tions are sought to be introduced, the court should hear the evidence laying the foundation for the introduction of such declaration, and treat the matter as a question of law solely for the court, or, after passing upon the question in the first instance, should finally submit it to the jury. By the English courts, and by a large majority of the decisions of the several states, the question is held to be one for the court, and is treated either as purely a question of law for the court, or as one of mixed law and fact for the court. There are a few decisions, however, which are to the contrary, and which hold that the matter should be passed upon by the court in the first instance and afterwards submitted to the jury for their consideration, as any other question of fact. The principal decisions holding this theory are: Commonwealth v. Brewer, 164 Mass. 577, 42 N. E. 92; Smith v. State, 110 Ga. 255, 34 S. E. 204, and State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322. There are some other courts holding the same view, the decisions of which are entitled to consideration, and still others, viz., intermediate appellate courts, which seem to be in conflict with the court of last resort in such states. In Georgia, it seems the decisions are based upon the peculiar statutes of that state, and there is a line of decisions in harmony with the rule laid down. In Massachusetts there seems to be but the one case, but the court there holds it is in accordance with the settled practice of that state, that when the admissibility of evidence depends upon a collateral fact, the regular course is for the court to pass upon the preliminary fact in the first instance, and then, if it admits the evidence, to instruct the jury to exclude it if they should be of a different opinion on the preliminary matter. In the Kansas case, an instruction was asked by the defendant, and refused, to the effect that the question of whether a dying declaration was made under a sense of impending death and the admissibility of the same should be left to the consideration of the jury, but the trial court instructed the jury that such question was one solely for the court. The Supreme Court, treating the matter as one for the consideration of the jury, held the instruction of the trial court to be error.

It will be noticed here that the question is not raised in such a form as to require this court to decide which of the two rules is the proper one, but we are called upon to decide only whether or not the instruction as given was prejudicial to the rights of the defendant and therefore error. No objection is made to the instruction because of any language it contains, and, we take it, it is conceded that if the question is a proper one to be submitted to the jury at all, that the instruction given was correct. It might be asked, what injury or prejudice could there be to the rights of a defendant by submitting this ques

tion to the jury, after the court has passed upon it as a preliminary matter? In what way could a defendant's interest be affected thereby? Had the court in this case held that the matter was one of law for the court alone, and the question had not been submitted to the jury for its consideration, the matter would have ended there, subject, of course, to be reviewed by this court; but having submitted the matter to the jury, under proper instruction, the court gave the defendant a second opportunity to be heard upon the proposition, and a second chance to have the evidence excluded. The only result that could flow from this was either for the jury to uphold the court's ruling, or to disagree with the court, and, if so, then to exclude the dying declaration. We find no case in which such an instruction is held to be error, even by the courts which hold the question to be one of law for the court alone; and failing to understand how the matter could work to the injury or prejudice of the defendant, we are bound to hold that there was no reversible error committed, even though the question were not one for the consideration of the jury, and should have been treated as a question of law for the court alone. This is the conclusion reached in the case of Commonwealth v. Brewer, supra. While the court there upheld the practice, yet the opinion specifically states that even though the practice is wrong, yet the giving of the instruction could not have been error. The question of the admissibility in evidence of dying declarations, in nearly all of its forms, is treated at length in Worthington v. State (Md.) 48 Atl. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506, although there are some cases not cited there.

The second alleged error is that the jury was not justified in finding the defendant guilty of any greater crime than manslaughter, the contention being that the evidence shows that the shooting was done by the defendant while in the heat of passion, while the deceased and the defendant were fighting, and that there could not have been any premeditation, necessary to support a verdict of murder. The plaintiff in error nowhere points out where the information necessary to a consideration of this proposition may be found, but contents himself with the mere statement of the proposition in his brief. The general rule is that where counsel fail to point out specifically the portion of the record which is relied upon for any alleged error, that this court will not examine the entire record for the purpose of determining whether or not there is merit in his assertion. We have, however, examined the record in this case, and we think there is abundant evidence to support the verdict. The defendant, without question, was the aggressor in the affray, and, after throwing two glasses at the deceased, when the deceased undertook to defend himself by throwing a bottle at the defendant, he immediately whipped out his re

volver and fired at the deceased while the deceased was retreating, and attempting to get away out of the building. When the shooting was done, the defendant was in no danger of injury whatever. This court has repeatedly held that no appreciable time is necessary for premeditation. There was ample time, in this case, for premeditation and design, between the time when the defendant first commenced the difficulty and when the shot was fired. We cannot see how the jury could arrive at any other conclusion than that the defendant was guilty of murder. It was not a close or difficult question to solve. The deceased was the victim of the defendant's wanton premeditated act. The verdict and judgment is a just one. Judgment affirmed.

BURWELL, J., who tried the case below, not sitting. All the other Justices concurring.

(16 Okl. 508)

WEST v. BANK OF LAHOMA. (Supreme Court of Oklahoma. Feb. 15, 1906.) 1. BANKRUPTCY-ACTION BY TRUSTEE-REAL PARTY IN INTEREST.

A trustee in bankruptcy may maintain any action in his own name as trustee for the use and benefit of the estate he represents, but he has not the judicial power to determine that an action brought by him in his official capacity for the use and benefit of a third person who claims to be a creditor of the estate would redound to the benefit of the estate, and thereupon bring such action in his own name as trustee for the use and benefit of such third person. 2. SAME.

A trustee in bankruptcy represents the estate, and cannot act on behalf of a particular creditor to the extent of securing for such creditor a preference right which the bankrupt court has not considered or allowed.

(Syllabus by the Court.)

Error from District Court, Garfield County; before Justice C. F. Irwin.

Action by Langdon C. West, trustee of Kasper Streich, bankrupt, against the Bank of Lahoma. Judgment for defendant, plaintiff brings error. Affirmed.

This cause was commenced in the district court of Garfield county by filing therein a petition, the first and second paragraphs of which read as follows:

"Comes plaintiff and says that he is the duly appointed qualified and acting trustee in bankruptcy of the estate and effects of Kasper Streich, bankrupt, under the laws of the United States; that defendant is a banking corporation duly organized and doing business under and by virtue of the laws of the territory of Oklahoma, and defendant was such at all the times named herein; that on the 16th day of May, 1902, in the district court of the United States for the Fifth District of Oklahoma, a court of competent jurisdiction, certain creditors of Kasper Streich filed a petition in bankruptcy, alleging sufficient cause for the adjudication therein prayed for against Kasper Streich;

and that thereafter on the 8th day of July, 1902, said Kasper Streich was duly adjudicated a bankrupt in said court, and the allegations of said petition were found by said court to be true; that thereafter on the 30th day of July, 1902, this plaintiff Langdon C. West was in due form and manner elected trustee in bankruptcy of the estate and effects of the said Kasper Streich, and is now the duly appointed, qualified and acting trustee.

"Second Cause of Action. And for a second cause of action, plaintiff repeats the general allegations preceding his first cause of action, and makes the same a part of this second cause of action, just as though the same was herein set out again in the same words, and says further: for a second cause of action, that on the 9th day of May, 1902, for value and in the ordinary course of business and without notice, and to pay an indebtedness then and there created, and not an antecedent indebtedness, the Citizens' Bank of Enid, a banking corporation of Enid, Okl., organized under the laws of the territory of Oklahoma, received of and from the said Kasper Streich, the check of the said Kasper Streich for $500, drawn upon said defendant Bank of Lahoma; that said Kasper Streich was then and there insolvent and in failing circumstances. That said Streich represented to said Citizens' Bank of Enid that there was on deposit in the Bank of Lahoma to his credit a fund in the sum of $1,800, and that said check was drawn upon said fund, and it was then and there intended by the parties that said check should be and act as an assignment of so much of said fund as said check was written for; that at said time there was on deposit in the Bank of Lahoma a fund to the credit of said Streich in the sum of $1,800. That said Citizens' Bank of Enid believed said representations and relied thereon. That through the ordinary business channels in due time said Citizens' Bank negotiated said check, and presented it to said Bank of Lahoma at its principal place of business, during business hours on the 13th day of May, 1902; that then and there said Bank of Lahoma had sufficient funds belonging to said Kasper Streich, the drawer of said draft, to pay said check, and it was the duty of it, said Bank of Lahoma, then and there, to pay said check but that said Bank of Lahoma then and there wrongfully and unlawfully failed and refused to pay said check, and caused the same to be protested for nonpayment as appears in the record of protest of said check, marked Exhibit B and made a part nereor, and thereby said Citizens' Bank was obliged to pay the sum of $1.90 as protest charges. That said Citizens' Bank was thereby damaged in the sum of $501.90, with 7 per cent. interest from May 13, 1902, until paid. And said Kasper Streich then and there became liable to said Citizens' Bank for said sum. That a true copy of said check with all indorsements is hereto attached, marked Exhibit A, and

made a part hereof. That said Citizens' Bank has filed in the said bankruptcy proceedings aforesaid, its claim for $501.90 with interest at 7 per cent. per annum, as against the estate and effects held by your plaintiff for the payment of all proper credits, and that said Citizens' Bank claims a lien upon the funds of the said bankrupt held by defendant Bank of Lahoma, and therefrom arising because of the matters above set forth against the property of the Bank of Lahoma, sufficient to satisfy said debt, and has asked that plaintiff bring this action against said defendant upon said protested check, in its behair, and set up its claim as against the funds of the said Kasper Streich held by said defendant and therefrom arising against defendant herein. That if the claim of the Citizens' Bank is not satisfied in this action, and not satisfied out of the funds of the said Kasper Streich as in the first cause of action stated wrongfully to be converted by defendant, it will have a claim to the extent of the said check and protest fees thereon, as against the other assets, effects and estate of the said Kasper Streich, bankrupt, and thus it is to the interest of the said plaintiff that the said Citizens' Bank should be satisfied in this action, and that the Bank of Lahoma should be compelled to pay to the plaintiff, for the use and benefit of the Citizens' Bank the sum of $501.90, with 7 per cent. interest thereon, from the 13th day of May, 1902, until paid. That your plaintiff has examined into the facts above stated, and has decided that it is to the interest of the said estate to bring this action; that plaintiff has often demanded of said defendant, Bank of Lahoma, that this said sum be paid, and that defendant still fails and refuses to pay the same.

"Exhibit A. Lahoma, Okla. May 9th, 1902. Pay to the order of Citizens' Bank $500 five hundred & no/100 dollars. To Bank of Lahoma, Lahoma, Okla. K. Streich." Indorsed: "Pay to any bank or banker, indorsements guarantied. Citizen's Bank, Enid, Oklahoma, H. H. Watkin, Cashier."

Nine other causes of action of the same tenor and import are set out in the same language, each count, however, being upon a separate check drawn by the said Kasper Streich upon the same bank but each in favor of a different payee.

To this petition a demurrer was filed by defendant in the following words (omitting the title of the cause): "The defendant demurs to the amended petition herein upon the grounds, first, that the plaintiff has no legal capacity to sue in this cause or upon the cause of action set out in the petition; second, that the petition does not state facts sufficient to constitute a cause of action." Upon the issue so presented the cause was tried to the court below, resulting in a judgment for the defendant for costs, and from this judgment the plaintiff brings the case to this court upon error.

GILLETTE, J. (after stating the facts). It will be observed from the foregoing statement that no cause of action is stated in favor of the plaintiff and against the defendant, nor is a judgment sought that directly inures to the benefit of the plaintiff, the plaintiff's allegation being that if judgment is obtained against the defendant for the use and benefit of the Citizens' Bank of Enid, such bank would not demand from the estate that plaintiff represents the sum of money that it is now demanding. That the plaintiff has examined into the facts and decided that it is to the interest of the estate he represents to bring this action, and that he has demanded of the defendant that the amounts sued for be paid, which in the first cause of action amounts to $501.90. Nine other causes of action for that many different beneficiaries are set forth in the petition, each setting forth the same allegations as to the right of plaintiff to sue, and the liability of defendant, the total judgment prayed for being $1,037.90. We do not understand that, because a person fears a demand against himself in case another person fails to pay an honest debt, he may thereupon take it upon himself to litigate the rights of such other parties, although he may be satisfied as to such right and believe that he is saving himself by so doing.

This action is brought under the Oklahoma Code of Civil Procedure, which provides (Wilson's Rev. & Ann. St. 1903, § 4224): "Every action must be brought in the name of the real party in interest, except as otherwise provided in section 28"-section 28 being running section 4226, which provides: "An executor, administrator, guardian or trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted." This action is not brought in the name of the real party in interest, and while the plaintiff may be said to be the trustee of an express trust, and for that reason under the terms of the statute it was not necessary to join with him the person for whose benefit the action was brought, we take it that before he could bring such action at all he would have to show by his petition that any judgment recovered would be the property of the trust estate when recovered, instead of a judgment for the benefit of a third person, which in the opinion of the trustee would ultimately redound to the benefit of the estate. If, at the beginning of this action, there were funds of the bankrupt in the Bank of Lahoma which the bankrupt had a right to, for any purpose the plaintiff as trustee by virtue of his office became entitled to the possession of the same for the use and benefit of the estate, the plaintiff as trustee could right

fully sue to recover the same only for the use and benefit of the estate, leaving the bankruptcy court to determine whether or not the Citizens' Bank of Enid and the other persons for whose benefit the suit was brought, were entitled 'to preferred claims. It was not the province of the trustee to determine for himself that certain creditors of the bankrupt were entitled to preferred claims out of particular assets, and then sue to recover such assets for the use and benefit of such creditors. The trustee has no judicial authority. Where such is needed he must resort to the court, as the bankrupt would have been compelled to do had no proceedings been instituted. The powers of the trustee arise wholly out of the bankruptcy act of 1898 and amendments thereto, and we are unable to find any provision of that act which authorizes a trustee in bankruptcy to bring an action for any use other than the direct benefit of the estate, to be thereafter distributed according to the judgment and decree of the bankruptcy court. If the bankrupt, Kasper Streich, at the time of his bankruptcy had any title to funds or credits in the Bank of Lahoma, the title to the same passed to the plaintiff upon his appointment as trustee of such bankrupt estate, and the plaintiff might sue for and recover the same for the general use and benefit of the estate which he represented. If he had no title to such funds or credits, but title to the same had rightfully passed to some third person, the plaintiff could not bring the action for the use and benefit of such third person, for he was the real party in interest, and the plaintiff was not a trustee of his estate, or an officer authorized to act for his use and benefit. It follows from these conclusions that this action in this form could not rightfully be maintained, and the demurrer was properly sustained.

Judgment of the lower court must be affirmed, with costs. All the Justices concurring, except IRWIN, J., who presided in the court below, not sitting.

notice to the clerk of the Supreme Court, when an order for a change of judge has been granted, such provision will not be held to be a restriction upon the authority of the Supreme Court or Chief Justice thereof to act upon other notice, but will be considered only as one method by which notice of the granting of such order may be transmitted.

3. SAME.

Under Act Cong. Dec. 21, 1893, c. 5, 28 Stat. 21, providing that the Supreme Court or the Chief Justice thereof may designate any judge to try a particular case in any district when certain conditions exist, the Supreme Court, if in session, or the Chief Justice, when the Supreme Court is not in session, may act upon any notice which may be received that a change of judge has been granted. 4. SAME-JURISDICTION.

Where an application for change of judge is granted on March 22, 1905, and the clerk of the district court of Comanche county is ordered to notify the clerk of the Supreme Court at Guthrie of such change of judge, and where on the same day, at Woodward, Okl., at chambers, an order is made by the Chief Justice, assigning another judge to "hold the district court in the county of Comanche and

to try, hear and determine any and all cases and matters that may come before him in said district during the absence" of the regular presiding judge therefrom, held, the judge so assigned has jurisdiction to try, hear, and determine any case or matter which may come before him while acting under such order of the Chief Justice. 5. LARCENY OTHER EVIDENCE.

ACCOMPLICE-SUFFICIENCY

OF

Evidence of witnesses other than accomplices examined, and held to be sufficient to tend to connect the defendant with the commission of the offense. 6. CRIMINAL

LAW-ACCOMPLICE-EVIDENCECOMPETENCY AFTER CONVICTION.

An accomplice, separately indicted and separately tried, after conviction is a competent witness, either on behalf of the defendant or for the prosecution.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1099-1123.] 7. SAME-ALIBI-WHEN INSTRUCTION UNNEC

ESSARY.

To entitle the defense of alibi to consideration, the evidence must be such as to show that, at the very time of the commission of the crime charged, the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof; and, in a criminal prosecution, unless the evidence fills this requirement of the law, no instruction on the subject of alibi is necessary to be given by the trial court. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1833-1837.] (Syllabus by the Court.)

Error from District Court, Comanche County; before Justice B. F. Burwell. Charles Barbe and others were convicted of cattle stealing, and defendant, Barbe, brings error. Affirmed.

Ross & Anderson, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

PANCOAST, J. The plaintiff in error, jointly with Robert Barbe, J. Stien, and Roy Barbe, was indicted by the grand jury of Comanche county, charged with having on

the 24th day of April, 1903, stolen two cows, eight steers, and six young cows, the personal property of L. C. Knee. Demurrer to the indictment was filed and overruled. The trial was begun on March 28, 1905, a verdict of conviction was returned by the jury, and the defendant, after motion for new trial was overruled, was sentenced to imprisonment in the penitentiary for eight years.

The plaintiff in error, appealing from such judgment, assigns as the first error that the indictment does not charge that the property was taken with the felonious intent to convert. The indictment charges that the defendants Charles Barbe, J. Stien, Robert Barbe, and Roy Barbe "then and there being, did then and there unlawfully, willfully and feloniously by stealth, steal, take and carry away, without the consent and against the will of the true owner, two cows, eight steers and six young cows, the personal property of L. C. Knee, with the unlawful and felonious intent then and there of them the said Charles Barbe, J. Stien, Robert Barbe and Roy Barbe, to deprive the said L. C. Knee thereof, and to convert the same to their own use and benefit." The case of Sullivan v. Territory, 8 Okl. 499, 58 Pac. 650, is cited in support of this proposition; but, upon examination of that case, we find that the indictment there did not include all of the language of the indictment in this case. The allegation of intent to convert the property to the use and benefit of the defendant was omitted from the indictment in that case, and for that reason the indictment was held to be defective. The court, in the case of Sullivan v. Territory, cites with approval the case of Hughes v. Territory, 8 Okl. 28, 56 Pac. 708, and an examination of that case discloses that the elements of the crime of stealing at common law were "the wrongful or fraudulent taking and removing the personal property, by trespass, with the felonious intent to deprive the owner thereof, and to convert the same to the taker's own use." We are of the opinion that the indictment in this case fills the requirements of the law, under the rule there enunciated. The unlawful and felonious taking, the unlawful and felonious intent to deprive the owner of the property, and to convert the same to the taker's use, are allegations which are all contained in this indictment.

As to the second assignment of error, it appears that on March 22, 1905, an application was made for change of judge, which motion was sustained, and the clerk was ordered to notify the clerk of the Supreme Court of the order; and that on the same day, at Woodward, Okl., at chambers, the Honorable John H. Burford, Chief Justice, made an order by which the Honorable Benjamin F. Burwell, associate justice of the Supreme Court and presiding judge of the Third judic al district, was designated "to hold the district court of the county of Comanche, in the Seventh judicial district, beginning immediately, and

to try, hear and determine any and all cases and matters that may come before him in said Seventh district, during the absence of the Honorable F. E. Gillette, the regular presiding judge, therefrom." It is claimed by the plaintiff in error that the court, as then constituted, with the Honorable Benjamin F. Burwell presiding, had no jurisdiction to hear and determine this case or hold any term of court, for the reason that there had been no time sufficient for the clerk to transmit to the clerk of the Supreme Court a certified copy of the order granting the change of judge, and that the Chief Justice could not have had such notice of the granting of the order of change of judge in that particular case; and counsel insist that the provision of the statute requiring notice is mandatory, and that the notice of the order, being required to be submitted by the clerk to the Supreme Court if in session, or to the Chief Justice, if the court is not in session, could not have been given because of the insufficient time. While the statute provides that notice of an order granting a change of judge shall be transmitted to the clerk of the Supreme Court, and shall be by him immediately presented to the court, if in session, or, if not, then to the Chief Justice, yet we are of the opinion that this provision is not the only one that may be pursued. The only purpose of this act is to give notice to the Supreme Court, if in session, or to the Chief Justice, if the court is not in session, that the order for change of judge has been made; but if the court, if in session, or the Chief Justice, if the court is not in session, receives notice of such order in any other manner, we think the right clearly exists to act upon the notice, if the order for a change of judge has in fact been granted. Before the passage of the act of December 21, 1893, by Congress (chapter 5, 28 Stat. 21), it was held by this court, in the case of Stanley v. U. S., 1 Okl. 336, 33 Pac. 1025, that this statute, or one of similar nature, was not valid, and was not in harmony with the laws of the United States constituting the courts of this territory; but, by the act of December 21, 1893, Congress provided that the Supreme Court or the Chief Justice thereof may designate any judge to try a particular case or cases in any district, when certain conditions exist. We think that the Legislature has no power or authority to restrict in any manner the carrying out of the provisions of this act, and, while provisions may be made by the Legislature providing for the orderly transmission of notice to the clerk of the Supreme Court when an order for a change of judge has been granted, this will not be held to be a restriction upon the authority of the Supreme Court or, the Chief Justice thereof, to act upon other notice, but will be held to be one method by which notice of the change of judge may be transmitted; and that, under the act of Congress, the court, if in session, or the Chief Justice, when the