author: FURMAN, P. J.

text:
      Ex parte L. K. HUNNICUTT. Ex parte C. H. PATTON.
    Nos. A-1461, A-1565.
    Opinion Filed April 20, 1912.
    (123 Pac. 179.)
    1. CONSTITUTIONAL LAW — Statutes — Presumption in Favor of Constitutionality. Every presumption must be indulged in favor of the constitutionality of an act of the Legislature; and courts will not declare any law unconstitutional, unless they find that it is irreconcilable with the Constitution. State v. Coyle et al., ante, 122 Pae. 243, approved and reaffirmed.
    2. SAME. Where a statute is subject to two constructions, one conforming to and the other contravening the Constitution, courts will adopt that construction which conforms to the Constitution.
    3 STATUTES — Construction — Punctuation and Grammatical Construction. In construing a statute, courts are not bound by punctuation or the grammatical construction of sentences. The object of construction is, if possible, to give effect and purpose to the true meaning of.the statute.

      4. SAME — General Rules — Intention. The fundamental rule of construction is to ascertain the intention of the law-makers, , in order that the true meaning of the Legislature, may be determined. To accomplish this purpose, all parts of an act relating to the same subject should be considered together. A later clause or provision may qualify an earlier one; and the converse is equally true. Ex parte Whitehouse, 3 Okla. Cr. 103, 104 Pac. 372, approved and reaffirmed.
    5. INTOXICATING LIQUORS — Offenses — ‘ ‘ Imitation ” — ‘ ‘ Substitute.!’ To. sell, give away, barter, or otherwise furnish an "imitation”' or "substitute” for malt liquor does not constitute an offense against the laws of Oklahoma, unless such imitation or substitute contains as much as one-half of one per centum of .alcohol, measured by volume.
    6. SAME — Criminal Prosecutions — Indictment and Information. Where a defendant is charged with selling, giving away, bartering, or otherwise furnishing an imitation of or substitute for liquors prohibited. by the laws of Oklahoma, the information or indictment must go further and allege that sueh imitation or substitute contained as much as one-half of one per cent, of alcohol, measured by volume, or it will not charge an offense against the laws of the state of Oklahoma.
    7. INDICTMENT AND INFORMATION — Requisites of Accusation —Conclusions or Matters of Fact. Under the Constitution of this state, it is necessary for an information or indictment to state the ultimate facts necessary to constitute an offense. Allegations of conclusions of law and.of the opinions of the pleader will not charge an offense against the law.
    (Syllabus by the Court.)
    Applications by R. K. ITunnicutt and C. H. Patton, respectively, for writs of habeas corpus.

    Writs issued, and petitioners discharged from custody.
    On the 2d day of November, 1911, the petitioner R. K. Hunnicutt filed a petition for a writ of habeas corpus in this court, in which he alleged that he was in the custody of the sheriff of Bryan county, under and by virtue of a prosecution pending in the county court of said county, based upon a certain information filed in said court, the charging part of which is as follows:
    “That is to say, the said defendant did, in said county and state, at the date above named, unlawfully barter, sell, give away, and otherwise furnish hop ale, the said hop ale being an imitation and substitute for malt liquor, to one W. C. Waldon.”
    On the 2d day of January, 1912, the petitioner C. H. Patton filed a petition for a writ of habeas corpus in this court, wherein he alleged that he was imprisoned in the county jail of Creek county, under and by virtue of a prosecution pending in the county court of said county, based upon an information filed in said court, the charging part of which is as follows:
    “That said defendant, C. IT. Patton, did, in said county and1 state aforesaid, and on the date aforesaid, unlawfully barter, sell,, give away, and otherwise furnish to one Frank Denny one bottle-of Tonine; said Tonine being an imitation of and substitute for malt liquor, and containing (.15) fifteen hundredths per cent, of alcohol, measured by volume.”

      D. A. Richardson„ for petitioner L. K. Hunnicutt. Stuart, Cruce & Gilbert, for petitioner C. IT. Patton.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

(after stating the facts as above). Both of these cases present the same question, and therefore can be decided in the same opinion. The question is as to whether an information or indictment which alleges that the defendant sold, bartered, gave away, and otherwise furnished an imitation of or substitute for spirituous, vinous, fermented, or malt liquors charges an offense against the laws of the state of Oklahoma.

The petitioners contend that this provision of the statute is so indefinite and uncertain as to be indeterminable, invalid, and void, because it fails to declare what shall be an imitation of or substitute for the liquors named, and that, in the absence of some legal definition of the general terms “imitation” and “substitute,” there is no legal standard or guide by which a citizen may regulate his actions in this respect, and that there is no definite standard for the court in its instructions to the jury; that there is no certain guide for the jury in their deliberations; and therefore there is nothing by which either certainty or uniformity in the enforcement of this provision can be secured.

This is the first time that this question has been directly submitted to this court for decision; and, while it is true that the matter has been referred to in several of the opinions of this court, yet the objections now urged were not argued or submitted to or considered by the court in any of its former opinions. See Moss v. State, 4 Okla. Cr. 247, 111 Pac. 950; Lightle v. State, 5 Okla. Cr. 259, 114 Pac. 275. What has heretofore been said on this subject has been by way of illustration, and cannot be considered as in any manner decisive of this question. No reputable court will consider any question as being settled by anything said in a decision, unless that question was either directly submitted or was necessarily involved in the issues argued, submitted, and passed upon in such decision. It is therefore our duty to treat this as a question of first impression, to be decided upon its merits alone, without reference to anything which has heretofore been said. We will endeavor to give this matter that impartial, thorough, and careful investigation which its importance demands. This will involve a construction of section 4180, Comp. Laws 1909, which is as follows:

“It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish, except as in this act provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum 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 which would not subject him to the payment of the special tax required by the laws of the United States; or to ship or in any manner convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized; or to solicit the purchase or sale of any such liquors, either in person or by sign, circular, letter, card, price list, advertisement or otherwise, or to distribute, publish or display any advertisement, sign or notice where any such liquor may be manufactured, bartered, sold, given away, or otherwise furnished, or to have the possession of any such liquors with the intention of violating any of the provisions of this act. A violation of any provisions of this act shall be a misdemeanor, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars and by imprisonment for not less than thirty days, nor more than six months; provided, however, that the provisions of this act shall not apply to the manufacture and sale of unfermented cider, and wine made from apples, grapes, berries or other fruit grown in. this state, and to the use of wine for sacramentál purposes in religious bodies.”

If the statute had stopped with the declaration that it was unlawful for any person, individual, or corporation to manufacture, barter, sell, give away, or otherwise furnish any imitation of or substitute for the liquors therein mentioned, we think that the objections now urged by counsel for petitioners would be fatal to this provision. The terms “imitation” and “substitute” have no definite legal meaning, and are so general and indefinite in their import that it would be impossible for either a court or jury, except as their own individual opinions might apply, to say what properties an imitation of or substitute for the liquors therein mentioned should contain. The court and jury would be altogether without a fixed standard to determine what it would take to constitute an imitation of or substitute for the prohibited liquors. The fact that an alleged imitation or substitute might look like alcohol, gin, or champagne could not determine this matter, because, if this were true, then the sale or giving away of water might constitute an offense, because one might mistake it in a bottle or glass for alcohol, gm, or champagne. Coffee has the color of and looks like porter. Ice tea and vinegar have the color of and look like whisky, beer, or ale. Grape juice has the color of and looks like wine, and has every attribute of wine, except fermentation. The decisions with reference to counterfeiting, which consists in making something which looks like that of which it is a counterfeit, cannot be invoiced. To make valid an act forbidding the selling or giving away of imitations of or substitutes for prohibited liquors, the Legislature must go further and so define and limit the terms “imitation” and “substitute” as to restrict them in their meaning to those beverages which contain the harmful properties of the prohibited liquors, or of which a deceptive use is made, or is intended to be made. As is well said by Judge Richardson, in his brief for petitioner Hunnicutt:

“Let us examine the crucial words in this provision, ‘imitation’ and ‘substitute,’ and see what they mean. They are each words of no fixed or determinable signification. They are not legal terms. They had no fixed meaning at common law. They are not defined by this or any other provisions of our statutes. They are only general words of general and indeterminable meaning. Let us consider the word ‘substitute’ 'first. It is made an offense for any person to manufacture, barter, sell, or give away any ‘substitute’ for spirituous, vinous, fermented, or malt liquors. The general definition of ‘substitute,’ and that is the only definition we have here, is a thing which takes the place of or is used instead of another. It is not necessary that it bear any likeness or resemblance to the other. Now, according to all the authorities, spirituous, vinous, fermented, and malt liquors are intoxicating. See definition of these terms in Woolen & Thornton’s Law of Intoxicating Liquors. Is it necessary that the substitute contain any alcohol? When a laborer and his family residing in some eastern city, where they habitually drink beer with their meals, move to Oklahoma, where they cannot get beer, and they drink buttermilk here in the place and stead of beer, and for the sole reason that the}'- cannot get beer, is not buttermilk then a substitute for a malt liquor? And would not any liquid which this family might choose to drink instead of beer be á substitute under such circumstances? If a person who has a taste for wine cannot get wine, and he drinks grape juice instead, is grape juice then a substitute, and has the dealer who sold it violated the law ? And can you possibly imagine a substitute for spirituous liquor? Is the Keeley cure a substitute for intoxicating liquor? And if a person chews gum, because he is out of chewing tobacco, would the dealer who furnished it violate the law, if it forbade the sale of any substitute for tobacco? What is a substitute for any of these prohibited liquors? And bear in mind that a substitute is merely a thing put or used in the place and stead of another. It need not bear any resemblance to the other. Must it produce the effect produced by the other? Imagine the county attorney informing the court, by information, that on the 1st day of January, 1911, the defendant ‘did unlawfully give to John Jones one pint of a substitute for malt liquor, the name of said substitute being to your informant unknown.’ What luminous charge this would be, and how thoroughly it would inform the defendant of the nature and cause of the accusation against him! When gasoline is used in the place of alcohol for fuel or motive power, has the dealer who sold the gasoline violated the law? And what properties must a thing have, in order to be a substitute? Who is going to determine what constitutes a substitute, and how is he going to determine it? What is the guide, what is the standard?

“An 'imitation’ is a thing that bears a likeness or resemblance to another thing. That is to say, an imitation must have some, but not all, of the attributes of the genuine thing. If it had all the attributes, it would be the genuine thing itself. What attributes must a thing have to be air imitation of malt liquor, and how many and what particular attributes must they be. The attributes of beer are its color, its taste, its intoxicating properties, its odor, the method of its manufacture, the fact that it is malted, the grain from which it is made, etc. In order that a liquid be an imitation of beer, how many and which particular attributes must it have in common with beer? Who is going to determine, this question, and how is he going to determine it? What is his guide, what must be his standard ? Is it sufficient that it so looks like beer that its appearance might deceive one? If so, then must not that resemblance be intentional and not accidental? And are root beer and iced tea an imitation of beer? Is grape juice an imitation of wine? Is lemonade an imitation of gine or alcohol? To be an imitation, must it contain any alcohol? Must it taste like the genuine? Must it smell like the genuine? Must it have any certain one, any certain two, any certain three, of the attributes of the genuine ? And if so, which one, two, or three of those attributes must it have ? Who is going to determine that question ? The jury? The law ought to be definite-and certain enough for the individual to tell before he makes or sells the article. And how can the jury tell? What is their guide? Where will be the uniformity in the administration and enforcement of the law?”

In the case of United States v. Reese, 92 U. S. 214, 23 L. Ed. 563, Chief Justice White said:

“Penal statutes ought not to be expressed in language so uncertain. If the Legislature undertakes to define by statute a new offense, and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.”

And, again, he said:

“The question to be determined is whether we [that is, the courts] can introduce words of limitation into a penal statute, so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step aside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. * * * To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This as no part of our duty.”

In the case of Czarra v. Board of Medical Supervisors, 25 App. D. C. 443, Chief Justice Shepard said:

“In all criminal prosecutions, the right of the accused to be informed of the nature and cause of the accusation against him is preserved by the sixth amendment. In order that he may be so informed by the indictment or information presented against him, the first and fundamental requisite is that the crime or ■offense with which he stands charged shall be defined with reasonable precision. He must be informed by the law, as well as by the complaint, what acts or conduct are prohibited and made punishable. In the exercise of its power to regulate the conduct of the citizens, within the constitutional limitations, and to declare what shall constitute a crime or punishable offense, the Legislature must inform him with reasonable precision what acts are intended to be prohibited. * * * This obvious duty must be performed by the Legislature itself, and cannot be delegated to the judiciary. It may doubtless be accomplished by the use of words and terms of settled meaning, or which indicate offenses well known to and defined by the common law. Reasonable certainty, in view of the conditions, is all that is required; and liberal effect is always to be given to the legislative intent, when possible. But when the Legislature declares an offense in words of no determinate signification, or its language is so general and indefinite as that it may embrace within its comprehension, not only acts commonly regarded reprehensible, but others also, which it is unreasonable to presume were intended to be made criminal, the courts, possessing no arbitrary discretion to discriminate between those which were and those which were not intended to be made unlawful, can do nothing else than declare the statute void for its uncertainty.”

And again:

“Unprofessional or dishonorable conduct, for which the statute authorizes the revocation of a license that has been regularly issued, is not defined by the common law, and the words nave no common or generally accepted signification. What conduct may be of either kind remains, as before, a mere matter of opinion. In the absence of some specification of acts by the lawmaking power, which is alone authorized to establish the standard of honor to be observed by persons who are permitted to practice the profession of medicine, it must, in respect to some acts at least, remain a varying one, shifting with the opinions that may prevail from time to time in the several tribunals that may be called upon to interpret and enforce the law.”

And again:

“The underlying question involved in all cases that may arise is whether the courts can uphold and enforce a statute whose broad and indefinite language may apply, not only to a particular act, about which there would be little or no difference of opinion, but equally to others, about which there might be radical differences, thereby devolving upon the tribunals charged with the enforcement of the law the exercise of an arbitrary power of discriminating between the several classes of acts.”

These two decisions are in harmony with the overwhelming weight of authority, and, in our judgment, are founded upon justice and supported by reason. They are also directly applicable to section 20 of article 2 of- the Constitution of this state, which, in express terms, among other things, declares that the accused “shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf.” These just and humane provisions of the Constitution were intended to enable persons charged with crime to prepare for trial. It requires no argument to demonstrate that a defendant cannot safely prepare for trial, unless he is informed of the ultimate facts which will be proven against him. This cannot be done if those ultimate facts depend upon the personal opinion of the trial judge or jurors. The Constitution is the supreme law of the state. It is legislation direct from the people, acting in their sovereign capacity; while a statute enacted by the Legislature is legislation from the representatives of the people, subject to the limitations prescribed in the Constitution by the sovereign authority. Unless the fixed principles of free government are clearly stated in the Constitution, and the exercise of power by the different departments of the state are strictly limited and controlled by these constitutional provisions, our state government would be like a ship without a rudder or compass, and would drift and be driven hither and thither bj»- every passing wind or wave. Hence the necessity of a Constitution and the duty of the courts to enforce it as the supreme law, subject only to the Constitution of the United States. Any act of the Legislature which interferes with or deprives a party charged with crime of a single right guaranteed to him b)r the Constitution is, to this extent, unconstitutional; and it is the duty of the courts when they find that an irreconcilable conflict exists between an act of the’ Legislature and the Constitution of the state, to declare that such act is unconstitutional and void, and thereby vindicate the supremacy of the Constitution. But this should only be done where such conflict is clearly irreconcilable. Every presumption must be indulged in favor of the constitutionality of an act of the Legislature.' See State v. Coyle, ante, 122 Pac. 243.

Where a statute is subj ect to two constructions, one conforming to and the other contravening the Constitution, that construction which conforms to the Constitution must be adopted. See Robson v. Doyle, 191 Ill. 566, 61 N. E. 435; Ivy v. State, 112 Ga. 175, 37 S. E. 398; State v. Capdeville, 104 La. 561, 29 South. 215. It is the duty of the courts, whenever it is possible to do so, to harmonize acts of the Legislature with the Constitution, so that they both can be sustained. French v. Teschemaker, 24 Cal. 518; People v. Peacock, 98 Ill. 172; Hovey v. State, 119 Ind. 395, 21 N. E. 21; McComas v. Krug. 81 Ind. 327, 42 Am. Rep. 135; Maize v. State, 4 Ind. 342; Cherokee County v. State, 36 Kan. 337, 13 Pac. 558; Conner v. Commonwealth, 13 Bush (Ky.) 714; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Tabor v. Cook, 15 Mich. 322; Marshall v. Grimes, 41 Miss. 27; McGwigan v. Wilmington, etc., R. Co., 95 N. C. 428, 59 Am. Rep. 247; Granville Co. v. Ballard, 69 N. C. 18; Portland, etc., R. Co. v. Portland, 14 Ore. 188, 12 Pac. 265, 58 Am. Rep. 299.

In construing a statute, courts are not bound by punctuation or the grammatical construction of the sentences. The object of construction is, if possible, to give effect to the purpose and true meaning of the statute.

Our views on this subj ect were clearly and forcibly expressed by Judge Owen, in Ex parte Whitehouse, 3 Okla. Cr. 103, 104 Pac. 374. He there said:

“As early as the case of Ogden v. Saunders, 12 Wheat. 267, 6 L. Ed. 606, decided January, 1827, the Supreme Court of the United States held that the derangement of words and even sentences of the law might be tolerated, in order to arrive at the apparent meaning of the Legislature, to be gathered from other parts and from the entire scope of the law. In the case of Werckmeister v. Pierce [C. C.] 63 Fed. 445, the United States Circuit Court held that rearrangement of clauses or parts of sentences is justifiable under the most common circumstances, and is especially justifiable in order that the statute may not be read contrary to its plain purpose and the general public policy. In construing constitutions, the same rules must govern that govern in construing statutes. The Constitution is the supreme law of the land, and it differs from an act of the Legislature in having been adopted by the whole people. * * * We are not without authority to ignore the punctuation and to construe the section as we believe it should have been punctuated. It is commonly stated that ‘punctuation is no part of the statute/ and that ‘for the purpose of arriving at the true meaning of the statute courts read with such stops as are manifestly required.’ United States v. Lacher, 134 U. S. 628, 10 Sup. Ct. 626 (33 L. Ed. 1080); Stephens v. Cherokee Nation, 174 U. S. 480, 19 Sup. Ct. 722, 43 L. Ed. 1041; U. S. v. Oregon R. Co., 164 U. S. 541, 17 Sup. Ct. 165, 41 L. Ed. 541; Ford v. Delta Land Co., 164 U. S. 674, 17 Sup. Ct. 230, 41 L. Ed. 590. In the construction of the laws, punctuation is no criterion of the sense of the Legislature, unless it is in conformity with their intention as appears in the words they use. Punctuation is generally the act of the clerk or printer, which the- court will disregard, if, taking the instrument by its four corners, and looking at all its provisions, a judicial construction points to an intention different from what the mere punctuation indicates. This rule was observed in the case of Durousseau v. United States, 6 Cranch, 307, 3 L. Ed. 232, and in the case of In re Irwine, Fed. Cas. No. 7,086.”

Judge Owen’s opinion is not only an able exposition of the law, but a careful reading of it will show that it is conclusively fortified by the authorities.

As was said in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Voelker, 129 Fed. 527, 65 C. C. A. 231, 70 L. R. A. 264:

“Punctuation is a minor, and not a controlling, element in interpretation, and courts will disregard the punctuation of a statute, or repunctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning. Hammock v. Loan & Trust Co., 105 U. S. 77, 84, 26 L. Ed. 1111; United States v. Oregon, etc., Railroad, 164 U. S. 526, 541, 17 Sup. Ct. 165, 41 L. Ed. 590; Stephens v. Cherokee Nation, 174 U. S. 445, 480, 19 Sup. Ct. 722, 43 L. Ed. 1041; Sutherland, Statutory Construction, sec. 232.”

In the case of Union Refrigerator Transit Co. v. Lynch, 48 L. R. 790,' the court said:

“The question of punctuation cannot be allowed to control in the construction of these provisions of the statute against, as Ave think, the manifest intent of the Legislature. It would be a most fallible standard by Avhich to construe them.. In the interpretation of statutes, the true meaning of the lawmaker must be ascertained from the whole purvieAv; and when that is manifest from a judicial inspection the court will not permit punctuation to change it. To ascertain the real intention and meaning of the statute, the court will punctuate, or disregard punctuation, as may be necessary: Punctuation may, Avhen the meaning is uncertain, furnish some indication of it, and in such case may even decide what the meaning is; but, when the intention of the Legislature is apparent from a reading of the statute, such intention must prevail, regardless of punctuation. Sutherland on Stat. Constru. sec. 232.”

The fundamental rule of construction is to ascertain the intention of the lawmakers, in order that the true meaning of the Legislature may be determined. Every Avord and provision of an act must be considered. See Eddy v. People, 118 Ill. App. 138. Endlich on the Interpretation of Statutes states the law on this subject as follows:

“Passing from the external history of the statute to its contents, it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself. ‘Incivile est, nisi tota lege perspecta, una aliqua partícula, ejus proposita, indicare, vel respondere.’ ‘Ex antecedentibus et consequentibus fit optima interpretation A survey of the entire statute is almost always indispensable, even when the words are the plainest; for the true meaning of any passage is that which best harmonizes with the subject, and with every other passage of the statute.”

Lewis’ Sutherland, Statutory Construction (2d Ed.) vol. 2, p. 659, states the law on this subject as follows:

“It is to be presumed that all the subsidiary provisions of an act harmonize with each other, and with the purpose of the law; if the act is intended to embrace several objects, that they do not conflict. Therefore it is an elementary rule of construction that all the parts of an act relating to the same subject should be considered together, and not each by itself. By such a reading and consideration of a statute, its obj ect or general intent is sought for, and the consistent auxiliary effect of each individual _ part. Flexible language, which may be used in a restricted or extensive sense, will be construed to make it consistent with the purpose of the act and the intended modes of its operation, as indicated by such general intent, survey, and comparison. ‘Ex antecedentibus et consequentibus fit optima interpretation The order in which the provisions occur in a statute is immaterial, where the meaning is plain, and there is not a total conflict. A later clause or provision may qualify an earlier one; and the converse is equally true.”

This is not only the settled law in America, but it has been the law of England since the days of Lord Coke. Coke’s Littleton, vol. 2, p. 381a, states the law as follows:

“It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.”

We regard these rules of statutory construction as being absolutely just and sound, and will not consume more time and space by quoting additional authorities supporting them. Applying these rules to the statute under consideration, as the words “imitation” and “substitute” have not in themselves a common-law meaning, or any fixed and definite legal meaning, and are general, and might include many things which are innocent and harmless in themselves, we must examine the 'entire statute and" see if it does not contain other provisions which limit and give a definite legal meaning to the words “imitation” and “substitute,” as used in this statute, and thereby establish what constitutes unlawful imitations and substitutes of prohibited liquors. Immediately following the words “imitation” and “substitute,” the statute further says:

“Or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage.”

We think it clear that it was the intention of the Legislature that section 4180 of the Comp. Laws of 1909, hereinbefore quoted, should be construed as a whole, and all of its parts together. In fact, this must be done, or the subsequent provision would, be entirely idle and meaningless; for it does not make it unlawful for any person, individual or corporate, to do any of the things mentioned in said clause. Before this provision can stand, it must be construed in connection with the paragraph which immediately precedes it; and that which immediately precedes it must be construed in connection with the portion of the statute last quoted. The entire section must be considered when construing each of its provisions; otherwise we. would be forced to hold nine-tenths of this section invalid. We are therefore of the opinion that the words “which contain as much as one-half of one per centum of alcohol, measured by volume,” are a limitation upon and give a fixed and definite legal meaning to the words “imitation” and “substitute,” and that it is the presence of one-half of one per centum of alcohol which makes such substitutes and imitations unlawful. This gives the courts and juries a definite standard to go by in such cases, and takes the law entirely out of the realm of uncertainty.

From reading the entire statute, it clearly appears to be the purpose of the Legislature to prohibit the manufacture, sale, barter, giving away, or otherwise furnishing of any intoxicating liquors, or any substitute or imitation thereof which contain the elements of intoxication to such an extent as would make the use of such substitutes or imitations harmful or dangerous. The statute does not leave this to conjecture, but goes further and establishes one-half of one per centum of alcohol, measured by volume, as the amount of the intoxicating element which would make the use of such substitutes or imitations unlawful. It is a fact, generally known in this jurisdiction, arid of which the court will therefore take judicial notice, that since the establishment of prohibition a number of people in this state habitually use coffee as a substitute for prohibited liquors. This fact is susceptible of being proven by legal evidence. Who would be bold enough to say that the use of coffee as a substitute for prohibited liquors conies within the meaning of the statute, and would constitute an offense against the law? Such a construction would be to reduce the law to an absurdity. Other illustrations could be made, but this alone is enough to show that, where an information or indictment merely charges a defendant with unlawfully handling any substitute for or imitation of prohibited liquors, it would not charge an offense against the laws of the state of Oklahoma. Where an information or indictment charges the unlawful use of imitations of or substitutes for prohibited liquors, without going further and alleging facts which would bring them within the purpose of the law, such information or indictment simply charges -that, in the opinion of the pleader, an offense has been committed. This would be contrary to the universal rule that legal accusations must allege facts, not opinions.

We therefore hold that the information in both cases now being considered simply states the conclusions and opinions of the pleader, and does not charge any facts which constitute a violation of the laws of Oklahoma. Writs of habeas corpus will issue in both of said cases; and it is ordered that the petitioners in both cases be discharged from custody.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYEE, J.

license: Public Domain

text:
    SAM McSPADDEN v. TERRITORY.
    No. A-879.
    Opinion Filed April 24, 1912.
    (122 Pac. 1105.)
    VENUE — Jurisdiction—Transfer of Causes — Certification. When an order for a transfer of a criminal case that was pending in a territorial court at the time of the admission of Oklahoma as a state to the proper court of the county of proper venue is made, it is the duty of the clerk of the district court to make out a descriptive list of all the papers, orders, and judgments, and copies of all orders and docket entries therein, certified to as being tho complete record of the case as shown by the record of such court, and send the same, together with all the papers, to the court to which the case is ordered transferred. A trial and conviction upon papers not authenticated, and without the certificate required by the statute, is invalid. The trial court, having no sufficient record on which to proceed to trial, was without jurisdiction.
    (Syllabus by the Court.)

      Appeal from District Court, Beckham County;

      G. A. Brown, Judge.

    Sam McSpadden was convicted of grand larceny, and appeals.
    Reversed and remanded.
    The plaintiff in error, Sam McSpadden, and D. M. Jamison and Alvin Engle were jointly indicted at the September term, 1906, of the district court of the Second judicial district of the territory of Oklahoma, within and for Roger Mills county, in said territory, for the crime of grand larceny. The indictment was presented and filed in open court September 22, 1906, and was pending in the district court of Roger Mills count3r, territory of Oklahoma, at the time of the admission of the state of Oklahoma into the Union.
    June 9, 1908, an application for transferring said case from Roger Mills county to Beckham county, state of Oklahoma, was made by the county attorney, and the district court of Roger Mills county entered an order transferring the case to Beckham county. On September 12, 1908, the defendant filed a motion to retransfer the cause from Beckham county to Roger Mills county, upon the ground that the transfer thereof from the county of Roger Mills to the county of Beckham was without authority of law; that said transfer was made without the consent of -the defendant or his counsel, and without the knowledge of the defendant or his counsel, which motion was supported by the affidavits of the defendant •and counsel. The motion was overruled by the court. The defendant then filed a motion to dismiss, for the following reasons: Because it does not appear from the record herein that this court 'has acquired jurisdiction herein, and that no due and legal certificate appears upon or to any of the proceedings, or purported proceedings, found in the files, purporting to be the transcript ■of the proceedings in this cause in the district court of Roger Mills ■county — which motion was overruled by the court. The case was dismissed as to the defendant Alvin Engle.
    The defendants were arraigned and entered pleas of not guilty. The case was called for trial, the jury impaneled, and the first witness for the state was called to testify. Thereupon the defendant interposed the following objection:
    “Comes now the defendant at this time and objects to the introduction of any evidence in this case, for the reason that this court has no jurisdiction to try this case, from the fact that it has never been legally transferred from Roger Mills county, Olda., which was then Roger Mills county, territory of Oklahoma, the •county in which the indictment was returned.”
    Which objection was overruled by the court, and the trial proceeded.
    The facts may be briefly stated from the testimony of the codefendánt Alvin Engle, who testified on behalf of the state, as follows: That he was acquainted with Sam McSpadden and D. M. Jamison, his codefendants, at the time in question, January 1, 1906, and was living eleven miles northwest of Sayre; that he brought a load of cotton that day to Sayre; that McSpadden brought about a bale and had it ginned, and asked witness to haul it out home for him; that he started home that evening about 8 o’clock by himself, taking a bale of cotton which he got from Teams’ gin; that Sam McSpadden helped him get it; that they did not discuss the matter as to whose bale of cotton it was; that McSpadden was to stay in town that night and bring a load of coal the next day; that he got lost, and his .team ran into a. fence, and he could ’not get them back on the road, so he unhitched the team and rode one of them home; that the next morning when he got up there was a light snow, and he tracked back about three-quarters of a mile and found his wagon in a corner of the fence; that he upset the cotton bale and looked at it,.' and saw Mr. Teams1 brand on it; that he then went to Mc-Spadden and told him how it was, that it was Teams’ cotton; that McSpadden said that he would bring his team over and would take it back that night, and he told him it was all right; that he went back in the evening and told McSpadden that he had better get his team and take the cotton back; that he thought that they would be looking for them, and they might be arrested; that they concluded that they would wait until night and take it back; that McSpadden came to his place that night, and he hitched his team and was going to bring the cotton to town, and his. team was so weak, and they had been working so hard, that he did not think that they could pull it to town, so he told McSpadden that he would not bring it to town, and for him'to take his team, and he would let him have liis wagon; that he did not want the cotton on his place; that they agreed to take the cotton to the canyon, where it was found, until night; that shortly afterwards they were arrested; that witness cut the marks off the bale of cotton himself, so that if anybody should see it they would not know that it was Teams’ cotton.
    He further testified that MpSpadden was very drunk when they were loading the cotton; that he staggered around and fell, and the cotton fell on him; that they tried again, and got it on the wagon, and he started home with it; that McSpadden did not suggest to cut the brands off nor to hide it; that McSpadden brought his cotton in that day and left it at William’s gin; that the bale of cotton was taken from Teams’ gin.
    The defendant McSpadden testified on his own behalf that he did not know’who took the cotton from Teams’ gin; that he was drunk, and did not remember how he reached home that night; that he only knew what they said; that he first recollected ■of seeing the cotton on the night of January 2d at Alvin Engle’s, did not know how it got there; that they were all drunk January 1st at Sayre, and about the last thing he remembered Engle and himse.lf went over to a saloon and got two bottles of whisky and drank some more; that they started, on the night of January 3d, to bring the cotton back; that Engle said that his team was’not •able; that McSpadden’s team was at his home, two or three miles from Engle’s; that they put -it on the wagon and hauled it one and one-half miles north to the road that ran to Sayre, and while on the road to Sayre Engle said his team was unable to haul it to Sayre, and that he would have to get his team to haul it; that he intended to haul it back when he found out that it did not belong to him and possibly belonged to Teams; that they agreed to bring it back, and that he had no intention of stealing the cotton; that they were arrested that evening.
    The case was dismissed as to the defendant Jamison. The jury returned a verdict, finding the defendant McSpadden guilty, and assessed his punishment at imprisonment in the state penitentiaiy for a term of two years and six months. The defendant filed motions for new trial and in arrest of judgment, which were overruled on March 33, 1910, and judgment and sentence was entered in accordance with the verdict. The defendant appealed by filing in this court, September 31, 1910, a petition in error and case-made.

      Harrison & Leach, for plaintiff in error.

      Chas. West, Atty. Gen., and B. G. Sfilman and Smith C. Matson, Asst. Attys. Gen., for the State.
   DOYEE, J.

(after stating the facts as above). 'The first three assignments of error present a question as to the regularity of the transfer of the case, as made, from the district court of Roger Mills county to the district court of Beckham county.

Section 2, art. 3, ch. 16, Sess. Laws 1907-08, provides:

“Sec. 2. That all those criminal cases, transferred from the courts of the territory of Oklahoma and the United States Courts in Indian Territory to the courts of this state, as transferred by acts of Congress and accepted by the Constitution, which would have been properly triable in any other court of any county, or district of this state, had such suit or proceeding been commenced after the admission of this state into the Union, may, upon the application of the defendant therein, filed with the clerk of the district court within ninety days after the passage and approval of this act, be transferred to the proper court of such county or district for trial.”

The defendant, under this provision, had the right to transfer the case, if exercised in 90 days. But it is further provided (chapter 16, art. 2, Sess. Laws 1907-08) :

“Sec. 5. In all criminal cases pending in any county where the venue properly lies in another county, the court may, upon motion of the county attorney, or upon its own motion, transfer such cause to the county of proper venue; such transfer, in all respects, shall be made in like manner as is now provided by law.” It is provided in chapter 16, art. 1, sec. 8, Sess. Laws 1907-OS, that:

“Sec. 8.' When an order for a transfer of any cause or proceeding shall be made, the judge or clerk shall make out a descriptive list of all the papers in such cause, of all orders and judgments made therein, with their dates, and a bill of costs that shall have accrued; shall carefully and securely put all of the papers, with a copy of the descriptive list all orders and judgments or a true copy thereof, bill of costs, and all docket entries in such case, certified to as being the complete record of such cause or proceeding as shown by the record of such court, into a package, to be well covered and sealed up, and directed to the court or the clerk of the court to which such cause or proceeding is ordered to be transferred; and shall, if not otherwise directed by the court making the order, forward the same by registered mail to the court to which such cause is transferred.”

The first two provisions are in harmony, one with the other. If the defendant does not avail himself of the right to transfer, the court may, on motion of the county attorney, or upon its own motion, transfer a criminal case to the county of proper venue. We think the order to transfer the case to Beckham county was properly made.

When such order of transfer is made in a criminal case, it is the duty of the judge or clerk to make out a descriptive list of all the papers in such case and all orders and judgments made therein and all docket entries in such case, etc., certified to as being the complete record of such cause or proceeding, as shown by the records of such court, and transmit the same, duly certified, to the court, to which such case is transferred. That was not done in this case. For this reason, the defendant’s motion to retransfer said case should have been sustained.

It was the duty of the court, upon the motion of the defendant, to require the clerk of the district court of Roger Mills county to make up and transmit to the district court of Beckham county a full transcript of the record and proceedings, etc., duly ■certified, as required by this provision of the statute.

The district court of Beckham county, having no sufficient record on which to proceed to trial, was without jurisdiction of the case; and it was error to overrule the defendant’s objection to the introduction of evidence against the defendant by the state.

Error is assigned in the action of the court in overruling the defendant’s demurrer to the evidence. We think the evidence ■sufficient to go to the jury.

Finally, it is contended that the court erred in its instructions to the jury. The charge given is correct, as far as it goes; but we think that, under the evidence in the case, the court should have further instructed the jury in regard to the theory of the ■defense. If the testimony of the defendant Engle as a witness for the state, and the defendant on his own behalf, is true, then the defendant was not guilty of a larceny, but only of a trespass; and the conviction was wrong. They admitted the unlawful taking of the property, but claim that it was taken by mistake, and not with intent to deprive the owner of his property; that when they became duly sober and discovered their mistake in taking the wrong bale of cotton they started to return with it, and would have returned the same that night, but they were arrested in the meantime. This was a proper and legitimate defense to the charge of larceny. No instruction was requested, and the court omitted to instruct the jury on this theory of the defense.

In the case of Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782, it is said:

“To constitute larceny under this statute, it is not necessary that the taking should be with the purpose to convert the thing stolen' to the pecuniary advantage or gain of the taker; but it is sufficient if the taking be fraudulent or by stealth, and with the intent to wholly deprive the owner of the property. The intent must be felonious, and must be to deprive the owner, not temporarity, but permanently, of the property, and need not be lucri causa. A taking of personal property with the intent to deprive the owner temporarily of his property, and return the same to. him, is not larceny, but is trespass; is not felony, but a misdemeanor. The felonious intent is one of the material ingredients, of the crime of larceny; and the burden is on the prosecution to prove this intent to the satisfaction of the jury beyond a reasonable doubt, the same as any other material constituent of the crime. The reason of the law is to secure a man’s property to him, and that is to be carried out rather by punishing the thief for feloniously depriving him of it than for any wrongful gain he has' made out of it. The wrong which the law directs its prohibition against and punishment to is the wrongful and felonious, deprivation.”

We are of the opinion that, under all the circumstances of the case, an instruction embodying this theory of the defense should have been given.

For the reasons stated, the judgment and sentence imposed upon the defendant must be, and the same is hereby, reversed, and the cause remanded to the district court of Beckham county, with direction to proceed in accordance with the views herein expressed.

FURMAN, P. J., and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    CHARLIE McKNIGHT v. STATE.
    No. A-1142.
    Opinion Filed April 25, 1912.
    (122 Pac. 1118.)
    1. TRIAL — Instructions—Credibility of Witnesses. An instruction advising the jury that they are at liberty to disregard the testimony of any witness who they believe from the evidence has testified falsely, except in so far as his testimony is corroborated by other evidence or facts and circumstances in the case, should not be given. The jury cannot be bound by the court to believe the testimony of such witness, whether corroborated or not.
    2. SAME — Erroneous Instruction — Reversal. When such an instruction is given by the trial court over the objection and exceptions of the accused, and the record discloses a close ease on the facts, a judgment of conviction will be reversed.
    (Syllabus by the Court.)

      Appeal from Pottawatomie County Court; Ross H. Lockridge, Judge.

    Charlie McKnight was convicted of violating the prohibition law, and appeals.
    Reversed.

      Mark Goode and Blakeney & Maxey, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The indictment in this case charges the accused with the unlawful possession of intoxicating liquor with intention to sell the same.

The proof on behalf of the state shows that the building in which it is contended the intoxicating liquors were found was ■owned by one Pike Baker; that at the time Baker purchased the building it was under a lease to Mr. Culberson for hotel purposes, and was later subleased to John Rogers for a rooming Rouse. Baker testified that since the time it was subleased to Rogers he, Rogers, and his associates, had charge of it; that his bookkeeper collected the rent; that Rogers paid the rent; that there were several raids made on the building, small quailtities of intoxicating liquor and some gambling paraphernalia being found. One witness, Ed Pierce, testified on behalf of the state that the accused in this case admitted that he owned the place, but did not testify that the accused owned the whisky or claimed it. The proof indicates that one Anderson was dispensing the intoxicating liquor. There is no proof on the part of the state that connects the accused with Anderson in the handling of intoxicating liquor, or that connects the accused with the intoxicating liquor found in the building.

The proof on behalf of the defendant shows by the bookkeeper of Mr. Baker that he collected the rent from John Rogers and J. A. Anderson; that in his best judgment Anderson paid the rent for September, October, and November, 1910. This offense is alleged to have been committed in November, 1910. The witness also testified that he never collected any rent from the accused, McKnight, and never had any conversation with him relative to the building. The accused testified in his own behalf that he had never had any intoxicating liquor in the building in question; that he had not sold any intoxicating liquor since statehood; that he owned a part of the property in the building, which he had sold, but had not been paid for; that the property had no connection with the unlawful possession of intoxicating liquor; that he stated to Mr. Pierce that the furniture was his. There was no testimony offered in' rebuttal by the state.

There are many assignments of error urged, but we cannot consume time in discussing all of them in detail. The testimony in this case is scarcely sufficient upon which to base a conviction.

Among other assignments the accused complains of the following instruction of the court, which appears in the record as “No. 7”:

“In the event that you find any witness has willfully testified falsely to any material matter in issue, you are at liberty to disregard the whole of such witness’ testimony, except in so far as the same may be corroborated by other credible witness or wit-, nesses, or other facts and circumstances appearing upon the trial.”

The instruction was excepted to at the time by counsel for the accused. In the case of Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129, this court held an identical instruction erroneous and reversible. And in Rea v. State, 3 Okla. Cr. 269, 105 Pac. 389, an identical instruction was held to be erroneous and reversible. In this latter case Presiding Judge Furman said:

“Section 5518, Wilson’s Rev. & Ann. St. 1903, says that the court must instruct the jury that they are the exclusive judges of all questions of fact. The latter part of the instruction given contradicts this statute by directing the jury in mandatory terms to accept and be bound by certain evidence under the contingency therein stated. The court has no right to ingraft this exception upon the law. The doctrine expressed by the Supreme Court of Kansas is in harmony with our statute. It matters not how anxious this court may be to enforce the law, we cannot allow a conviction to stand which is based upon a violation of plain and mandatory statutes which go to the foundation of the case, and which action deprived the defendant of substantial rights upon the trial. The law is plain and simple, and must be followed in all matters involving the substantial rights of the defendant.”

This instruction, and instructions of similar purport, have been so often condemned by this court that we do not feel called upon to discuss the proposition in detail here. The trial courts, especially many of the county courts, still persist in giving this instruction although it has been repeatedly condemned. In cases of the kind under consideration wherein the testimony is but slightly incriminating an instruction of this kind is more serious than it would be if the state’s case were stronger.

Without consuming more time in the discussion of the errors assigned, many of which appear to be serious, the judgment is reversed, and a new trial awarded.

FURMAN, P. J., and 'DOYLE, J., concur.


author: FURMAN, P. J. PER CURIAM.

text:
    H. C. PARKER v. STATE.
    No. A-1369.
    Opinion Filed April 25, 1912.
    (122 Pac. 1116.)
    Rehearing Opinion Filed June 6, 1912.
    (124 Pac. 80.)
    1. CRIMINAL LAW — Delay in Prosecution — -Dismissal. Where . a defendant seeks to secure the dismissal of a prosecution against him, upon the ground that he was not brought to trial at the next term of the court in which the prosecution was triable after it was filed therein, as is provided by sections 7047 and 7048, Comp. Laws 1909, the burden is on the defendant to prove that the trial has not been postponed on his application. When the defendant has made this proof, the burden is then on the state to prove that good cause existed for such postponement.
    2. SAME. Before a prosecution will be dismissed against a defendant because it is not brought to trial within the time prescribed by sections 7047, 7048, Comp. Laws 1909, the defendant must prove that he was ready for and demanded a trial, and objected to a postponement or continuance of the case. If he does not do this, he will be held in law to have waived his right to demand the dismissal of the ease under the provisions of the sections above quoted.
    3. STATUTES — Penal Laws — Duty of Courts. Penal laws are not enacted for the encouragement of crime and the protection of criminals, but they are enacted for the sole and express purpose of punishing and suppressing crime and thereby protecting society; and it is the paramount duty of courts to so construe them as to promote this purpose.
    4. APPEAL AND ERROR — Rehearing—Oral Arugments. Oral arguments on motions for rehearing will not be heard except in eases of the greatest magnitude, or where the court may be in doubt as to the questions involved.
    (Syllabus by the Court.)

      Appeal from Superior Court, Oklahoma County; B. D. Oldfield, Judge.

    I-T. C. Parker was convicted of burglary, and appeals.
    Affirmed.

      Winn & Brill and Prviett & Sniggs, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

The first ground relied upon to secure a reversal of the judgment in this cause is that the court erred in overruling a motion made by appellant to dismiss this prosecution upon the ground that he was not brought to trial at the next term of the court in which said cause was triable after the information was filed against him, and that said cause was not continued on the application of appellant, and that no good cause was shown for such postponement of his case. This motion was based upon the following sections of our statutes (Comp. Laws 1909):

“Sec. 7047. When not brought to trial. — If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment is triable after it is found, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.

“Sec. 7048. Court may order continuance. — If the defendant is not prosecuted or tried, as provided in the last two sections, and sufficient reason therefor is shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody, on his own undertaking or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued.”

In support of this ground, counsel in their brief say:

“In People v. Morino, 85 Cal. 515, 34 Pac. 893, under a sim-ilar statute, the court says: ‘A party charged with a crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important, or to prolong his imprisonment without such trial beyond the time provided bylaw/ It was enough for the defendant to show that the time fixed by statute, after information filed, has expired, and that the case had not been postponed on his application. We cite the following cases holding the same: United States v. Fox, 3 Mont. 513; In re McMicken, 39 Kan. 406, 18 Pac. 473; Walker v. State, 89 Ga. 483, 15 S. E. 553; In re Garvey, 7 Colo. 503, 4 Pac. 758; Ochs v. People, 134 Ill. 399, 16 N. E. 663; In re Begerow, 133 Cal. 349, 65 Pac. 838, 56 L. R. A. 513, 85 Am. St. Rep. 178. In the latter case the petitioner was held under two informations, in the superior court, upon two separate charges for murder. More than 60 days passed without a trial. The delay not being caused by the defendant or with his consent, and there being no reason shown why the cases had not been brought to trial, the prisoner was discharged. The court says: ‘The statute is imperative. The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed. Here no cause for delay was shown. It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without trial, it was for the prosecution to show it. The court could not presume it. ■ There is no presumption in such case, at least in the trial court, that the court has acted regularly, or that good cause in fact exists.’ See, also, State v. Keefe, 17 Wyo. 227, 98 Pac. 122, 22 L. R. A. (N. S.) 896, 17 Ann. Cas. 161.”

We are disposed to accept the statement contained in the brief of counsel, with some additions, as a correct statement of the law. The trouble in this case is that the record does not sustain the position assumed. When this motion was presented to the trial court, appellant did not prove or attempt to prove that the case had not been postponed upon his application or with his consent. Until appellant had done this, it was not necessary for the state to prove that good cause existed for such postponements.

Where a defendant wishes to avail himself of the provisions of our statute above quoted, he must demand a trial and object to a postponement or continuance of the case. If he does not do this, he will be held in law to have waived his right to demand a dismissal of the case on the ground of such postponements. Where he does this, the burden is then on the state to prove that good cause existed for the postponements complained of. The case of McLeod v. Graham, 6 Okla. Cr. 197, is not in point. That was a petition for a writ of mandamus to direct the county court of Kingfisher county to dismiss a prosecution against the applicant. In the petition for the mandamus, it was alleged that the cause against the applicant had been continued over his obj ections and when the applicant was in court ready for and demanding a trial. The cause was submitted upon the demurrer to the petition, and it was expressly admitted that the facts stated in the petition for the mandamus were true. Everything said in that opinion must be considered in the light of the record upon which it was submitted. We still adhere to the views there announced, but an examination of the record in this cause does not bring it within the rule there stated. The court therefore did not err in overruling the motion to dismiss the prosecrrtion against appellant.

Penal laws are not enacted for the encouragement of crime and the protection of criminals, but they are enacted for the sole and express purpose of punishing and suppressing crime and thereby protecting society, and it is the paramount duty of courts to so construe them as to promote this purpose.

An examination of the decisions of this court will show that other questions presented in the brief of counsel for appellant have all been decided against the contentions therein made. It is therefore not necessary to discuss them. Lawyers who practice in this court should keep themselves informed as to the decisions which it makes.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.

On Rehearing.

PER CURIAM.

We appreciate the earnestness and zeal manifested by counsel for appellant, and, if we could spare the time, we would set this motion for a rehearing down for oral argument. The trouble is that, if we hear oral arguments on •motions for rehearing, it would practically double our work, and it would be impossible for us to dispose of the vast volume of business upon our docket. We have therefore been compelled to adopt the rule of only hearing oral arguments on motions for a rehearing in cases of the greatest magnitude, or where the court may be in doubt as to the questions involved. The questions involved in this case have been repeatedly considered by this court. Public interests require the statutes of the state should receive a fixed and stable construction, and that which has been deliberately decided should not be changed, unless clearly shown to be wrong. Such are the many infirmities and imperfections of human nature that it is always possible that witnesses may have sworn falsely or have been mistaken with reference to that to which they have testified, and that juries may have misunderstood the testimony or the instructions of the court or may have arrived at improper conclusions, and that courts, both trial and appellate, may be mistaken in their rulings and decisions. Therefore, if the law required mathematical certainty in judicial proceedings, no verdict and no judgment could stand. It is possible in any given case that a defendant may have been improperly convicted. All that the law could require is that juries and courts should be satisfied to a moral certainty as to their verdicts and judgments. ’

We have given the questions involved in this case our most careful attention, and we can see no reason why a rehearing should be granted. The motion for a rehearing is therefore denied.


text:
    CAESAR A. MORRISON v. STATE.
    No. A-1195.
    Opinion Filed April 25, 1912.
    (123 Pac. 169.)
    3. APPEAL — Objections Waived. It is essential that all points upon which counsel rely for the reversal of a cause be presented to the court in the brief or oral argument, and when not so presented they are waived. It is not enough to. assert in general terms in a brief or oral argument that a ruling of the trial court is wrong. Affair effort must be made to prove that it is wrong, or the point will not be considered as having been made.
    2. SAME — Review. Except in eases of the gravest character, this court will not examine any record for errors not presented by a brief or oral argument other than those which are jurisdictional.
    3. SAME — Petition in Error — Definition. Only those questions are brought up on appeal which are included in the petition in error. A petition in error is a formal written request addressed to the appellate court asking it to review alleged errors which it specifically points out. This court does not try cases de novo. We are only authorized to consider and decide such questions as are presented to us by the petition in error, unless they are jurisdictional.
    4. SAME — Record. An appeal by petition in error is not a continuation of the old case. It is in the nature of a new suit brought to the appellate court to determine the issues stated in the petition in error. The petition in error is the pleading. The transcript of the record or case-made is the proof. They must correspond with each other.
    5. SAME — Review—Petition in Error. Por a petition in error which fails to present the issues argued by counsel, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Muskogee County; R. P. De Graffenreid, Judge.

    Caesar A. Morrison was convicted of embezzlement, and appeals.
    Affirmed.

      W. G. Robertson, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State,
   FURMAN, P. J.

In this case no brief was filed in behalf of appellant, but counsel appeared when the cause was submitted, and made an oral argument in behalf of his client. Only one question was discussed in the oral argument, and that was as to the sufficiency of the information. Where counsel prosecute ■ an appeal, it is their duty to present the questions upon which they rely for a reversal.

Except in cases of the gravest character, this court will not examine the record for errors not presented by brief or oral argument other than those which are jurisdictional. In the case of Price v. State, 5 Okla. Cr. 148, 113 Pac. 1061, will be found an enumeration of the decisions in this state upon this subject.

“It is essential that all points upon which counsel rely for a reversal of a cause be made in the brief, and properly made. If not so made, they are waived. It is not enough to assert in general terms that a ruling of the trial court is wrong. A fair effort must be made to prove that it is wrong, or the point will not be considered as having been made.” (Allison v. Bryan, 26 Okla. 520, 109 Pac. 934, 30 L. R. A. [N. S.], 146, 138 Am. St. Rep. 988.)

In order that justice may be done, this court, where no briefs have been filed, permits counsel to make an oral argument when a case is reached for submission, but in such instances we will only consider those questions discussed in such oral argument and to which the state has been given opportunity to reply. We will therefore confine our investigation and discussion of this case to the sufficiency of the information, as this was the only question presented by counsel for appellant in his oral argument.

In the trial court counsel demurred to the information, which demurrer was by the court overruled and to which an exception was reserved, but we cannot consider this demurrer or the ruling of the court thereon because it is not complained of in the petition in error filed in this court. Only those questions are brought up on appeal which are complained of in the petition in error. See Walker v. State, 6 Okla. Cr. 370, 118 Pac. 1005; State v. Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432; State v. Lee, 65 Conn. 265, 30 Atl. 1110, 27 L. R. A. 498, 48 Am. St. Rep. 202.

Section 6951, Comp. Raws 1909, among other things, provides :

“The plaintiff in error shall file with the petition in error a transcript of the proceedings, containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made, as hereinafter provided, or a copy thereof. The plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record in said court.”

A case-made or transcript of the record, unless accompanied by a petition in error, will not present any question for our determination. A petition in error, unless accompanied by a transcript of the record or case-made, will be equally abortive in securing a decision by this court as to any question contained therein. The office of a petition in error is to bring to the appellate court the questions which the appellant desires to have decided. The office of a transcript of the record or case-made is to present to the court in a properly verified manner the facts upon which the questions incorporated in the petition in error depend.

A petition in error is a formal written request addressed to the appellate court asking it to review the alleged errors which it specifically points out. This court does not try cases de novo. We only consider such questions as are submitted to us by the petition in error. An appeal by petition in error is not a continuation of the old case. It is in the nature of a new suit brought to> the appellate court to determine the issues stated in the petition in error. The petition in error is the pleading. The transcript of the record or case-made is the proof. They must correspond! with each other. We think that the method of taking an appeal might be greatly simplified, but this court is not a forum for legislation, and must follow the rules of practice prescribed by the lawmaking power.

The petition in error in this case is as follows:

“Now comes Caesar A. Morrison, plaintiff in error, and says: That he was tried in the district court of Muskogee counnstate of Oklahoma, on a charge of embezzlement, and on March 4,1911, sentenced to serve a term in the penitentiary of two years from that date. That in the proceedings prior to and in the verdict and judgment of the court certain errors prejudicial to plaintiff in error were admitted, which errors are assigned herewith as follows, to wit:

“First. Because the court erred in admitting incompetent and irrelevant evidence on the part of the state over the objection of the defendant, to which ruling of the court the defendant at the time excepted.

“Second. Because the court erred in admitting evidence on the part of the state, to wit, the purported report which the state claimed had been filed by the defendant in the probate court of Muskogee county, showing the administration of the estate by defendantant as guardian from the --day of-, 1903, to the 28th day of December, 1908.

“Third. Because the court erred in permitting the state to read as evidence on the part of the state in this cause certain typewritten paragraphs in a book, claimed to be the record of the county court of Muskogee county, and did not require the state to introduce said record, nor was the same introduced by the state, ¡but to certain paragraphs written in said book that was not authenticated: or signed by the judge of the county court, or verified by the clerk of said court, to the introduction of which the defendant at the time objected, which objection was by the court '¡overruled, to which the defendant at the time excepted.

■ “Fourth. Because the court erred in permitting the state to prosecute said cause to a final hearing without reading to the jury the information in said cause.

“Fifth. Because the court erred in overruling the defendant’s motion at the close of the evidence on part of the state for 'peremptory instructions to the jury directing them to return a ; verdict of not guilty, to which ruling of the court the defendant at 'the time excepted.

; , “Sixth. Because the court erred in giving instruction No. 2 ■ asked on the part of the state, which instruction is copied in the case-made, to the giving of which the defendant at the time excepted.

“Seventh. Because the court erred in giving instruction No. 3 asked for on the part of the state (see instruction in record of the case-made), to the giving of which the defendant at the time excepted.

“Eighth. Because the court erred in giving instruction No. 4, copied in case-made, to the giving of which the defendant at the time excepted.

“Ninth. Because the court erred in refusing instruction No.

7 on the part of the defendant, which instruction is copied in the record of the case-made in this cause, to which ruling of the court in refusing said instruction No. 7 the defendant then and there at the time duty excepted.

. “Tenth. Because the court erred in refusing instruction No.

8 asked on the part of the defendant, which instruction is copied in the record of the case-made, the refusal of which the defendant at the time excepted.

“Eleventh. Because the court erred in furnishing the jury with the form of verdict of guilty, and no form for the jury to sign did they find the defendant innocent.

“Twelfth. Because the verdict of the jury is not supported by the evidence on the part of the state in this cause.

“Thirteenth. Because.the court erred in refusing to give an instruction to the jury defining the punishment for the crime .of embezzlement.

“Fourteenth. Because the verdict of the jury is contrary to the law and the evidence.

“Wherefore, plaintiff in error asks that a writ of error be issued to the district court of Muskogee county, state of Oklahoma, that the errors complained of herein may be corrected, and the case be reversed. A copy of the case-made is attached hereto •and made a part of this petition in error.”

An inspection of the petition in error fails to show that the sufficiency of the information is brought up for our consideration. We therefore cannot consider the argument made by counsel for appellant because the question discussed is not before us. All that we can do is to inspect the record and see whether or not it contains any jurisdictional defects. In substance and effect the information charged that on the-day of December, 1907, the appellant was then and there the duly and legally appointed guardian of the person and estate of Joseph E. Morrison, a minor, and that as such guardian appellant had in his possession large sums of money, the property of his said ward for the use of his ward; that appellant did on said date fraudulently, unlawfully, feloniously, and willfully and with intent so to do take, steal, embezzle, and appropriate the sum of $1,050, the property of his said ward, to his own use and purpose; and that this was not done in the due and lawful execution of his trust, but was done with the intention of depriving his said ward of the 'same. Section 2612, Comp. Laws 1909, is as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

We think that the information charges facts which bring the case clearly within the provision of the statute above quoted. The evidence amply sustains the verdict of the jury. The instructions of the court are correct, and the judgment in the case is regular. We believe the prosecution has been legally con-r ducted, and the appellant has been justly convicted. We also feel that the laws for the protection of wards and widows cannot be too strictly enforced. This is a duty which the courts owe to the dead as well as to helpless widows and orphans. The only thing about this case of which we do not approve is that the jury did not assess the punishment of appellant at a longer period of confinement in the penitentiary. If every man in Oklahoma who embezzles trust funds was sent to the penitentiary for the limit of the law, it would be one of the best things that could happen for the state.

The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ„ concur.


text:
    ROBERT WATSON v. STATE.
    No. A-1184.
    Opinion Filed April 25, 1912.
    (123 Pac. 189.)
    APPEAL — Transcript—Certification. Where an attempt is made to take an appeal to this court by filing a transcript of the record, such transcript must be certified to by the clerk of the court from which it is taken, under the seal of the court. Unless this is done, the appeal will be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, McIntosh County;

      Preslie B. Cole, Judge.

    Robert Watson was convicted of assault with intent to kill, and appeals.
    Dismissed.
    /. G. Harley and James R. Miller, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

Appellant attempted to appeal by filing what purports to be a transcript of the record in this court. This transcript is not certified to by the clerk of the court, as the law requires. See Makatch v. State, 5 Okla. Cr. 34, 113 Pac. 200; Perkey v. State, 4 Okla. Cr. 239, 111 Pac. 663.

Where an appeal is attempted to be taken by transcript of the record, the clerk of the court must certify, under the seal of the court, that such transcript contains a true and correct statement of the record in said cause. See Abel v. Blair, 3 Okla. 402, 41 Pac. 342. The clerk is the custodian of the record, and he must certify to the truthfulness of the statements contained in such transcript, as the same appears on file and of record in his office. See Wade et at. v. Mitchell, 14 Okla. 170, 79 Pac. 95. There is no such certificate in this record; and the appeal must therefore be dismissed.

ARMSTRONG and DOYLE, JJ., concur.


author: ARMSTRONG,' J. PER CURIAM.

text:
    ROBERT WILLIAMS v. STATE.
    No. A-762.
    Opinion Filed April 27, 1912.
    (123 Pac. 190.)
    Rehearing Opinion Filed September 14, 1912.
    1. APPEAL — Writ of Error — Record. When a case-made is not served on the county attorney within the time provided by law, and upon appeal the case-made is held void and stricken on motion of the Attorney General, and the clerk of the district court has not certified the transcript under the seal of the court, the record cannot be considered as a transcript upon the certificate of the judge of the district court who tried the ease, attested by the clerk.
    2.' SAME — Transcript. The transcript, under the law, must be certified by the clerk of the court, who has the custody and keeping of the records and proceedings from which such transcript is taken.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; S. H. Russell, Judge pro tern.

    Robert Williams was convicted of manslaughter, and appeals.
    Affirmed.

      Blanton & Andrezvs and Carr & Field, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG,' J.

The plaintiff in error, Robert Williams, was tried at the May, 1909, term of the district court of Garvin county on an indictment charging him with the murder of Terry Jam'es, and was convicted of manslaughter and sentenced to imprisonment in the state penitentiary for a period of ten years.

•Counsel attempted to perfect the appeal in this cause by case-made; but, on motion of the Attorney General, the case-made was .stricken, upon the ground that it was not served on the county attorney within the time provided by law. On a careful investigation of the record as presented, we find that there is no transcript certified by the clerk of the district court of Garvin county.

In the case of Abel v. Blair, 3 Okla. 399, 41 Pac. 342, the Supreme Court of Oklahoma Territory, in an opinion by Mr. Justice Bierer, laid down the rule that:

“* * * Where a case-made has been held void, because it was not served iri time, and where the clerk of a district court has not certified that the copies of the pleadings, findings, and conclusions of the court, as contained in the'case-made, are true and correct copies of the same, as shown by the records of the district court, such record cannot be considered as a transcript of the record of the court, below upon the certificate of the judge of the district court, attested by the clerk, that the pleadings, orders, and process are true and correct copies of the originals.”

The record in the case under consideration comes clearly within this rule. In the case of A. E. Perkey v. State, 4 Okla. Cr. 239, 111 Pac. 663, this court followed the rule laid down by the Supreme Court of Oklahoma Territory in Abel v. Blair, supra, and reaffirmed the doctrine in Makatch v. State, 5 Okla. Cr. 34, 113 Pac. 200, and again in Watson v. State, ante, 123 Pac. 189. The doctrine of these cases concludes the right of the plaintiff in error in this case to have the assignments, as set out in his petition in error, reviewed in this court. We have no alternative, except to dismiss the appeal.

The appeal is dismissed, with direction to the district court of Garvin county to enforce the judgment and sentence.

FURMAN, P. J., and DOYLE, J., concur.

On Rehearing.

PER CURIAM.

An opinion was filed in this case on the 37th day of April, 1913, dismissing the appeal. Upon motion to reinstate it is made to appear that proper certificate of the clerk is attached to the transcript, and this being the ground upon which the appeal was dismissed the cause is therefore reinstated.

This appeal stands upon the transcript. AYe carefully went over the transcript before the appeal was dismissed, and have considered it again since, and are unable to say that the accused was deprived of any substantial right on the trial. The transcript is very unsatisfactory, and the clerk of the district court of Garvin county appears to have been recklessly careless in keeping proper minutes of the proceedings. The principle ground upon which a reversal is urged is that the minutes do not affirmatively show the presence of the accused at- all stages of the trial.

There was no question of this kind raised in the trial court. The case-made, which was stricken, has been carefully read and it discloses no such objection. The minutes do show the presence of the accused when the trial began. Judgment was pronounced after the trial was concluded, exceptions reserved, and time asked within which to take an appeal. AVe are satisfied that able counsel would have raised this question in the trial court if the facts, had warranted. Eor a further discussion of this question see Woods v. State, 4 Okla. Cr. 436.

The other errors complained of involve instructions of the court, which have been carefully examined by the members of this court, and we find nothing therein prejudicial to the substantial rights of the accused.

The judgment of the trial court is affirmed.