The defendant further complains of the murred to plaintiff's evidence, which was
court's refusal to give two requested instrucoverruled, and the jury returned a verdict for
tions, which are to the effect that the defendthe plaintiff for $1,500, which became a judg
ant is not liable for latent defects, which by ment; and the defendant appeals from this
reasonable diligence could not be detected. judgment.
| But this proposition was fully and clearly There are numerous assignments of error,
covered by No. 3 of the instructions given by but the only issue before this court is one of
the court, and this contention is wholly withlaw; as the facts have been passed upon by
out merit. the jury, and, there being evidence to sustain
 The further complaint is that the court their verdict, this court, as has often been
refused requested instruction No. 16, which said, will not attempt to weigh the evidence.
is as follows: [1, 2] The defendant (plaintiff in error)
"The court instructs the jury, as a matter of complains of a portion of instruction No. 2, law, that a master who buys machinery, tools, given by the court. That portion of the in- appliances, or materials from a reputable maker struction complained of is the following:
and who also uses reasonable care in inspecting
and setting the same up and putting them into "In this case the law imposes upon the defend
use or operation is not liable to an employé ant company the positive duty to have used rea
for injury resulting from the negligence of the sonable care in seeing that the derrick and boom
maker of the material or in his doing the work pole and the U-bolt, and other attachments of
in an improper manner." the wrecking machinery were so constructed as to have been in a reasonably safe condition, and
This instruction, we think, imperfectly it was the positive duty of the defendant compa- states the law on the question, and was prop ny to see that the machinery and appliances erly refused. The master cannot rely simply used were sound, and the failure of the company to provide sound machinery to do the work of upon the repu
upon the reputation of the dealer from whom clearing away the wreck and to provide reason- he purchases, and “reasonable care in inably safe equipments for that purpose, taking in-specting and setting up the machinery and to consideration the character of the work to be putting it into operation" but he must also performed by its employés while engaged in the service of the company, would be negligence, un
resort to such tests as are practicable, and
machinery, and the dangers connected with boom pole in question and described in the petiits operation. It is often the case that the tion, broke, permitting the boom pole to fall mere visual inspection is insufficient, and of |
upon the back of the plaintiff and injuring
him, and if said bolt was defective by reason but little practical value. As said by Mr. of some latent or hidden defect, which could Thompson:
not have been known to the defendant or its “The fact that the master purchases the ma
employés by the exercise of reasonable diligence chine, tool, or appliance from a reputable man
in time to have avoided the injury, by proper ufacturer does not excuse his own negligence in
inspection and examination of the machinery
from inspecting it, in testing it, and in setting it up,
time to time, taking into consideration
the character of the work and the strain that but is a circumstance entering into the general
was being required of it, and said accident was ingredient of evidence, speaking on the question whether or not he has exercised reasonable care
caused as the result of the breaking of the Uin the premises.” 4 Thompson on Negligence, s
bolt, under such conditions, then the plaintiff 3990.
cannot recover, for it would not be such negli
gence on the defendant's part as the law conAnd we think this is the correct rule, and templates which would entitle the plaintiff to the fact that the master purchased the ma
recover." chinery from a reputable dealer is only an in
This instruction squarely presented the gredient of evidence on the question of wheth- | question to the jury, as to whether or not er or not he has exercised reasonable care in under the evidence adduced in their hearing, the premises. And taking the instruction as the defect in the U-bolt was, as contended by a whole, the question of reasonable care was
the defendant, of such a latent or hidden fairly submitted to the jury, and as favorable character that it could not be known to the to the defendant as the law would warrant.
defendant by the exercise of reasonable dilHailey-Ola Coal, Co. v. Parker et al., 32 Okl. | igence, and told them plainly that negligence 642, 122 Pac. 632; 40 L. R. A. (N. S.) 1120; | could not be presumed from the fact that C., R. I. & P. Ry, Co. v. Wright, 39 Okl. 84, | the U-bolt broke, and under this instruction 134 Pac. 427; Rock Island Coal Mining Co. and the evidence the jury found against the v. Davis, 144 Pac. 600, not yet officially re contention of the defendant. ported.
 In addition to the evidence set out in The evidence is sufficient to sustain the the original opinion, tending to show that judgment, and we cannot say the judgment is knowledge of the defective condition of the excessive. We, therefore, recommend that U-bolt had been brought home to the defendthe judgment be affirmed.
ant, the witness Barnes testified that imme
diately after this U-bolt had broken, the PER CURIAM. Adopter in whole. foreman said "* . • that he was ex
pecting that to break, or looked for it, someOn Rehearing.
thing like that." What would be the reason
able inference to be drawn from this lanBRETT, C. The plaintiff in error in its
guage? That the foreman was referring to petition for rehearing insists that there was
something that had not broken, or to the an utter lack of evidence to show negligence
| rery thing that had broken? At that time of any kind or character on the part of
| it was manifest that it was the U-bolt that plaintiff in error to submit to the jury; that
had broken, and that this was what had there was no evidence that it had knowledge
caused the accident; and to insist that this of the defective condition of the U-bolt which
evidence does not tend to bring home to the broke, and that the U-bolt was so hidden and
defendant knowledge of the defective condiconcealed that an inspection of it was impossible; and that the doctrine of res ipsa
tion of the U-bolt, and should not have been
submitted to the jury, seems to us absurd. loquitur has no application between the mas
That was the very gist of the controversy. ter and servant.
If the defendant did not know, and could This cause was not tried in the lower
not by the exercise of reasonable diligence court, nor submitted to the jury in that
have known, that the U-bolt was defective, court, upon the doctrine of res ipsa loquitur.
then the plaintiff could not recover, and the Nor was that doctrine suggested or intimat
court so instructed the jury. But if, on the ed in the original opinion. On the contrary,
other hand, the defendant did know, or could, instruction No. 3, referred to, but not set
by the exercise of reasonable diligence, have out, in the original opinion, plainly tells the
known of the defective condition of the Ujury that negligence could not be presumed
bolt, then it was liable. And this issue was from the fact that the U-bolt broke, and that
squarely and fairly submitted to the jury. the defendant (plaintiff in error) cannot be
This was purely an issue of fact, which held liable for latent or hidden defects iu
had been raised by the pleadings and evithe U-bolt, which could not have been known
dence, and to have refused to submit it to to the defendant or its employés by the exer
the jury would have been error. cise of reasonable diligence. This instruc
We recommend that the petition for retion, quoted verbatim, is the following:
hearing be denied. “You are further instructed that you cannot presume that the defendant was negligent from the mere fact that the U-bolt, supporting the PER CURIAM. Adopted in whole
(54 Okl. 626)
"The Midland Savings & Loan Company, DenMIDLAND SAVINGS & LOAN CO. V.
ver, Colorado-Gentlemen: In accepting lot nomNEIGHBOR et al. (No. 5636.)
bered 3 in block numbered 21 in the town of
Cherokee, county of Alfalfa and state of Okla(Supreme Court of Oklahoma. Jan. 11, 1916.) homa, according to the recorded plat thereof, and
the assignment of your certificate numbered (Syllabus by the Court.)
9346, representing thirty-five shares of stock, MORTGAGES 275PURCHASER OF MORTGAG-) from Lincoln H. Burr, I accept the same subject
ED PROPERTY-RIGHT TO QUESTION VALID- | to the mortgage held by your company on tbe ITY.
said property, and assume and agree to pay said One who purchases real property expressly mortgage indebtedness, and to own and carry the subject to a mortgage thereon is, in an action to said shares of stock, according to the contract foreclose the same, precluded from asserting the of said Lincoln H. Burr, as a part payment of invalidity of such mortgage and defending the purchase price of said property. Respectful against it on the ground that it is not fully en- | ly, Oma J. Neighbor and witness S. W. Hill." forceable against his grantor.
Subsequently Oma J. Neighbor and J. W. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 772–781, 1218; Dec. Dig. Om 275.)
Neighbor conveyed said property to the de
fendant F. R. Zacharias, subject to said mort. Commissioners' Opinion, Division No. 3.
gage. Numerous payments were made, apError from District Court, Alfalfa County;
parently in compliance with the provisions James W. Steen, Judge.
of said obligation, by defendants and their Action by the Midland Savings & Loan
predecessors in interest, the last being op Company, a corporation, against Oma J.
August 11, 1911. Defendants having defaultNeighbor and others. Judgment for defend
ed in the payment of certain installments, ants, and plaintiff brings error. Reversed
due according to the terms of the bond, the and remanded, with directions.
association exercised its option to declare Geo. W. Partridge, of Cherokee, and A. the whole amount immediately payable, and, J. Bryant, of Denver, Colo., for plaintiff in on July 1, 1912, brought this action, claiming error. Titus & Talbot, of Cherokee, for de- the sum of $776.08, including an attorney's fendants in error.
fee of $100.
Defendants contended that the bond and BLEAKMORE, C. This case presents er- mortgage in suit constituted an Oklahoma ror from the district court of Alfalfa county. contract, governed and to be construed by On November 2, 1908, Lincoln H. Burr and the law of this jurisdiction; that such conwife executed and delivered their bond or tract did not comply with the law of this note for the principal sum of $1,000 and a state relative to building and loan associamortgage on certain real estate situate in the tions; that the premiums collected, and town of Cherokee, Okl., securing the same, sought to be collected, were fixed and exacte to the Midland Savings & Loan Company, a by arbitrary rule of the association, and building and loan association incorporated were not determined and accepted as the reand existing under the laws of the state of sult of competitive bidding, as required by Colorado, and, by compliance with the law, law; that the contract is usurious; tbat authorized to do business in this state. By plaintiff is entitled to collect only the princithe terms of said bond the makers bound pal sum of $1,000, with the minimum rate themselves to pay to the association, at its of interest thereon, etc. The court found office in Denver, Colo., the sum of $24 on or and adjudged: before the last day of each month, of which "That plaintiff had not required bids from its amount $14 was a monthly installment, due stockholders for preference of loan, and that the upon 35 shares of the capital stock of the
loan was made without any such bids as required association, $8.33 was monthly interest upon
by law, but by an arbitrary rule of the com
pany, and that premium so paid by the defendthe principal sum, and $1.67 a premium pay- ant was paid on said arbitrary basis, and not able monthly upon said principal, and also as the result of any bidding for said loan, and such fines as should accrue upon delinquent
the said contract is usurious; and that plaintif
is not entitled to the privileges granted to a payments for said stock, interest and premi- |
building and loan association under the laws of um, according to the by-laws of the company, | this state; and that by reason thereof plaintif until the principal sum should be paid in
is entitled to interest at 6 per cent. on the orig. full as provided in the bond and, further,
inal bond from its date to this day, less the
several sums of money paid thereon, as shown that in the event of default in the payment by plaintiff's petition herein; and the court fur of any of said monthly payments, the associa- ther finds that plaintiff took possession of the tion should have its option of declaring the pri
property under foreclosure of this action prior
to the 1st day of November, 1912, and has oc principal sum due and payable at once, and I cupied the same since, and that the reasonable in case of suit to pay an attorney's fee of rental value thereof is the sum of $20 per month $100. On April 10, 1911, Burr and wife con. | for the past nine months, in the sum of $180, veyed the mortgaged property to the defend
and that the same should be credited on the
al amount found due the plaintiff herein; and the ant Oma J. Neighbor, who, as part of the pur-court finds the total amount due the plaintif on chase price thereof, expressly assumed the said note and mortgage, after deducting all parobligation of said bond, and agreed to pay
ments and rents as aforesaid, to be the sum of
$127.91, to bear interest at 6 per cent. per anthe indebtedness evidenced thereby, said
num, and plaintiff is allowed $100 attorner's agreement being as follows:
fees, to be taxed as part of the costs of the ae