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his plea of autrefois convict in the Court of Oyer and Terminer, the judgment is reversed, to the end that a judgment be entered in said court in favor of the defendant on his plea of autrefois convict, and that he go without day, etc.

in his former plea. To this the state replied that the offense of robbery upon which he stood convicted. upon his plea of guilty, and the offense of murder charged against him, were not one and the same, and the jury impaneled to try the

The Chancellor and Williams, J., issue thus raised found that the of

dissent.

The Chief Justice, and Minturn, Kalisch, White, Heppenheimer, Taylor, and Gardner, JJ., concur.

Walker, Ch., dissenting:

one

Mowser, the plaintiff in error, was indicted by the Morris county grand jury on May 8, 1917, for the murder of Frederick Richards on May 5th, then instant. On May 22, 1917, the same grand jury indicted the plaintiff in error for robbery of the deceased on May 5th, then instant. On May 25, 1917, in the Morris county court of oyer and terminer, Mowser pleaded guilty to the second indictment, the charging robbery. On June 11, 1917, he filed a plea of autrefois convict in that court, in which he alleged that the offense in the indictment charging him with murder was one and the same offense as that charged in his indictment for robbery, and that the alleged murder was committed in the perpetration of the robbery. To this plea the state demurred, and the proceedings were removed by certiorari into the supreme court. The demurrer was there sustained, and judgment of respondeat ouster was given, and the record remitted to the Morris oyer and terminer, in which court the defendant afterwards filed a new plea of autrefois convict, averring the same facts as

fense in the robbery indictment, on which the defendant had been convicted, and the offense of murder charged against him in the other indictment, were not one and the same offense, but divers and different acts, crimes, and offenses. Mowser was then put upon his trial for murder in the oyer and terminer, and was convicted of murder in the first degree, with recommendation to life imprisonment. He sued out a writ of error from the supreme court to review his conviction, included in the record of which was the judgment sustaining the state's demurrer to the plea of autrefois convict. The judgment. under review in the supreme court was affirmed by that tribunal, and plaintiff in error has removed the judgment entered on that affirmance into this court for review.

I have examined the assignments of error and causes for reversal relied upon by the plaintiff in error, and am of opinion that the judgment under review herein should be affirmed, for the reasons expressed in the opinion by Mr. Justice Swayze in the supreme court, affirming the judgment of conviction of murder rendered in the Morris county oyer and terminer, and for the reasons expressed in the opinion of Mr. Justice Bergen in the supreme court, on the demurrer to the plea of autrefois convict.

ANNOTATION.

Acquittal or conviction of offense during commission of which homicide is committed as bar to prosecution for homicide.

The note does not include cases where the first trial was for a crime included in homicide, which conse

quently excludes cases where the first trial was before death occurred.

For acquittal on charge as to one as

bar to charge as to the other, where one person is killed or assaulted by acts directed at another, see the annotation to Spanell v. State, 2 A.L.R. 606.

It will be seen that in the reported case (STATE v. MOWSER, ante, 695), the court, in referring to the decision of the court below, says: "The supreme court proceeded upon the theory that the true test to be applied in a case of a plea of second jeopardy is that, where the facts required to convict on the second indictment would necessarily have convicted on the first, a conviction on the first will bar the prosecution of the second. And since the evidence to convict under the indictment for robbery would not have been sufficient to convict of murder, therefore the legal identity of the offenses fails." This statement is taken in substance from the supreme court opinion on the demurrer (1917) 91 N. J. L. 90, 102 Atl. 363. The second sentence seems to be a non sequitur from the first. The first sentence in effect is that, if the facts required to convict of the murder would have convicted of the robbery, the murder charge is barred, while the second sentence states that the murder charge is not barred because the evidence required to convict of the robbery would not have convicted of the murder. The application of the rule, as stated in the first sentence, would, of course, have discharged the prisoner, and such rule is laid down in many of the cases. But the supreme court bases its decision on the different rule that, unless the same evidence would be sufficient to convict of both crimes, the second prosecution is not barred, although it does in one place state the rule in substance as given in the first sentence quoted above. Very few cases have been found within the scope of this note.

In State v. Cooper (1833) 13 N. J. L. 361, 25 Am. Dec. 490, which is followed by the court of errors and appeals in the reported case (STATE v. MOWSER), and was sought to be distinguished by the supreme court in that case, it was held that a conviction of arson of a dwelling house was a bar to a charge of murdering a per

son burned in the house, where the statute provided, with respect to arson, etc., that if "the death of anyone shall ensue from the committing, or attempting to commit, any such crime or act as aforesaid," "such person, or persons, so killing as aforesaid, shall be adjudged to be guilty of murder."

It was held in Ex parte Torres (1906) 11 P. R. R. 98, that a conviction before a justice of the crime of carrying a pistol is no bar to a prosecution for murder done with the pistol on the same day, as "the misdemeanor is not necessarily included in the felony."

Where a prisoner, convicted of murdering her infant bastard child, burying it in a small hole, covering the body with hay and straw, moved in arrest of judgment that she had been convicted and punished for the offense of concealing the birth of same bastard child, the court, while stating that the question was raised too late, said: "But had the matter been properly brought forward as a bar to the indictment for murder, it would not have availed, for the misdemeanor imputed is a distinct offense from the crime now charged. Whar. Crim. Law, § 565. Moreover, the statute distinguishes the offenses, and, after declaring the constituents of the misdemeanor, expressly provides 'that nothing in this section shall be construed to prevent the mother who may be guilty of the homicide of her child from being prosecuted and punished for the same, according to the principles of the common law.' Code, § 1004." State v. Morgan (1886) 95 N. C. 641.

It should be noted that in Wilcox v. State (1880) 6 Lea (Tenn.) 571, 40 Am. Rep. 53, it was held that a conviction of robbery from the person of A. B. was a bar to a prosecution for an assault upon him, with intent to commit murder in the first degree.

While no attempt has been made to search for cases where the trial for homicide preceded the prosecution for another offense, it may be noted that it has been held that an acquittal of murder is no bar to a prosecution for carrying a pistol (Brown v. State (1914) 74 Tex. Crim Rep. 234, 167 S. W. 1107), that an acquittal of murder

in an attempt to perpetrate a robbery is no bar to a prosecution for the robbery (Warren v. State (1907) 79 Neb. 526, 113 N. W. 143), and that an acquittal of murder in the first degree, committed in causing a miscarriage, is no bar to an indictment for using instruments and medicine with intent to produce the miscarriage (State v. Elder (1879) 65 Ind. 282, 32 Am. Rep. 69). But it has also been held that an acquittal of murder of A. B. is a bar to a prosecution for arson in the first degree, in burning in the nighttime, a dwelling house in which the said A. B. then was. Reg. v. Lau Kin Chew (1891) 8 Haw. 370.

In the same connection reference may be made to the two following cas

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for carrying the pistol quashed. State v. Hall (1887) 50 Ark. 28, 6 S. W. 20.

An acquittal on a count in an indictment, charging the defendant with killing another purposely and with premeditated malice, does not work an acquittal upon another count in the same indictment, charging the killing to have been done purposely and with premeditated malice, in the perpetration of a burglary, so as to overturn a conviction upon a verdict of guilty on the second count. Bissot v. State (1876) 53 Ind. 408.

The reader will understand that this note does not include a general discussion of the interesting question whether the test of the identity of offenses, in considering the question of former jeopardy, should be the one stated in the first sentence heretofore quoted from the opinion in the reported case, or whether it should be the test applied by the lower court in its decision of the case. B. B. B.

ELIZA DANIEL, Plff. in Err.,

V.

CLINTON TOLON et al.

Oklahoma Supreme Court - April 11, 1916.

(53 Okla. 666, 157 Pac. 756.)

Notice contents of deed-witness to signature.

1. One who signs an instrument as an attesting witness to the signature of the maker is not thereby, and from that fact alone, charged with knowledge of the contents of the document signed by him.

[See note on this question beginning on page 716.]

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(53 Okla. 666, 157 Pac. 756.)

-dealings between equitable rules.

4. The equitable rules concerning dealings between guardian and ward are very stringent. The relation is so intimate, the dependence so complete, the influence so great, that any transactions between the two parties, or by the guardian alone, through which the guardian obtains a benefit, entered into while the relation exists, are in the highest sense suspicious; the presumption against them is so strong that it is hardly possible for them to be sustained. The general doctrine of equity applies to the parties after the legal condition of guardianship has ended, and as long as the dependence on one side and influence on the other presumptively or in fact continue. This influence is presumed to last while the guardian's functions are to any extent still performed, while the property is still at all under his control, and until the accounts have been finally settled. Any conveyance, purchase, sale, contract, and especially gift, by which the guardian derives a benefit at the expense of the former ward, made after the termination of the legal relation, but while the influence lasts, is presumed to be invalid and voidable. The burden rests heavily upon the guardian to prove all the circumstances of knowledge, free consent, good faith, absence of influence, which alone can overcome the presumption. [See 12 R. C. L. 1169, 1170.] -conveyance after majority.

5. A deed by an illiterate Creek freedwoman, of the major part of her allotment, made one week after the discharge of her legal guardian, to her

stepfather and former guardian, and with whom she at the time resided, and who was at the time her attorney in fact and in control of her allotted lands, in consideration of her support by said grantee during her minority, it not appearing that she was advised of her legal rights, is constructively fraudulent. In such circumstances, to bind the grantor, it must appear that she acted after the termination of her legal disability, with deliberation and with full knowledge of all the material facts respecting her rights.

[See 12 R. C. L. 1169, 1170.]

Notice of record - purchaser.

6. A purchaser of lands, who buys in reliance upon the record title, is chargeable with all the notice brought to him by the records; and if the record contains matters that would put a person of ordinary prudence upon inquiry into the nature of the title of the grantor, or of the rights and equities of a former owner, then the law charges such purchaser with all the knowledge an inquiry upon his part, prosecuted with reasonable diligence, would have brought home to him. [See 23 R. C. L. 194.] -failure to inquire effect.

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7. Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself. Rev. Laws 1910, § 2926.

[See 20 R. C. L. 346 et seq.]

ERROR to the District Court for Creek County (Stanfield, J.) to review a judgment in favor of defendants in an action brought to cancel a purported deed. Reversed.

The facts are stated in the opinion of the court.
Mr. George James, for plaintiff in

error:

Under the proved, admitted, and undisputed evidence of this case, under the fiduciary relations existing between plaintiff and defendant Tolon, the deed should have been canceled.

2 Pom. Eq. Jur. 3d ed. §§ 955, 956, 961; 21 Cyc. 105b; McParland v. Larkin, 155 Ill. 84, 39 N. E. 609; Williams v. Davison, 133 Mich. 344, 94 N. W. 1048; Eberts v. Eberts, 55 Pa. 110; Gillett v. Wiley, 126 Ill. 310, 9 Am. St. Rep. 587, 19 N. E. 287; Berkmeyer v. 4 A.L.R.-45.

Kellerman, 32 Ohio St. 239, 30 Am. Rep. 577; Goodrick v. Harrison, 130 Mo. 263, 32 S. W. 661; Garvin v. Williams, 44 Mo. 465, 100 Am. Dec. 314, 50 Mo. 206.

Tolon cannot be permitted to charge plaintiff for her keep, and therefore no consideration which he claims to have paid for the land can be allowed him by the court, he having received her into his family and supported her, she being his stepchild.

Fidelity Trust Co. v. Butler, 28 Ky. L. Rep. 1268, 91 S. W. 676; Williams

v. Davison, 133 Mich. 344, 94 N. W.

1048.

Defendant Dickson had actual notice, constructive notice, and knowledge of sufficient facts, that he cannot escape by a plea of bona fide purchase

for a valuable consideration without notice.

Hatfield v. Lotty, 48 Okla. 173, 149 Pac. 1171; Fisher v. Bush, 133 Ind. 315, 32 N. E. 924; Merrart v. Allen, 139 Ind. 644, 39 N. E. 239; Price v. Ward, 26 Nev. 387, 69 Pac. 72; Loser v. Plainfield Sav. Bank, 149 Iowa, 672, 31 L.R.A. (N.S.) 1112, 128 N. W. 1101; 39 Cyc. 1762 (D); Pom. Eq. Jur. 3d ed. §§ 614, 625; Wilkins v. Bevier, 43 Minn. 213, 19 Am. St. Rep. 238, 45 N. W. 157; League v. Snyder, 5 Tex. Civ. App. 13, 23 S. W. 825; Glendenning v. Bell, 70 Tex. 632, 8 S. W. 324; Peck v. Bartelme, 220 Ill. 199, 77 N. E. 216; A. R. Beck Lumber Co. v. Rupp, 188 Ill. 562, 80 Am. St. Rep. 190, 59 N. E. 429; Tiffany, Real Prop. § 479, p. 1086.

Messrs. McDougal & Lytle, Charles A. Dickson, and C. W. Holbrook for defendants in error.

Sharp, J., delivered the opinion of the court:

On the application of Clinton Tolon, the county court of Okmulgee county, on October 15, 1910, appointed said Tolon guardian of the persons and estates of his stepchildren, Eliza West, Kizzie West, and George West, minors. Said minors were, at the time of Tolon's appointment, according to the recitals of his petition, aged, respectively, fifteen, thirteen, and ten years, and were freedmen citizens of the Creek Nation, each possessed of an allotment of land. Eliza, whose estate alone is involved in the present action, according to the evidence, arrived at the age of eighteen years on or about the 20th day of Novem

ber, 1911. On February 6, 1912, said guardian made his final report, showing an indebtedness due him from the estate of his ward in the sum of $154.95, and at the same time filed in the county court a final receipt of said ward, signed and marked, and on the same day said court made and entered an order approving the final report, and discharged said Tolon as guardian of Eliza. On February 5th, or the day

prior to the foregoing transactions, said Eliza executed a power of attorney to said Tolon, authorizing him to lease the south one half of the north one half of section 13, township 15 north, range 8 east, for agricultural purposes, and to collect and receipt for all rentals or income arising therefrom, and also to make and execute an oil lease on said land. Said power of attorney was filed for record in the office of the register of deeds on March 1, 1912. On February 13, 1912, Eliza gave a warranty deed to 120 acres of her land to said Tolon, for a consideration, as shown by the deed, of $1,500. Said deed was placed of record on the same day and at the same hour as the power of attorney previously executed. On May 17th thereafter said Tolon, in his own right and as attorney in fact for Eliza, executed to J. W. Teter and N. T. Gilbert a three-year agricul tural lease on the 120 acres of land included in Tolon's deed, the term of which lease was to begin January 1, 1913, the consideration therefor being $175; and in addition to which the lessees agreed to put in cultivation as much as 15 acres of new land, and to make certain repairs on the premises. The lease purports to be the joint lease of said Tolon and Eliza, and was filed for record on May 18th following its execution. On February 13, 1912, and on the same day that Eliza gave her deed to Tolon, she executed to A. D. Kennedy a mortgage on 120 acres of her land for the purported consideration of $500, which mortgage was filed for record on the day following its execution. joined by his wife, Lucy, executed a On June 19, 1912, Clinton Tolon,

deed to the lands described in the deed from Eliza to Tolon, to Charles A. Dickson for the consideration of $200, which deed was shortly thereafter placed of record. Eliza lived with her mother and stepfather until April, 1911, when her mother, Nancy, died. Thereafter she continued to live with Tolon until November, 1912, when she married one

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