ty, Okl., an order of sale, and on the 26th [es, and by selling hay raised thereon during day of April, 1920, the lands covered by the the season of 1919, or, if necessary, to emmortgage were sold by the sheriff; that ploy labor, procure the cutting and harvestthere were present at the sale the defend- ing of said hay from said hay land, and to ants C. W. Crum, acting for himself and on market same; to take such action as may behalf of the McAlester Cattle Loan Com- be necessary to obtain possession of the said pany, J. D. Browder, Lee Pollock, and G. M. premises from any person or persons now in Roberts, and sundry other persous, and that possession of the same wrongfully, and if Pollock and Roberts were present for the such person or persons now in possession purpose of bidding on said lands, and de- have such possession by reason of rental fendant Browder was in some manner and contract with the defendant, that said reto some extent, to the plaintiff unknown, in-ceiver arrange for the collection of all rents terested with defendants Pollock and Rob- to be paid by them; that said receiver shall erts in their intended purchase of said lands; make full and complete report of all of the and that defendant Crum, acting for himself moneys and doings under this receivership and on behalf of the defendant McAlester at reasonable intervals, and at such time as Cattle Loan Company, fraudulently propos- he may be ordered to do so by the court, all ed to the said defendants Browder, Pollock, of which to continue subject to the further and Roberts that, if Pollock and Roberts order of the court. would refrain from making any bid on said land, he would pay to said Browder, Pollock, and Roberts the sum of $3,000, to be distrib-rers to the petition of the plaintiff, in which uted and divided between them, and that said proposal was thereupon accepted, and C. W. Crum purchased the said land for the sum of $5,000, which, it was alleged, was greatly less than the actual value of said lands, and that Browder, Pollock, and Roberts refrained from making any bid at the said sale to Crum on account of said fraudulent scheme and understanding. Thereafter, in due course, the defendants and each of them filed their separate demur they alleged that the facts set out in the said petition did not constitute a cause of action against these defendants, and thereafter the court heard argument upon the demurrers of the several defendants, and on October 15, 1921, the court, being fully advised in the premises, "finds and is of the opinion that it does not appear from the said petition that the defendant Browder occupied such a fiduciary position to the trustee in bankruptcy, as set out in said petition, as to render him, or any of the defendants, liable to the plaintiff, and that for such reason said pe Plaintiff's petition further alleges that at some time unknown the $3,000 was paid to Browder, Pollock, and Roberts; that the sheriff made return of sale to the district court, which sale was by the court confirm-tition does not contain facts sufficient to coned, and the sheriff's deed delivered to the defendant Crum. And the plaintiff further states in his petition that it was the legal duty of the said J. D. Browder, the receiver under the appointment mentioned, to endeavor to realize the largest possible amount at said sale, and that, by entering into said fraudulent agreement with defendants Crum, Pollock, and Roberts, he and each of the defendants became severally and jointly liable to this plaintiff, as trustee in bankruptcy of the estate of said Johnson, for all the gain and profit realized by the said Browder, and prays judgment against each and every of the defendants jointly and severally in the sum of $3,000, together with interest thereon at the rate of 6 per cent. per annum from April 26, 1920, and for costs. Plaintiff makes the order appointing J. D. Browder receiver in the action by the Oklahoma Farm Mortgage Company against F. L. Johnson and others, for foreclosure of the mortgage, a part of his petition, which, after setting out a description of the property and the proceedings taken, directs the receiver, Browder, to take possession and charge immediately of the described property and to run the same to the best advantage, and to collect rents therefor, and further to protect the hay crop on the mortgaged land, by renting said mortgaged land for hay purpos stitute a cause of action in favor of the plaintiff and against the said defendants, or any of them, and that for said reason said demurrers and each of them should be sustained." To the judgment of the court, sustaining the demurrers, the plaintiff excepted, and elected to stand upon his petition and declined to plead further, whereupon the court found for the defendants and each of them and dismissed the cause, whereupon plaintiff gave notice of appeal to this court, and this cause is before this court for review upon the pleadings and the judgment of the court in sustaining the demurrers. The case was argued to the court below upon one theory and one alone, to wit, that defendant Browder occupied such a fiduciary relation to the trustee in bankruptcy as made it his legal duty to obtain as large a sum as possible for the sale of the land, and upon this theory and this alone the cause was considered and determined by the court, and upon this question this cause is presented to this court in the plaintiff's briefs. The petition of plaintiff does not allege a conspiracy to defraud the bankrupt estate, nor does it allege such a corrupt agreement as would be against public policy nor are these matters presented to the court. Το sustain his position that Browder sustained a fiduciary relation to the trustee of the (225 P.) same to the treasury of the association for the benefit of the stockholders. The fiduciary relation of Ambrose, the receiver, to the association is clearly apparent, he having absolute power over the property of the association. bankrupt estate, plaintiff favors us with but | price for the property, and to return the one citation, and relies entirely and solely upon Jackson v. Smith, 254 U. S. 586, 41 Sup. Ct. 200, 65 L. Ed. 418, and sets forth in totidem verbis the opinion in that case; and, as viewed by this court, the facts in Jackson v. Smith are so at variance with the facts in the case now being considered as to render the cited case valueless as a legal compass by which we may set our course in the instant case. 246; Smith v. Ogilvie, 127 N. Y. 143, 27 N. E. 807. [2] Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be exIn Jackson v. Smith, supra, one Ambrose cluded. Pope, Legal Definitions, vol. 1, p. 540; was receiver for a defunct building associa- MacNiel's Illinois Evidence, p. 542. The extion, and as such held certain notes of one pression "fiduciary relation" is one of broad Schwab, such notes being secured by deed of meaning, including both technical fiduciary trust on certain real property. Under the relations and those informal relations which law of the District of Columbia a foreclo- exist whenever one man trusts and relies upsure proceeding through the courts is un- on another. Kern v. Beatty, 267 Ill. 134, 107 known. In that jurisdiction one desiring to N. E. 794; Beach v. Wilton, 244 Ill. 422, 91 borrow money executes his notes, conveys N. E. 492; Mayrand v. Mayrand, 194 Ill. his property by deed to three trustees, which 48, 61 N. E. 1040; Stahl v. Stahl, 214 Ill. 138, deed empowers such trustees, when directed 73 N. E. 319, 68 L. R. A. 617, 105 Am. St. by the holder of the notes, to offer the prop- Rep. 101, 2 Ann. Cas. 774; Thomas v. Whiterty for sale at public outcry, after 10 days' ney, 186 Ill. 231, 57 N. E. 808; Svance v. advertisement of the time, place, and con- Jurgens, 144 Ill, 507, 33 N. E. 955; Sutton ditions of the sale, and if the price bid for v. De Camp, 4 Abb. Prac. N. S. (N. Y.) 483; the property is satisfactory to the holders | Studybaker v. Cofield, 159 Mo. 596, 61 S. W. of the notes, the trustees execute a deed in fee to the purchaser. If the bid made at such sale is inadequate, the holder may use Browder and his codefendants occupied no his discretion, and either direct the deed to such position toward the creditors of the issue or withdraw the property and readver- bankrupt estate; his only duty being to coltise it at another period. Ambrose, as re- lect rents and make an accounting to the ceiver, entered into an agreement with Smith court for the benefit of the Oklahoma Farm and Wilson whereby Ambrose was to order Mortgage Company. He possessed no power the property sold, Wilson was to purchase to direct the time, place, or conditions of the the same, resell at private sale, and divide sale, or to direct a deed to issue. The ade profits between Ambrose, Smith, and Wilson, quacy or inadequacy of the price obtained which was subsequently done. The facts be- did not concern him in his position as reing presented to the court, Jackson was sub-ceiver for the rents; he might have purchasstituted for Ambrose as receiver, and this ed the property and held it in his own name, action was brought against Ambrose, Smith, or acquired an interest therein by a partand Wilson, to recover the profits realized nership agreement with others, and reaped by the private sale of the lands. Ambrose, whatever profits that might arise from the being receiver for the holder of the notes, transaction, without betraying any confihad, under the laws of the District of Co-dence or trust, as no confidence or trust was lumbia, absolute power to order the trustees ever reposed in him by the trustee in bankto advertise and sell the property; to desig- ruptcy. nate the time, place, and conditions of the The cause having proceeded upon the thesale; to order the trustees to execute the ory of a fiduciary relationship between the deed in fee; or to withdraw the property defendant Browder and the bankrupt estate, and readvertise and sell the same. He oc- and an examination of the plaintiff's peticupied a position of confidence and trust to- tion failing to allege facts disclosing such reward the defunct association and its stock-lationship, the judgment of the court below holders as thrust upon him a legal as well in sustaining the demurrers of the defendas a moral duty to obtain the best possible ants should be sustained. PHILLIPS v. STATE. (No. A-4361.)* (Criminal Court of Appeals of Oklahoma. April 29, 1924.) (Syllabus by the Court.) 1. Courts 66(3)-District court may adjourn term in one county over intervening term in another county of district. Where the times for the commencement of terms of court are fixed by an act of the Legislature, but not the duration of time of ending the terms, a district court may adjourn a term in one county of the district over an intervening term in another county of the dis trict.. 2. Homicide 250, 354-Evidence held to sustain conviction for murder; evidence supporting conviction for murder held not sufficient to warrant extreme penalty. In a prosecution for murder, evidence held sufficient to warrant a verdict convicting the defendant of murder, but insufficient to warrant the extreme penalty of the law, and the judgment and sentence is modified from death to imprisonment at hard labor for life. entrance to Casey's Drug Store. The testimony of at least 10 eyewitnesses shows that about 10 o'clock in the forenoon of the date alleged appellant and his codefendant, Alex Watson, a deputy sheriff, were in Casey's Drug Store; that Marion Williams drove up and parked his car in the middle of Main street in front of Casey's Drug Store, and got out of his car and walked to the entrance of Casey's Drug Store; that he took hold of the screen door and opened it about half way, when three shots were fired from within the drug store; that he turned and started to cross Main street, angling south from his car; that appellant stepped out of the drug store with a gun in his hand, took 6 or 7 steps following him, stopped, and holding his pistol with both hands took aim and shot him in the back. Williams fell on the street and died within 10 minutes. He was un armed, and no weapon was found in his car. W. A. Miller, as a witness on behalf of the state, testified: "I saw Mr. Williams park his car on Main street. He got out and walked over towards the drug store. As he stepped upon the side Appeal from District Court, Atoka Coun- walk he spoke to some parties and walked on. ty; J, H. Linebaugh, Judge. J. W. Phillips was convicted of murder, and he appeals. Modified and affirmed. See, also, 201 Pac. 392. Cornelius Hardy, of Tishomingo, Brown, Williams & Brown, of Ardmore, J. G. Ralls, of Atoka, and P. B. H. Shearer, of Tishomingo, for plaintiff in error. As he took hold of the screen door I heard a shot fired, almost instantly a second shot. As Mr. Williams turned a third shot was fired. When he was probably twenty feet from the door Phillips came out of the drug store, followed him 6 or 7 steps, and shot him in the back." Joe Diggs testified: "I saw Mr. Williams just as he came on the George F. Short, Atty. Gen., and John Bar- sidewalk. He was in his shirt sleeves. As he ry, Asst. Atty. Gen., for the State. DOYLE, J. The information in this case, filed in the district court of Johnston county, charged appellant, J. W. Phillips, and Alex Watson, jointly with the murder of J. M. Williams, alleged to have been committed in said county on August 3, 1921. A change of venue to Atoka county was granted. Upon his separate trial appellant was found guilty of murder, and his punishment was fixed by the jury at death. He has appealed from the judgment of conviction and sentence of death to this court. From the evidence it appears that the building occupied by Casey's Drug Store is situated on the corner of Main street and Kemp avenue, Tishomingo, and fronts north, with a corner entrance to the drug store. J. M. Williams, deceased, commonly known as Marion Williams, had been sheriff of the county for three consecutive terms, and for several years very bitter feelings existed between him and appellant, arising out of appellant's opposition to Williams in one of his campaigns for sheriff. Appellant was engaged in the produce business and occupied a storeroom facing Kemp avenue, about 100 feet from the rear opened the screen door of the drug store I heard three shots. He turned and humped up, and as he walked across the curbing Phillips in his hand and shot him in the back. I went came out of the drug store with a six-shooter to Mr. Williams. He was not armed. We found two nickels and a dime in one pocket and a watch in his watch pocket." "I was city marshal. I was crossing Main street, and I saw the last shot fired. Mr. Williams was going east. Phillips stepped out of the drug store and leveled down with a pistol in both hands and shot him in the back. Phillips broke his gun, and handed it to Alex Watson. Then they went back into the drug store." The testimony of Dr. J. T. Looney, who appeared upon the scene as the last shot was fired, shows that one bullet entered about For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied June 12, 1924. (225 P.) one inch below the right shoulder blade and came out four and one half inches below the right nipple; another bullet entered below the right nipple; another entered three inches below the left nipple and another entered two inches below the point of the breast bone. T. R. Gibson, sheriff, testified that in a conversation with appellant on the day of the killing he said: "Mr. Williams was opening the door with his left hand and was fumbling around his waist with his right hand. I thought he was making preparations to get a gun and I had to shoot him." He further stated: That to the killing Williams rode up in front of appellant's place of business with a big sixshooter and said to appellant, "What about that story you have been telling about me being interested in Lige Deacon's still," and, when appellant denied this, William stated with an oath that he would make appellant eat everything he had said about him. later on in the same month of February Williams rode up the street in front of appellant's place of business on a horse with a Winchester on his saddle, and appellant had Doc Bates telephone for the officers. That about two weeks before the killing Williams, together with his brother, Bud, both drunk, drove up in front of appellant's place of business, and Williams said to appellant, "Do "I put three shots that your hand could cover you feel lucky this morning? By God if you in front here." feel lucky lets go we are rearing to go." That on the 28th day of July, 1921, Richard He repeated this statement four or five Lowery told appellant that Marion Williams times, and I said: "Mr. Phillips, you say you had to kill Marion Williams, what in the devil are you going to do with that last shot." And he said: "I had been aggravated with Marion and scared that he was going to kill me, and I wanted to know that I was not going to be bothered with Marion Williams any longer." As a witness in his own behalf appellant testified: "I fell from a truck and skinned my knee that morning and when I went back to my store my daughter was there and said, 'Papa, for God's sake come on in here and stay in here, Mr. Williams has been here flushed up red faced as he could be, and seemed to be very angry,' and she said, 'Come on in the store.' I went in, put my gun on, and went to the drug store to get some medicine for my leg; I lacked a nickel of the price and went back to my store to get the nickel. When I returned Alex Watson was in there. I said, 'Sheriff, have a drink,' and we had drinks and some cigars together. I was watching up the street to see if my boy was coming up the street with the feed and bring my car down; as I turned Marion was coming in this door, with this mad, bulldog look. First I seen of him liked to scare me to death. He grabbed the door with his left hand. I whirled and tore my clothes open, grabbed my gun, and shot three times, He was standing at least one step inside the door. In instant he whirled, and went out, I could not see him for the smoke and scared to death. I stepped outside the door as quick as I could and my next thought was that he was going to his car to get that Winchester to kill me, and I thought it was the only thing to do to save my life, and I shot him again as he stepped off the sidewalk." an He further testified: That he had frequently seen Williams with a pistol, Winchester, and shotgun; that at the county fair Williams, who was then sheriff, charged him with selling intoxicants to an Indian and making him drunk. That in February prior had a conversation with him in which he stated that he wanted him to kill Phillips and offered him a car and $50 to buy the best gun he could buy and said that he would see that all court expenses were paid. That appellant reduced Lowery's statement to writing and showed it to the sheriff's force. That when Williams and Callen were rival candidates for sheriff appellant distributed circulars against Williams.. A copy of this circular was offered in evidence and excluded by the court. hour before the killing Mr. Williams walked Louetta Phillips testified that about an up to the door of her father's store and looked in and had his hand in his coat; that she asked him, "Is there something for you, Mr. Williams?" and he shook his head and walked away; that she told her father immediately on his return to the store. Buck Blackwell testified that before the primary election he had a conversation with Williams in which Williams said that if he did not change his mind, he (Williams) and appellant Phillips could not both live in Tishomingo. Alex Watson, codefendant testified: "I was in the drug store when Phillips came in, took a drink of coke with him and a cigar, talked with him about five minutes. He said, 'Well, I have got to go.' He went to the door, and I turned back towards the cigar case. I was not expecting anything. Just then it was, "bing, bang, bluey." I turned, and it looked like Williams took hold of the door. He was leaving, and Phillips went out. I looked to see if Williams had a gun. I saw he did not, and I went out and arrested Phillips." Several witnesses testified that the deceased had made threats against appellant's life. There was some testimony tending to show that deceased was a violent, vindictive quarrelsome man. The state in rebuttal called and examined not less than 10 character witnesses, each of whom testified, over the objection of appel lant, that they knew the reputation of J. M., day to a succeeding day. They have the Williams, deceased, in the community in which he lived as to being a peaceable lawabiding citizen, and it was good. The first alleged error is in overruling appellant's objection to the jurisdiction of the court, interposed when the case was called for trial, "for the reason that no order of court has been made and entered of record for the holding of an adjourned term of the January, 1922, term of the district court of Atoka county, to be held at this time," and "for the reason that the January, 1922, term of the district court of Atoka county automatically expired by operation of law on the date provided by statute for the convening of the district court of the TwentySixth judicial district in Coal county on the first Monday in March, 1922.” The record shows that on the 20th day of March, 1922, the case was called for trial, and that the order directing the drawing of a jury, and all proceedings had at the trial, were during said month of March. It is contended that the term of the district court in one county is terminated by operation of law upon the day for the beginning of another term in another county of the district, and for this reason the judgment appealed from is void. The statute provides as follows: "The time of convening the regular terms of the district court in each county in the several district court judicial districts of the state shall be on the first Monday in each of the respective months hereinafter set out in this section after each of the respective counties, to wit: * * "District No. 26. In Atoka county, in January and July; in Coal county, in March and September; in Johnston county, in May and November." Comp. Stat. 1921, § 3072. "The regular term of any district court may be adjourned from time to time, or sine die, by a resident judge of the district court or by any other district judge assigned and holding court in such district, but such adjournment shall be to a time prior to the convening of the next regular term. The regular judge, or any judge assigned, may make all orders with reference to the adjournment of the term." Section 3087, Comp. Stats. 1921. The record shows that at the regular January term in Atoka county this cause was continued until March, and on February 16, 1922, this cause was set for March 20, 1922. Counsel for appellant insist that under the statute fixing the time for the commencement of the term of court in one county, the law, by necessary implication, limits the duration of the term immediately preceding in another county of the district, and, unless sooner terminated by adjournment, the term will expire, by operation of law at that time. We are of the opinion that there is no merit in this contention. [1] Courts are not limited in their power of adjournment to an adjournment from one inherent power to adjourn to a more distant day, when not restrained by the Constitution or statute law; and there is no such restraint upon the district courts of this state. The Constitution provides that: "Two or more district judges may sit in any district separately at the same time." Const. art. 7, § 9. The question here presented was before this court in the case of Brown v. State, 11 Okl. Cr. 498, 148 Pac. 181. We held that: "Where a general term of the court has been once regularly convened, on the day fixed by law, it can expire only by operation of law, or by an adjournment sine die, and will not so expire by operation of law until the first day of the next general term." In Tucker v. State, 10 Okl. Cr. 565, 139 Pac. 998, we said: "The rule is too well settled to admit of con troversy that, where a general term of court has been once regularly, convened, on the day fixed by law, it can expire only by adjournment sine die, or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the next general term." And see St. Louis & S. F. R. Co. v. James, 36 Okl. 196, 128 Pac. 279. In S. W. Ins. Co. v. Douglas, 81 Okl. 232, 198 Pac. 334, the Supreme Court held: "A district court legally opened for all general purposes continues in session until it adjourns sine die, or expires by law, and, when an adjournment is made subject to call, the term not having then expired by law, convenes, the court is legally constituted, and its acts are valid and binding." In the case of In re McDonald, 4 Wyo. 150, 33 Pac. 18, the Supreme Court of Wyoming held that: the duration of a term of a district court, the "In the absence of any statute prescribing length of its session, or when it may adjourn, such court may adjourn a term in one county of the district over any intervening term in another county." In Re Hunter's Estate, 84 Iowa, 388, 51 N. W. 20, the Supreme Court of Iowa held that: "A term of the district court may be adjourned for 16 days, even though during the interval the judge of said court holds a regular term of court in another county." In the opinion it is said: "Adjournments of the business of a term of court from day to day and from time to time, as the necessities of the situation seem to demand, is essential to the conduct of the business, and has the sanction of universal usage. Such a right is not questioned. Without the intervening term in Iowa county, the validity of the adjournment to February 17th would not, we suppose, be questioned. How |