error at Greenwood, Arkansas, a telegram directed to his brother at Haileyville, Oklahoma, reading: "Josie will be there to-night." This message was sent pursuant to an arrangment previously entered into between them that the addressee should on notice meet the said Josie who was the wife of the sender. The agent was informed of this arrangement and that plantiff was about to be confined and that he was sending her to his brother's house for that purpose; that it was a message of great importance and should be rushed through; that Haileyville was a strange town to her and that his wife would arrive between eleven and twelve o'clock that night, and that no hacks met the trains at that hour and that she would have with her a heavy suit case and a two-year old child. The train was belated and plaintiff arrived between two and three o'clock in the morning; the telegram was not delivered and plaintiff finding herself alone accepted the assistance of an acquaintance for a part of the way in endeavoring to find her intended stopping place, and while walking, carrying the suit case and taking care of her child, she was ruptured internally in such a way as to cause labor pains, which continued for eight days, resulting in a dry birth with intense agony, and suffering, and resulting in local impairment. Held, that the damages suffered were within the Hadley vs. Baxendale rule and were proximately caused by the neglect of the company to deliver the message, and that a recovery of $2,000 was not excessive. 2. Where reliance is had to support either a claim or a defense upon the laws of some other state, the same must be pleaded and proved in order to be rendered availa ble, and where this is not done, the presumption obtains that they are the same as the laws of this state. (Syllabus by the Court.) Shartel, Keaton & Wells, for plaintiff in error. Guy L. Anderson and Rowe & Rowe, Attorneys for the defendant in error. Opinion of the Court by KANE, J. J. D. COX, Plaintiff in Error V9. CHAS. LAVINE, Defendant in Error. (Rendered July 11th, 1911.) No. 920 Error from County Court of Washington County. Hon. H. H. Montgomery, Special Judge. Affirmed Where the plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court. (Syllabus by the Court.) B. B. Julian, on brief for plaintiff in error. Geo. S. Hill and W. T. J. Hartman, on brief for the defendant in error. The plaintiff in error in his petition in error alleges error in the following respects: 1. Verdict not sustained by sufficient evidence and contrary to law. 2. In overruling demurrer by plaintiff in error to the evidence. 3. In giving instruction No. 2. 4. In refusing to give certain instructions. 5. In overruling motion of plaintiff in error to exclude certain evidence, on the ground that no cause of action had been stated. 6, 7 and 8 In admittng certain evidence. 9. In excluding the answers of certain witnesses. 10. In admitting certain depositions. Neither in the petition in error, nor in the brief, has plaintiff in error, made any assignment or specification of error as to the overruling of his motion for a new trial. It has been settled by former adjudication of this court that where the petition in error fails to assign as error the overruling of the motion for a new trial, no question Continued on page 62 CURRENT DECISIONS OF THE CRIMINAL OPINION OF THE JUDGES. Rendered by Request of the Governor, Relative to the Penalty of Death on Plea Guilty. 1. The statute providing (Sec. 2275 Snyder's Sts.) that upon a plea of guilty of murder the court shall determine whether the defendant shall be punished by death or by imprisonment for life at hard labor is constitutional and valid and where a defendant who has been informed against for a capital crime in a court of competent jurisdiction, pleads guilty, such court is authorized to pronounce judgment and sentence against such defendant according to law. In such a case there no issue to be submitted to a jury. John Henry Prather, and Bud Johnson, James Holmes, Charlie Posey and Elijah Turner, were jointly informed against by the County Attorney of Oklahoma County for the crime of murder alleged to have been committed on the 9th day of March 1011, by shooting one W. H. Archie, with the premeditated design to effect the death of him the said W. H. Archie and of which mortal wound so inflicted the said W. H. Archie did then and there die. Said information was presented and filed in the District Court of Oklahoma County, on March 16th, 1911. The defendant John Henry Prather, was arrainged in pen court on March 17th, and it being made to appear to the court that said defendant was unable to employ counsel the court appointed William Harrison an attorney to defend him and allowed time to plead. On March 2nd, the defendant John Henry Prather entered his plea of guilty, April 24th, 1911 was fixed by the court as the time for pronouncing judgment and sentence upon said defendant. On April 24th, the court upon considering said plea of guilty entered by the defendant John Henry Prather pronounced its judgment and sentence as follows: "IT IS THEREFORE, ordered, adjudged and decreed by the Court that the said John Henry Prather be executed by being hanged by the neck until he is dead, and that such execution shall take place on Wednesday, the 21st day of June, 1911, between the hours of 10 A. M. of said day, within the walls of county jail, or within the jail yard of the County Jail of Oklahoma County, Oklahoma, or some other private and convenient place within the said county and state, and that he be and is now remanded to the custody of the sheriff of Oklahoma County State of Oklahoma, to be by him closely confined within the walls of the county jail of Oklahoma County Oklahoma, until the day of execution, when and where he is to remove him for the purpose of carrying out the full judgment of this court, and that the clerk of the district court in and for Oklahoma County, Oklahoma, issues a warrant directing the full execution of the judgment and sentence in this behalf, against the said defendant John Henry Prather, and the said Sheriff of Oklahoma County, Oklahoma, is directed and required to execute said warrant with dispatch and in the manner and form required by law, and see to it that the said defend ant John Henry Prather at the time and place aforesaid is so hanged by the neck until he is dead. And that the Clerk of said court and the said sheriff of Oklahoma County, Oklahoma issue and give all due and proper notice. Whereupon the court notifies the defendant John Henry Prather of his right of appeal. W. R. Taylor, Judge. Upon a judgment and sentence of death the provisions of the statute require, Sec. 6927 Snyder's Stat.: "The judge of the court at which a conviction requiring a judgment of death is had, must immediately after the conviction, transmit to the Governor, by mail or otherwise a statement of the conviction and judgment, and of the testimony given at the trial." Sec. 6928 Snyder's Stat.: "The Governor may thereupon require the opinion of the Judges of the Criminal Court of Appeals or any of them upon the statement so furnished." In accordance with the requirement of the statute the clerk of the district Court made a certified statement of the conviction and judgment and the Presiding judge of the court, Hon. W. R. Taylor transmitted the same to the Governor. On May 24th, 1911, the Governor presented for consideration of this court the transcript of the record, requesting the opinion of the Judges of this court as required by the statute. To this inquiry the following reply was returned. OPINION OF THE JUDGES : To his Excellency, LEE CRUCE, Governor of Oklahoma. The Judges of the Criminal Court of Appeals responding to your official communication of the 24th, inst. which presents for the consideration of the Judges of this court; a certified copy of the record of the conviction of John Henry Prather, who was on April 24th, 1911, by the judgment of the district court of Oklahoma county, sentenced to death upon his plea of guilty of murder. Which judgment and sentence is that such execution shall take place on Wednesday the 21st day of June, 1911. With the request that we give an opinion thereon as prescribed by Sec. 6928 Snyder's Sts., we hereby respectfully submit the following opinion of the Judges. From an examination of the records of this court we find that no appeal has been taken in said case. As we view the law this provision of the statute (sec. 6928 Snyder's Stat.) contemplate an advisory opinion of the Judges where an appeal has not been take from a judgment and sentence of death. |