text:
    J. C. WILLIAMS v. STATE.
    No. A-3947.
    Opinion Filed April 4, 1922.
    Rehearing Denied Nov. 28, 1922.
    (200 Pac. 315.)
    Appeal from County Court, Okmulgee County; P. A. M. 'Hoodenpyl, Judge.
    J. C. Williams was convicted of violating the prohibitory law, and he appeals.
    Affirmed.
    E. M. Carter and C. A. Dickson, for plaintiff in error.
    "George F. Short, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. C. Williams, was tried and convicted and his punishment fixed at confinement for 60 days in the county jail and a fine of $200. From the .judgment rendered' on the verdict he appeals.

The information charged that on the 4th day of October, 1920, in said county, the defendant did unlawfully have in his possession 48 gallons of tincture of Jamaica ginger, being a compound containing as much as one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the intention of selling the same.

The evidence shows that the defendant, a licensed pharmacist, conducted a drug store in Okmulgee; that a deputy sheriff went to the place of business of the defendant with a search warrant and found a barrel containing 40 gallons of tincture of Jamaica ginger; there was testimony also showing that said Jamaica ginger contained more than 90 per cent, alcohol, measured by volume.

When the state rested the defendant requested the court to instruct the jury to return a verdict of acquittal, which the court refused to do, and the defendant excepted.

■ As a witness on his own behalf the defendant testified that he did have in his possession an unopened barrel of Jamaica ginger, seized by said deputy sheriff; that the reason for getting this large quantity in one shipment was because he had shipped it in smaller quantities by express, in glass jars, and it disappeared in transit.

The defendant offered in evidence regulation No. 60 of the Treasury Department, Bureau, of Internal Revenue, and particularly article 17, § 94, which reads:

“Jamaica ginger may not be sold by a retail druggist or other person to a consumer in quantities exceeding 1 or 2 ounces at one time except that in unusual circumstances the consumer may file an application on form 1404 without bond and obtain permit on form 1405 to purchase such preparation in greater quantities and may then procure the same in the quantity indicated in his permit on furnishing permit' to purchase on form 1410 under the procedure provided by article 8.”

It is contended that the evidence is insufficient to support the verdict and judgment of conviction.

As we view the law the defendant is guilty on his own testimony. The provisions of the Revenue Act introduced in evidence do not constitute a lawful justification for such possession. The judgment herein is therefore affirmed.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    TAYLOR DICK v. STATE.
    No. A-3756.
    Opinion Filed April 4, 1922.
    (205 Okla. 516.)
    (Syllabus.)
    1. Homicide — Proof of Deceased's Realization of Impending Death as Sufficient Predicate for Admission of Dying Declaration. Proof that decedent died within nine hours after he was shot, and that he stated to persons present “that he was killed, that he was going to die, that he fully realized his condition and was ready to die,” and that he expressed no hope of recovery, sufficiently shows that decedent was conscious of impending death, and is in itself a sufficient predicate for the admission of his statements of the circumstances of the homicide as dying declarations.
    2. Homicide — Evidence Sustaining Murder Conviction with Life Imprisonment. In a prosecution for murder, evidence reviewed and held sufficient to sustain the conviction with imprisonment for life as the punishment.
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Taylor Dick was convicted of murder, and he appeals.
    Affirmed.
    Wylie Snow, C. M. Threadgill, and P. E. Whilhelm, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Taylor Dick, herein referred to as the defendant, was informed against for the murder of H. S. Stevens, alleged to have been committed in Coal county on or about tbe 17th day of June, 1919, by shooting him with a shotgun. The trial jury found him guilty of said charge, and fixed his punishment at imprisonment for life. From the judgment rendered upon the verdict he appeals.

The evidence shows that the defendant, a Choctaw Indian, lived on his wife V allotment, about six miles west of Le-high. The deceased, a white man, lived on a small adjoining farm. Walter Cantrell had a lease on a part of said allotment. The deceased had fenced ofE about three acres of the land leased by Walter Cantrell, and used it for a pasture. On the day of the homicide the defendant told the deceased that he must either remove the fence and keep his stock out of .the pasture or pay $1 per head for pasturage, and $5 for the time he had been using it. In the afternoon of the same day the defendant left his house, taking with him a shotgun, and went to this pasture and began to take down the fence and roll up the wire. While thus engaged near the house where the deceased lived, the deceased came out, and demanded to know what he was doing, and they had some words about his taking down the wire, and the defendant shot the deceased, the charge entering just below the groin, from the effects of which gunshot wound death resulted a few hours later.

Dr. W. E. Brown testified:

“I was called to attend H. S. Stevens; I found him lying in a wagon under a tree in the yard; he was suffering from a gunshot wound just below the groin on the left side; I applied a tourniquet to stop the flow of blood, and asked that they call other doctors to assist; I told Mr. Stevens his condition was very serious and after Drs. Clark and Rushing arrived, we bad a conference. They asked me to tell Mr. Stevens the gravity of Ms condition, which I did, and he said he fully realized it, and was ready to die, but'for his family; it was then about 11 o ’clock; we administered the anaesthetic; he never regained consciousness thereafter, and died a few; hours later.”

He was then asked what Mr. Stevens said as to the difficulty with Taylor Dick. Against the defendant’s objections he answered that Taylor Dick wanted Mm to pay for the pasture; “I told him I would settle the next morning, and Taylor Dick said, ‘You will settle now.’ I grabbed the gun, and pushed it down; as 1 did I was shot. ’ ’

Roy Trow testified:

“I was there that night; Mr. Stevens asked me to bring him a drink of water, and Mr. Stevens said he was going to die, and I heard him tell his folks good-bye; that was about two hours before he was operated on.”

Mrs. Martha Stevens testified:

“I am the widow of H. S. Stevens; I went as quick as I could and phone for the doctor; I asked my husband if he thought he .would get well, and he said he never would get well, and called the children up to tell them good-bye; the little boy went up; the little girls would not go up, it hurt them so bad. He said that Taylor Dick came there, and wanted pay for the pasture, and he told him he would pay him; then Taylor wanted toi shoot him, and he tried; to push the gun away, and Taylor shot him.”

S. S. Wood testified:

“I reached Mr. Stevens’ house about 6 o’clock; he was lying in the wagon. I asked him if he thought he was seriously hurt, and' he said he knew he was; that he was killed. I tried to encourage him, but 'he said he knew that he was going to die. He told me not to say anything to his folks about it. I asked him what the trouble came up about. He said it was over that little pasture out there; that Taylor told him that day that he had decided not to let him have the pasture any longer; that be told Taylor as soon as be got tbe oats cut be would take tbe wire down. That evening he saw Taylor out there rolling up tbe wire, and be asked him what be was going to do with it. Taylor said he was going to roll it up and take it home, and asked me if I would give him the' wire when tbe year was up and $5 in money right then, that I could have the pasture; that he said, all right, he would do that, and Taylor Dick picked up the gun; that he grabbed the gun, and he got hold of it with his hands, and pushed it down to keep him from shooting him in the breast, but did not get it down far enough.”

The defendant as a witness in his own behalf testified substantially as follows:

“I had a conversation with Mr. Stevens that day about 12. I said ‘Mr. Stevens, Walter Cantrell told me you put the wire across that spot there, and he don’t want your stock in there; what are you going to do, take it down or pay me for it?’ He said, ‘What do you charge for it?’ I said, ‘A dollar a head for stock in my pasture.’ He said he would not pay that. I said, ‘You will take your wire down, won’t you?’ He said, ‘No; you take it down if you want to; Walter Cantrell told me to put it up there.’ Then I went over to where Walter Cantrell was shocking oats, and said, ‘Mr. Stevens says you told him to put that up there,’ and Walter Cantrell said, ‘I never told him such a thing; I don’t want it up there.’ That evening I told my wife that I believed I would take that wire. I went to the house and got my gun and went on until I came to this wire. I set my gun up against a post; it was a single-barrel shotgun, loaded with small shot. I took the wire loose from the corner post, and Mr. Stevens came up and said, ‘What the hell are you doing?’ I said, ‘I thought I would take this wire down; if you will help me we can take it down in a few minutes.’ He said, ‘No; you go ahead; you are doing good,’ and I started on with the wire. Then he said, ‘Take your hands off that wire,’ and! he started to pick up my gun. I got the gun, and he grabbed it; I backed back, and the gun hung on the bib of my overalls, and the gun fired, and he fell with the gun in his hands. I stood there and looked at him while he was going back to tbe bouse; then I picked up tbe gun. Tbe land was my wife’s and Walter Cantrell had rented it for that year.”

In rebuttal Walter Cantrell testified:

“Mr. Stevens’ land adjoins tbe land I had rented; I gave Mr. Stevens permission to put that fence there as far as I was concerned; tbe defendant asked me that day if I gave Mr. Stevens permission to put tbe fence there, and I told him that I told Mr. Stevens to go ahead and put it there as far as I was concerned; I beard tbe defendant that day tell Mr. Stevens to take tbe fence down or pay him for tbe pasture, and Mr. Stevens said be would pay him for tbe pasture, and asked him bow much be wanted. Tbe defendant said,‘$5 and tbe wire.’ Mr. Stevens said, ‘I have not tbe money to-day; I will have it right away.’ Tbe defendant said that if that wire was not taken down some one was going to heaven or somewhere else.”

Tbe first contention made is that tbe court erred in admitting in evidence tbe declarations of tbe deceased. That tbe declarations of tbe deceased were properly admitted there can be no doubt. Tbe fact that be was conscious of impending death is undisputed. There is no testimony tending to show that be bad any hope of recovery.

The question of tbe admissibility of dying declarations has been passed upon by this court in numerous decisions. In tbe case of Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030, it is said:

“It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the prosecution, that they were made under a sense of impending death. This may be made to appear from what tbe injured person said, or where from tbe nature and extent of bis injuries it is evident that be must have known that be could not survive. It is sufficient if it satisfactorily appears that they were made under the sense of impending death, whether it be directly proven by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical attendants, stated to him, or from other circumstances of the case, such as the length of time elapsing between the making of the declaration and his death, and the fact that the declarant was so weak that he could not sign his name and so affixed his mark, all of which are resorted to, in order to ascertain the state of declarant’s mind.”

And see Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; Carter v. State, 12 Okla. Cr. 236, 154 Pac. 337. These authorities abundantly show that the court committed no error in admitting in evidence the declarations of the deceased.

It is also contended that the evidence does not support the conviction. The theory of the state was that the killing was done deliberately. The defense made was that the shooting was accidental. The undisputed evidence is that the altercation which resulted in this homicide was of the defendant’s own seeking, and the result of his own unlawful acts. There was also evidence tending to show previous threats made by the defendant.

The other contentions made are not supported by any citation of authority. It is apparent that justice has been done, and the ■ conviction ought not be reversed, except for some plain error in the proceedings which was or might be prejudicial to the substantial rights of the defendant.

After a very careful examination of the record we have failed to discover any such prejudicial error. The judgment of the trial court is therefore affirmed.

MATSON and BESSEY, JJ., eoncur.


author: PER CURIAM.

text:
    Ex parte JAMES STEWART BRYSON.
    No. A-4001.
    Opinion Filed Oct. 22, 1921.
    Rehearing Denied April 6, 1922.
    (205 Pac. 190.)
    Petition by James Stewart Bryson for writ of babeas corpus, alleging unlawful imprisonment by George Frampton, sheriff of Comanche county, Okla.
    Writ denied, and petition dismissed.
    C. R. Reeves, for petitioner.
   PER CURIAM.

Petitioner, James Stewart Bryson, represented that he is restrained of his liberty and is unlawfully imprisoned at Lawton, Okla., by George Frampton, sheriff of Comanche county; that the cause of said restraint is that petitioner was arrested upon a warrant issued by M. T. Perkins, justice of the peace of Lawton, Okla., on a complaint alleging that the defendant had the unlawful possession of certain narcotic drugs, called morphine; that’thereafter Fletcher Riley, county attorney of said county, filed an information against this petitioner after a preliminary hearing, charging petitioner with said offense in the district court of said county,' and that said petitioner is now held to answer said charge in said court.

Petitioner alleges that said restraint is illegal: First, because chapter 60, Session Laws 1919, the act upon which this prosecution is based, is unconstitutional, because it deprives petitioner of his liberty and property without due process of law; second, because said act is not a reasonable exercise of the police powers of the state; third, because the provision of said act, -“that it shall not be necessary to negative any of the aforesaid exceptions in any complaint, information or indictment, etc., * * *” brought under this act, and the burden of proof of any such exemption or exception is put upon the defendant, is in conflict with the Fifth Amendment to the Constitution of the United. States, and -with sections 7, 17, and 20 of article-2 of tbe Constitution of Oklahoma; fourth, because that part of section 2 of the act which reads, “Any of such narcotic drugs found or discovered to be held or possessed by any person, firm or corporation except as permitted by this act shall be confiscated and delivered by the person or officer finding or discovering the same to the hospital of the medical department of the University of Oklahoma,” is a taking of private property for public use without compensation, and contrary to both the Constitution of the United States and the Constitution of Oklahoma.

In view of the fact that an early decision of the questions involved in this proceeding is desired, the court will not enter into a lengthy discussion of the reasons entertained for denying the writ:

The act relates to the compounding, manufacture, production, dispensing, distribution, possession, etc., of narcotic drugs, and defines the term “narcotic drugs.” The purpose of the act is primarily to regulate the dispensing and use of narcotic drugs for medicinal purposes only, and in this connection makes it a felony for any person to violate the provisions of the act, among others of which is the possession at one time of more than one dose of such drugs unlawfully acquired by any person, who is not one of those excepted by the provision of the act, and it is further provided that in charging the offense the exceptions contained in the act need not be negatived. In many of its provisions the act is similar to the federal act on the same subject, and also like those of many of the states. It is purely a police regulation, and as such must stand or fall.

That in the exercise of the police power the Legislature may regulate the sale and distribution of any drug in its nature poisonous, the use of which tends to debauch the' public in the formation of a habit that undermines the physical, mental and moral constitution of its users, is no longer, we think, a question of doubt. Mon Luck v. Sears, 29 Or. 421, 44 Pac. 693, 32 L. R. A. 738, 54 Am. St. Rep. 804; In re Yun Quong, 159 Cal. 508, 114 Pac. 835, Ann. Cas. 1912C, 969; Hyde v. State, 131 Tenn. 208, 174 S. W. 1127.

Nor do we believe that the act is. unconstitutional upon either the third or fourth ground contended for. Gee Woe v. United States, 250 Fed. 428, 162 C. C. A. 498; 15 Ruling Case Law, p. 394, § 159; Fyke v. United States, 254 Fed. 225, 165 C. C. A. 513; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1817E, 668; Smythe v. State, 2 Okla. Cr. 286, 101 Pac. 611, 139 Am. St. Rep. 918; De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538.

The writ is denied, and petition dismissed.


text:
    WILLIAM McKINLEY et al. v. STATE.
    No. A-3906.
    Opinion Filed April 6, 1922.
    (205 Pac. 520.)
    Appeal from County Court, Payne County; Wilberforee Jones, Judge.
    William McKinley, John McKinley, and Alex Tallchief, were convicted of a violation of the prohibitory liquor law, and appeal.
    Affirmed.
    D. E. Johnson, for plaintiffs in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were jointly charged, tried, and convicted in the county court of Payne county on an information charging that the defendants, William McKinley, John McKinley, and Alex Tallchief, did on the 2d day of August, 1920, unlawfully carry and convey one quart of whisky from a place in said county unknown to another place in said county, a quarter of a mile north and one-fourth of a mile west of the baseball diamond, near Yale, and, in accordance with the verdicts of the jury, William McKinley was sentenced to be confined for 30 days in the county jail and to pay a fine of $100, and John McKinley and Alex Tallchief were each sentenced to be confined for 30 days in the county jail and to pay a fine of $50. From the judgments they appealed.

No brief has been filed and no appearance made in behalf of plaintiffs in error in this court, and for this reason, when the ease was called for final submission, the Attorney General moved to affirm the judgment of the lower court.

In misdemeanor eases, where no brief is filed and no argument made, we do not consider it the duty of this court to make a careful examination of the testimony to determine whether the trial court erred in its rulings on the admission or rejection of testimony. In this case we have examined the information and the instructions of the court and the judgments entered, and we have failed to discover any prejudicial error.

The judgments of the lower court are therefore affirmed.


text:
    CLAUDE YOUNGBLOOD v. STATE.
    No. A-3914.
    Opinion Filed April 6. 1922.
    (205 Pac. 521.)
    Appeal from County' Court, Carter County; M. F. Winfrey, Judge.
    Claude Youngblood was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.

      Mathers & Coakley, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.'
   PER CURIAM.

Plaintiff in error, Claude Youngblood, was convicted in the county court of .Carter county of having in his possession 20 bottles of Choctaw beer and one gallon of whisky with the intention of selling the same, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 60 days and to pay a fine of $200 and the costs. From the judgment an,- appeal was duly perfected, but no brief has been filed and no appearance made in this court in behalf of the plaintiff in error, and for this reason when the case was called for final submission the Attorney General moved to affirm the judgment of the lower court.

In misdemeanor cases, where no brief is filed and no argument made, we do not consider it the duty of this court to make a careful examination of the , testimony to determine whether the trial court erred in its rulings on the admission or rejection of testimony. In this case we have examined the information, the instructions of the court, and the judgment, entered, and find no material. error.

The judgment of the lower court is therefore, affirmed.


text:
    BERTHA BLUE v. STATE.
    No. A-3935.
    Opinion Filed April 6. 1922.
    (205 Pac. 774.)
    Appeal from County Court, Latimer County; C. R. Hunt, Judge.
    Bertha Blue was convicted of violating the prohibitory liquor law, and she appeals.
    Reversed.

      H. T. Church, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bertha Blue, was tried, convicted, and sentenced to be confined in the county jail for 30 days, and pay a fine of $50 on an information which charges that Bertha Blue did—

“unlawfully have and keep in her custody and possession 30 gallons of Choctaw beer, the same being then and there a malt and fermented liquor, with the unlawful intent upon the part of her, the said defendant, Bertha Blue, to sell the same.”

Among the errors assigned, several question the sufficiency of the evidence to support the conviction.

The testimony for the state is substantially as follows:

J. G. Shaw, sheriff, testified that in serving a search warrant he found about 30 gallons of a liquid at the defendant’s home, drank some of it, and pronounced it Choctaw beer; did not drink enough of it to say. that it was intoxicating; could not say that it contained malt; poured the contents of the cask out; did not have the same analyzed, and did not make any report to the county clerk of the amount destroyed.

Ed Buse, undersheriff, testified:

“I was present when the contents of the keg was destroyed by Sheriff Shaw; knows what Choctaw beer is; that it is made from malt, hops, sugar, and yeast cake; could not say that this Choctaw beer was intoxicating; did not make return of the search warrant.”

J. Bramlett, deputy sheriff, testified:

“I was present and drank some of the contents of the barrel and pronounced it Choctaw beer; it tasted like Choctaw beer, only it was sweet; could not tell what this beer consisted of; from 25 years of experience with Choctaw beer I know it has to contain malt.”

Arthur Brashers testified:

“Was with the sheriff and drank some of the liquid; it tasted like Choctaw beer; do not know that this beer contained malt.”

Ed Biddle testified:

“I was present when the officers came; drank some of this beer at the instance of the officers; I could hardly drink the first glass I took; it was not Choctaw beer; I could not say what this liquid contained.”

For the defense, Dave Lewis and Carl Foster testified that they were present when the officers came and were asked by the officers to drink some of the liquid; that they knew what Choctaw beer is, and this liquid was not what they would call Choctaw beer; “it was sweet, did not have any kick to it, and was not intoxicating.”

As a witness in her own behalf, Bertha Blue testified:

“I had about 18 gallons of the drink that Sheriff Shaw poured out; it was not Choctaw beer; I made the preparation on Thursday morning, and this was on Sunday night; this drink did not contain malt, yeast cake, or sugar; it consisted of 2 gallons of molasses, 10 pounds of wheat bran, and 2 packages of hops; this drink was known by the name of ‘Hop Tea’; it is not intoxicating; it was made for my own use, and not to sell or give away; I never did sell Choctaw beer, or make the same for sale; the hops put in this drink are only used to give it a flavor.”

The Attorney General has filed a confession of error on the ground that in cases of this kind:

“It is necessary for the state to show that the liquor is intoxicating, or that it contains as much as one-half of one per cent, of alcohol, measured by volume, there being no evidence that the liquor found in the possession of the plaintiff in error was intoxicating, or that it had this percentage of alcohol. The court having refused to permit the defendant to show that the same was not intoxicating, we are of the opinion that prejudicial error was committed, and therefore recommend that the judgment of the trial court be reversed.”

—citing Gill v. State, 20 Okla. Cr. 39, 200 Pac. 882, in which case it is said:

"As a general rule, in criminal cases the burden of proof never shifts, but rests on the prosecution throughout, and before a conviction can be had the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation; so in this case, where it was not such liquor as the courts judicially know to be malt and intoxicating liquor, if the state, upon the whole evidence, faffed to prove that the so-called beer or liquor was intoxicating, or that it contained as much as one-half of 1 per cent, of alcohol, measured by volume, it faffs to make out a case.”

An examination of the record shows that the confession of error is well founded. The judgment of the lower court is therefore reversed, with direction to dismiss.


text:
    JOE BASTIN v. STATE.
    No. A-3894.
    Opinion Filed April 6, 1922.
    (204 Pac. 174.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Joe Bastin, convicted of a violation of the prohibitory law, appeals.
    Affirmed.
    R. A. Howard, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Joe Bastin, was convicted on a charge that he did have in his possession certain intoxicating liquors, to wit, 15 gallons of Cboctaw beer, with, intent to sell tbe same, and in accordance with the verdict of the jury-was sentenced to be confined in the county jail for 60 days and to pay a fine of $200 and the costs. From the judgment an appeal was duly perfected, but no brief has been filed and no appearance made in this court in behalf of plaintiff in error, and for this reason, when the case was called for final submission, the Attorney General moved to affirm the judgment of the lower court.

The errors assigned question the sufficiency of the evidence to support the verdict and judgment of conviction.

The uncontroverted proof on the part of the state supports the averments of the information and shows that the said Choctaw beer found' in the possession of the defendant, upon analysis, contained four per cent, of alcohol, measured by volume.

An examination of the record discloses that the appeal is without merit. The judgment of the lower court is therefore affirmed.


text:
    E. BRICE v. STATE.
    No. A-3890.
    Opinion Filed April 6, 1922.
    (205 Pac. 774.)
    Appeal from County Court, Tulsa County; W. B. Williams, Judge.
    E. Brice was convicted of a violation of the prohibitory liquor law,j and he appeals.
    Affirmed.
    R. M. Dick, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   General moved to affirm the judgment of the lower court.

PER CURIAM.

Plaintiff in error, E. Brice, was convicted in the county court of Tulsa county of having in his possession certain intoxicating liquor, to wit, 20 gallons of Choctaw beer, containing more than one-half of 1 per cent, alcohol, measured by volume, with intent to sell the same, and in accordance, with the verdict of the jury was sentenced to be confined in. the county jail for 120 days, and to pay a fine of $250 and the costs. From the judgment an appeal was duly perfected, but no brief has been filed, and no appearance made in this-court in behalf of the plaintiff in error, and for this reason, when the ease was called for final submission, the Attorney

In misdemeanor cases where no brief is filed or argument made, we do not consider it the duty of this court to make a careful examination of the testimony to determine whether or not the lower court erred in its rulings on the admission or rejection of testimony. In this case we have examined the information, the instructions of the court, and the judgment entered, and find no material error.

The judgment of the lower court is therefore affirmed.


author: BESSEY, J.

text:
    BILL WILLIAMS v. STATE.
    No. A-3744.
    Opinion Filed April 8, 1922.
    (205 Pac. 772.)
    (Syllabus.)
    1. Trial — Failure to Order Certain Exhibits to be Taken to the Jury Held not Error. — The failure of the court to order certaini oil cans introduced in evidence as exhibits to be taken to the jury room to aid the jury in their deliberations constituted no* error. The granting or refusing of such a request is within the discretion of the trial court.
    2. Same — Practice of Allowing Exhibits Taken to Jury Room Without Defendant's Consent — Impropriety.—The practice of allowing the jury to take to the jury room articles introduced in evidence, unless the defendant consents, is of doubtful propriety.
    3. Arson — Evidence Sustaining Conviction. — The evidence here, although largely circumstantial and in some respects conflicting, held sufficient to sustain the verdict.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Bill Williams was convicted of arson and sentenced to five years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    Wilkinson, Scott & Hudson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Bill Williams, a negro about 45 years of age, in this opinion referred to as the defendant, was by information filed in the district court of Pittsburg county, June 11,1917, charged with arson in the second degree, by setting fire to and burning an old gin and seed house at Featherston on May 23, 1917. At the first trial the jury failed to agree on a verdict. At the second trial, December 3, 1919, the defendant by a verdict of the jury was found guilty as charged and his punishment fixed at five years in the penitentiary. In due course judgment was rendered accordingly, from which judgment the defendant appeals.

The cotton gin and seed house in question had not been in running operation for some time, and the gin was open and not in charge of a watchman, and stood about 50 feet from the railway tracks. The defendant lived at Wetumka, where his wife had deserted him some weeks previously, leaving him in charge of five children, ranging from 4 to 16 years of age. After finishing his cotton planting, defendant; had heard that his wife was staying at a negro settlement in the vicinity of Featberston or Quinton. On the afternoon of the 23d day of May he took the train to Featherston, arriving there at about 3 o’clock. He went to a store and purchased some lunch and some coal oil, which hei claimed he wanted to rid himself and his clothing of certain insects which he had just discovered on his person. He purchased an oil can of a certain kind at this store and carried the oil away with him towards Quinton. At about 9:30 that night the gin and seed house burned and the next day, in a pit under some machinery and debris, there was found a charred oil can similar to the one purchased by defendant.

Defendant elaims that he abandoned the search for his wife and took the train from' Quinton back to Chowder, where he made further inquiry about his wife and also concerning certain girls whom he wanted to get to keep house for him ; that the morning following, at about 10:30 o ’clock, while waiting at the depot at Crowder for a train back to Wetumka, he was accosted by three white men who questioned him about his movements and examined his poeketbook and money and roughly conducted him out of the depot. Defendant claims that he had heard that they used negroes rough in that town and supposed they intended to flog him and run him off; that he broke and ran, the men pursuing him and firing eight or nine shots at him. After getting away and hiding in the mountains, bloodhounds were secured, and the defendant was again overtaken and placed under arrest. As to whether the defendant was apprised of the nature of the accusation, or as to whether he knew the men were officers seeking to make his arrest, and as to many other things said and done, the evidence is very conflicting.

The state relied almost wholly upon circumstantial evidence, some of which seems rational, while other portions are of doubtful probative force. The defendant’s explanation of bis movements was in part reasonable, and in other portions either indicative of guilt or of bad judgment. There was no motive whatever shown for the commission of the offense. There was no question of fire insurance. The defendant did not know any of the owners of the gin or the parties interested in it. Defendant’s former employers testified to his industry, good character, and frugality, and that his reputation had been good for years. Fourteen witnesses testified for the state to the effect that the defendant was at or near the gin with this oil can on the afternoon preceding the fire, and concerning several suspicious movements and declarations of the defendant after the fire. Some of these were in part rationally explained by the defendant and his witnesses.

There are three assignments of error seriously urged in defendant’s brief, viz.:

(1) Error of the court in permitting the state to introduce as evidence, for comparison, an oil can similar to the one sold defendant the day before the fire and similar to the one found in the machine pit after the fire.

(2) That the court erred in refusing to permit the jury to take the cans to the jury room for inspection during their deliberations.

(3) That the court erred in refusing to give a mandatory instruction of acquittal on the ground that the evidence was insufficient to support the verdict.

One of the oil cans permitted to be introduced in evidence was one of a dozen the Featherston merchant had in stock and of the same kind and brand that was sold to the defendant on the afternoon preceding the fire, and similar in form and shape to the one found in the pit after the fire. We think the introduction of these cans for inspection and comparison was, under the circumstances here, proper demonstrative evidence, much safer and more convincing than much of the oral testimony introduced. Gibbons v. Ter., 5 Okla. Cr. 212, 115 Pac. 129; notes 8 A. L. R. 19 to 59.

It would not have been error for the court to refuse to allow these oil cans to be taken to the jury room during the deliberations of the jury. In this case the jury at first requested these exhibits, and, while the court had the matter under advisement, the jury sent word to the court that they did not desire to examine these exhibits. In this regard, so far as we can see, there was no error, prejudicial or otherwise. In a well-considered case, Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, notes and annotations, the court said, in substance, that the practice of permitting the jury to take to the jury room such articles or exhibits as clothing, firearms, etc., unless the defendant consents, is of doubtful propriety. As a general rule, where the jury in open court requests permission to take with them to the jury room such exhibits to inspect during their deliberations, the granting or refusal of the request is within the discretion of the trial court.

In view of the fact that this conviction rests almost wholly upon circumstantial evidence, from the facts as recited in the record, without having the privilege of seeing the witnesses or observing their demeanor on the witness stand, we would hesitate to pronounce the defendant guilty. But ordinarily the jury are the sole triers of the facts, and where, as in this case, the evidence is largely circumstantial and conflicting, this court will not disturb the verdict of a jury unless the evidence points to the guilt of another or is so inadequate as to shock the conscience and common sense of the appellate court, indicating a manifest miscarriage of justice.

In this ease there was sufficient evidence adduced on the part of the state, excluding the defendant’s explanation, which the jury may have been justified in disbelieving, to warrant the jury in finding that the circumstances were sufficient to show beyond a reasonable doubt that the defendant was guilty as charged, and that such circumstances precluded every reasonable hypothesis consistent with his innocence. Taylor v. State, 20 Okla. Cr. 460, 203 Pac. 1049.

The trial court was in better position to know whether the defendant was accorded all his statutory and constitutional rights, and was in better position than this court to determine the weight and1 probative value of the testimony. Had the trial court been in serious doubt on this point, he would doubtless have granted a new trial.

The judgment is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    LEE STANLEY v. STATE.
    No. A-3888.
    Opinion Filed April 8, 1922.
    (205 Pac. 775.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Lee Stanley was convicted of a violation of the Prohibitory Liquor Law, and he appeals.
    Reversed.
    R. C. Drake, for plaintiff in error.
    The Attorney General and R. E. Wood, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Lee Stanley, was convicted and sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs, on an information which charged that in Stephens connty on or about the 10th day of August, 1920, he did “unlawfully manufacture intoxicating liquor, to wit, Choctaw beer.”

From the judgment an appeal was duly perfected.

The errors assigned are that said judgment is contrary to law and the evidence and that the court erred in giving one certain instruction and in refusing to give a requested instruction.

The testimony on the part of the state shows that defendant was found in the possession of five or six gallons of so-called “Choctaw” beer. There was no competent testimony offered tending to show that said Choctaw beer was intoxicating or that it contained one-half of 1 per cent, of alcohol measured by volume.

The court, among others, gave the following instruction:

“Gentlemen of the jury, you are instructed that Choctaw beer is an intoxicating liquor as defined by the laws of this state. Exception allowed. G. T. Burrows, Co. Judge.”

The defendant requested the court to give an instruction to the effect that the court cannot take judicial notice that Choctaw beer is intoxicating liquor, and the burden is upon the state to prove beyond a reasonable doubt that the Choctaw beer which it is alleged that the defendant manufactured was intoxicating liquor, which instruction was refused and exception allowed.

In the ease of Gill v. State, 20 Okla. Cr. 39, 200 Pac. 882, this court said:

“As a general rule, in criminal cases the burden of proof never shifts, but rests on the prosecution throughout, and before a conviction can be had the jury must be satisfied from tbe evidence beyond a reasonable doubt of tbe affirmative of tbe issue presented' in tbe accusation; so in this case, where it was not sucb liquor as tbe courts judicially know to be malt and intoxicating liquor, if tbe state, upon tbe whole evidence, failed to prove that tbe so-called beer or liquor was intoxicating, or that it contained as much as one-half of 1 per cent, of alcohol, measured by volume, it fails to make out a case.”

It follows that tbe court erred in giving tbe instruction excepted to, and in refusing to give the instruction requested.

Tbe judgment of tbe lower court is therefore reversed.


author: BESSBY, J. PER CURIAM.

text:
    STATE v. E. R. TIBBETTS et al.
    No. A-4036.
    Opinion Filed March 8, 1922.
    On Rehearing, April 8, 1922.
    (205 Pac. 776.)
    (Syllabus.)
    1. Constitutional Law — Master and Servant — Municipal Corporations — Hours of Service Law Within Police Power And Not Violative of Federal Constitution Prohibiting Impairing Contract. It is within the police power of the state to regulate the number of hours constituting a day’s work for laborers employed by or on behalf of the state or any municipality, and to provide that the compensation therefor shall not be less than current wages for like labor, as provided in section 3757, Rev. Laws 1910, and it is not in violation of section 3, article 18, of the Constitution of Oklahoma, nor of section 10, article 1, of the federal Constitution, prohibiting the impairing of the obligations of contracts.
    This power is inherent in the state, and no part of this power has by general law or by special charter been exclusively delegated to the city of Pawhuska.
    2. Statutes — Title to Act Relating to the Working Day for Public Employes Held Sufficiently Broad to Support Object. The title of the act is sufficiently broad and comprehensive to support the object of the act, as recited in the text, and is not in violation of section 57, art. 5, of our Constitution, providing that every act shall include but one subject, which shall be clearly stated in the title.

      3. Master and Servant — Provision in Statute Relating to Labor Employed for State Held Not to Restrict Meaning of Context, the Word “Provided" Being Used as “and.” Held, that the so-called proviso in this act does not limit or restrict the meaning of the context, but rather extends or adds to its meaning, and ' .that the word “provided” as here used is equivalent to the word “and.”
    On Rehearing,
    4. Statutes — Certainty and Uniformity of Operation — Act Fixing Hours of Labor and Compensation for Public Work. Section 3757, R. L. 1910, fixing the hours of labor performed on public work, and providing that the compensation paid shall conform to the wage paid for like labor in that locality, held not void for uncertainty, and that it is uniform in its operation, within the meaning of the Constitution.
    Appeal from County Court, Osage County; G. B. Sturgel, Judge.
    B. R. Tibbetts and others were charged by an information with acting together wrongfully and unlawfully in violation of statute by refusing to pay workmen the current rate of wages for the class of work performed by them. The defendants’ demurrer to the information was sustained, and the State appeals.
    Reversed.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
    Peters, Sands, Holcombe & Holden, for defendants in error.
   BESSBY, J.

The information filed in this case was based upon section 3757, R. L. 1910, and charged, in substance, that the defendants in error, E. R. Tibbetts and Carl Pleasant, on and before the 20th day of December, 1920, were contractors and partners, doing contract work for the city of Pawhuska in laying and installing sewer extensions for that city; and that defendant Raderick MacDonald was their foreman, and assisted and aided the contractors, and was overseer and general manager of tbe work being done; that the current rate of wages in the city of Pawhuska, for the class of labor employed by these contractors, was $6.50 per day, but that these defendants, acting together, wrongfully and unlawfully violated' section 3757, R. L. 1910, by refusing to pay their workmen and laborers the current rate of wages for the class of work performed by them, but, on the contrary, paid them at the rate of $5.60 per day. To this information the defendants filed a demurrer, which was sustained by the court and the action dismissed. From this order of the court the state saved and reserved an exception, and appeals to this court upon the question of law therein involved.

Section 3757, R. L. 1910, is as follows:

‘'Eight hours shall constitute a day’s work for all laborers, workmen, mechanics, prison guards, janitors of public, institutions, or other persons now employed or who may hereafter be employed by or on behalf of the state, or by or on behalf of any county, city, township or other municipality, except in cases of extraordinary emergency which may arise-in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of' property or human life: Provided, that in all such cases the-laborers, workmen, mechanics or other persons so employed, and working to exceed eight hours per calendar day shall be-paid on the basis of eight hours constituting a day’s work: Provided, further, that not less than the current rate of per-diera wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, or any county, eity, township or other municipality, and laborers, workmen, mechanics, or other persons employed by contractors or sub-eontractors in the execution of any contract or contracts with the state, or with any county, city, township, or other municipality thereof, shall be deemed to be employed by or on behalf of the state,, or of such county, city, township, or other municipality.”

Section 3759 provides for a penalty for tbe violation of this law in any form, not less than $50 nor more than $500, or by imprisonment for not less than three months nor more than six months, and provides that each day such violation continues shall constitute a separate offense.

The defendants in error say that the demurrer to the information was properly sustained for the following reasons:

(1) That the city of Pawhuska is a city of the first class and has a special charter form of government, and that the general laws of the state of Oklahoma have no application to the construction of public utilities in such a city, and that the construction of the sewer in question was a municipal improvement in which the state had no interest.

(2) That the statute under which this case was brought is unconstitutional and void because it tends to impair the obligation of contracts and interferes with the freedom of contracts between individuals.

(3) That the statute is void because the title of the act is insufficiently set forth to describe its contents, as provided by the Constitution.

(4) That this prosecution was predicated upon a proviso contained in the section of the statute quoted, and that this proviso had no application to the facts set out in the information.

The demurrer interposed was a general demurrer, to the effect that the facts stated were not sufficient to constitute a public offense. The court, in stating his reasons for sustaining the demurrer,, quoted the second proviso of the statute, and, among other things, made the following observations:

“It is not the legitimate office of a proviso to enlarge the amendment to which it is appended, neither does it create a new right, its office being to limit and restrain the preceding clauses and cannot be held to enlarge snch an act. It is argued by defendants that the entire bill is unconstitutional because the same is vague and uncertain, and, further, for the reason that it destroys the rights and takes away the liberty and freedom of citizens and confiscates their property. This contention is not well founded, the subject under consideration being the measure of a commodity, to wit, a day’s labor and what constitutes the same.
"In the light of the decisions referred to, I find that the section of the statutes upon which this information is founded has for its purpose, primarily, to define a labor day, or a day in labor, as measured in terms of time, and especially overtime, and does not destroy the rights of an individual citizen to contract to perform labor for that particular time, and therefore the information does not state or set forth facts sufficient to show a violation of any law.”

We think there is no merit in the claim that the state has no interest in regulating the wages of labor or the hours of labor affecting employment in the installation of a municipal sewer system in a city having a special charter form of government. The police power is an inherent attribute of state sovereignty, under which the state may establish wholesome and reasonable laws and regulations designed to promote the good order and general welfare of its subjects.

There is no inherent police power in municipalities to enact police regulations. Municipalities have only such police power as is delegated to them by general laws and by special charters. 19 R. C. L. Municipal Corporations, § 108. There is no delegation of this power, express or implied, to the city of Pawhuska in the Constitution or the general laws of this state. Section 3 of article 18 of our Constitution provides that special charters shall be consistent with and subject to the Constitution and laws of this state. The regulation of the hours of labor is a state function, designed to promote the general welfare of all the people of the state, which has not been and possibly cannot be delegated to a municipality. A municipality is a creature of the state, exercising delegated powers only, and cannot, under our Constitution, arrogate to itself governmental powers in conflict with the general laws and fixed policies of state government. Keefe v. People, 37 Colo. 317, 87 Pac. 791, 8 L. R. A. (N. S.) 131; 19 R. C. L. Municipal Corporations, § 35, 36, 39.

It is next urged that the act is unconstitutional, in that it impairs the obligation of contracts and interferes with the freedom of contracts between individuals. In construing a statute almost identical with our statute, the United States Supreme Court held in Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Bd. 148, that it was within the power of a state to enforce such a regulation, and that it did not impair the obligation of contracts or interfere with any constitutional right. There is a well-considered New York case to the same effect on this subject (Ryan v. State, 177 N. Y. 271, 69 N. B. 599). Our own court, in Byars v. State, 2 Okla. Cr. 481, 102 Pac. 804, Ann. Cas. 1912A, 765, has spoken in no uncertain terms, in an exhaustive opinion written by Presiding Judge Doyle holding that this statute is valid and in no way infringes upon the provisions of the Constitution. The fourth syllabus of this opinion is as follows:

“It is within the power of a state, as guardian and trustee for its people and having full control of its affairs, to prescribe the conditions upon which it will permit public work to be done on behalf of itself, its counties, cities or other municipalities. In the exercise of these powers, it may by statute provide that eight hours shall constitute a day’s work for all laborers employed by or on behalf of the state or any of its municipalities, and make it unlawful for any one thereafter contracting to do any public work to require or permit any laborer to work longer than eight hours per day, and require such contractors to pay the current rate of daily wages.”

Since these decisions were rendered the general trend of legislation and judicial decisions in the several states has been in the same direction, so that this contention is no longer an open question. The courts now almost uniformly recognize the right to regulate the hours of labor and make reasonable regulations affecting compensation for labor, as a proper exercise of the police power of the state. Norris v. City of Lawton, 47 Okla. 216, 148 Pac. 123; Stettler v. O’Hara, 69 Or. 519, 139 Pac. 743, L. R. A. 1917C, 944, 950, Ann. Cas. 1916A, 217; State ex rel. v. Howell, 85 Wash. 281, 147 Pac. 1162; Malette v. City of Spokane, 77 Wash. 205, 214, 137 Pac. 496, 51 L. R. A. (N. S.) 686. 695, Ann Cas. 1915D, 225; note, 24 L. R. A. (N. S.) 202; note, Ann. Cas. 1912A, 765; State v. Bunting, 71 Or. 259, 269, 139 Pac. 731, L. R. A. 1917C, 1162, 1166, Ann. Cas. 1916C, 1003; note, Ann. Cas. 1912D, 393; 16 R. C. L. Labor, § 48, and citations under note 18; also sections 66 and 68, Id.

The title of this act is as follows:

"An Act prescribing the condition upon which public work shall be done in behalf of the state or its municipalities; prescribing penalties for violation thereof and declaring an emergency.”

It is urged that the title of this act fails to sufficiently indicate the contents of the act as recited in the text. All that is required to comply with our constitutional provisions on this subject is that the title shall indicate, in a general way, the subject and purpose of the act, and, according to this rule, this title is sufficient. City of Pond Creek v. Haskell, 21 Okla. 711, 97 Pac. 338; Insurance Co., etc., v. Welch, 49 Okla. 620, 154 Pac. 48, Ann. Cas. 1918E, 471; State v. Howard, 67 Okla. 289, 171 Pac. 30; Okla. City Land & Development Co. v. Hare, 66 Okla. 190, 168 Pac. 407.

From the reasons recited in the court’s order sustaining the demurrer, it seems that the court construed the act to mean that tbe current per diem wage referred only to instances where tbe laborer, in cases of emergency, was required to work in excess of eight hours per day. This, it seems to us, is a strained construction' of its provisions, and one not warranted by any rule of statutory construction. A proviso or an exception in a statute is often used to exclude some ground of misinterpretation of it and is often employed, out of abundant caution, to explain the general words of the enactment and to guard against a possible construction that was not intended. Frequently, and we think in this case, the word “provided” is equivalent to the word “and,” and extends rather than limits the meaning of the act. The prime object of all rules of statutory construction is to carry out the legislative intention, and it would amount to an absurdity to hold, construing this statute as a whole, that the Legislature intended to prescribe the rate of wages only for overtime work. 25 R. C. L., Statutes, §§ 222, 231.

DOYLE, P. J., and MATSON, J., concur.

On Rehearing.

PER CURIAM.

It is contended on rehearing that the statute is void for uncertainty, in that the word “locality” must have in its practical application a relative and variable meaning, so indefinite that it is impossible to determine how much territory is or should be embraced by the phrase “in the locality where the work is performed.”

The word “locality,” considered in a common-sense way with the context and the purpose of the act, is no more difficult of construction than multitudes of other words and phrases upheld by the courts in the administration of criminal law. There are many legal terms that cannot be defined with mathematical certainty, such as “culpable negligence,” “reasonable doubt,” “felonious intent,” and “res gestae.” ‘These and other terms must be construed in their common ■and ordinary significance, as they reasonably apply' to the subject or object to which they relate. “Locality,” as used here, is equivalent to “place,” “near the place,” “vicinity,” or “neighborhood.” Hart v. Atlantic Coast Line, 144 N. C. 91, 56 S. E. 559, 12 Ann. Cas. 706; Brazier v. Philadelphia, 215 Pa. 297, 64 Atl. 508, 7 Ann. Cas. 548; Babcock v. Hahn, 175 Mo. 136, 75 S. W. 93, Town of Grove v. Haskell, 24 Okla. 707, 104 Pac. 56; Landis v. Thos. Milville Gas Light Co., 72 N. J. Eq. 347, 65 Atl. 716; volume 3, Second .Series, Words and Phrases, 587.

The question here presented is not similar to the one involved in the case of Street v. Varney Elec. Co., 160 Ind. 338, 66 N. E. 895, 61 L. R. A. 154, 98 Am. St. Rep. 325, relied upon by petitioners. In the Varney Case the court said:

“The act of March 9,1901, undertakes to fix the minimum ■rate of compensation to be paid to a particular and limited ■class of laborers employed upon any public work of the state, counties, cities and towns, without regard to the actual value of such labor, or the rate paid by other persons, natural or .artificial, for the same kind of labor in the same vicinity. ”

The statute here in question avoids this vice. It provides that the same wages shall be paid as are paid for like labor in that vicinity. There is nothing inherently difficult about ascertaining whether there is an established current wage for .like labor in any locality. If there is no similar labor being performed in any particular locality, then the contractor is .at liberty to contract as he pleases; otherwise, he must conform to the established wage scale in that locality as defined above.

In the case of Atkin v. Kansas, decided by the Supreme Court of the United States, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, tbe court construed a statute witb identical provisions and sustained its validity, where it was stipulated as part of the facts that the work done was in all respects the same as that done for private persons, firms, or corporations iu Kansas City, Kan. While the court made no comment concerning the meaning of the word "locality,” or concerning the character of the work, we assume that it considered both sufficiently definite under the agreed statement of facts.

Since this is an appeal upon a question of law, by the state, and no order was made in the trial court to hold the defendants, the dismissal below became final, so that as to the petitioners no further orders can be made affecting them.


author: MATSON J.

text:
    J. H. ANDERSON v. STATE.
    No. A-3843.
    Opinion Filed April 10, 1922.
    (204 Pac. 132.)
    (Syllabus.)
    Preliminary Examination — Necessity for Examining Trial when Defendant Proceeded Against by Information After Demurrer to Indictment Sustained — Waiver. Where a demurrer is sustained to an indictment, and the court is of the opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, the court may direct the case to be further proceeded against by information, but in such case it is necessary to accord the accused an examining trial unless the same be waived by him.
    (a) Where the accused proceeds to trial, where such an information is filed without a preliminary examination or waiver of same, his failure to object by motion to quash or set aside the information amounts to a waiver of a preliminary examination.
    (b) Where, however, the accused moves to quash the information so filed, and no preliminary examination was had or waived by him after the demurrer to the indictment had been sustained, there was no waiver of his constitutional right to a preliminary examination before prosecution by information as provided in section 17, article 2, of the Constitution.
    Appeal from District Court, Custer County; Thomas A. Edwards, Judge.
    J. H. Anderson was convicted of the crime of forgery in the second degree, and sentenced to serve a term of four years in the state penitentiary, and appeals.
    Reversed.
    T. W. Jones, Jr., and E. L. Mitchell, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. - Gen., for the State.
   MATSON J.

This is an appeal from the district court of Custer county, wherein the plaintiff in error, J. H. Anderson, was on the 6th day of April, 1920, convicted of the crime of forgery in the second degree and sentenced to serve a term of four years in the state penitentiary at Granite, Oída. From the judgment rendered against him an appeal has been taken to this court and several grounds of alleged error are urged for a reversal of the judgment, among which is a ground that the plaintiff in error was tried and convicted of a felony by information without having been accorded a preliminary examination or having waived the same, all over his objection and exception, which more fully appears hereafter.

The record discloses that at the November term, 1919, of the district court of Custer county, Okla., a grand jury returned an indictment against the said J. H. Anderson in which he was charged, in substance, with “having in his possession a forged and counterfeit negotiable note then and there knowing the said note to be false, forged, and counterfeit, and with the intent to utter the same as true to sundry persons to the grand jury unknown, and with the intent to defraud some persons unknown to the jurors.” To this indictment a demurrer was interposed by the defendant and the same was sustained by the trial court. Upon sustaining the demurrer to the indictment the trial court made an order directing the county attorney of Custer county to file an information against the defendant charging said offense. Thereafter, pursuant to said order, the county attorney did file an information against this said defendant in said court charging him with the same offense. Thereafter the defendant was called for arraignment on said information and interposed a motion to quash the same for the reason that no preliminary complaint was ever filed against him charging said offense and no preliminary examination had or waived by the said defendant. The motion to quash the information was overruled and exceptions saved by the defendant. Thereafter the defendant demurred to the information, which demurrer was overruled and exceptions saved. Thereafter a jury was impaneled and sworn and the trial proceeded, resulting in a verdict and judgment as above indicated.

Section 17, article 2, of the Constitution provides in part:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for felony by information without having had a preliminary examination before an examining magistrate or having waived such preliminary examination.”

Construing said constitutional provision in the case of Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006, it is held:

“Section 17, Bill of Rights, prescribes: ‘No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate or having waived such preliminary examination.’ Held, that under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes a jurisdictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that defendant is guilty thereof, that confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.”

See, also, Tucker v. State, 9 Okla. Cr. 587, 132 Pac. 825, Sayers v. State, 10 Okla. Cr. 195, 135 Pac. 944, Sayre v. State, 10 Okla. Cr. 233, 135 Pac. 1073.

Section 5795, Revised Laws 1910, of the chapter on Criminal Procedure provides:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, directs the case be resubmitted to the same or another grand jury, or that a new information be filed.”

In Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18, it is held:

“Under sections 5794 to 5797, inclusive, Revised Laws 1910, if a demurrer to an indictment or information is sustained and the court is of the opinion that the objection to the demurrer may be avoided by a new indictment or information, the direction of the court to hold the defendant for further prosecution is sufficient to prevent a judgment bar arising from sustaining the demurrer, if, from the language used in the order, it may be fairly inferred that the court intended that the case be resubmitted to a grand jury or that a new information be filed.
“When the prosecution for a felony is commenced by the return of an indictment, to which a demurrer is afterwards sustained, and tbe court is of the opinion that the defects in the indictment may be cured by a new indictment or information, the court has the alternative discretion of directing that the cause be submitted to the same or another grand jury or that a new information be filed. In case of filing a new information it is necessary that an examining trial be had unless the same be waived by the accused. ’ ’

While this court has held in prosecutions for felony by information the defendant may waive his right to a preliminary examination, and does waive the same where no objection is made to the prosecution in the trial court, that is not the condition of this record. Here the defendant by timely objection, — namely, by motion to quash the information because no preliminary examination had been had or waived, — fully saved and did not waive his constitutional right to a preliminary examination before trial for a felony prosecution by information.

Unless the preliminary examination was waived, where the question is properly presented to the trial court as in this case, it is a denial of the defendant’s constitutional right as provided in section 17, article 2, supra, to try the defendant on a felony charge by information without a preliminary examination, and the district court had no jurisdiction to try this defendant on this charge because no preliminary examination was accorded him or waived by him, and the question was properly presented by his motion to quash the information. In view of these specific provisions of section 17, article 2, of the Constitution, supra, an ex parte examination by a grand jury cannot be used as a substitute for a preliminary examination before an examining magistrate, and section 5795, Revised Laws 1910, supra, must be construed in connection with the provisions of section 17, article 2, of the Constitution.

The Attorney General has filed a confession or error recommending that the judgment be reversed upon the grounds stated in this opinion. The conclusion is reached that the confession of error of the Attorney General is well founded in law. For reasons stated, the judgment of conviction is reversed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and BESSEY, J., concur.


author: MATSON, J.

text:
    A. L. IVEY v. STATE.
    No. A-3879.
    Opinion Filed April 15, 1922.
    (206 Pac. 257.)
    (Syllabus.)
    1. Contempt — Assignments of Error — Record to. Support. — Assignments of error must be supported by the record.
    2. Same — Evidence Supporting Conviction. — Evidence examined and held sufficient to sustain finding and judgment.
    3. Same — Reopening Case Discretionary. — It is discretionary with trial court to permit party to reopen case for purpose of introducing further evidence.
    4. Evidence. — Judicial Notice of Prior Proceedings in Case. — Courts of record take judicial notice of all prior proceedings in the case.
    Appeal from District Court, Oklahoma County; George W. Clark, Judge.
    A. L. Ivey was convicted of indirect contempt of court, and assessed á punishment of a fine of $200 and imprisonment of 60 days in the county jail, and he appeals.
    Affirmed.
    On May 1, 1920, in cause No. 28090 in the district court of Oklahoma county, Okla., wherein the state of Oklahoma ex reí. O. A. Cargill, county attorney, and the plaintiff in error, A. L. Ivey, was one of the defendants, a temporary injunction was granted by George W. Clark, district judge, restraining tbe defendant and others from maintaining a public nuisance on the premises described in the petition, a well-known road house located near the fair grounds in Oklahoma City, by making of said premises a public gambling house place for the sale of intoxicating liquors and of immoral resort. Such temporary writ of injunction was on said date served on this plaintiff in error personally, and due return of the service thereof made to the court.
    On the 23d day of August, 1920, while said temporary injunction was still in force and effect, the said O. A. Cargill, county attorney, filed a formal written accusation against this plaintiff in error in said court, charging him with having violated said temporary order of injunction by having on the 21st day of August, 1920, conducted on said premises certain gambling games, craps, twenty-one, black jack, and poker, the same being played with cards for money, credits, and other representations of value, and on said date having also permitted certain gambling paraphernalia to be set up on said premises and used for gambling purposes, and also on said date defendant permitted numerous and divers persons to congregate on said premises to drink certain intoxicating liquors, to wit, whisky, beer and wine, which were then and there sold and bartered on said premises and on said' date, all in violation of the temporary writ of injunction theretofore issued on the 1st day of May, 1920, and asking that the defendant be cited to appear in answer to said accusation, and to show cause why he should not be punished for contempt of court. The accusation was properly verified.
    The court thereupon issued a citation, ordering the defendant to appear before the court on the 24th day of August, 1920, at 9 o’clock a. m., then and there to show cause why he should not be punished for contempt of court for the violation of the temporary injunction theretofore issued. This writ was served on the defendant on the 23d day of August, 1920. Thereafter, on the 16th day of September, 1920, the cause came on regular for trial, and the defendant was present in person and by counsel, and answered ready for trial, and waived a jury, and interposed a demurrer to the accusation on the ground that it did not charge a public offense, which demurrer was overruled and excepted to. The cause then proceeded to trial before the court, a jury having been waived as heretofore stated, and the state introduced its evidence and closed. The defendant introduced no evidence.
    The trial court, after hearing the evidence, proceeded to find the defendant guilty of having violated the temporary injunction granted on the 1st day of May, 1920, and assessed a punishment of a fine of $200 and imprisonment in the county jail for a period of 60 days, to which judgment the defendant excepted and has lodged an appeal in this court.
    Orban C. Patterson and Victor A. Sniggs, for plaintiff in error.
    George F. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the State.
   MATSON, J.

(after stating the facts as above). It is first contended that defendant was tried for an indirect contempt of court without any written accusation having been lodged against him. In answer to this assignment of error it is sufficient to state that the record does not support the same. We find in the record a sufficient written accusation lodged against the defendant as a basis for his attachment to show cause in defense of the charge that he had violated the temporary order of injunction theretofore issued in the proceeding.

It is next contended that the demurrer to the state’s evidence should have been sustained, and that the trial court should' not have permitted the state to reopen its case after having closed the same for the purpose of introducing certain pleadings.

These assignments of error are not well founded. We deem the evidence sufficient to sustain the judgment. It was discretionary with the trial court to permit the state to reopen its case for the purpose of introducing the pleadings and orders in the original proceeding for the temporary injunction. Dix v. State, 15 Okla. Cr. 559, 179 Pac. 624.

These were matters of which the court could properly take judicial notice; therefore no harm could have resulted. State v. Bates, 22 Utah, 65, 61 Pac. 905, 83 Am. St. Rep. 768; Atkins v. State, 16 Ark. 574.

It is also contended that the judgment and sentence is ambiguous, in that no time is set for the beginning of it.

In Ex parte Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967, it is held:

“The time fixed for execution of a sentence, or for the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that where the penalty is imprisonment, the sentence may be satisfied only biy the actual suffering of the imprisonment imposed, unless remitted by death or some legal authority.”

While the judgment provides that the term of sentence is to begin at and from the expiration of a former sentence, such language forms no part of the judgment itself, which is that the defendant shall be imprisoned for the period of 60 days in the county jail and pay a fine of $200. And, in order that no ambiguity may arise in enforcing the judgment, the same is modified to provide that tbe imprisonment shall begin upon the delivery and reception of the defendant in the county jail of Oklahoma county. In all other respects the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


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    J. R. DUTTON v. STATE.
    No. A-2372.
    Opinion Filed April 15, 1922.
    (205 Pac. 940.)
    (Syllabus.)
    1. Intoxicating Liquors. — Sale by Retail Merchants in Good Faith of Medical Preparations Containing Alcohol Sufficient to Intoxicate not Unlawful. — At the time of the enactment of our statute against the sale of medicated compounds containing alcohol in sufficient quantity to intoxicate, the United States courts had held that a sale of such preparations by retail merchants in good faith as a medical preparation and in the original bottle to be used by the purchaser for medical purposes would not subject the seller to the payment of the special tax required of retail liquor dealers. Such a sale has been excepted by the Legislature from the operation of our prohibitory liquor statute.
    2. Same — Right to Instruction on Intent of Merchant to Sell for Medicinal Purposes. — Where defendant, a druggist, is charged with the sale of a well-known medicated compound containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, it is error to refuse to permit the defendant to show that such compound was sold by him in the original bottle with seal unbroken in good faith, in the usual course, of trade, for medical purposes, and it is error further to instruct the jury that the good intentions of defendant in making a sale for medical purposes is' no defense.
    Appeal from County Court, Hughes County; Ross Bailey, Judge.
    J. R. Dutton was convicted of violation of the prohibitory liquor law, and appeals.
    Reversed and remanded.

      Crump & Hall, for plaintiff in error.
    Wilson, Tomerlin & Buckholts, amicus curiae.
    S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and J. E. Crowder, for the State.
   PER CURIAM.

J. R. Dutton was convicted in the county court of Hughes county of violating the prohibitory liquor law by selling a certain compound labeled Hostetter’s Celebrated Stomach Bitters, alleged to contain more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage.

Defendant was the proprietor of a drug store in the city of Holdenville, and the bottle of Hostetter’s,Celebrated Stomach Bitters was sold in said store in the usual course of trade and in the original bottle with the seal unbroken. Afterwards the contents of the bottle were analyzed by Dr. De Barr, chemist at the State University, and the said compound was shown to contain about 33 1-3 per cent, of whisky, some cinchona and ginger, and was capable of being used as a beverage. There is no direct evidence that the defendant sold the said! article for beverage purposes, nor are the circumstances of the sale such as to indicate beyond a reasonable doubt that this bottle of Hostetter’s bitters was sold to be drunk as a beverage.

This prosecution is based on section 3605, Revised Laws 1910, the part thereof applicable reading as follows1:

“It shall be unlawful for any person * * * to * * * sell, * * * except as in this chapter provided, any spirituous, vinous, fermented or malt liquors or # # * any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of wbieb Would not subject him td) the payment of the special tax required by the laws of the United States.”

It is apparent from a reading' of the latter provisions above quoted that it was intended to prohibit the sale of medicated compounds containing as much as one-half of 1 per cent, of alcohol measured by volume, and capable of being used as beverages, with certain exceptions thereto. And it is contended that the sale here made comes within the exceptions to the statute, because it was not made for beverage purposes, but in the usual course of trade, and for use as a medicine.

The defendant offered to show that the sale was made in good faith, in the honest belief that he had the right to sell this medicated compound for medicinal purposes,, and that the sale was made for such purpose, and was clearly within the exception to the statute against the sale of medicated compounds, and was such a sale as would not subject him to the payment of the special tax required by the laws of the United States. The trial court, in effect, excluded all evidence of good faith on the part of the defendant in making the sale for medicinal purposes, and further instructed the jury that the good intentions of the defendant in making such sale was no defense, and was not to be considered by the jury as such.

¥e are of opinion that this action on the part of the trial court had the effect of depriving the defendant of a fair and impartial trial, in that, where a sale of a medicated compound is charged, the defendant has the right- to show that such sale comes within the exception to the statute against sales of medicated compounds for beverage purposes. Such was the holding of the federal court before the enactment of our prohibitory liquor statute, and, in the opinion of this court, makes clear the meaning of the exception to sales of medicated compounds containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage. U. S. v. Calhoun (D. C.) 39 Fed. 604; U. S. v. Stubblefield (D. C.) 40 Fed. 454; U. S. v. Bray (D. C.) 113 Fed. 1008.

Other grounds of alleged error are urged as sufficient to reverse this judgment, but we deem it unnecessary to: consider them, in view of the disposition made of the appeal.

For reasons stated, the judgment is reversed, and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.


text:
    RUTH ORR v. STATE.
    No. A-3884.
    Opinion Filed April 15, 1922.
    (205 Pac. 941.)
    (Syllabus.)
    1. Witnesses — Cross-Examination of Prosecuting Witness to Show Malice. — The accused, on cross-examination .of the prosecuting witness, may show, if ha can, the malice and ill feeling of the witness growing out of collateral matters.
    2. Appeal and Error — Consideration of Other Irregularities Where Evidence Conflicting and of Doubtful Probative Force. — Where the evidence supporting the conviction is conflicting and of doubtful probative force, this court will the more carefully consider other irregularities at the trial which, in the abstract, may not ordinarily be prejudicial, in order to ascertain from a consideration of the whole record whether the defendant in fact had a fair trial.
    Appeal from County Court, Coal County; F. W. Saunders, Judge.
    Ruthj Orr was convicted of violating the prohibitory laws of this state and sentenced to 30 days in the county jail and to pay a fine of $50, and she appeals.
    Reversed and remanded.

      C. M. Threadgill, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ruth Orr was by information filed in the county court of Coal county, April 20, 1920, charged with violating the prohibitory laws of this state on March 19, 1920, by selling to C. B. Mathews a half pint of whisky. At the trial C. B. Mathews and Shell Quinton, the only witnesses for the state, testified that they purchased a pint of whisky from the accused at her residence in Coalgate late in the afternoon of the day last mentioned. Mathews testified that it was com or white whisky, delivered to him in a pint bottle with a glass stopper, for which he paid the accused woman four silver dollars and two half dollars. Quinton testified that it was red whisky, not corn whisky, delivered in a pint bottle with a cork stopper, and that Mathews paid for it with a five dollar bill. Mathews admitted that he had been drinking some before he went to Ruth’s house, and both witnesses were placed in jail1 that night for being drunk and disorderly.

The accused woman testified that she was not at home that afternoon, and that her sick mother was the only person present at her home that afternoon; that the mother reported that two men had! been there that afternoon; she denied that she sold these men, or any men, any whisky. Mathews was impeached by several witnesses for the accused, to the effect that his reputation for truth and veracity was bad. One of the impeaching witnesses testified that Mathews was not normal mentally and was a kind of moral degenerate, and a frequent violator of the law. Quinton was a friend of Mathews and not well known, and had no reputation, one way or another.

An effort was made to show that the prosecuting witness, Mathews, was suspected of stealing some jewelry belonging to the accused woman while at her house in her absence, for which a search warrant had been issued. One of the errors complained of is that the accused was not permitted to show fully the malice and ill feeling of Mathews towards her, growing out of this jewelry theft. On cross-examination of complaining, witness Mathews, the following appears:

Q. Didn’t Ruth send officers to Gentrahoma and have' you brought back here and put in jail the next day? A. No. sir; not then.

Q. Was it the next day or after?

Mr. Holland: The state objects to that because it is incompetent, irrelevant, and immaterial.

The Court: Objection sustained.

Q. What did she send for you for?

Mr. Holland: The state objects because it is incompetent, irrelevant, and immartial.

The Court: Objection sustained.

Q. I will ask you if it- is not a fact that after you were over at the place where this woman lives, on or about the 19th of March, she didn’t charge you with stealing some jewelry and send that same night after you were over there, sent to Centrahoma and have you brought back to Coalgate?

Mr. Holland: The state objects because it is incompetent, irrelevant, and immaterial.

The Court: Objection sustained.

The accused herself attempted to explain this incident as follows:

Q. Did you have any trouble with Charlie Mathews about that time? A. I did.

Q. Tell the court what it was.

Mr. Holland: The state objects to that because it is incompetent, irrelevant, and immaterial.

The Court: Objection overruled.

Q. What trouble did you have with him? A. He stole a pin of mine.

Q. Here is the question I want to get at: What did you do to him? Did you have trouble with the witness?

Mr. Holland: Objected to as incompetent, irrelevant, and immaterial.

The Court: Objection sustained.

Mr. Threadgill: Defendant excepts. Defendant offers to prove by this witness that she had a warrant issued to search and arrest the defendant, believing that he had taken a piece of jewelry that belonged to her.

(No ruling by the court.)

It is well settled that the ill will of a witness towards the accused may be shown on cross-examination, as evidence of bias, affecting the credibility of the witness. A denial of this right is usually prejudicial. The accused had a right to show, if she could, that the prosecuting witness was giving testimony with malicious motives. Henry v. State, 6 Okla. Cr. 432, 119 Pac. 278; Spear v. State, 7 Okla. Cr. 379, 123 Pac. 852; 25 R. C. L. 612-615.

Although no exceptions were taken to instruction No. 5, relating to presumption of innocence and' reasonable doubt, this instruction is fundamentally wrong and meaningless.

In the motion for a new trial it was urged that one Neal Winfield, who had moved away and whose whereabouts had not been discovered, would testify that he was with Mathews when he went to defendant’s premises at the time charged, and that Shell Quinton was not present, and that Mathews bought no whisky there. The testimony of Winfield alone might have convinced a jury that the defendant was not guilty. Whether due diligence was made to procure the attendance of this witness does not fully appear.

From the fact that the prosecuting witness was impeached in positive terms, considered in connection with the showing made, indicating malice on the part of the prosecuting witness, and with the ambiguous instruction given and the showing made of newly discovered evidence, we are led to believe that the jury may have been influenced in some extraneous manner to bring in thej verdict they did, and we feel that, under all the circumstances in this case, this woman should not be deprived of her liberty on the unsupported, conflicting testimony of witnesses of this character.

The cause is reversed and remanded.

DOYLE, P. J., and MATSON, J., concur.