3. An infant cannot waive issuance and service of summons in an action against him, nor can any person, not even his guardian do so for him.

4. It is the duty of a guardian ad litem to plead and, urge before the court, every defense available under the law, for his ward.

Opinion by ROBERTSON, C.

J. S. MULLEN, Plaintiff in Error,

VS.

E. F. SHORT, Defendant in Error.

(Rendered June 10, 1913.)

Error from District Court of Grady County. Hon. Frank M. Bailey, trial Judge.

No. 4132

Affirmed

1. The County Court of the county of which a deceased allottee of the Five Civilized Tribes was a resident at the time of his death, is authorized by sec. 9 of the Act of Congress of May 27, 1908 to approve conveyances of any interest of any fullblood Indian to or in lands inherited from such deceased allottee, whether a regular proceeding for the settlement of the estate of such decedent has been instituted or not.

2. The census card issued by the Dawes Commission showed L. T. a member of the Five Civilized Tribes, to be the father of S. T., a deceased allottee. Held, that evidence tending to establisht that S. T. was an illegitimate child, introduced for the purpose of changing the line of descent from the putative father to the mother was competent.

(Syllabus by the Court.)

WILLIAM E. TIREY, Plaintiff in Error,

VS.

ELIAS DARNEAL, Defendant in Error.

(Rendered June. 10, 1913.)

Affirmed.

No. 2807

1. In order to properly present a question to the Supreme Court for review, the record must affirmatively

show that the alleged error complained of was presented to the trial court, and either ignored or decided adversly to the complaining party, and unless it is thus presented to the trial court and an opportunity there given to pass upon it, the same will not be considered by this court on appeal.

2. A deed to an allotment executed by a minor Choctaw Indian, without the consent or supervision of the county court is void.

(Syllabus by the Court.)

Fredrick & King, Attorneys for defendant in error.

Error from District Court of Alfalfa County. J. W. Steen, trial Judge.

Reversed

Where the plaintiff in error was prosecuted in the name of the state on an information signed and presented by its prosecuting officer for an alleged criminal contempt, and upon his trial is found guilty, and the judgment of conviction and sentence imposed was not for the purpose of enforcing an order of the court allowing alimony to the end that plaintiff in error could be compelled to comply with such order, but as punishment for criminal contempt, the proceeding was not remedial, but was criminal in character, therefor the proceeding is reviewable on appeal to this court.

2. A person imprisoned as punishment for a criminal contempt, is imprisoned in execution under a sentence for crime.

3. When the facts alleged in the information do not constitute an offense and are insufficient to charge a

criminal contempt, it was error of the court to overrule a general demurrer thereto.

4.

Willful disobedience to an order of the district court or judge thereof, to pay alimony in a divorce action, is not a criminal contempt.

5. In a contest between private litigants the state has no interest and in this case the county attorney was without authority to file an information, and the district court had no jurisdiction to render a judgment of conviction and sentence.

(Syllabus by the Court.)

WALT COOK, Plaintiff in Error,

VS.

No. A-1570

STATE OF OKLAHOMA, Defendant in Error.

(Rendered June 3, 1913.)

Appeal from the County Court of Garfield County.
Affirmed.

1. Unless the evidence is so slight as that the court below would be justified in directing a verdict for the defendant, the judgment will not be reversed for insufficiency of the evidence.

2. Circumstantial evidence being competent, its weight is for the jury alone.

(Syllabus by the Court.)

Opinion of the Court by DOYLE, J.

Plaintiff in error, under an information charging the unlawful sale of intoxicating liquor was convicted and sentenced to be confined for six months in the county jail and to pay a fine of Three Hundred Dollars, and in default of the payment of said fine he should be imprisoned for an additional period until the same was satisfied according to law.

The judgment and sentence was entered October 7th, 1911. An appeal was taken from the judgment by filing

in this court January 5th, 1912, a petition in error with case-made.

The first specification of error is to the effect that the verdict of the jury is contrary to the evidence, that the court erred in overruling plaintiff's in error request that the jury be directed to return a verdict of not guilty.

Unless the evidence is so slight as that the court below would be justified in directing a verdict for the defendant, the judgment will not be reversed for insufficiency of the evidence.

Only three witnesses testified in the case.

Howard L. Reynolds, the first witness called testified in substance as follows: That he and John F. Burford, on the 29th day of June, 1911, went into the Crazy pool Hall at 215 South Grand Avenue, Enid; that the plaintiff in error was there playing pool. In one corner of the room was a door that led to the celler and in front of this door a man was standing.

Witness and his companion went to this door and the man standing there looked towards the plaintiff in error, Cook, and Cook nodded to him. The man then opened the door and let them down into the basement where they found a bar.

After

That they bought two bottles of beer from the man behind the bar and paid him for it and drank it. which they left. He further said he was a detective and purchased the beer for the purpose of procuring evidence.

The second witness, John F. Burford, testified to the same facts.

W. J. Roberts testified that the Crazy pool Hall was Cooks place of business, and on the window of the poll room was the name "W. M. Cook."

There was also introduced in evidence exhibit "A", being a certified copy of the record of the collector of Internal Revenue, showing payment of the special tax required of liquor dealears by the United States for the fiscal year by W. M. Cook, place of business 215 S. Grand Ave. Enid.

While the evidence connecting the plaintiff in error with this sale was wholly circumstantial, yet, as to time, place, means and conduct, it concurs in indicating his guilt. We think that it was sufficient to sustain the verdict. It is true the facts and circumstances might have been explained, but being unexplained and uncontratradicted, the jury were entitled to draw the logical inference that the plaintiff in error was the proprietor and that the sale was made at his direction.

It is a matter of common knowledge that the unlawful sale of intoxicating liquor, the real proprietor of the place, and the owner of the liquor seldom makes the actual sale. In this case the evidence was sufficient for the jury, and they having drawn the logical deductions from the facts and circumstances as proved by the state, their verdict and the conviction thereon will not be disturbed.

Second- It is also claimed that the court erred in admitting in evidence the certified copy of the records of the collector of Internal Revenue for the District of Oklahoma, which purported to show that the plaintiff in error had paid the special tax required of liquor dealers by the United States, on the ground that it was incompetent, irrelevant and immaterial, for the reason the charge in this case is a direct sale of liquor and not having possession of liquor with intent to sell the same in violation of the prohibitory law.

We think the objections were properly overruled, as the evidence was clearly competent as tending to show that the plaintiff in error was the proprietor of the place in question. As to the other alleged errors it is enough to say that we think no error was committed that requires a reversal of the judgment.

The judgment is affirmed.

ARMSTRONG, P. J. and FURMAN, J, concur.