THE

OKLAHOMA

LAW JOURNAL

EDITED AND PUBLISHED MONTHLY BY

D. H. FERNAndes, GuthrIE, Oklahoma.

VOL. 11.

December, 1912.

LIENS AND PLEDGES.

No. 6

Professor Benjamin in his work on "Sales," defines a lien as the "right of one party to retain possession of property belonging to another until indebtedness is paid. Posse-sion, actual or constructive, is essential to a lien. When possession is delivered to the owner the lien un less reserved is lost.

The essential requisites of a lien are: 1st. subjectmatter. 2nd, lawful possession, and 3rd, there must be an indebtedness existing against the owner of the property. As to what possession is sufficient to create a lien the authorities seem to be in harmony to the effect that possession must have been obtained lawfully and that possession must be retained, either actually or constructively. Constructive possession has been held to be as effective as actual possession. An indebtedness must exist between the holder of the property and the owner, in all instances in order to effect a lien.

Liens may be created: 1st, by law. 2nd, by custom, and 3rd by agreement. A lien is created by law, when it is authorized by the common law or by statutory enactment and exists in all cases where parties have possession of another's property and perform services upon such property, where work is performed and materials furnished, where parties have an interest in the property and the lien is authorized and in some cases where indebtedness is occasioned aside from the property. For

instance, the innkeeper's lien. A lien is established by custom or usage, where that custom is established by continual employment from time "when man's mind runneth not to the contrary." The parties may waive, destroy or create a lien by agreement. They may modify or enlarge their rights in this way, even though they are fixed by law, and they may create where no lien would have otherwise existed by agreement between themselves If from the acts of the parties there can be implied an intention to create a lien, the law will raise that implication.

Liens may conveniently be divided into two clasess: General and special. The general lien covers property generally and the right to retain possession of any property coming lawfully into the hands of the creditor, belonging to the debtor, until the debt for which the property is held is cancelled. A special lien is one existing against the specific property giving rise to the indebtedness. The carrier, has, for instance, a lien on goods in his possession for services rendered in transporting such goods. The agister has a lien on cattle which he has pastured until he is compensated and can enforce that lien. The mechanic has a lien on property on which he has bestowed labor and furnished materials, etc. A lien may be waived by agreement of the parties, by taking other security in lieu of lien by failure of party to assert his rights. Aa a lien may be created by agreement where none would have existed otherwise, so a lien may be waived where it does exist, by agreement of the parties. The taking of other security will not waive the lien unless it is expressly proved that it was the intention of the parties to accept security in preference and to termination of lien.

A lien may be lost by the failure of the party entitled to it, to enforce his rights with reference to such lien. When one having a lien brings an action on account without reference to the lien and not insisting on his lien as a right of recovery, his lien is lost. Again where the law has created a lien in favor of a specific property and the lien debt is commingled in such a manner that it can. not be separated from other indebtedness, the lien is lost.

STATE OF OKLAHOMA, Defendant in Error.

(Rendered December 3, 1912.)

Appeal from District Court of Muskogee County. Hon. John H. King, trial Judge.

Affirmed

1. Homicide committed in the perpetration of a robbery is murder and in such a case malice, deliberation and premeditated design are presumed.

Where, in the perpetration of a robbery, the robber takes the life of his victim he is guilty of murder.

Where the evidence presents solely the question of murder or innocence it is not error to refuse to instruct on the law of manslaughter.

Under Section 6955 (Snyder's Statutes) Criminal Procedure, this court exercising its revisory jurisdiction has the power to modify any judgment appealed from in the furtherance of justice by reducing the sentence.

The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is not the power to commute by the Chief Exe. cutive of the State. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice, the other is an act of grace.

The evidence submitted upon the trial is examined and found sufficient to sustain the verdict of murder but insufficient under the circumstances of the case to support the sentence of death, and the judgment and sentence is modified to imprisonment for life at hard labor.

(Syllabus by the Court.)

SAM MCKINZIE and FLOYD MCKINZIE,

VS.

STATE OF OKLAHOMA.

(Rendered December 7, 1912)

No. A-1061

Appeal from County Court of Blaine County,

Affirmed

1. When a conviction for a violation of the prohibitory law is based upon circumstantial evidence, and the proof in the record is sufficient to ex u le every other reason. able hypothesis except that of guilt, a verdict for convic tion should be returned by the jury and such conviction will not be, and never has been, reversed by this court. 2. Proof of the ownership of a place of business to which large quantities of intoxicating liquors have been deliver ed and received by the owners, that intoxicating drinks have been sold in the place, and that persons have been seen intoxicated and drinking spirituous liquors therein, is sufficient, when coupled with proof of the possession of quantities of like intoxicating liquors, to warrant a conviction.

3. The approved rule as to the sufficiency of circum stantial evidence to sustain a conviction for violating the prohibitory law is the same as for any other misdemeanor case, and is the rule that has been uniformly followed by this court since its creation.

(Syllabus by the Court.)

Opinion of the Court by Armstrong, J.

WILLIAM TUCKER, Plaintiff in Error,

VS,

STATE OF OKLAHOMA.

(Rendered December 16, 1912.)

No. A-1380

Error from District Court of Okmulgee County.

Reversed

1. When it appears that the charge in the preliminary complaint is substantially the same as that set forth in

the information filed by the County Attorney in the District Court, a plea of a want of a preliminary examination or a variance between the preliminary complaint and the information is unavailing.

Sec. 6697 Snyder's Statutes. Criminal Procedure provides the indictment must be direct and certain as it reregards:

And Sec. 6699 provides:

"The indictment must charge but one offense.

An information charging that the defendant on a certain day did steal, take and carry away by stealth five head of hogs the personal property of Walter Sampson and nine head of hogs, the personal property of Lena Nelson, is bad for duplicity in that it alleges two separate ownerships of the property alleged to have been taken without alleging that the property of the two owners was stolen at the same time and by the same act or transaction.

STATE OF OKLAHOMA, Appellant,

VS.

FRANK FRISBIE, Appellee.

(Rendered December 6, 1912.)

No. A-1180

Error from District Court of Kiowa County.

Jas. R. Tolbert, trial Judge.

Reversed and Remanded.

1. The State has the right to prosecute an appeal to this court upon any question of law reserved by the State during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the State to appeal and have the question so reserved settled.