the evidence is insufficient to sustain the justify the inference that the defendant verdict and judgment. [1] In support of the first assignment, it is contended by the defendant's counsel that the information is fatally defective, for the reason that it does not allege the ownership of the property stolen. We are inclined to believe that the ownership of the property stolen is sufficiently stated. Substantially the language of the statute is used in charging the offense. To charge the crime of receiving stolen property, knowing it to be stolen, the information need not allege the facts going to constitute larceny against the original takers, from whom it has been received. The demurrer was properly overruled. [2] The second assignment is based upon the theory that the evidence shows that the only testimony relative to a guilty knowledge on the part of the defendant came from the witnesses John McGrue and Charley France, who were shown to be accomplices of the defendant. Unquestionably the testimony of these accomplices, if uncorroborated, would be insufficient to support the verdict and judgment of conviction; but that is not this case. The stolen property was found taken from the cases and secreted and concealed in the defendant's home. It is further shown that this property was bought by the defendant for a mere trifle of its value; that it was bought and received by him from these witnesses at the unseemly hour of 11 o'clock at night. There is other evidence tending to show the defendant's guilty knowledge. knew at the time he received this property that it was stolen. If there is evidence which corroborates an accomplice, and conduces to connect the defendant with the commission of the crime, its sufficiency is for the jury to determine. Our conclusion is that the appeal in this case is without merit. The judgment is therefore affirmed. Mandate to issue forthwith. FURMAN, P. J., and ARMSTRONG, J., concur. JENKINS v. STATE. (Criminal Court of Appeals of Oklahoma. Jan. 11, 1912.) (Syllabus by the Court.) CRIMINAL LAW (§§ 301, 1149*)-WITHDRAWAL OF PLEA OF GUILTY-DISCRETION of Court -CAPITAL CASE-RIGHT TO TRIAL BY JURY. A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. Consequently its decision will not be disturbed, unless an abuse of discretion appears. In a felony case, and especially in a capital case, if the defendant pleads guilty without the benefit of counsel, or was influenced to enter such plea either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 687, 3043; Dec. Dig. §§ 301, 1149.*] Appeal from Craig County Court; Theo. D. B. Frear, Judge. C. H. Jenkins was convicted of a violation of the prohibition law, and appeals. Affirmed. James S. Davenport, for plaintiff in error. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Andrew Wood, of counsel), for the State. Mr. Wharton says: "Whether the defendant knew that the goods were stolen is to be determined by all the facts of the case. It is not necessary that he should have heard the facts from eyewitnesses. He is required to use the circumspection usual with persons taking goods by private purchase; and this is eminently the case with dealers buying at greatly depreciated rates. That which a man in the defendant's position ought to have suspected, he must be regarded as having suspected, as far as was necessary to put him on his guard and on his inquiries. DOYLE, J. The plaintiff in error was conBut it has been said that, to justify a con-victed upon an information filed in the counviction in the case of goods found, it is not ty court of Craig county March 10, 1909, sufficient to show that the prisoner had a which charged the unlawful sale of a quart general knowledge of the circumstances un- of whisky to one A. J. Brady. May 24, 1909, der which the goods were taken, unless the upon arraignment, he entered a plea of guiljury is also satisfied that he knew that the ty as charged, and the court appointed May circumstances were such as constituted a 29th as the time for pronouncing judgment larceny. The proof in any case is to be in- and sentence, at which time the case was ferential; and among the inferences prom- continued for sentence, and was so continued inent are inadequacy of price, irresponsibili- from term to term until March 31, 1910, at ty of vendor or depositor, and secrecy of which time the defendant appeared in open transaction." Wharton's Criminal Law, par. court, in person and by his attorney, and filed a motion to withdraw his plea of guilty heretofore entered, and to substitute therefor and enter a plea of not guilty, which motion was by the court overruled, and thereupon the court sentenced the defendant to 984. The testimony given by McGrue and France is to be considered in the light of the corroborating evidence and all the testimony in the case, which in itself is sufficient to fully For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes serve a term of 30 days in the county jail and to pay a fine of $250. To reverse this judgment an appeal on a transcript, with a petition in error, was perfected. The defendant's counsel contends that under the statute providing: "The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted" (section 6759, Snyder's) he is given the right to withdraw his plea of guilty at any time before judgment and to substitute therefor a plea of not guilty; that the language used, though permissive in form, is in fact peremptory; that under the Constitution of Oklahoma the refusal of the court to permit him so to do deprived him of his constitutional guaranty of a fair and impartial trial by a jury of his peers; and that on any other construction the statute would conflict with the Constitution. The provisions of the Bill of Rights relied on are as follows: "The right of trial by jury shall be and remain inviolate." Section 19. "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed." Section 20. In section 20, art. 7, of our Constitution, it is provided that: "In all issues of fact joined in any court, all parties may waive the right to have the same determined by a jury; in which case the finding of the judge upon the facts shall have the force and effect of a verdict by jury." The provisions of the Bill of Rights in no way abrogate the ancient and well-established rule of the common law and the provisions of our statute that a conviction may be had upon a plea of guilty, which under the law can in no case be put in except by the defendant himself in open court. The defendant had a constitutional right of trial by jury, or, the state consenting, a trial by the court. He was not deprived of this right, but voluntarily relinquished it by entering a plea of guilty. The right of trial by jury is purely a personal right and privilege that may be waived by the defendant. The provisions of the Bill of Rights quoted are restrictions on the legislative power, and place the right beyond the power of the Legislature to abridge it. As we construe the statute quoted, it was clearly within the sound judicial discretion of the trial court to allow or disallow the motion to withdraw the plea of guilty and substitute therefor a plea of not guilty, especially in a misdemeanor case, and under this construction the statute in no wise conflicts with the constitutional provisions. From the record before us we cannot say that this discretion was abused. Without speculating on what ground the case was continued for sentence on a plea of guilty for almost a year, it is enough to say that we surmise that the defendant absconded. In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, if the defendant had entered a plea of guilty without the benefit of counsel, or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be considered an abuse of judicial discretion. From the record before us there appears no reason why we should interfere with the ruling made in virtue of the discretion with which the trial court was vested. The judgment of the lower court is therefore affirmed and the cause remanded thereto, with direction to enforce its judgment therein. FURMAN, P. J., and ARMSTRONG, J., concur. MCDANIEL v. STATE. (Criminal Court of Appeals of Oklahoma. Jan. 11, 1912.) Appeal from Craig County Court; Theo. D. B. Frear, Judge. M. V. McDaniel was convicted of unlawful sale of liquor, and appeals. Affirmed. James S. Davenport, for plaintiff in error. error, was convicted on an indictment returned PER CURIAM. M. V. McDaniel, plaintiff in in the district court and duly transferred to the county court of Craig county, which chargMay 10, 1909, upon arraignment, he entered a ed the unlawful sale of one pint of whisky. plea of guilty as charged, and the court appointed May 26th as the time for pronouncing judgment and sentence, at which time the case was continued for sentence, and was so continued from term to term until March 31, 1910, at which time the defendant appeared and filed a motion to withdraw his plea of guilty heretofore entered, and to substitue therefor a plea of not guilty, which motion was by the court overruled, and thereupon the court sentenced the defendant to serve a term of 30 days in the county jail and to pay a fine of $250 and costs, from which judgment the defendant appealed by petition in error, with transcript attached. The identical and the only question presented on this appeal is the same as that in the case of Jenkins v. State, 6 Okl. Cr., 120 Pac. 298. For the reasons given in the opinion in that case, the judgment of the county court of Craig county is affirmed. Appeal from District Court, Wagoner County; John H. King, Judge. Charley Ford and Will Ward were con PER CURIAM. On the 8th day of January, 1912, a motion for rehearing was de-victed of assault with a dangerous weapon, nied in this cause. now ask to be allowed to file a motion for reconsideration upon the following grounds: Counsel for appellant "(1) That said judgment and sentence of death is inconsistent with Act Cong. Jan. 15, 1897, c. 29, 29 Stat. 487 [U. S. Comp. St. 1901, p. 3620], which in certain cases abolishes capital punishment. "(2) That the case of Holmes v. State of Oklahoma is practically identical with the case of Motes v. United States, 178 U. S. 458465 [20 Sup. Ct. 993, 44 L. Ed. 1150] in which Mr. Justice Harlan construes said act of Congress, and holds that it is paramount to the law of Alabama prescribing the punishment for murder in the first degree by death. "(3) That section 3 of said act of Congress of January 15, 1897, reads as follows: "❝Section 3. That the punishment of death prescribed for any offense specified by the statutes of the United States, except in sections 5332, 1342, 5339, and 5345, Revised Statutes, is hereby abolished, and all laws and parts of laws inconsistent with this act are hereby repealed.' "The sections of the United States Revised Statutes construed by the United States Supreme Court in Motes v. United States, supra, were 5508 and 5509 [U. S. Comp. St. 1901, p. 3712], and are not within the exceptions enumerated in said act of Congress." The statutes of the United States and the decision of the Supreme Court of the United States in the case of Motes v. U. S., 178 U. S. 458, 20 Sup. Ct. 993, 44 L. Ed. 1150, have no application at all to proceedings in a state court, but are limited entirely to cases in the United States courts. The motion filed for a reconsideration of this case is therefore denied. | and appeal. Affirmed. M. W. Guy, for plaintiffs in error. Smith C. Matson, Asst. Atty. Gen., for the State. ARMSTRONG, J. Plaintiffs in error were tried at the April, 1910, term of the district court of Wagoner county on a charge of assault with a dangerous weapon with intent to do bodily harm, and were convicted on the 23d day of April, 1910. Thereafter, on the 30th day of said month, they were sentenced to imprisonment in the state penitentiary for a term of 21⁄2 years. The appeal was filed in this court on the 25th day of October, 1910. No petition in error and no brief have been filed on behalf of plaintiffs in error. This cause was assigned for oral argument on the 6th day of January, 1912. On that date no appearance was made on behalf of plaintiffs in error for oral argument, and the Assistant Attorney General on behalf of the state, moved to affirm for want of prosecution. The motion is well taken. When an appeal is taken from a judgment of a trial court, and no petition in error is filed and no brief filed on behalf of appellant, and no appearance made for oral argument, such appeal is considered as abandoned, and will be affirmed, on motion of the Attorney General or his proper representative. See Mingle v. State, 5 Okl. Cr. 535, 115 Pac. 616; Price v. State, 5 Okl. Cr. 147, 113 Pac. 1061; Henson v. State, 5 Okl. Cr. 6, 113 Pac. 224; and many others. The record has been carefully examined, and we are of opinion that the judgment should be affirmed. It is so ordered. The clerk will issue mandate forthwith. FURMAN, P. J., and DOYLE, J., concur. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes VANDERBURG v. STATE. (Criminal Court of Appeals of Oklahoma. Jan. 3, 1912.) (Syllabus by the Court.) CRIMINAL LAW (§ 957*)-VERDICT-IMPEACH MENT. A verdict cannot be impeached by the affidavit or testimony of a juror that he did not agree to the finding, or that a verdict of guilty was found to save the state from paying costs. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2393; Dec. Dig. § 957.*] Appeal from Jefferson County Court; G. M. Bond, Judge. COMMUNITY DITCHES OR ACEQUIAS OF (Supreme Court of New Mexico. Dec. 23, (Syllabus by the Court.) QUO WARRANTO (§ 3*)-NATURE OF REMEDY- The remedy, for the unlawful assumption of the right to act as a corporation and the exercise of corporate rights ultra vires, is by quo warranto, and not in equity. [Ed. Note. For other cases, see QuoWarranto, Cent. Dig. § 4; Dec. Dig. § 3;* Corpo Jodie Vanderburg was convicted of violat-rations, Cent. Dig. § 79.] ing the prohibitory law, and appeals. Af- Appeal from District Court, Lincoln Counfirmed. ty; before Justice Wright. error. Action by the Community Ditches or Ace C. A. McBrian, for plaintiff in Smith C. Matson and E. G. Spilman, Asst. quias of Tularosa Townsite against the Tularosa Community Ditch and others. From Attys. Gen., for the State. a judgment for defendants, plaintiff appeals. Affirmed. DOYLE, J. The plaintiff in error was convicted in the county court of Jefferson county on an information which charged that he did have in his possession intoxicating liquor with the intention of selling or other wise furnishing the same, contrary to the provisions of the prohibition law. August 27, 1910, in accordance with the verdict of the jury, he was sentenced to serve a term of 30 days in the county jail and to pay a fine of $100. From this judgment he appeals. It is contended that the verdict is contrary to the evidence and contrary to the law. The evidence tended to show that the defendant conducted a restaurant and pool hall in the town of Terral; that in a room partitioned off from the pool hall at least two dozen bottles of whisky were found, concealed beneath a trapdoor under the floor. In the same room gambling devices, cards, chips, and empty whisky bottles were found. These predisposing facts and circumstances are clearly sufficient to prove the unlawful intent. In support of a motion for a new trial the testimony of one of the jurors was taken, wherein he testified in substance, that the verdict of the jury was not unanimous, and that he did not vote for a conviction. Two other jurors were permitted to testify that the question of taxes was discussed, and that The plaintiff alleges that it is a corporation, organized and existing under the laws of New Mexico and entitled to control and distribute the waters of the Tularosa river in the county of Otero, in the interest and for the benefit of those entitled to use those Community Ditch was organized "in the in waters; that the defendant the Tularosa terest of certain so-called 'shareholders' " whose "water rights and shares Knight, and J. J. Dale, claiming to be the the costs would be thrown on the state, if they did not stick the defendant. It willy, and by intimidation and threats of injury be sufficient to say on this question that jurors will not be allowed to impeach their verdict by their affidavits or testimony after they have been discharged. Spencer v. State, 5 Okl. Cr. 7, 113 Pac. 224. Finding no error prejudicial to the substantial rights of the defendant, the judg ment is affirmed. and violence prevented the said original settlers, their successors, heirs and assigns, from enjoying and using the full and proper quantity of said waters necessary for the irrigation of their 'Solares' and 'Hortolizas' in said town of Tularosa, and have wrongfully and unlawfully interfered with said acequias and water ditches and with the commissioners and mayordomo of said the FURMAN, P. J., and ARMSTRONG, J., 'Community Ditches or Acequias of Tularosa concur. Townsite,' in the exercise of their duties in and for all. In Spelling's Extraordinary Re lief, it is said (sec. 1804): "Quo warranto had, from its remotest history as a remedy, been deemed and employed as the exclusive proceeding by which the sovereign inquires into the right to exercise and enjoy as well as the method of employing franchises, which, not being of common right, are considered as particles or attributes of sovereignty. It is the appropriate remedy against a corporation for abuse of power, misuse of privileges, malfeasance, or nonfeasance"citing Com. v. Union Ins. Co., 5 Mass. 230, 4 Am. Dec. 50; Com. v. Fowler, 10 Mass. 290. And see section 21 and note cited. Even more explicit is the statement in Cyc. vol. 32, p. 1415: "In the absence of statutory provisions to the contrary, quo warranto proceedings are held to be the only proper remedy in cases in which they are available. Thus they are held to be the exclusive method of questioning the legality of the organization or a change in the territory of a quasi public corporation, such as a regulating the use of said water and regu- | termine the status of the defendant once lating the use of and maintaining the said acequias and water ditches, and wrongfully and unlawfully have diverted and used much water therefrom in and upon desert land outside of the town of Tularosa which has been grubbed, broken and put in cultivation since January 1, 1909, as well as prior thereto, and have aided and abetted the said organization known as the "Tularosa Community Ditch' in the wrongful commission of all the acts mentioned and complained of, and propose to continue so to do, and will continue so to do unless enjoined and restrained by a decree of this honorable court." The complaint concludes with a prayer for equitable relief, and especially that the defendants "be enjoined from in any manner interfering with said acequias and water ditches or with the waters of said Tularosa river therein, or in any manner interfering with said plaintiff, its commissioners or mayordomo, in their management and control of said acequias and water ditches or the use or regulating of the use of the waters therein." At the close of the evidence for the plaintiff the school district, defendant demurred to it on several grounds, | * or to attack the validity of the oramong them: "That plaintiff has not shown ganization of a corporation, * and, that it had charge of or control of the commu- when the remedy by quo warranto is availnity ditch in question." "Plaintiff has not able, it is held that there is no concurrent shown that it has any right to institute this remedy in equity unless by virtue of statuaction." The demurrer was sustained for the tory provisions." Chapter 15 of High's Exreason, with others, "that the procedure traordinary Remedies (3d Ed.) deals exhausbrought is not a proper procedure to deter- tively with the subject and to the same efmine the rights of the plaintiff or defendant fect. This court has again and again deto control the use and disposition of this wa- cided the remedy by quo warranto to be the ter, and the petition was dismissed without appropriate and exclusive one where the alprejudice to any of the rights of any individ- leged unlawful possession and use of the ual whatever who may have right in and to powers of a public office or franchise is comthe waters of ditches referred to in the plead-plained of. Territory v. Ashenfelter, 4 N. M. ings." or a drainage district, (Gild.) 134, 12 Pac. 879; Conklin v. Conning W. J. Connell and Edwin Mechem, for ap-ham, 7 N. M. 445, 38 Pac. 170; Hubbell v. pellant. Sherry & Sherry and Catron & Catron, for appellees. Armijo, 13 N. M. 482, 85 Pac. 1046; Territory v. Armijo, 14 N. M. 205, 89 Pac. 267. The plaintiff cites Armijo v. Baca, 3 N. M. (Gild.) 490, 6 Pac. 938, as an instance where equitable relief was afforded; but the plaintiff, Armijo, was in possession of the office there in question, and the defendant was enjoined from interfering with him. The defendant should himself have proceeded by quo warranto. ABBOTT, J. (after stating the facts as above). The plaintiff has, we think, mistaken its remedy in this matter. It alleges the usurpation of corporate authority by the defendant the Tularosa Community Ditch, that it has no right to act in a corporate capacity, and, in effect, that, even if it had any right to act as a corporation, it had committed acts against the plaintiff which were ultra vires, and constituted an abuse and misuse of its power. If these allegations are true, the exclusive remedy is by quo warranto. If the defendant the Tularosa Community Ditch is assuming to be a corporation, when in fact it is not one, or if, being one, it has usurped authority beyond its corporate | firmed. powers, it is a matter of public concern and should be dealt with, not by a suit in equity, in which a decision would necessarily be limited to the cause itself, but in proceedings in the nature of quo warranto, which would de In this case it appears that the defendants, unlawfully, as the plaintiff claims, are in control of the Tularosa river and the acequias in question, and have been so for a long time, with the exception of a short period when an order of court, afterwards revoked, deprived them of control. The judgment of the district court is af ROB McFIE and MECHEM, JJ., concur. ERTS and PARKER, JJ., concur in the result. POPE, C. J., not having heard the ar gument, took no part in the decision. |