Appeal from District Court of Oklahoma County. Hon. John J. Carney, trial Judge.

Affirmed.

When an appeal is perfected in this Court and no counsel appears, and no briefs are filed on behalf of a plaintiff in error, this court will examine the record for fundamental errors only, and discovering none, the judgment appealed from will be affirmed, under rule 4 of this Court.

(Syllabus by the Court.)

Giddings & Giddings, for plaintiff in error..

Chas. J. West, Att'y Gen., for defendant in error.

Opinion of the Court by ARMSTRONG, J.

An information was filed against the plaintiff in error in the District Court of Oklahoma County on the 5th day of April, 1909, after he had had a preliminary examination as provided by law, charging him with having murdered Mrs Pearl Pearson in Oklahoma City on the 16th day of September, 1908. The case came on for trial on the 28th day of June, 1909, and a verdict of guilty was returned by the jury on July 17th, 1909, fixing his punishment at imprisonment for life at hard labor in the State penitentiary. Motions for a new trial and in arrest of judgment were filed and overrruled, and on the 24th day of July, thereafter, judgment and sentence was pronounced by the court in accordance with the verdict, from which judgment this appeal is prosecuted.

It appears that the deceased was living with her husband, Harry Pearson, and conducting a boarding house in Oklahoma City during September, 1908; that they were married at Iola, Kansas; that the deceased was a daughter of J. D. Mann, a hotel proprietor of that place. About one o'clock on the 16th, day of September, 1908, Mrs Pearson left home saying that she was going down town to take treatment from a physician and that she would return about 4 o'clock; that at this time she carried with her about $75 in money and wore two diamond rings. About 1:30 or two o'clock she appeared at the home of a Mrs Strimple in company with the plaintiff in error, and they claimed to be on their way to look at some vacant lots a few blocks further out. She was not heard from again until about 5 o'clock in the evening. when she came to the home of a Mr. Putman suffering from three bullet wounds, apparently from a 38 calibre revolver, and in a dying condition. She was carried from there to the hospital, and died in about two or three hours afterwards.

While at the Strimple place plaintiff in error, under the name of Parker, was introduced to a man by the name of Bennett. Mrs Strimple testified that she was not sure whether she had seen plaintiff in error before at her place, but knew Mrs Pearson. They tried to borrow a buggy and horse of Mrs Strimple, but she refused them and they went away. Before leaving Mrs Strimple's plaintiff in error tried to get Mrs Pearson to let him have her diamond rings, which she refused, saying: "Not on your life." About 4:30 o'clock plaintiff in error came back to Mrs Strimple's and tried to get the horse and buggy, and said he wanted to take Mrs Pearson to Britton or Edmond, and was again refused. He then went over to a place on West 26th street and there arranged to hire a boy named Shaw to take him to Edmond. The horse gave out and he drove to Britton where other arrangements were made to go to Edmond. When they started out from Oklahoma City plaintiff in error represented to the Shaw boy that he had a very sick brother at Edmond and wanted to get there at once in order to

see him alive. When they started north on the road to Britton they were traveling the street which goes by the Putman house, and near the scene of the tragedy. The plaintiff in error suggested they don't go that way, that they go three or four blocks West to 50th street and back to the road leading to Britton. From Britton plaintiff in error was carried to Edmond by a boy named Willie Brown. Arriving at Edmond he went immediately to a restaurant and tried to secure a drink of whiskey, and failing ate supper. He appeared very nervous and inquired repeatedly about a freight train for the north, which came shortly and he went on to Guthrie on the freight train. About 11 o'clock that night he appeared in a restaurant in Guthrie and displayed two diamond rings, which were later identified as the rings of Mrs Pearson. He appears to have left Guthrie during the night, having stated that he was going to Wichita. About 8 o'clock on the morning of the 17th of September he showed up at Crescent saying he had walked all the way from Tulsa and was on his way to Enid; was apparently in a very great hurry. He procured breakfast at the home of Mrs Fleming. He was next seen at Lovell where he procured a team at a livery stable, and stated that he wanted to drive west; but instead went north. The liveryman upon learning this telephoned someone at Marshall to head him off and recover the team. D. Overstreet and Floyd Thorp, stockmen living in that neighborhood, met the plaintiff in error, who told them he had just moved into the neighborhood and that he had recently traded for the team, and that they could satisfy themselves by inquiring at the livery stable. They went back to Marshall, a short distance, and after investigation became convinced that he was the party wanted and was driving the team belonging to the Lovell liveryman, and they immediately set out in pursuit of him. When they came upon him he got out of the buggy, turned the team loose and escaped down a ravine. The sheriff of Enid was telephoned and he captured the plaintiff in error about three miles from Enid and put him in jail. Plaintiff in error wore tan shoes when he

left Oklahoma City and at the time he was arrested by the sheriff at Enid, but while in jail at Enid he traded the tan shoes to another prisoner for black ones. On the 20th of September he was turned over to the sheriff of Logan county, who took him back to Guthrie were he was released on bond on the 26th of September. On the 28th of September he appeared in Wichita, Kansas, and said he was going to Enid. On the 29th he went to a liverystable in Enid and hired a rig, and said he was going out northwest to see a friend. He drove as far as Cremlin, where he took a train saying he was going to Wichita that night.

A photograph had been procured of the plaintiff in error in the meantime from a sister of the deceased, Miss Mann, of Iola Kansas, by sheriff Garrison, who had a large number of others made from it and sent them over the country to various police officers, one of them getting into the hands of the police of Wichita, Kansas. On the night of the 29th of September a Wichita policeman named Thompson with other officers went out to the place where plaintiff in error was living with his fatherin-law. Shortly after midnight some one came from the alley and went into the house. Several officers surround ed the house and demanded admittance. They were at first refused but later admitted. When they went in they said they were looking for a man named Harry Parker. The plaintiff in error stepped up and said "Maybe they are looking for me" or "Maybe they are wanting me." One of the officers replied "Yes, you are the man that we want." The photograph was produced and plaintiff in error remarked, "They 've got a picture of me. Where did you get it?" On looking at the phograph and discovering that a reward was written at the bottom of it he denied that it was his. He was taken down to the city jail in Wichita and later delivered to sheriff Garrison of Oklahoma county for extradition. After his arrest the officers went back to the residence where the arrest was made and found the ring worn by Mrs Pearson the aftternoon of the murder, secreted in a dictionary in the house. The father of the deceased

identified the plaintiff in error as the person who boarded at his house during the fall of 1907 under the name of Harry Parker. He was identified by many other witnesses who had been associated with him, by his writing and by the various persons mentioned herein and others who saw him on the day of the murder and immediately following.

The shooting appears to have been done near the home of Robert Putman in the outskirts of Oklahoma City. Mrs Lasley who was housekeeper for Putman, testified that she heard some shots and a person scream, and this repeated twice thereafter. That she ran out in the yard to see what the trouble was and the woman Mrs Pearson, came up and fell on the other side of the house on the porch, and said she was shot. Help was called in and an ambulance was telephoned for. Mrs Pearson lay on the porch for something like an hour, growing weaker all the time, and while there told Mrs Lasley about the shooting saying "Harry Parker did it. Don't forget the name." This same statement was made to Mrs Stert. Bert Layman testified that he lived on 39th street in Oklahoma City; that he was right across the road from Bob Putman's the afternoon the shooting oceurred. That he heard shots and heard a woman holler; that the next morning after the shooting he went down to the place and found a leather purse in a ravine. That he saw where the weeds had been trampled down and that the purse was in the ravine just east of this. A deputy sheriff inspected the locality where this murder is alleged to have taken place and found tracks comparing with the tracks of the plaintiff in error and of the deceased, and a comb and other articles identified as the property of the deceased. He also found indications of where a person had been dragged some distance.

The defense of the plaintiff in error was an alibi, his contention being that of mistaken identity. Taken as a whole the proof of guilt is so clear that not even a suspicion of innocence could be indulged in by a reasonable mind. A more diabolical murder than that we are now