The other alleged errors relied upon for a reversal are either without merit, or are such as are not likely to arise upon a retrial of this case.

For the reasons given, the judgment of conviction is reversed, and the cause remanded to the district court of Atoka county, with instructions to grant the defendant a new trial, and for further proceedings in accordance herewith.

not in violation of the defendant's consti- case. Scribner v. State, 9 Okl. Cr. 465, 132 tutional and statutory rights. The afore- Pac. 933, Ann. Cas. 1915B, 381. said constitutional provision is a limitation against "governmental activity." In this respect the instant case is to be distinguished from that of Silva v. State, 6 Okl. Cr. 97, 116 Pac. 199, where the evidence was obtained by means of an unauthorized and illegal search by persons without authority. In such cases "the agent is responsible as an individual for his unlawful conduct, but the courts will avail themselves of the evidence thus obtained if it is otherwise relevant and competent." 10 R. C. L. p. 932. Here the deed was produced upon the order of the trial court; the production was required by the state itself, and defendant is entitled under such circumstances to rely upon the constitutional guaranty that the state will not use such evidence against him.

[2] It is also contended that the court erred in not sustaining the defendant's plea of immunity, which is based on the proposition that the state having used the deed in evidence against his codefendant, Dick Montgomery, the same automatically operated to grant to this defendant an immunity from prosecution under the provisions of section 27, art. 2, Constitution.

DOYLE, P. J., and ARMSTRONG, J., concur.

(15 Okl. Cr. 115) JONES v. STATE. (No. A-2982.) (Criminal Court of Appeals of Oklahoma. Oct. 8, 1918.)

(Syllabus by the Court.)

236(1)—UNLAWFUL

INTOXICATING LIQUORS
TRANSPORTATION-EVIDENCE.

In a prosecution for unlawfully conveying intoxicating liquor, the record and evidence examined, and held, that no material error was committed on the trial and the evidence is suf

ficient to sustain the conviction.

Appeal from County Court, Cotton County; J. C. Norman, Judge.

C. H. Jones, convicted of a violation of the prohibitory law, appeals. Affirmed.

Charles Ruth, of Oklahoma City, for plaintiff in error. The attorney General and R. McMillan, Asst. Atty. Gen., for the State.

[1] The defendant, according to the terms of section 27, art. 2, Constitution, may only be compelled to give testimony or produce evidence against another person charged with an offense against the law of this state when legally called upon to do so. The record shows in this case that there was no understanding between this defendant and the trial DOYLE, P. J. The plaintiff in error, C. court, or the prosecuting attorney with H. Jones, was convicted in the county court the consent of the trial court, that this de- of Cotton county on an information charging fendant was to produce this original deed that in said county, on the 3d day of Janto be used in evidence against his codefend- uary, 1917, he did then and there willfully ant, Dick Montgomery, and that this defend- and unlawfully transport and convey 299 ant was to be used as a witness on behalf quarts of whisky from the town of Randlett of the state against said codefendant, and to a point five miles north of said town on that this defendant was willing and had the public road adjoining the farm of Mr. agreed to make a full and complete disclosure in good faith, and testify truthfully and fully as to all the material facts within his knowledge, touching the question of the guilt of his codefendant, Dick Montgomery. The production of this deed by defendant through his counsel was by compulsion and The evidence shows that the officers came against his (defendant's) will. He did not part with its custody voluntarily, nor was he upon the defendant Jones and a man named legally called upon to produce it. Its pro-Reddell on the public highway at the point duction, under the circumstances, was to re-alleged in the information. They had a lieve him of being in contempt of the trial Cadillac car and one of the tires was off; the court, and not for the purpose of using him as a witness against his codefendant. His protection, therefore, arises by virtue of the prohibitions contained in section 21, art. 2, supra, and not by reason of the provisions of section 27, art. 2.

For these reasons, we believe that the court did not err in overruling the plea of immunity from prosecution interposed in this

Gallant, in Cotton county. His punishment was fixed at 30 days' confinement in the county jail and a fine of $350. From the judgment rendered in accordance with the verdict, an appeal was perfected by filing in this court on April 17, 1917, a petition in error, with case-made.

officers searched the car and found 299 quarts of whisky in sacks; they also found a gun in the car with the whisky. Li 0. Watson testified:

That he had a conversation with the defendant. Jones, and he said "that if he had another casing they would not have got him; that he was a fool for not having another casing along." He also said that "a man is a fool who would not

take along an extra tire on a trip like that, and that if he had an extra casing the officers would

not have gotten him." That he verified the information in this case, and he saw his deputies unloading the whisky at Walters.

There was no evidence offered on the part of the defendant.

The errors assigned are:

The court erred in overruling the defendant's motion to quash the information and the warrant in this case. The court erred in overruling the defendant's motion to quash the venire of jurors. The court erred in overruling the objections of the defendant to the testimony of L. O. Watson, Clarence Carter, Cleeve Hooper, and C. E. Cook. The court erred in refusing to direct a verdict for the defendant. The court erred in refusing to give certain requested instructions and in giving certain instructions over the defendant's objections. That the verdict is contrary to the law and the evidence.

A verdict of conviction on conflicting evidence will not be disturbed by Criminal Court of Appeals, where there is any competent evidence in the record sufficient to sustain a conviction.

Appeal from County Court, Tulsa County; J. W. Woodford, Judge.

Dan Ward was convicted of the offense of having unlawful possession of intoxicating liquors, and his punishment fixed at a fine of $250 and imprisonment in the county jail for 90 days, and he appeals. Affirmed.

Pat Malloy and E. M. Gallaher, both of Tulsa, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

Upon a careful consideration of the record, our conclusion is that the technical questions raised by the errors assigned are destitute of merit; the information was sufficient, and the instructions given by the court fully and fairly cover the law of the case. The evidence is conclusive of the defendant's guilt. It is our opinion that on the undisputed facts, and the law as we understand it, the defendant was properly and legally convict-cution was had is as follows: ed. The letter and spirit of the law is that if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant, was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

MATSON, J. The first assignment of error relied upon for reversal of this judgment is:

"That the court erred in overruling the demurrer of the defendant to the information." The information under which this prose

"State of Oklahoma, County of Tulsa. In the County Court within and for Said County and State. The State of Oklahoma, Plaintiff, v. Dan Ward, Defendant. Information for Unlawful Possession of Intoxicating Liquors. Be it Remembered: That Ed Crossland, the duly qualified and acting county attorney for Tulsa county, Oklahoma, who prosecutes in the name and Finding no substantial error in the record, by the authority of the state of Oklahoma, the judgment is affirmed.

It is a sufficient predicate for the admission of reputation evidence that the witness has sworn that he knows the general reputation of the place in issue for the particular kind of business, provided such general reputation relates to the time of the offense and the locality of the place, and is material to the is

sue.

3. INTOXICATING LIQUORS 233(1)-POSSESSION WITH INTENT TO SELL-REPUTATION OF PLACE EVIDENCE.

comes now into the

court for Tulsa county, state of Oklahoma, on this, the 28th day of April, A. D. 1915, and gives the court to understand and be informed that on the 27th day of April, A. D. 1915, in Tulsa county, state of Oklahoma, Dan Ward, late of said county, and within the jurisdiction of this court, did unlawfully and wrongfully have in his possession certain intoxicating liquors, to wit, fourteen bottles of beer, one half bottle of gin, and about one quart of whisky contained in two bottles, with the intent then and there upon the part of said defendant to sell, barter, give away, and otherwise furnish the same in violation of the prohibitory liquor laws of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Ed Crossland, County Attorney."

The particular ground upon which it is contended that the foregoing information is insufficient is that it

"wholly fails to allege or charge the venue of the action in that it omits entirely from the information proper the name of the court to which it is presented."

[1] The information is entitled, "In the County Court within and for Tulsa County, Oklahoma," and upon its face charges an offense over which the said court had jurisdicWhere the evidence discloses the posses- tion. The record shows also that the inforsion of intoxicating liquors in a place of pub-mation was filed in and presented to the lic resort fitted up with all the fixtures and

appurtenances of a liquor saloon, the general county court of Tulsa county, and that it was reputation of such place as a place where in- signed and presented by the county attorney toxicating liquors are kept for sale, is admis

sible on the question of intent, where the crime of that county, the duly authorized represencharged is the unlawful possession of intoxi- tative of the state of Oklahoma, to present cating liquors with intent to sell the same. and prosecute such offenses in that court.

This assignment of error is purely tech- | nical and without merit. Section 5746, Revised Laws 1910, in part provides: "The

* information is sufficient if it can be understood therefrom: First. That it is entitled in a court having authority to receive it, though the name of the court be not stated."

Section 5747, Id., is as follows:

"No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

In Cox et al. v. State, 3 Okl. Cr. 129, 104 Pac. 1074, it was held:

"No indictment or information is insufficient by reason of a defect or imperfection in the mat

ter of form which does not tend to prejudice of the substantial rights of the defendant upon the merits."

[4] Whatever conflict there is between the evidence on the part of the state, and that of the defendant himself was for the jury, and the decision of the jury will not be disturbed by this court, where there is competent evidence in the record sufficient to sustain the conviction.

The judgment is affirmed.

The reputation of the place as one where [ An examination of the entire record, .inIntoxicating liquors are kept for sale is an cluding the instructions given by the court, asset of trade, and as much a substantial does not disclose error prejudicial to the deelement of the intent of the person who keeps fendant, such as should authorize a reversal liquors in such a place as is evidence that of the judgment. the place was fitted up with a bar and other fixtures and appurtenances of a liquor saloon. Intent to sell is as much an element of the offense of unlawful possession under our statute as is the intent to sell where the offense charged is the keeping and maintaining of a place where intoxicating liquors are received and kept for the purpose of sale. If the proof shows that possession of such liquors was in a place of public resort, why should not the reputation of such a place be admissible in either case on the question of intent to sell? This court has unequivocally held that the reputation of the place of keep- UNION MACHINERY & SUPPLY CO. v. ing may be proved, where the offense charged is maintaining a place for the purpose of sale. We see no good reason for admitting such evidence in that class of cases, and in excluding it in this class, where the facts show possession in a place of public resort. The same logic and reasoning that will support the theory upon which such evidence is held admissible in the former class of cases supports its admissibility in the latter.

In this case the defendant took the witness stand in his own behalf, and testified that he paid the rent on the building where the liquor was found to the owner thereof for the period of time when the same was discovered; but he testified that he had sublet that portion of the building in which the liquor was found to one Frank Kesterman, and defendant claimed that such liquors were the property of the said Kesterman and were in Kesterman's possession and under his control at the time complained of. On cross-examination, the defendant admitted that he was in this place of business every day; that he knew the kind of business that was being carried on therein; that he did not pay the special tax required by the federal government of retail liquor dealers, but did not know whether such a tax had been paid for his benefit by somebody else.

The evidence on the part of the state showed that the defendant paid the rent on the building in which the whisky was found during a period of time for about one month previous, and for two or three months subsequent to the date of the search; that the place was known as "The Senate"; that it was in the upper story of a two-story brick building located on Boston street in the city of Tulsa, in the business part of such city; that it was fitted up with a bar and glasses, tables, and chairs, and a quantity of whisky, gin, and beer were discovered at the time the search was made, both behind the bar and on ice. The proof on the part of the state is amply sufficient to authorize a verdict of guilty, and to sustain a judgment of conviction based thereon.

DOYLE, P. J., and ARMSTRONG, J., concur.

(104 Wash. 62)

McCUSH. (No. 14830.)

(Supreme Court of Washington. Oct. 15, 1918.)

1. RECEIVERS

78-Property-REMEDY OF

CONDITIONAL SELLER.

Where conditional sale contract provided for damages for wrongful detention by buyer upon forfeiture of contract and for necessary expenses of collecting purchase price and for legal expenses in addition to allowance by court if action to recover property or purchase price became necessary, such damages and additional costs could not be recovered by seller in action against receiver of buyer's property. 2. SALES

479(16)-CONDITIONAL SALEDEFAULT BY BUYER-DAMAGES FOR RETENTION-UNLAWFUL RETENTION.

Where heavy machinery was sold under conditional sale contract providing for damages for retention by buyer after default, retention for two days after default and demand was not so unreasonable as to entitle seller to damages. 3. SALES

476-CONDITIONAL SALE-DEFAULT BY BUYER-DEMAND FOR POSSESSION BY SELLER.

Where conditional sale contract provided for damages to seller upon retention of property following default by buyer and demand for possession of property by seller, the buyer had reasonable time in which to comply with such demand.

Where conditional sale contract provided for payment to seller of expenses of litigation in the event that seller should successfully prosecute action for repossession of property or for enforcement of its rights under the contract, seller could not recover such additional expenses as a claim against the property in the hands of the receiver.

6. CONTRACTS 129(1)-CONDITIONAL SALE CONTRACTS-EXPENSES OF LITIGATION.

Provision of a conditional sale contract providing for payment to seller of 5 per cent. of purchase price as expenses of litigation in the event that it should successfully prosecute action for repossession of property or for enforcement of rights under contract held void as against the policy of the statute fixing expenses recov

erable in such action.

Where conditional sale contract provided for payment to seller of necessary expenses in-lowing: cident to collecting purchase price, such penses could not be recovered as a claim against receiver of buyer's property. 8. SALES 379(9) CONTRACTS-CONSTRUCTION. Where conditional sale contract provided for payment by buyer of freight charges and insurance premiums, such payment was to be in addition to the purchase price and repayable if such expenses were advanced seller, regardless of whether there was a subsequent forfeiture of the contract. 9. PLEDGES

1-CREATION OF LIEN-FuTURE ADVANCES-AFTER-ACQUIRED PROP

"(3) Should the property conditionally sold, or any part thereof, be transported by water, marine insurance to the full value thereof shall And in all cases be provided by the vendee. and at all times the vendee shall keep the property insured against loss and damage by fire in an amount equal to the unpaid purchase price thereof. And if the subject of sale is a boiler, or has a boiler as a constituent part thereof, the vendee shall keep the same insured against loss and damage by explosion in an amount equal Department 1. Appeal from Superior to the value thereof. And if it be an auto Court, Whatcom County; William H. Pember-vehicle, it shall be kept insured against colliton, Judge.