Utah 1888, which reads as follows: "Every person who deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employe, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, or any game played with cards, dice, or any other device, for money, checks, credit, or any other representative value, is guilty of a misdemeanor." This statute refers to the game itself, and "every person who deals, plays, or carries on" such a game is guilty of a misdemeanor. It is clear that each act of this kind constitutes an offense, and, while this does not depend upon the time of its duration, yet, where a continuous offense is relied upon, the time must not be left uncertain in the allegation. We think the complaint in the justice's court did not allege the time with sufficient certainty except as to the two days, and that therefore the demurrer to the special plea was properly sustained. Counsel for appellant cites numerous cases, but they fall principally within the class of cases which are of a nature continuous. In the case of Dixon v. Corporation, 4 Cranch, C. C. 114, the charge was for keeping a faro table, and, although that was continued from day to day, the court held it to be a single offense, which does not conflict with the views expressed herein, for in this case the charge is not for keeping a faro table, which is in its nature continuous, but for opening and carrying on a faro game, which may or may not be continuous. We do not think that case in point here. Nor do we agree with counsel that the offense charged in the indictment is a part of the same transaction as that charged in the complaint. It is a similar transaction, but, in so far as is manifest from the complaint, it is a distinct and separate offense. The judgment of the court below is affirmed.

ZANE, C. J., concurs.

MINER, J., (dissenting.) An indictment was presented by the grand jury, and filed October 1, 1891, charging "that the defendant, J. C. Sullivan, is accused by the grand jury of this court by this indictment of the crime of gaming, committed as follows: The said J. C. Sullivan, on the 1st day of August, A. D. eighteen hundred and ninety-one, at the county of Juab, in said territory of Utah, and within the judicial district aforesaid, unlawfully did maintain, conduct, and carry on a certain gambling game commonly called 'faro,' and did permit and suffer divers idle and evil-disposed persons to play and game at said game of faro for divers sums of money," etc. On being arraigned, defendant pleaded to said indictment a former conviction, specifying the following particulars: "That on the 19th day of September, 1891, a complaint regularly sworn to was filed with the justice of the peace of Eureka precinct, Juab coun

was

*

ty, Utah territory, charging the defendant with having on the 1st day of January, 1891, at Eureka, in Juab county, Utah territory, and on divers days thereafter from the day last aforesaid, to wit, January 1, 1891, up to and including the 19th day of September, 1891, unlawfully opened, continued, and carried on a certain gambling game commonly known as faro,' for money, and checks representing value. That the defendant was duly convicted by his plea of guilty of the offense charged in said complaint, and judgment passed against him. and satisfied. * * That the de fendant is the same person charged in the said complaint, and the charge in the said complaint is the same offense as that charged in the indictment, and was committed between the dates mentioned in the complaint; and that the acts charged in the | indictment are essential parts of the offensecharged in the complaint. That the evidence necessary to support the indictment would have sustained the charge made in the complaint." This plea was demurred to by the district attorney, and the court sustained the demurrer. By the demurrer the facts stated in the plea are admitted to be true. The question, therefore, upon this appeal is whether or not the facts stated in the plea constitute in law a former conviction. The statute under which the indictment is found and under which the complaint in the justice's court was made reads as follows: "Every person who deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employe, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noire, rondo, or any game played with cards, dice, or any other device, for money, checks, creuit, or any other representative of value, is guilty of a misdemeanor.” 2 Comp. Laws Utah, p. 601, § 4541. complaint upon which the defendant was convicted before the justice covered a period of time extending from January 1, 1891, up to and including September 19, 1891. During this time it is alleged that this offense was committed. This period covered and included August 1, 1891, the same day upon which the indictment alleged another offense to have been committed. It therefore charges as an offense the acts which were embraced within the scope of the complaint upon which the appellant has once been convicted and fined. The complaint having alleged the offense as a continuing one, and having been treated in its continuing aspect, the prosecution would have no right afterwards to carve out a portion of the time included within it, and seek a further conviction for the same offense, when a conviction had been had. They had the right to fix the dates in the first complaint within which they could allege and prove the commission of the offense, but, having oncemade that election, and secured a convic

The

tion thereon, they should not be allowed to travel over the same ground again, and endeavor to secure another conviction for the same offense and transaction which occurred at a time carved out of the period upon which a previous conviction had been had. 1 Chit. Crim. Law, 452; Com. V Roby, 12 Pick. 496; State v. Locklin, 59 Vt. 654, 10 Atl. Rep. 464; State v. McCormack, 8 Or. 236; Quitzow v. State, 28 Amer. Rep. 396; Wright v. State, 17 Tex. App. 152; 1 Bish. Crim. Law, 1054; Com. v. Hudson, 14 Gray, 11; 1 Bish. Crim. Law, §§ 890, 891; King v. Emden, 9 East, 437; Benn. & H. Lead. Crim. Cas. 561. "A continuing offense is a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy." Whart. Crim. Pl. 474. "The offense of keeping a gambling table may be committed by a single act, or it may be continuous in its nature, and may therefore be proved by one or a series of acts showing the requisite criminal intention by a proper measure of proof." Bibb v. State, (Ala.) 3 South. Rep. 711. I think the demurrer to the plea of former conviction should have been overruled. The transaction and offense covered by the indictment was the same offense and transaction upon which the defendant had been previously convicted under a continuing complaint, alleging the same offense and transaction. The evidence necessary to support the indictment would have supported and sustained the charge made in the complaint. The act charged in the indictment was an essential part of the same offense charged in the complaint. The carrying on of this gambling game of faro may be by one who is not present, and who takes no active part in it. The maintaining, conducting, and carrying on the gambling game charged is continuous in its nature, and ends only when the owner or manipulator ceases to maintain, conduct, and carry it on, and there are no players to engage in it. Appellant had been once convicted and punished for the offense which formed a part of the transaction of carrying on, maintaining, and conducting a gambling game as charged in the indictment. The following cases bear upon the question: In re Nielsen, 131 U. S. 176, 9 Sup. Ct. Rep. 672; In re Snow, 120 U. S. 274, 7 Sup. Ct. Rep. 556; 1 Chit. Crim. Law, 452; Dixon v. Corporation, 4 Cranch, C. C. 114; Hinkle v. Com., 4 Dana, 518; 1 Bish. Crim. Law, 804; U. S. v. Burch, 1 Cranch, C. C. 36; Com. v. Jenks, 1 Gray, 490; Jackson V. State, 14 Ind. 327; State v. Lindley, Id. 430; People v. Saunders, 4 Parker, Crim. R. 196; 1 Whart. Crim. Law, § 565. In my opinion, the order and decision of the district court in sustaining the demurrer should be reversed, and the judgment and sentence of the court should be set aside, and the defendant ordered discharged.

TERRITORY ex rel. BANK OF NEW VIENNA v. MAYOR, ETC., OF CITY OF GUTHRIE.

(Supreme Court of Oklahoma. July 22, 18 CLAIMS AGAINST CITY OF GUTHRIE ALLOWANCE BY DISTRICT COURT-APPEAL TO SUPREME COURT -WHEN WILL LIE.

Under Organic Act. § 9, which provides that an appeal shall be allowed, "in all cases." from the final decision of the district court to the supreme court, etc., an appeal lies to the supreme court from an order of the district court approving claims allowed against the city of Guthrie, by a commission appointed pursuant to the provisions of Okla. St. art. 1, c. 14, 84, to pass on and allow claims against said city. Territory ex rel. Losey v. Mayor, etc., of City of Guthrie, 31 Pac. Rep. 190, 1 Okla., followed.

Application by the territory of Oklahoma, on the relation of the Bank of New Vienna, for a writ of mandamus to compel the mayor and city council of the city of Guthrie to issue to relator warrants in payment of certain claims allowed by an order of the district court. Writ denied.

H. S. Cunningham, for relator. J. W. Pancoast, for respondents.

PER CURIAM. This is an application for a peremptory writ of mandamus to compel the mayor and city council of the city of Guthrie to issue to the relator warrants, as provided in section 4 of article 1 of chapter 14 of the Oklahoma Statutes. The petition shows that the claim for which warrants are demanded was allowed and approved by the district court of Logan county on a report of a commission appointed, under the provisions of that act, to pass upon and allow claims against Guthrie, East Guthrie, West Guthrie, and Capitol Hill, and the respondents make return to the alternative writ, that they have prayed, and are perfecting, an appeal to this court from the order of the district court allowing and approving the claim of the relator. And the only question presented for our consideration is whether such appeal will lie, or not.

It was held in the case of Ferritory ex rel. Losey v. Mayor, etc., of City of Guthrie, 1 Okla. 31 Pac. Rep. 190, that the report of the commission was to be made to the district court, as a court; and it follows that the order of such court, allowing and approving a claim contained in such report, is an order of the court, and not of the district judge, and is a final order, to all intents and purposes. And, while the legis lature did not intend to give an appeal from such final order to this court, it seems clear that such appeal is given by the provisions of section 9 of the organic act, which are: "Writs of error, bills of exception, and appeal shall be allowed in all cases from final decisions of said district court to the supreme court under such regulations as may be prescribed by law, but in to case removed to the supreme court shall trial by jury be allowed in said court." The organic act is the

supreme law of the territory, and must control; and either party may have and perfect an appeal from an order of the district court of Logan county, allowing or disallowing a claim to this court, for the purpose of having such order reviewed and corrected, if erroneous; but, in the exercise of the right of appeal, each claim allowed or disallowed must be regarded as independent of all others, and as a separate suit or action. As respondents are entitled to take and perfect | an appeal to this court from the order of the district court, it follows that the peremptory writ of mandamus should be denied. Writ denied.

HADLEY v. ULRICH. (Supreme Court of Oklahoma. July 21, 1893.) APPEAL INJUNCTION - INTERLOCUTORY ORDERWHAT CONSTITUTES.

In an action for an injunction, it appeared that a contest as to entry of certain land occupied by defendant had been prosecuted by successive steps through the United States land offices, and finally decided by the interior department in favor of plaintiff; that the latter thereupon made homestead entry on the land; that afterwards defendant made application for a reopening of the case, which was still pending: and that defendant refused to permit plaintiff to enter on or occupy any portion of such land. Held, that an order that, "until the further order of this court," plaintiff has the right to occupy and improve half of the tract, and defendant the other half, and specifying the part allotted to each, and that each is enjoined from interfering with the use and occupancy of the other, etc., is an interlocutory order, from which an appeal will not lie. Appeal from district court, Logan county; J. H. Burford, Judge.

Action by John H. Ulrich against James W. Hadley for an injunction. From an order granting an injunction, defendant appealed, and an oral order was made dismissing the appeal at the January term, 1893. Defendant files a petition for rehearing. Denied.

Amos Green, for appellant. R. S. Smedley, for appellee.

DALE, J. This cause was decided at the January term, upon motion of the appellee to dismiss the appeal herein, which motion having been granted, the plaintiff now seeks to have said dismissal set aside. The action was commenced in the lower court, in Canadian county, and a restraining order granted by the judge in chambers, pending the final result of the litigation. The appellant appealed from such restraining order, and, the appellee having filed his motion to dismiss, the court sustained the same, because no provision is made in our statutes for an appeal from an interlocutory order granting a restraining order. In his petition for a review, counsel for appellant insists that the court below did not grant a mere interlocutory decree, but that the same was a dev.33P.no.14-45

cree which operated to place plaintiff below in possession of land, and that an injunc tion cannot be invoked for placing a party in possession of land under such condition of facts as disclosed in the pleading in this case. The facts upon which the interlocutory order of the court below was based are set forth in the transcript, and are in substance as follows: "That the defendant, Hadley, duly made homestead entry of the land in controversy, and took possession of same, and began improving and occupying the same, and has continued to occupy, improve, and reside upon same to the date of the hearing. That the plaintiff, Ulrich, filed contest against said entry, alleging the disqualification of said Hadley, which contest was duly tried in the United States land office, and decided in favor of said Ulrich, and the entry of Hadley held for cancellation. That in due time Hadley appealed from said decision to the commissioner of the general land office, who, after considering said case, affirmed the decision of the register and receiver, and ordered that said entry be canceled. That in due time said Hadley appealed from said decision to the secretary of the interior, who, upon consideration of the same, affirmed the decision of the commissioner, and ordered that the homestead entry of said Hadley be canceled, and awarded to the contestant, Ulrich, a preference right of entry. That thereupon said homestead entry was canceled, and held for naught; and on the day of

1892, plaintiff, Ulrich, made homestead entry for said land, described as follows: 'Lots 1, 2, and 6 in section 12, and lot 7 of section 13, and the north half of the S. E. 4 of section 12, in township 12 N., R. 6 W., all in Canadian county, Oklahoma territory.' That afterwards said defendant, Hadley, made application to the secretary of the interior to reopen said case, and set aside said decree and judgment, canceling his said entry, which application is still pending, undisposed of, before the secretary of the interior. It is further found that the plaintiff, Ulrich, now has a homestead entry upon said land, and by reason thereof is entitled to, and has the right to reside upon, occupy, and improve said tract, and that, until the secretary of the interior shall dispose of the said application for a rehearing, the defendant, Hadley, also has the right to reside upon, use, occupy, and cultivate said tract; that the said Hadley is preventing the said Ulrich from going upon the said land, establishing residence thereon, or in any way improving the same, and is threatening to further refuse him possession to occupy any portion of said land, and to prevent him from perfecting his rights as a homestead entryman and settler; and it appearing to the court that the plaintiff has executed a good and sufficient undertaking, with sureties approved by the clerk of this court, that he is entitled to an order restraining the de

fendant from interfering with, or preventing his settlement and residence upon, said tract of land, and it further appearing to the court that it will be right, just, and equitable for the plaintiff to use and occupy a portion of said tract, and the defendant the other portion thereof, until such time as their rights are finally determined by the proper tribunal, and that the buildings and residence of said defendant are situated on the east half of said tract, it is therefore ordered, adjudged, and decreed that, until further order of this court, the plaintiff, Ulrich, shall have the right to occupy and improve lot 2, and the N. W. 4 of the S. E. 4 Sec. 12, and lot 7, Sec. 13, Tp. 12 N., R. 6 W., and that the defendant, Hadley, shall have the right to use, occupy, and improve lots 1 and 6, and the N. E. of the S. E. 4 of said Sec. 12 aforesaid; and the said defendant, Hadley, is hereby restrained and enjoined from any and all interference with said plaintiff in the use and occupancy of that portion of said land set apart and assigned to said plaintiff, except that the said Hadley shall have the right to cultivate to maturity, and at maturity to remove from said land set apart to said Ulrich, any growing crops that he may now have thereon, planted by him, and shall have the right to remove from said land set apart for Ulrich within ninety days herefrom any fences, wire, or posts that he may have heretofore placed thereon; and each of said parties are hereby restrained and enjoined from in any manner interferIng with the other in the use, occupancy, and improvement of the portion of said lands herein respectively assigned to them; to all of which the defendant, Hadley, by his counsel, excepted, and now prays an appeal to the supreme court, which appeal is granted, upon his giving an appeal bond in the sum of $500, with sufficient surety, to be approved by the clerk of this court, and defendant is given ten days to file an appeal bond and perfect an appeal." The foregoing is a mere interlocutory order. The court, it is true, found the facts as they appeared from the pleadings before the court, but distinctly avers that the order made shall be binding upon the parties until further ordered by the court; but, even if the court intended to make a final decree, it could not so operate, and must be considered as temporary. While it may be true that the restraining order effected, as suggested by counsel, a partition of the land, yet we cannot review such order until the case comes before us, after the lower court has finally disposed of all matters, and it reaches us upon proper appeal. It may, however, be said in this connection that our statute is very broad, and the courts are invested with ample powers in proceedings of this kind under consideration, but whether or not the court has exercised its powers in this case can only be determined when the final orrler of the court shall have been made, and

the case brought to us on appeal from such final order. The case is still before the lower court, and it may be brought before that court for modification of the temporary restraining order, if it cannot be finally de termined at an early day.

The petition for a rehearing is denied.

(10 Okl. 1)

RICE et al. v. WEST. (Supreme Court of Oklahoma. July 21, 1893.) BILL OF EXCEPTIONS-TIME OF FILING-FORCIBLA ENTRY AND DETAINER-PLEADING.

1. Under Code Civil Proc. c. 70, art. 24, 85, providing that a bill of exceptions must be presented within the time allowed by the judge, a bill filed a month after the time appointed by the judge will not be considered.

2. Under St. c. 71, art. 16, § 4, providing that in forcible entry and detainer the complaint shall set forth either an unlawful and forcible entry and detention or an unlawful detention, the facts constituting such unlawful entry or detention must be set out.

Appeal from district court, Canadian county; A. J. Seay, Judge.

Forcible entry and detainer by J. B. West against W. S. Rice, W. E. Thompson, and John W. Parsons. Judgment for plaintiff. Defendants appeal. Reversed in part.

Carswell & Smith, for appellants. C. 0. Blake, for appellee.

DALE, J. This case was originally commenced before a justice of the peace of Canadian county, taken on appeal to the district court, and judgment rendered for plaintiff, from which defendants appeal to this court.

The complaint recites that J. B. West, plaintiff, is the owner of one frame building. describing the same, and the place where situated, and alleges that "said plaintiff caused a notice to quit and leave said premises to be served upon said defendants on the 11th day of August, 1891; that said de fendants entered said premises unlawfully, and have detained the same unlawfully, and held said premises by force." Also alleges "that said defendants neglected and refused to pay the rent for the service from September 22, 1890, up to the present time, and that said rent will amount to the sum of $75, which is due and unpaid." The prayer of the complaint demands restitution of the premises, and the sum of $75, money due for rent thereof. The suit was instituted before the justice August 15, 1891, and on August 19th the defendants W. S. Rice and Walter E. Thompson answered as follows: "(1) They deny that plaintiff is the owner of the premises, as set forth in said complaint; (2) deny that they unlawfully or by force hold said premises from plaintiff; (3) that they are in any manner indebted to the said plaintiff, as set forth in said complaint; and for a further answer say that they are the equitable owners and in possession of