author: FURMAN, PRESIDING Judge,

text:
    Charley Fletcher v. State.
    No. A-54.
    Opinion Filed April 24, 1909.
    (101 Pac. 599.)
    1. INTOXICATING LIQUORS — Illegal Sale — Information. Weston v. Territory, l Okla. (_r. 407, 98 Pac. 3<50, reaffirmed, and the principles there announced declared to be the settled policy of this court.
    2. INDICTMENT AND INFORMATION — Statutory Offense — Language of Statute. In an indictment or information for committing a statutory offense, the indictment or information may describe the offense in the general language of the statute; but the description must be accompanied by a statement of the particulars essential to constitute the crime o-r offense with which the defendant is charged, and acquaint the accused with what he must meet upon the trial.
    3. INTOXICATING LIQUORS — lllegpl Sale — Indictment or Infor- ■ mation — Alleging Name of Purchaser. An indictment or information for a single sale of intoxicating liquors must allege the name of the person or persons to whom such sale was made. If the names of such persons' are unknown, then this fact must be stated. This, however, would not be necessary where the prosecution was for maintaining a nuisance, or for having possession of liquor to be illegally disposed of.
    4. INSTRUCTIONS — Credibility of Accused. It is error for a trial judge to single out the defendant, personally, and instruct the jury upon the credibility of his evidence.
    5. SAME — Credibility of Witnesses. Care should be taken, In Instructing juries upon the credibility of witnesses, to make such instructions apply alike to all of the witnesses, whether they are for the prosecution or for the defense.
    (Syllabus by the Court.)

      Appeal from Muskogee Cotinty Court; W. C. Jackson, Judge.

    Charley Fletcher was convicted of an illegal sale of liquors, and appeals.
    Beversed and remanded.
    On the 19th of June, 1908, an information was filed against Charley Fletcher (hereinafter called the defendant) charging him with unlawfully selling intoxicating liquor. The defeudant demurred to the information upon the ground- that it did not state facts sufficient to constitute a public offense. This demurrer was 'by the court overruled, and the defendant reserved an exception. Upon the trial of the cause the defendant was found guilty, and his punishment was assessed by the jury at a fine of $50 and 30 days’ confinement in jail. Motions for a new trial and in arrest of judgment were filed and overruled, and the defendant excepted. The ease is regularly before us upon appeal.

      8. M. Rutherford and Bailey & Kistler, for appellant.—
    On necessity of alleging name of purchaser of liquor: Weston v. Territory, 1 Okla. Or. 407, 98 Pac. 360; Bishop ou Statutory Crimes, § 1037; Bush v. Republic, 1 Tex. 459; Burch n. Republic, 1 Tex. 610; Dixon v. State (Tex. App.) 1 S. W. 450;
      Martin v. State, 46 N. W. 618; State v. Stamey, 71 N. C. 202; State v. Allen, 32 Iowa, 493; Alexander v. State, 29 Tex. 497; State v. Pischel (Neb.) 2 N. W. 468; Wilson v. Com,., 14 Bush (Ky.) 159; Com. v. Blood, 4 Gray (Mass.) 32.
    On question of instructing on credibility of particular witness: 2 Thompson on Trial, § 2421; Calef v. Thomas, 81 Ill. 483; McMinn v. Wheelan, 27 C'al. 319.

      Fred S. Caldwell, for the State.—
    On necessity of alleging in indictment name of purchaser of liquor: The opinion of the court enumerates authorities cited.
    On instructing jury relative to credibility of particular witness: State v. Hartley, 22 Nev. 342'; Spies ei al. v. People,, 122 Ill. 79; Anderson v. State, 104 Ind. 467; Bressler v. People, 117 111. 441.
   FURMAN, PRESIDING Judge,

(after-stating the facts as above). The first question that presents itself is the sufficiency •of the information, in that it fails to give the name of the person to whom the liquor was sold. In the case of Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360, this court held that in such cases the information must give the name of the person to whom the sale was made, so that the defendant may know the particular offense charged, and thereby be enabled to prepare his defense. As no one appeared for the state in that case, the counsel for the state in this case has filed a brief in which he claims that the great weight of the authorities are against the conclusion which this court reached in the Weston Case, and we are asked to recede from the opinion there rendered. This court is not only perfectly willing, .but is anxious, to correct any errors whielj it may commit, so we have carefully gone over all the authorities cited by counsel for the state, as well as others of our own selection. We have classified these authorities as follows.:

In the cases of People v. Adams, 17 Wend. (N. Y.) 475, and of State v. Ladd, 15 Mo. 299, and of State v. Gummer, 22 Wis. 441, the defendants were charged with selling liquors to divers unknown persons. It is a fundamental rule of criminal ]aw that in all eases where the name of a person should be given in an indictment, and the name is unknown, it may be stated in the indictment that such name is unknown, and this will dispense with the necessity of giving the name of such persons -in 'the indictment; otherwise it would be impossible to indict and convict for many crimes.

All exceptions to the general rules of law which are sanctioned and approved by the wisdom and experience of centuries must be strictly followed, or the rules will cease to exist, and we will be involved in confusion and inextricable conflicts as to matters of principle. Under the rule that where a necessary name is unknown that fact may be stated, the indictments in the above-cited cases were sufficient, and the decisions should not be considered. as authorities that it is not necessary to include in an indictment or information the names of the parties to whom the liquor was sold. The decisions of courts are not binding as to questions not involved in the cases passed upon. Anything said by a judge in an opinion not responsive to the real questions before the court is purely obiter dictum and does not constitute an authority. The case of Walker v. State, 89 Ga. 482, 15 S. E. 553, is cited as an authority to support the contention of the attorney for the state. An examination will show the name of the case, the syllabus of an opinion, a statement of the facts of the case, and the names of the counsel who represented the contending parties; but there is no judgment of the Supreme Court, no authorities are cited, and no reasons are given. There is nothing except the bald,' unsupported statement contained in the syllabus. We are left utterly in the dark as to the grounds upon which this syllabus rests. This may be an authority in Georgia, but we cannot recognize it as such in Oklahoma. Before we can recognize the decision of any court as authority, we must know and approve the reasons rrpon which it rests.

The cases of State v. Whisner, 35 Kan. 271, 10 Pac. 852, and of State v. Moseli, 49 Kan. 142, 30 Pac. 189. are also cited by counsel for the state as authorities in point. In the first-cited case, on page 275 of 35 Kan., page 855 of 10 Pac., the court said:

“In prosecutions of this character, it is not necessary to state the land of liquor sold, or the name of the person to whom sold, for the statute expressly and specifically provides that these things need not be stated.”

So we see that the omission to state in the indictment the person to whom the liquors were sold was the result of a special statute in Kansas. We have no such statute in Oklahoma. Hence those cases are not applicable.

Counsel cite five decisions from the Supreme Court of Arkansas. An examination of the first Arkansas case cited (State v. Parnell, 16 Ark. 506, 63 Am. Dec. 72) will disclose the fact that in a great number of cases the Supreme Court had held that in indictments for gambling it was necessary to state the names of the persons by whqm the game ivas played, as matters of description of the offense, and that the proof must correspond with this allegation. The Legislature of Arkansas passed a law which dispensed with the necessity of making the allegation in the indictment of the names of the persons who engaged in card playing. Upon analogy the Supreme -Court of Arkansas held that this statute was applicable to indictments for selling whisky. We have no such statute in Oklahoma. Therefore the decisions of the Arkansas coulrts are not authorities on this point.

Counsel cites the case of State v. Chisnell, 36 W. Va. 659, 15 S. E. 412, as sustaining his contention. On page 662 of 36 W. Va., page 412 of 15 S. E., that court said:

“The indictment not naming the purchaser gives the defendant no notice of what particular sale is charged against him. .He knows this, perhaps, first when the state has proven its case,- and then must set about his defense. * * * This would be very oppressive and hurtful to the defendant. Not until the close of the state’s evidence of the sales, in many instances numerous, does he know what sales are imputed to him, and he must at once seek evidence from this quarter and that to repel the case made by the prosecution, and often, for want of time, it is utterly out of his power' to furnish- such evidence. It is hard enough to allow an indictment wanting that element of certainty most valuable to the defendant as notice of what sale he is called upon to meet, without springing upon him numerous sales, and working serious surprise to the defendant.
"There is also this grave objection to permitting evidence of several sales to be considered by the jury: Part of the jury may think the evidence of one sale sufficient for conviction, while other jurors think it not sufficient, but thinking another sale fully proven the entire jury unite in the opinion that the defendant is at any rate guilty of a violation of law when in fact the entire jury is not agreed that the defendant is guilty of one .particular unlawful sale; and so really the defendant has not been lawfully convicted by the concurring judgment of twelve jurors of one and the same single offense. He has been indicted for one offense, tried for many, and convicted of one, but of which one of the many we cannot say. True, we can hardly presume that the jury would be so careless as to return a verdict without the agreement of all upon the same sale; but it is a danger which would exist under such a practice. * * *
“Wharton, in 2 Crim. Law. § 1525, speaking of illicit sales of liquors, says: Tfc is erroneous to admit evidence of a greater number of offenses than there are counts, unless to prove scienter or quo animo. * * * ’
“Were it an open question in this state, I should think that the principles of pleading would require that most important feature of the indictment by which to make certain the offense charged, the name of the purchaser, to be given. The reason given for a departure, in this instance, from the usual rule, requiring the act to be specified with legal certainty, is that selling liquors is different from that class of offenses where the act is an injury to third persons, as murder, larceny, etc., in which the name of the person injured must be given, when known, but that in liquor selling no particular person is injured. I conceive, however, that this distinction is immaterial or unimportant, and that it is really a question touching the essential right of the defendant in the “prosecution' — his right to be informed by the indictment of the particular sale alleged to be unlawful. * * *
“This indictment is for but one offense, but one. penalty can be imposed under it. Why should the omission of the name of the purchaser make it an exception to the general rule that under an indictment of one count but one offense can be proven, and the rule that, where several offenses have been offered in evidence, the prosecution must elect the particular one on which it will rely? It is argued that it would be illogical to require the indictment to contain several similar counts, only to prove more than one offense. The answer is based on old rules of evidence that where there is but one count, but one offense can be proven; where there are several counts, several offenses may be proven. These rules are fundamental and established; they are unchanged. See Lebkovitz v. State, 113 Ind. 27, 14 N. E. 363, 597.”

We indorse the reasoning of this case, but we do not indorse the action of the court in considering itself bound by precedents which its judgment 'condemned. We decline to follow an}-- precedents which are not founded upon justice and supported by reason. It is the earnest desire and sole purpose of this court- to give to Oklahoma a system of criminal jurisprudence unhampered by ill-considered precedents and free from arbitrary senseless technicalities. We will be guided alone by the justice of those de^ cisions which we adopt and follow. Reason alone will govern our conduct, it matters not how many decisions may be cited to the contrary. In this way only can we faithfully discharge the laborious and important duties of the position which we occupy, and protect the rights of all classes of our people. We cannot, without doing great violence to our consciences^ make gny distinctions as to persons and classes. We cannot have one rule for one class of cases and another rule for other classes of cases. The same rules must be applicable to all; the same justice and consideration is the right of all. The more prejudice that may exist against a person charged with crime, the greater the necessity for the strict enforcement by the courts of those rules which experience and reason show to be necessary to the protection of the liberties and rights of the people. It is the sworn duty of this court to see that the law is enforced in Oklahoma without distinction as to persons or classes, and we are going to discharge this duty to the best of our ability, let it please or shake whomsoever it may.

Counsel for the state cite: State v. Miller, 24 Mo. 532; State v. Spain, 29 Mo. 415; State v. Fanning, 38 Mo. 359; State v. Rogers, 39 Mo. 432; State v. Jacques, 68 Mo. 260. These cases are all based upon the ease of State v. Ladd, 15 Mo. 299. An examination of Ladd’s 'Case will disclose that the question which we are now considering was not raised by the counsel in that case. The exact language of the Supreme 'Court, on page 300, is as follows:

“I will first consider the indictment. It charges that the defendant sold intoxicating liquors in a quantity less than a quart, to wit, one pint of whisky, one pint of gin, etc., to divers persons to the jurors unknown, without any license, etc. The only objection made to it rests on the omission to state the price for which the liquor was sold.”

If this was the only objection made to the indictment, then this was the only question rightfully before the court, and anything stated by the judge who wrote the opinion with reference to matters not presented is purely obiter dictum, and is not in any sense of the word binding as an authority. The decision of the court that it is not necessary to state the price paid for such liquors is correct. The price of liquor sold or given away in no manner affects the crime committed, either as to identity, degree, or punishment, and therefore need not be alleged; but there can be no sale or gift of liquor without a purchaser or receiver. Therefore the existence of such purchaser or receiver is a constituent element of the offense, and the name of such person must be given to describe the offense with which the party is charged. Again, the indictment in this ease was good because it stated that the names of the persons to whom the sale was made were unknown. This is always permissible, and would be good in any kind of indictment. The subsequent Missouri cases cited by counsel for the state are all based upon an obiter dictum of the judge who wrote the opinion in the Ladd Case. As they all rest upon the same foundation, when it is shown that this foundation is unsound, we cannot consider these cases as authorities in point.

Counsel cite Cannady v. People, 17 Ill. 158, and Rice v. Peo ple, 38 Ill. 435. In Cannady v. People is cited Commonwealth v. Odlin, 23 Pick. (Mass.) 277. The court says:

“In Massachusetts statutes there are two offenses defined, and different. penalties imposed. One against common sellers, or retailers, and the other against persons guilty of a single act, without a license. Where the indictment charged the latter offense, the court held it necessary to charge the time, place, and to a person named, or that the name was unknown. Commonwealth v. Thurlow, 24 Pick. (Mass.) 379. But in an indictment against a common seller, etc., it was unnecessary to name the person.-”

We are at a loss to know why this citation was niade. It is directly in conflict with the decision which it claims to be founded upon. We agree fully • with what the Massachusetts court says on thiis subject. It is worthy of note that C'annady’s Case was decided by á divided court. This further weakens its force as an authority. Also in Cannady’s Case, the indictment alleged that the sale was made to persons whose names were unknown. This destroys the force of the decision because the judge who rendered it went outside of the question submitted to him for decision'. In the Eice Case the decision is based alone upon the Cannady Case. We cannot recognize such ill-considered cases as these.

Counsel cite State v. Heldt, 41 Tex. 220. This does not support the contention of counsel because the indictment expressly charges that the liquors were sold to persons to the grand jury unknown. Equally unfortunate for the- contention of counsel is the citation of Mansfield v. State, 17 Tex. App. 468. On page 470, the court said:

ftThe other cases cited by appellant’s counsel in his brief, viz., Burch v. The Republic, 1 Tex. 608, and Alexander v. State, 29 Tex. 495, were cases arising under statutes regulating the sale of intoxicating liquors, and cannot, we think, be held applicable to the article of the Penal Code under which this indictment was framed, which article creates and describes a very different offense; that is, pursuing any occupation, etc., taxed by law, without first obtaining a license therefor. It is not the sale of intoxicating liquors that constitutes the offense denounced by said article, but it is the act of pursuing a taxable occupation without obtaining a license therefor. We think the indictment sufficiently alleges this offense, and that the exceptions to the same were properly overruled.”

As neither of these cases in any wise touches upon the question now before us, we are at a loss to understand why they are cited.

State v. Doyle, 15 R. I. 527, 9 Atl. 900, is also relied upon by counsel for the state. That was not a case for selling liquors, but was a ease for maintaining a nuisance. We commend this ease as being a correct statement of the law upon the subject of nuisances. It would be well for the county attorneys to follow this case in such prosecutions in this state. We give it our hearty commendation.

State v. Jordan, 39 Iowa, 387, iis also cited by counsel. The charge in this case is also for maintaining a nuisance. We approve the decision in this ease also, except that the indictment would not be good in Oklahoma, because it does not conclude as our Constitution directs. The indictment is as follows:

“The grand jury of the county of Wapello, in the name and by the authority of the state of Iowa, accuse Kinsey Jordan of the crime of nuisance, committed as follows: The said defendant in the state of Iowa, on the 1st day of May, A. D. 1873, in the county aforesaid, did then and there keep a certain house in which he then and there kept for sale and sold intoxicating liquors.” . ■

In this case the offense was for keeping intoxicating liquors for sale. It was immaterial as to whether any sales were made. Therefore the words “and sold” were surplusage, and need not be proven.

United States v. Warwick (S. C.) 51 Fed. 280, is cited. This is only the individual opinion of the congressional district judge of Alaska, and is altogether unsupported by any line of reasoning. 2STo lawyer will contend that it should be treated as an authority.

Jordan v. State, 22 Fla. 529, and Dansey v. State, 23 Fla. 317, 2 South. 692, are cited by counsel for the state. In both these cases the defendants were indicted for pursuing the occupation of selling intoxicating liquors without a license. It is one offense to pursue an occupation,, and it is- another offense to do a single act. As to the first offense, some courts do contend that iit is not necessary to allege the names of the persons to whom sales are made. This position can be defended with some show of reason. The offense As complete when a person professes and holds himself out to the public as being engaged in such an occupation. If a person has in his possession such liquors and offers them for sale, it is not necessary for a single sale to be made or proven; but these reasons do not apply to cases charging a single sale.

State of Iowa v. Becker, 20 Iowa, 439, is also cited by counsel. The indictment charges that the defendant in a certain building kept intoxicating liquors for sale and did sell them. The offense charged was for keeping such liquors for sale, and it was therefore not necessary to allege to whom they were sold, neither was it necessary to allege or prove anjr sale. The words “and did sell” were surplusage. Such evidence would be admissible to prove the main fact, viz., that the liquors were kept for sale. This intention might also be proven by other evidence. This i.s the substance of the decision relied upon.

Counsel also cite State v. Kuhn, 24 La. Ann. 474, and State v. Brown, 41 La. Ann. 771, 6 South. 638. These indictments were for retailing spirituous liquors without having first obtained a license. They were for pursuing an unlawful occupation, and not for a single offense. They are therefore not in point.

State v. Bielby, 21 Wis. 206, is cited. This indictment is for trafficking in and giving away spirituous liquors without having first obtained a license therefor. Here the occupation of the defendant is the subject of the indictment and not any particular sale.

With one exception, so far as we have been able to find, the cases cited by counsel for the state are in tire condition of those above discussed.

The case cited which, upon its face, supports the contention of counsel, is State v. Farrell, 30 W. Va. 683, 5 S. E. 155. The court said:

“The indictment, omitting _the caption, is in these words: ‘Tlie grand jurors- oí the státe of West Virginia, in and for the body of the county of Kitchie, and now attending such court, upon their oaths present that Patrick Ferrell, on the -■ day of June, 1881?, in the said county, was a druggist, and as such druggist, at his drug store in the town of Pennsboro, in the county aforesaid, did then and there unlawfully sell alcohol, spirituous liquors and wines, said sale not having been made for medicinal, mechanical or scientific purposes, against the peace and dignity of the state.5 55

This was not an indictment for pursuing an occupation without license, but for a special sale. The court did sustain the indictment, although it failed to allege the name of the person to whom the liquor was sold. In its opinion the court said:

“So far from' this rule operating with peculiar hardship upon the licensed druggist while engaged in legitimate business, the duties imposed upon him by the statute which confers his peculiar privilege on him, if faithfully performed, secure to him perfect immunity against every groundless prosecution. As a druggist, he has no authority whatever to sell alcohol, spirituous liquors, or wines as a medicine, except the sale be .made upon the written' prescription of a practicing physician in good standing in his profession, etc., specifying the name of the person, and the kind and quantity of the liquors to be furnished to hiim, and not ‘more than one sale shall be made upon the same prescription.5 And the production of such prescription by him at the trial of an indictment against him' for the sale of alcohol, spirituous liquor, or wines shall be sufficient to rebut the presumption arising from the proof of such sale, if the jury believes from all the evidence in the ease, that the sale was made in good faith, under the belief that such prescription and statement were true.55

How could a druggist know what prescription to produce in his defense unless the name of the purchaser is stated in the indictment? The defendant may live at a point distant from the place of trial. After the state has proven the sale to a certain person, would the court stop and allow the defendant to send for his. prescriptions? Suppose that the defendant brings all of the prescriptions which he has filled within the time in which the indictment would not be barred by the statute of limitations, must the court stop and be delayed while the defendant is looking for the prescription? But the evidence might disclose a sale not on a prescription, but one made ior sacramental, scientific, or mechanical purposes. What good would the prescriptions do the defendant then ? The defendant, not knowing what particular sale he is charged with having made, has been wholly unable to prepare hie defense. Will the court stop and wait until the defendant can go out and gather up his witnesses? This line of reasoning does not apply to conditions existing in Oklahoma, because all sales are unlawful here, just as all acts of larceny are unlawful. But who will contend that in a case of larceny the name of the person from whom the theft was committed need not .be given in the information ?

Counsel in his oral argument before the court earnestly insisted upon three propositions .to sustain his contention that it is not necessary to state in an information or indictment for the single sale of intoxicating liquor the name of the person or persons to whom such sale was made, viz.: (1) That if an information 'or indictment follows and uses the language of the. statute creating the offense, it is sufficient. (2) That the date upon which the sale is alleged to have been made sufficiently iinforms a defendant of the particular offense with which he is charged. (3) That a different rule of pleading applies to those offenses which violate the personal rights of other individuals from those offenses which do not violate the personal rights of others. Counsel admitted that in the first class of cases it was necessary to give the name of the individuals whose personal rights were violated, but insisted that, as to cases where no personal wrong was done to others, this rule, upon principle, would not apply. We will now proceed to consider each of these propositions in the order named.

First. It is a general rule of law that if an indictment uses the words of a statute, or words of equal import, to this extent the indictment or information is good. But' suppose that an indictment or information for murder, or for an assault, or for larceny, perjury, libel, embezzlement, or for any offense, would simply use tlie language of the statute, who is bold enough' to assert that this is all that the law requires, ancl that such an indictment- or information would be sufficient to charge any offense? We dislike to differ from the eminent counsel for the state, but we at least have respectable authority behind us:

“In an indictment for committing an offense against a statute, the offense may be described in the general language of the act, but the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime and to acquaint the accused with what he must meet on trial.” (United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516.)

Second. The position that the date of the alleged offense charged in the information or indictment is sufficient to put the defendant upon notice of the particular offense -which he is required to meet is equally untenable. Every lawyer knows that time is not the essence of the offense, and only becomes material in connection with the statute of limitations. The state is not bound by the alleged date of the commission of an offense, except that the offense charged must have been committed prior to the filing of the information or indictment, and that any date prior thereto may be proven within the date of the limitations prescribed by statute for the given offense alleged in the indictment or information. It is a travesty upon reason to say that the alleged date of an offense gives the defendant the least notice of “all the particulars essential to constitute the offense or crime and acquaints the accused with what he must meet upon trial.” It must be remembered that the Supreme Court of the United States is the highest court of the land. This is the language of that court, which is the most illustrious judicial tribunal on earth, in the case just quoted from, and we are content to accept its conclusions, it matters not how severely they may be criticised- or bitterly denounced by the eminent counsel for the state. The rule thus established is not an arbitrary, senseless, technicality; but is absolutely necessary to the substantial rights of a defendant, and is based upon justice and supported by the soundest reasons.

Third. The contention that different rules of pleading exist as between those offenses which involve an invasion of the personal rights of other persons than the defendant, and those which simply constitute a public offense, is equally unsound. One illustration will demonstrate this to an absolute certainty. If A. is indicted for having suborned a witness to commit perjury in his behalf, in a case against A. for selling whisky, whose personal rights have been invaded ? Who will assert that it .is not necessary to allege in an indictment for such an offense the name of the witness so suborned, or the substance of such false evidence, or the allegation that it was material to the issues involved?

Again, the contention made is squarely against two provisions in the Bill of Rights of our Constitution:

“Sec. 16. Due Process of Law. Sec. 7. No person shall be deprived of life, liberty, or property without due process of law.” (Section 16, Bunn’s Constitution of Oklahoma.)

No one will deny that due process of law includes notice of the specific offense charged, and reasonable time iin which to prepare to make a defense. Who will contend that this has been done, when the indictment or information does not contain a statement of all the particulars essential to constitute the offense or crime? How can there be a sale or a gift without a purchaser or receiver? Are they not necessaiy constituent elements of the crime? How can it be said that a defendant has been given reasonable time in which to prepare his defense, when, after the state has introduced its evidence, he learns for the first time the particulars essential ^to constitute the crime?

But again:

“Sec. 29. Criminal Prosecutions; Change of Venue; to be Confronted with Witnesses. Sec. 20. In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him, and have a cop}1, thereof, and be confronted with the witnesses against him, and liave compulsory process for obtaining witnesses in his behalf. lie shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together wiith their postoffice addresses.” (Section 29, Bunn’s Constitution of Oklahoma.)

If an indictment dr information does not state the nature and cause of the accusation against the defendant, it is fatally defective. This means substantially the same thing as due process of law. Even iif this were an open question, we would be bound by these constitutional provisions.

“In criminal cases the accused has the constitutional right To be informed of the nature and cause of the accusation.’ Amendment to Const. IJ. S. art.. 6, §§134-168. The indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the crime is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that the indictment must furnish the accused with such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and also to inform the court of the facts alleged so that’ it may decide whether they are sufficient in law to support a conviction if one should be had. For these facts are to be stated and set forth in the indictment with reasonable particularity of time, place, and circumstances. United States v. Cruikshank et al., 92 U. S. 542, 23 L. Ed. 588; Cooley’s Const. Lim. 374; Wharton’s Crim. Plead. & Prac. 153.” (Slover v. Territory of Oklahoma, 5 Okla. 509, 49 Pac. 1009.)

Again: Section 5358, Wilson’s Oklahoma Statutes, is as follows:

“Sec. 5358. The indictment must be direct and certain as it. regards,: First. The party charged. Second. The offense charged. Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

' Here is a mandatory provision of our statutes which forces this court to hold all indictments fatally defective which fail to give the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. The language of the statute is that as to these matters the indictment must be direct and certain. As we have hereinbefore said, there can be no sale without a purchaser, and no gift without a receiver. A sale or a gift necessarily implies the existence of two or more persons-; neither can be accomplished except under these conditions. The mere statement of this proposition amounts to its demonstration to a mathematical certainty. Therefore the existence of such purchaser or receiver is a constituent element of the offense, and his or her name must be alleged in the information or indictment, if known; if not known, that fact must be alleged.

This matter has been before passed upon by this court in Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360. We there held that an indictment for a single gift was fatally defective because it omitted to- allege the name of the parties to whom the intoxicating liquors were given. At the earnest request of the -counsel who represents the state in this case we have gone over this question again more fully. The result of this investigation has only strengthened our confidence in the views there expressed. We could quote from (not simply cite) well-reasoned cases enough to fill a volume, sustaining the conclusion at which we arrived in the Weston Case; but, as we are entirely satisfied with the reasoning in the Weston Case, and the authorities there quoted from, and as we have an overwhelming amount of work on our hands, we will' content ourselves with only a few additional quotations.

Bishop on Statutory Crimes, § 1037, says:

“Where the wrong consists of specific sales, the most ready add apt way of pointing out and identifying the transaction is to giive the names of the persons to whom the sales were made. And, in the absence of any other adequate identification, such ñames should, in principle, be alleged if known, or the fact of their being unknown should be averred in excuse. Yet there- is a good deal of authority, more in the older cases than in the later ones, to the proposition that the names are not essential. On the other hand, iit has been even held that a statute dispensing with this allegation is unconstitutional and void;-and, in one way or another, ’the doctrine which requires the name, or the averred excuse for its omission, is widely maintained. Where the charge is being a common seller, no names of persons to whom sales are made need be set out, for, in this offense, not even instances of sale aré required to be averred.”

In the case of Bush v. Republic of Texas, 1 Tex. 459, will be found the following language:

“It is a general rule that The indictment must state all the circumstances which constitute the definition of the offense in the act, so as -to bring the defendant precisely within it/ ‘It is in every case desirable to attend with the greatest nicety to the words contained in the act, for no others can be so proper to describe the crime/ 1 Chit. C. L. 2S1, 288; 2 Arch. C. L. 47. But if the definition and description embraced in the statute be departed from in any material respect, and any ingredient in- the definition of the offense be omitted, the indictment will be bad. 1 Chit. C. L. 281, 288; 2' Arch. C. L. 47.”

In the case of State v. Pischel, 16 Neb. 608, 21 N. W. 468, the court says:

“It is thought expedient to decide the question suggested without a further hearing, or imposing the expense of printing additional briefs. The first question presented is whether or not it is necessary, in an indictment for selling the prohibited liquors, to allege the name of the person to whom the liquors were sold. To this question we answer, ‘Yes/ The statute makes each act of selling a crime. It is proper that that act be so described as to identify it from other acts of a similar kind as near as practicable, and this can be best done by giving the name of the ven-dee, if known, or, if unknown, so alleged. Bish. St. Crimes, § 1037, and cases cited in note 2. Also, see State v. Doyle, 11 R. I. 574.”

In the ease of Martin v. State, 30 Neb. 421, 46 N. W. 618, the same doctrine is laid down, and a great many eases cited to support it. In the case of State v. Stamey, 71 N. C. 202, 203, will be found the following language:

“1. It does not set forth the name of any person to whom the liquor was given or sold. The offense charged is highly penal, and in order to defend himself the defendant must know not only the offense charged, but the name of the person upon whom it was committed. A conviction upon this bill could not be pleaded in bar of another indictment for the same offense. An indictment charging the defendant with selling spirits to slaves is not good unless theiir names are giyen. State v. Blythe, 18 N. C. 199. So to charge a white' man with playing cards with a slave without naming him. State v. Ritchie, 19 N. C. 29. The purpose of setting forth the name of the person on whom the offense has been committed is to identify the particular fact or transaction on which the indictment is founded, so that the accused may have notice of the specific charge and have the benefit of an acquittal or conviction if accused a second time.”

In the case of State v. Allen, 32 Iowa, 493, will be found the following language:

“If then any of the material facts going to make up the offense be left out of the information, it fails to charge an offense, ■and no judgment can be rendered thereon upon a verdiict of guilty. That the sale was made to some ‘other person’ is as material as that the thing sold was intoxicating liquor. A sale of intoxicating liquors to some person is the very gist of the of•fense. The offense can only be defined by charging the person accused with selling intoxicating liquor to another person. The person to whom the liquor has been sold should be named, if known, and, if not known, that fact should be stated. This is necessary to enable the defendant, if convicted or acquitted, to plead such conviction or acquittal in bar of any subsequent prosecution for the same offense. The information in this case is, in these respects, clearly and fatally defective.”

In the case of Alexander v. State, 29 Tex. 497, 498, it is said:

“In the case of Burch v. Republic, 1 Tex. 608, which was a case like the present, this court said: ‘It is not sufficient to aver generally that the defendant did vend spirituous liquors in a quantity of a quart and over/ without stating at whose house or establishment, or to whom the vending took place, or some other fact tending to identify the transaction. This- is the true principle of the certainty that is required. ‘The transaction’ of which the party is accused must be identified with reasonable certainty. The indictment, in a case like the present, should name the person to whom the liquor was sold; or, if the name of the person to whom the liquor was sold was unknown to the grand jurors, • then other circumstances, tending to identify the transaction should be alleged, so that the accused may know what he will be called upon to answer, so that, in case of conviction or acquittal, he may be able to plead the judgment in bar of another prosecution for the same offense. See the case of State v. Hanson, 23 Tex. 232.”

In the case of Wilson v. Commonwealth, 14 Bush (Ky.) 159, the same doctrine is announced. In the case of Commonwealth v. Cook, 13 B. Mon. (Ky) 149, is announced the same doctrine.

In the case of Commonwealth v. Blood, 4 Gray (Mass.) 32, the court uses the following language:

“Nothing can be more clear than the duty of the commonwealth to prove the identity of the offense charged in a complaint or indictment, with that on which it seeks to convict the party charged before the jury of trials. The fundamental principles of our government require this as an essential safeguard .to the rights and liberty of the citizen. If it were not sp, the constitutional privilege of a party, before he is held to answer to an offense, to have it ‘fully and plainly, substantially and.formally described to him/ and to be secure from arrest until ‘the cause or foundation of the warrant be previously supported by oath or affirmation/ might be violated at the pleasure of prosecutors. Such a practice would be also in direct contravention of section 2, c. 135, Bev. St. 1836, which requires that, when a complaint shall be made to a magistrate that a criminal offense has been committed, he shall examine the complainant under oath, and, if it appear that such offense has'been committed, he shall issue his warrant reciting the substance of the accusation. These provisions of our Constitution and of the statute are but a declaration and affirmation of the ancient rule of the common law that no one shall be held to answer to an indictment or information unless the crime with which it is intended to charge him is set forth with precision and fullness. Petition of Right, 3 Car. I, § 5; Regina v. St. George, 9 Car. & P. 491; Commonwealth v. Phillips 16 Pick. (Mass.) 213. So strictly is this held that if an indictment charges a party with committing an offense upon the body or property of a person unknown, and it is made to appear at the trial that the name of the person was in fact known to the grand jury at the time when the indictment was found, the defendant will be entitled to an acquittal. The offense must not only be proved as charged, but it must be charged as proved. Archb. Crim. PI. (5th Am. Ed.) 36; 1 Chit. Crim. Law, 213; 2 East P. C. 651, 781; Rex v. Walker, 3 Camp. 264; Rex v. Robinson, Holt N. P. 595.”

In State v. Doyle, 11 R. I. 575, it is said:

“The complaint is in the usual form. It charges, with the ■usual negative averments, that on the 28th day of November. A. D. 1876, the defendant ‘did unlawfully sell and suffer to be sold, and not for the purpose of exportation, ale, wine, rum, and other strong and malt liquors and mixed liquors/ etc. The only objection made to the complaint is that it does not state the name of the purchaser, nor state that the sale was to some person to the complainant unknown. The question then is whether such an averment is indispensable. The cases cited for the defendant show that, in several states where the question has arisen, it has been held that the certainty required in criminal pleading makes it necessary to name the purchaser, unless his name is unknown, in which case it is permissible to describe him as some person to the jurors or complainant unknown. Commonwealth v. Thurlow, 24 Pick. (Mass.) 374; Blodget v. State, 3 Ind. 403; Capritz v. State of Maryland, 1 Md. 569; Dorman v. State, 34 Ala. 216; State v. Faucett, 20 N. C. 239; State v. Cox, 29 Mo. 475. The only decision which we find to the contrary of this is People v. Adams, 17 Wend. (N. Y.) 475, decided in 1837. The decisions rest on the indisputable right of the accused to be charged specifically, so that he may know beforehand what the particular offense is of which he is accused, and be able to prepare his defense, and so also that he may not be accused of one offense and be. .tried for another, and, finally, so that the record of his acquittal or conviction may be a good bar in case he is again indicted or complained of for the same offense. It is evident that this right has not been duly respected in the complaint before us. The offense charged is not so identified as to give the defendant certain information of what in particular she was accused, nor so but that she may have been tried for one offense when she was accused of another, totally distinct from it. Her right ‘to be informed of the nature and cause of the accusation’ is a constitutional as well as a common-law right, and ought to be carefully guarded and maintained. It is true that even naming the purchaser is not always a perfect mode of identification, but iit is the approved mode, and i’t is perhaps as perfect as any that can be devised. In this state the practice is to omit the name. .This practice lias prevailed for more than a generation. We do not know that it has ever been questioned. If it has, it has doubtless been sustained. We should be glad if we could sanction it for pending complaints, but we are declaring the law, not simply for pending complaints, but for them and all others after them, and we do not see how, upon either principle or precedent, the practice can be upheld. It is suggested that the objection comes too late. We do not find it so. Ordinarily any defect which is fatal on demurrer is also fatal upon motion in arrest of judgment. 1 Bishop on Crim. Proced. § 1109. In Capritz v. State of Maryland, 1 Md. 569, and in State v. Faucett, 20 N. C. 107, the objection was talren on motion in arrest of judgment.”

In Wilson v. Commonwealth, 14 Bush (Ky.) 160, the court said:

“The general charge that a merchant has sold whisky, etc., without a license so to do, without stating to whom the sale was made, is too general, as it does not inform the defendant with reasonable certainty of the offense charged, and the record of conviction would not be a safe reliance against another indictment for the same offense.”

In Dorman v. State, 34 Ala. 217, the court said:

“The indictment also fails to specify the name of the person to whom the alleged sale was made, or to allege that it was made to any person whatever, and in this particular it is fatally defective. Francois v. State, 20 Ala. 84; Brown v. Mayor of Mobile, 23 Ala. 722.”

In Martin v. State, 31 Tex. Cr. R. 28, 19 S. W. 434, the court said:

“A general allegation that the accused sold liquor in contravention of law is too general in its terms to charge this offense. The particular -offense, with such circumstances as will identify it, should be alleged; otherwise an accused party would not know what particular sale he is to answer for, and could not be prepared to meet the accusation against him. The allegations charging the offense should be specific enough to enable the accused to plead a judgment pf conviction or acquittal thereunder in bar of another prosecution for the same offense. The information should allege the name of the person to whom the liquor was' sold, or, if the name of such person is unknown, that fact should be averred.”

In Capritz v. State of Maryland, 1 Md. 574, tlie court said:

“The indictment does not mention the name of the person to whom the liquor was sold, but merely avers, that ‘he, the said James Capritz, then and there being a regular licensed ordinary keeper, unlawfully exposed for sale, and then and there did sell spirituous liquors, to wilt, brandy,’ etc. In such an indictment, time is immaterial; that is to say, the particular Sunday is immaterial. If the offense be laid on a Sunday previous to the finding of the indictment, it will be sufficient, and the state will not be called upon to prove the day, in exact conformity with !fche designation of the indictment. It is. essential, however, that the name of the person to whom the liquor was sold should be mentioned. State v. Nutwell, 1 Gill (Md.) 54. Unless this be furnished, the party has no means of preparing for his defense. Where the name of the purchaser is unknown to the jurors, he may be described as c a certain person to the jurors aforesaid unknown.’ ”

These cases present our fixed conclusion upon this question. We will not have time to go over it again.-

2. Upon the trial of this case the court instructed the jury as follows:

“No. 3. The court instructs the jury that the defendant in this case is a competent witness in this case, and you must consider his testimony in arriving at a verdict; but, in determining what weight and credibility you must give to his testimony in making up your verdict, you may take into consideration the fact that he is the defendant in this ease and on trial, his interest in the result of the trial, together with any other fact or circumstance of the trial affecting the credit to be given the testimony of any of the witnesses in the case.”

A similar instruction was condemned by this court in the case of Green v. United States, ante, p. 55, 101 Pac. 112, and that case was reversed in part on this account. The same question came up again before us in the ease of Hendrix v. United States, ante, p. 240, 101 Pac. 125. The instruction was again condemned, but was held to be harmless error in that case .for reasons given in the opinion. We think that it is error for the court to single ouf any special witness, personally, and burden h¿s testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general and apply equally to all of the witnesses for the state, and the defendant alike. Because a witness may be the defendant is no reason why he should be visited with condemnation upon the one hand, or clothed with sanctity upon the other. He is before the court as a witness and should be treated by both the court and the jury just as other witnesses are treated — no better and no worse. We trust that the courts in Oklahoma will cease to give such instructions in the future; 'otherwise it will result in the reversal of many convictions, which, but for .such instructions, would be affirmed.

For the reasons hereinbefore given, this case is reversed and remanded, with instructions to the county judge of Muskogee county to set aside the verdict of the jury and to sustain the demurrer to the information.

BAKER and DOYLE, Judges, concur.


source: Caselaw Access Project

author: DOYLE, Judge,

license: Public Domain

text:
    C. H. Markinson v. State.
    No. 241.
    Opinion Filed May 1, 1909.
    (101 Pac. 353.)
    1. APPEAL — Record—Arraignment and plea — Presumption. Where the record in a misdemeanor case does not disclose- that the defendant was arraigned and pleaded, the arraignment and plea will be presumed; and, unless there is in the record that Which shows affirmatively their absence, and where objection is made for the first time in this court, it will not be considered.
    2. INTOXICATING LIQUORS — Definition. The words “intoxicating liquors,” as used in the prohibition ordinance of the Constitution, reasonably construed, mean liquors which will intoxicate, and which are commonly used as beverages for such purposes, and also any and all mixtures, compounds, or substitutes for such liquors, used as a beverage, that possess intoxicating qualities.

      3. SAME — Judicial Notice of Character of Liquors. Said prohibition ordinance designates beer, ale, and Wine as intoxicating liquors, and the courts will take judicial notice -that beer is an ■intoxicating liquor.
    4. SAME — Evidence—Opinion, It is competent to prove the intoxicating or nonintoxicating qualities of any substitute for ordinary intoxicating liquors, by the experimental effect of its use, or by any witness who is shown to have had an opportunity of personal observation, or of experience sufficient to enable him to form a correct opinion.
    5. SAME — Illegal Sale — Evidence—Insufficiency. See evidence in statement of facts. Held, not sufficient to sustain a conviction for violation of a provision of the prohibition ordinance of the Constitution.
    (Syllabus by the Court.)

      Error from Comanche County Court; James II. Wolver ton, Judge.

    C. H. Markinson was convicted of violating the liquor law, and brings error.
    Reversed and remanded,
    C. II. Markinson, plaintiff in error (hereinafter designated defendant), was on the 7th day. of April, 1908, convicted of violating the prohibition ordinance of the Constitution, as charged in an information filed in said county court on the 19th day of ■ November, 1907, wherein it was charged that on the 18th day of November, 1907, defendant did then and there, wilfully and unlawfully, barter, sell and give away one pint of beer to one Claud Small. Defendant was sentenced to pay a fine of $50, and be confined in the county jail of said county for a period of 30 days. On June 16, 1908, defendant filed his petition in error and case-made in the Supreme Court. Said cause was duly transferred to the Criminal Court of Appeals, as provided by law. At the March, 1909, term of this court said cause was submitted.
    The testimony on behalf of the prosecution is in substance as follows: Claud Small, the complaining witness, testified that he was acquainted with defendant and his place of business; that he conducted the Monarch Theatre in said city, and that on the 18th day of November, 1907, he -went there and got a bottle of “All Hail,” and drank another one; identified the bottle, the label on which read “All Hail. Warranted less than two per cent, alcohol. Valparaiso, N. Y.,” and stated that he got said bottle from the bartender." Asked whose place of business it was, he answered, “I don’t know whether it was known as Chris’ or Mike’s place.” He further stated that, from his experience and knowledge of beer, “All Hail is a bum kind of beer.” On cross-examination he stated that “it tasted like beer,” but that he “wouldn’t swear it is.” A. J. King testified that he was a lawyer; didn’t' remember ever having drunk any “All Hail,” except that which he drank out of said bottle in the sheriff’s office; that he had not drunk any beer for about 18 months, but prior to that time he had drunk all kinds of beer, and “don’t remember of ever drinking anything like this,” but said, “It is beer from the taste- and smell of it.” Dr. Starbuck testified that he was a physician and surgeon; tasted the bottle labeled “All Hail,” and says in hits judgment it is beer. On cross-examination, asked what is beer made of, he stated that “only God and the old lady knows” what beer is made of. A. J. Strickland testified that he was acquainted with the taste and smell of beer, and that he had sampled the bottle labeled “All Hail,” and that, if it was beer, it was a poor grade. N. H. Brookover testified “used to drink” in his younger days; that he had taken some of the contents of the bottle labeled “All Hail,” and that “it tastes and smells like beer.” W. T. Herring testified that he was acquainted with the taste and smell of beer, had tasted the contents of this bottle, and he “would' call it beer of some kind.” S. E. Vivatie testified that he had taken a drink out of a bottle labeled “All Hail,” and “it tasted like beer.” Bufe Le Flors testified that he was sheriff of said county, that he had kept the bottle in his safe, and had sampled its contents, and that “it tastes and looks like b.eer.”
    On behalf of defendant Dr. Gooch testified that he was a practicing physician and -surgeon, and was familiar with what beer is,' and of what it consists, and that he had drunk this so-called “All Hail,” at the Monarch Theatre, and gave as his opinion that “All Hail is not beer.” George McCrory testified that he had been engaged in the wholesale beer business for three years; had drunk all’ kinds of beer; that he had often drunk “All Hail,” and testified that “it is not beer.” A. D. Allen testified he was engaged in the wholesale cigar business; was familiar with all brands of beer, and had drunk “AH Hail”; stated that it was something like beer, but that “it does not have the same effect as beer.” A. W. Allen testified that he had used beer all his life, bad “used a very little of ‘All Hail/” and that “I don’t think it is beer.” Robert Johnson testified that he was familiar with the taste and smell of beer, and had used “All Hail,” and that “it is not beer, and it is not intoxicating”; that he had seen other persons drink as much as six or seven bottles of “All Hail,” and it never made them drunk.

      Al J. Jennings, for plaintiff in error.
    — On necessity of record showing arraignment and plea: 12 •Cyc. 344; 2' Cyc. 787; Bowen v. State, 98 Ala. 83; Territory v. Brosh, 32 Pac. 260.

      Fred S. Oaldwetl, for the State.
    — On question of waiver of arraignment: 12- Cyc. 347, and cases cited; Martin v. Territory, 14 Okla. 598; Butter v. Territory, 11 Okla. 454.
   DOYLE, Judge,

(after stating the facts as above). The first question that is presented by defendant for our consideration is that “defendant was never arraigned, or ever entered any plea, or was given any opportunity to plead.” The record does not show that the defendant was arraigned and pleaded to the amended information. No objection appears to have been made upon this ground in the court below. The record shows that on March 31, 1908, after a demurrer to the original information had been sustained, an amended information was filed, and on April 1, 1908, defendant filed his demurrer to said amended information, which demurrer was by the court overruled. Whereupon defendant filed his motion .to quash the panel and array of jurors, which motion was by the court overruled. The case proceeded to trial without further objection, and the defendant was duly tried.

We cannot reverse a judgment in a misdemeanor case for the reason alone that the record does not show-an arraignment and plea by the defendant. Section 5307, Wilson’s Bev. & Ann. St. 1903, provides:

“An information may be amended in matters of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

And section 5380, Wilson’s Bev. & Ann. St., provides:

“If the indictment is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unneeessar3q and he may appear upon the arraign^ ment by counsel.”

Under this provision of our statute the personal appearance of the defendant in a misdemeanor is unnecessary for the purpose of arraignment and plea. Where the record does not, as in this case, disclose an arraignment and plea, unless there is something to show affirmative^ that the defendant was not arraigned and did not plead, such arraignment will be presumed; and, where the record fails to show any objection to proceeding to trial, the question will not be considered by this court when raised for the first time in the petition in error.

The next contention of defendant iis that “The verdict is contrary to law and the evidence.” Under this assignment it is argued: First. That on the testimony offered on the part of the prosecution the defendant was not connected with the transaction, and that the person making the sale was not shown to have been acting .as the agent 'of defendant. The only evidence on this point is the evidence of the witness Small; and it is questionable if his testimony is sufficient to connect the defendant with the transaction. It is also questionable if the evidence is sufficient to show a violation of-the law as it was at the time alleged in the information. To be sufficient -to support a conviction it was necessary for the state to prove that said bottle contained beer, or that it contained intoxicating liiquor of some kind. The testimony offered on the part of the prosecution is very unsatisfactory on the question as to whether the contents of the said bottle was beer, and the witnesses for the state 'do-not pretend to testify that it was otherwise intoxicating liquor. The testimony offered on the part of defendant is positive testimony of qualified witnesses, who state that the contents of said bottle was not beer, and that it was not intoxicating liquor of any ldtnd.

This prosecution was for an alleged violation of a provision of the prohibition ordinance of the Constitution, before the passage of the present prohibition law. The language of said prohibition "ordinance, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purposes, and also any and all mixtures thereof, ■ compounds, or substitutes for such liquoi's that possess intoxicating qualities. The use of intoxicating liquors as a beverage was the evil to be prevented, and by the adoption of prohibition as a part of the organic law it was intended to put a stop to such use. If the proof had shown that the contents of the bottle was beer, that would have been sufficient, as said ordinance designates beer as intoxicating liquor, and all courts take judicial notice that beer is an intoxicating liquor. The testimony offered on the part of the prosecution tended to show that if the contents of said bottle was not beer, it was a substitute. It .then became necessary to show that said contents possessed intoxicating qualities.

It is competent to prove the intoxicating qualities of any mixture, compound, or substitute by thg experimental effect of its use, or this fact can be .proved by any witness who is shown to have had an opportunity of personal observation or of experience, such as to enable him to form a correct opinion. He need not be a technical expert, and it is no objection that the statement of a fact is in the form of an opinion. Under this rule it cannot be said that the evidence offered on the part of the prosecution conclusively shows that there was a violation of the law. The witnesses for the prosecution did not qualify as competent; on the other hand, the evidence of the witnesses for the defendant, who were shown to have had an opportunity of personal experience and) observation sufficient to enable them to form a correct opinion, proved, or tended to prove, that the contents of said bottle was not beer, and did not possess intoxicating qualities.

For these reasons, because the evidence is insufficient to support the verdict, the judgment is reversed, and the cause remanded to the county court of Comanche county.

FTJBMAN, PRESIDING Judge, and BAKES, Judge, concur.


text:
    Frank Weber v. State.
    No. A-12.
    Opinion Filed May 1, 1909.
    (101 Pac. 355.)
    INSTRUCTIONS — Sufficiency of Evidence — Negative Instructions. The' trial court instructed the jury that “if you believe from the evidence that the defendant did not, on the date and in the county and state aforesaid, deliver to the said S. W. Barnhill any intoxicating liquor, to-wit, whisky, or if you believe that the defendant did not receive any money for said whisky, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty under the law to return a verdict of not guilty.” Held error, because it, in effect, required the jury, before finding for acquittal, to believe from the evidence that the defendant did not deliver, and did not ■ receive any money for, said whisky, in other words, that the defendant was innocent, instead of on the sufficiency of the evidence to establish defendant’s guilt beyond a reasonable doubt. The error in this respect was not cured by other instructions, in the usual form, as to the “presumption of innocence” and "reasonable doubt.”.
    (Syllabus by the Court.)

      Error from. Creek County Court; Josiah G. Davis, Judge.

    Frank Weber was convicted for sale of liquor, and brings error.
    Beversed and remanded.
    The plaintiff in error, Frank Weber (hereinafter designated defendant), was convicted in the county court of Creek county on an information charging that, in .Creek county, on March 21, 1908, “Will Iiedden, John Tinkle, and John Doe diid sell to one S. W. Barnhill one-half pint of whisky.” On June 25, 1908, defendant was granted a severance from his eodef end ants. After impaneling the jury the court permitted the county attorney to amend said information, over defendant’s objection and exception, by substituting defendant’s true name, Frank Weber, for that of John Doe therein. The jury returned a verdict of guilty; motion for a new trial was filed, overruled, and exception allowed, whereupon the court sentenced defendant to be imprisoned in the county jail for a period of 30 days, and that he pay a fine of $100 and costs. On February 8, 1909, defendant filed his petition in error, ease-made, and proof of service of his notice of appeal on the clerk of said county court, and on L. B. Jackson, county attorney of said county, in the office of the clerk of the Criminal Court of Ajopeals. At the March, 1909, term said cause was submitted.

      Bamham & McGraw and Thompson & Smith, for plaintiff in error.

      Fred S. Caldwell, for the State.
   DOYLE, Judge,

(after stating the facts as above). The petition sets forth 12 assignments of error. Jn the defendant’s brief those assignment are grouped into five specifications of error, which are presented and argued therein, under the following heads:

“First. The verdict of the jury is not supported by the evidence. Second. The court in its instructions misdirected the jury. Third. The trial, judgment, and sentence are illegal and void.”

Under the second specification of error counsel for defendant contend that, iin giving instruction No. 6, the court misdirected the jury to the prejudice of the substantial rights of the defend-dant. Instruction No. G is as follows:

“If you believe from the evidence that the defendant did not, on the date and in the county and state aforesaid, deliver to the said S. W. Barnhill any intoxicating liquor, to wit, whisky, or if you believe that the defendant did not receive any money for said whisky, or if there is a reasonable doubt in your minds as to the guilt of the defendant, then it is your duty, under the law, to return a verdict of not guilty.”

To the giving of this instruction defendant excepted. Counsel in their brief argue that:

“This is a negative instruction, pregnant with mischief and prejudice as to the defendant. In effect, it deprives the defendant of -the benefit of the presumption of innocence until proven guilty, a right guaranteed by statute, and imposes upon him the burden of proving his innocence. The instruction impresses us as pregnant with insinuations of the guilt of the defendant, and manifestly unfair in its phraseology. Such a rule is antagonistic to the fundamental principles of law, and is as dangerous as it is-novel. It is a positive legal right appertaining to every accused person, whether guilty or innocent, that he shall not be condemned for a criminal offense in a judicial trial untiil and unless the evidence produced against him shall be legally sufficient to prove his 'guilt beyond a reasonable doubt. cThe law only requires the defendant to raise "a reasonable doubt as to his guilt/ ”

- They cite in support of their contention the cases of Shoemaker v. Territory, 4 Okla. 118, 43 Pac. 1059, Patzwald v. United States, 7 Okla. 232, 54 Pac. 458, Horn v. Territory, 8 Okla. 52, 56 Pac. 846, and Johnson v. State, 29 Tex. App. 151, 15 S. W. 647.

Counsel for the state, in his brief, states:

“If this instruction stood alone in the case — that is, iif it were the only instruction given by the court touching matters therein referred to — the state concedes that there would be great force in the defendant’s argument. But when this is considered in connection with the instructions taken as a whole, and particularly in connection with instructions 2’, 3, 4, and 5, certainly it cannot be said that the jury could have been misled thereby, or that reversible error was committed.”

We cannot agree with counsel for the state. We believe that this instruction is clearly erroneous and prejudicial to the rights of the defendant, even though instructions 2, 3, 4, and 5 correctly state the law. The aforesaid instruction No. 6 is calculated to convey to the minds of the jury an erroneous impression, in that it may be construed as varying the rule of law, and to qualify its meaning and scope and the manifest design and operation of the legal presumption of innocence. ' Section 5489, Wilson’s "Rev- & Ann. St. 1903, provides:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and. in ease of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

In the case of Horn v. Territory, supra, Justice Burwell, delivering the opinion of the court, in part says:

“The evidence of the first witness for the territory might be sufficient to Reasonably’ overcome the presumption of the defendant’s innocence. If so, from that very moment, during the remainder of the trial, the defendant would stand stripped of his legal presumption. That would not do. ' Our statutes prohibit the jury from forming or expressing an opinion until the case is finally submitted to them for their consilderation. No matter-how strong the evidence may be against the. defendant, the law, by reason of the presumption of the defendant’s innocence, pro--hibits the jury from forming any opinion as to his guilt or innocence until after the case is finally. submitted. In a criminal case a defendant is ■ presumed to be. innocent until he is proven guilty, by competent evidence, beyond a reasonable doubt, and this presumption never ceases during the trial. A defendant’s friends may forsake him, but the presumption of innocence, never. It is present throughout the entire trial; and, when the jury go to their room to deliberate, the ‘presumption of innocence’ goes in with them, protesting against the defendant’s guilt. And it is only after the jury has given all the evidence in the case a full, fair, and impartial consideration, and have been able to find beyond a reasonable doubt, that the defendant is guilty as charged, that the presumption of innocence leaves him.”

In Hampton v. State, 1 Tex. App. 652, it is said the presumption of innocence has been classed as one of the two “great cardinal maxims, which may be said to be written on the portals of every criminal court, and to hang over an accused like an aegis of protection, from the moment he is placed at its bar for trial.”

It is not essential to an acquittal that the jury should believe that the defendant did not deliver said whisky, or that defendant did not receive any money for said whisky, or that the defendant was not guilty. The law presumes that he did not deliver said 1 whisky, and that he did not receive money for said whisky, and the law presumes that he is not guilty as charged until his guilt has been established by competent evidence, beyond all reasonable doubt. In Johnson v. State, supra, the instruction was:

“If you believe from the evidence that the defendant, acting either alone or in concert with Jeff Wood, did not poison Eliza- ■ beth Iiucker as explained in paragraph 3, or if you believe that the deceased was poisoned by accident, or by her own voluntary act, • or if you believe that the deceased died from natural causes, or if you believe that deceased was poisoned by some other person than the defendant, acting alone or in connection with Jeff1 Wood, then you will find the defendant not guilty.”

Wilson, Judge, speaking for the court, says:

“We think the paragraph is subject to the exception that it requires the jury to believe from the evidence the existence of the conditions which entitled him to acquittal. It virtually requires the jury' to believe from the evidence that he is innocent before finding him not guilty, whereas the correct rule is that the jury must presume his innocence until his guilt has been established by the evidence beyond a reasonable doubt. If the jury entertained a reasonable doubt upon the whole evidence of the defendant’s guilt, it was their duty to acquit him, although they might not believe from the evidence the existence of the fact and conditions, or any of them, mentioned in said paragraph. It is true that in concluding his charge the learned judge gave the usual instruction as to the presumption of innocence and as to reasonable doubt, and ordinarily such instruction is sufficient, but in this ease we do not think iit was sufficient to correct and coun,-•teract the error in paragraph 5. The vice of the paragraph is in requiring the jury to believe from the evidence that some one of said conditions existed, in order to warrant a verdict of acquittal because thereof.”

It is apparent that within itself this instruction is inconsistent and contradictory. This court has held that, where the instructions on a material point in a criminal case are inconsistent, some correct and others incorrect to the extent that they may be misleading to a jury, a conviction will be reversed. In the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, Furman, presiding judge, expressing the opinion of the court, in part says:

“We concede the contention of the state that instructions are to be construed as'a whole and if, when so construed, they clearly and correctly state the law, then the instructions are sufficient. But this does not mean that an erroneous instruction upon a material issue can be cured by giving a correct instruction upon the same question in another portion of the instructions. Can instructions which are self-contradictory be harmonious and sufficient? Who can tell which instruction was followed by the jury? If the court did not harmonize the instructions given, how can it be expected that the jury could or would do so? If juries are to pass upon the sufficiency of instructions, then are they not the judges of the law as well as the facts? Instructions should be clear, explicit, and free from ambiguities and contradictions; otherwise they may confuse and mislead the jury.”

As this question is decisive of the case, we do not deem it necessary to consider the other assignments of error.

For the reasons herein stated, the judgment of the county court of Creek county is reversed, and the cause remanded.

FTJRMAN, PRESIDING Judge, and BAKER, Judge, concur.


author: FURMAN PRESIDING Judge,

text:
    Joe M. Lightle v. State.
    No. A-55.
    Opinion Filed May 1, 1909.
    (101 Pac. 608.)
    1. INTOXICATING ¡LIQUORS — Illegal Sale — Information. Fletcher v. State, reported in this volume and in 1Ó1 Pac. 599, reaffirmed, and the principles therein contained declared to be the settled policy of this court. . .... . .
    2. SAME — Information—Alleging Name of Purchaser. In an indictment or information for a single act of selling intoxicating liquor the name of the purchaser must be given, or, if not known, that fact must be alleged. This, however, • would not be the rule in a prosecution for maintaining- a nuisance or having possession of such liquors, -with the intention of unlawfully disposing of them.
    3. EVIDENCE — Demonstrative Evidence. Before liquors can be offered in evidence for the inspection of the jury, such liquor must be identified as having- been in the possession and having been unlawfully disposed of by the defendant.
    4. APPEAL — Waiver of Errors. All questions relied upon to secure the reversal of a conviction -must be fully presented in the briefs of counsel for the defendant, or they will be considered as having been waived, unless they involve fundamental errors.
    (Syllabus by the Court.)

      Appeal from Muskogee County Court; W. C. Jackson, Judge.

    Joe M. Lightle was convicted of violating the liquor law, and appeals.
    Reversed.
    The charging part of the information is as follows:
    “That the said Joe M. Lightle in the county of Muskogee, state of Oklahoma, on the .29th day of August, 1908, did knowingly and unlawfully sell and furnish intoxicating liquors, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
    The defendant demurred to the information upon the following ground: “Because said information does not. state the name or names of the party or parties to whom said defendant sold or furnished intoxicating liquor.” This demurrer was by the court overruled, to which the defendant reserved an exception. The defendant was found guilty, and his punishment was assessed by the jury at a fine of $300 and imprisonment in the county jail for 30 days. Motion in arrest of judgment and for a new trial were filed by the defendant, and overruled by the court, and the defendant was sentenced, as provided for .in the verdict, to all oí which the defendant excepted, and the case is now before us on, appeal.

      S. M. Rutherford and Bailey & Kistler, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN PRESIDING Judge,

(after stating the facts as above). First. The case of Fletcher v. State, ante, p. 300, 101 Pac. 599, is conclusive as' to the insufficiency of the information in this case upon the ground that it does not allege the name of the person to whom, the liquor was sold, or allege that such name was unknown.

Second. It ivas proven upon the trial that the defendant had sold at wholesale some kind of liquor to a witness named Banks, which Banks was selling at retail.

J. M. Brueker, being sworn for the state, testified as follows:

■ “By Mr. Crump: Q. Is your name J. M. Brueker ? A. 'Yes, sir. Q. Are you a deputy sheriff of this county? A. Yes, sir. Q. Do you remember you and I went to Bud Banks’ and got some stuff there? A. Yes, sir. Q. What was it captured there, Mr. Brueker? A. There were several brands. One didn’t have any label on it at all, and one was Adams’ Special. Q. How much did we get that was not labeled? A. Nearly three barrels and a half. Q. What was that unlabeled stuff? A. I ■would call it beer. Q. Diid you drink any of it? A. Yes,, sir. Cross-examination: By Mr. Rutherford: Q. Did you analyze that? A. No, sir. Q. How much did you drink? A. Part of a.glass. Q. Just tell by the taste and color? A. Yes, sir.. Redirect examination: By Mr. .Crump: Q. Can you tell beer when you drink it? A. Yes, sir.”

The following then occurred:

“Bud Banks, being first duly sworn, testified as follows: Direct examination: By Mr. Crump: Q. Is this the kind of stuff you were selling there (county attorney exhibiting to the witness a bottle) ? A. Yes, sir. Mr. Crump: I desire to introduce this in evidence. Mr. Rutherford: We object for the reason that, it has not been identified that the stuff that is in evidence here is the same stuff that the defendant was selling. For the further reason that it is improper testimony to go before a jury, as tending to experiment before the jury and in turn make witnesses of the jury. By the Court: Q, Do you know that’s the stuff or character of stuff sold at your place that you bought of Mr. Lightle or not? A. No. sir; Adams’ Special 'is all I know. (Objection overruled. To which ruling of the court the defendant excepts. County attorney hands bottle to the jury for ex-animation.) Cross-examination: By Mr. Rutherford: Q. Is that bottle in the same condition it was when you first saw it in Mr. Crump’s hands? A. The label has been scratched. Redirect examination: Mr. Crump: Q. Do you know what was on the label before it was scratched? A. - Mr. Crump: I will state to the court that there was a name on there. Mr. Rutherford: I object to that. Mr. Crump: I will take the stand and state what was on it. Mr. Rutherford: We object to Mr. Crump’s remarks before the jury, and their examination and smelling and tasting of the contents of the bottle before first proving to the jury that the same bottle in evidence ivas taken from the place on which the raid was made. By Mr. Ctump: Q. I believe you said you bought the stuff that was captured there from Joe Lightle? A.' Yes, sir. Cross-examination: By Mr. Rutherford: Q. Mr. Banks, what has been done with that bottle during this trial? A. Scratched the writing off and passed it to the jury to examine. Q. Did the jury examine it? A. Yes, sir. Q. Is it in their hands? A. Yes, sir; they are passing it from one to another. Q. Did any of them smell of it? A. Yes, sir. Q. Do you know what that bottle contains? A. No, sir.”

There is not, in the record, except inferential^, any evidence that the bottle which was exhibited to the jury was one of the bottles captured on the raid on Banks’ place of business. On the contrary, the witness Banks was asked by the court: “Do you know that’s the stuff or character of stuff sold at your place that you bought of Mr. Lightle or not?” The witness answered positively: “No, sir; Adams’ Special is all I know.” If this bottle had been one captured in the raid on Banks’ place, it could and should have been identified as such. This would have rendered the introduction of the bottle admissible and have removed all of the objections made to its introduction as evidence. See Reed v. Territory, 1 Okla. Cr. 481, 98 Pac. 583, decided by this court. Our views upon this question, and the authorities which support these views, are fully presented in Reed’s Case. We will adhere to 'the rule there announced.

But, before such evidence is admissible the bottle must be clearly identified and traced to the defendant. For want of such positive identification the court erred in admitting the bottle submitted to the jury in this case. If the identification of the bottle had been complete as being' one of those captured in the raid on Banks’ place, then the action of the court would have been correct.

Other, exceptions were saved at the trial, but, as they are not presented in the brief of counsel for the defendant, and as they do not relate to fundamental matters, we will not discuss or decide them. Counsel must fully present all questions relied upon in their briefs, or they will be held to have been waived, unless they relate to fundamental questions involving the jurisdiction of the court. Jurisdictional questions as to the subject-matter cannot be waived by counsel. A defendant cannot by consent, confer jurisdiction of the subject-matter of an offense. Therefore we will consider questions, involving jurisdiction of the subject-matter whether bri-efed or not. All other questions must be briefed.

For the reasons given the conviction of appellant was illegal, and the judgment against him is remanded, with directions to the county court of Muskogee county to set aside the judgment of conviction and sustain the demurrer to the information.

Reversed and remanded.

BAKER and DOYLE, Judges, concur.


author: FURMAN, Peesiding Judge,

text:
    Bud Banks v. State.
    No. A-56.
    Opinion Filed May 1, 1909.
    (101 Pac. 610.)
    1. INTOXICATING LIQUO'RS — Information—Name of Purchaser An information or indictment for a single sale of intoxicating liquors must allege the najne of the person to whom the sale was made, if known; if unknown, this fact must be alleged.
    2. INSTRUCTIONS — Credibility of Witness. It is error for the court to single out the defendant and instruct the jury upon the credibility of his evidence.
    3. SAME — Date of Offense. It is error for the court to instruct the jury that if the testimony shows the commission oí the offense charged, at any time since the date mentioned in the indictment, they may convict. Instructions as to the time must be confined to the time extending back from the filing of the prosecution to-the date included in the statute of limitations.
    4. APPEAL — Waiver of Error. If counsel fail, in their briefs, to state fully the grounds upon which they rely for a reversal, this court will treat such questions not so presented as having been waived, unless questions involve fundamental matters.
    (Syllabus by the Court.)

      Appeal from Muskogee County Court; W. C. Jackson, Judge.

    Bud Banks was convicted of an illegal sale of liquor, ana appeals.
    Beversed apd remanded.
    The charging part of the information is as follows:
    “That the said Bud Banks in the county óf Muskogee, state of Oklahoma, on the 29th day of August, 1908, did knowingly and unlawfully sell and furnish intoxicating liquors contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
    The defendant demurred to the information upon the ground that it did not state the name of the person or persons to whom the intoxicating liquors were sold. This demurrer was overruled by the court, to which the defendant excepted.
    TJpon the trial the court instructed the jury as follows:

      “No. 3. The court instructs the jury that the defendant in this case is a competent witness in this case, and you must consider his testimony in arriving at a verdict; but in determining what weight and credibility you must give to his testimony in making up your verdict you may take into consideration the fact that he is the defendant in this case and on trial, his interest in the result of the trial, together with any other fact'or circumstance of the trial affecting the credit to be given the testimony of any of the witnesses in the case.”
    To this instruction the defendant excepted.
    The court instructed the jury as follows:
    “The court instructs the jury: That the defendant is charged with the crime of selling intoxicating liquor; -that, if the jury believe from the testimony beyond a reasonable doubt that the defendant did, at any time since the 24th day of March, 1908, within the county of Muskogee, state of Oklahoma, sell intoxicating liquors of any kind, including beer, ale, and wine, it is your duty to find the defendant guilty as charged in the information.”
    To this instruction the defendant reserved an exception.
    The defendant was found guilty by the jury. Motions in arrest of judgment and for a new trial were filed by the defendant and overruled by the court, to which the defendant excepted. The defendant was then sentenced by the court to pay a -fine of $50, and the costs of the prosecution, and-to 30 days’ confinement in the county jail of Muskogee county. The case is regularly before us upon appeal.

      8. M. Rutherford and Bailey é Kistler, for appellant.

      Fred S. Caldwell, for the State.
   FURMAN, Peesiding Judge,

(after stating the facts as above). First. The information in this case is fatally defective because it does not allege the name of the person or persons to whom the alleged sale of intoxicating liquors was made, or allege that such name or names were unknown. Our reasons for this conclusion, and the authorities upon which we rely will be found in the cases of Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360, Fletcher v. State, ante. p. 300, 101 Pac. 599, and Lightle v. State, ante, p. 334, 101 Pac. 608. The court therefore erred in not sustaining the demurrer to the information.

Second. In the case of Green v. United States, ante, p. 55, 101 Pac. 112, and Fletcher v. State, supra, this court held that it was error for the court to single.out the defendant and instruct the jury as to the credibility of his testimony. In addition to what was said in the two cases above referred to, we will add that the credibility of any witness in a case is the proper subject of argument by the counsel in the case, and must be submitted to the jury for determination unhampered by any suggestions from the trial court. Our views are well presented in the following authorities:

“Because of the difficulty, however, in so framing an instriiction, where the defendanPs name is mentioned at all, as not to give his testimony undue prominence, either for or against him, it would be better for trial judges to let him pass, with all the other witnesses, under the purview of a general charge as. to the credibility of all the witnesses, leaving to the attorneys in argument to call the attention of the jury to any peculiar facts applicable to any particular witness.” (Vauqhn v. State, 58 Ark. 365, 24 S. W. 888.)
“From the high and authoritative position of a judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power, by words or actions, or both, to materially prejudice the rights and interests of one or the other, of the parties. By words or conduct, he may, on -the one hand, support the character or testimony of a witness, or) on the other, may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to -the unfair advantage of one of the parties, with a corresponding detriment to thé 'cause of the other. We regret the necessity for an expression of our disapproval of irregularity of which complaint is made, and though we do not. impugn the expression as designed to aid the side of the plaintiff, we may say we should not hesitate to reverse the judgment because of it, if the same depended in any material degree upon the testimony of the witness whose character and standing was thus indorsed.” (McMinn v. Whelan, 27 Cal. 319.)
“It is a rule, applicable alike in civil and criminal cases; that it is error for the judge, directly or inferentially, to express an opinion to the jury, or in their hearing, as to the credibility of a particular witness, or as to the weight which they should attach to .his testimony. He must not single out a particular witness, and mentioning him by name, instruct the jury to take into consideration his interest in the suit as affecting his credibility.” (Thompson on Trials, vol. 2, § 2421.)

The trial court therefore erred in the instructions given upon the credibility of the defendant's evidence.

Third. The instruction that the jury might convict upon proof of the sale of intoxicating liquors made after the 24th of March, 1908, was too broad, as it would warrant a conviction upon proof of a sale made after the filing of the information. The law is that a conviction could, be had upon proof of a sale made at any time prior to the filing of the information and within the statute of limitations. Indictments and informations must be based upon facts and not upon prophecies. It has ■ always been held that time is not the essence of criminal offenses, and is only material in connection with the statute of limitatiions. The prosecution in any criminal case is therefore not bound by the date of the alleged offense, as stated in the information or indictment, but, may prove the commission of the'offense at any time prior to the institution of the prosecution and within the limitation prescribed by the statute applicable to the offense charged. The court therefore erred in this instruction.

Fourth. Some other exceptions were taken with reference to other matters occurring on the trial; but, as counsel in their brief neglected to state the grounds upon which they rely to support these exceptions, we are compelled to treat them as having been abandoned, as they do not involve any fundamental question. If counsel desire to invoke the judgment of this court upon any question, they should do all in their power to assist the court in arriving at correct conclusions with, reference to the matter. This can only be done by giving this court the benefit of their views and of the authorities upon which they rely. We must presume fhe regularity of all proceedings in courts of record. The burden is upon him who assails the proceedings of courts of record to show wherein they are erroneous.

For the reasons hereinbefore given, the case is remanded, with instructions to the county court of Muskogee county to set aside the verdict of the jury and sustain the demurrer to the information. Eeversed and remanded.

BAKER and DOYLE, Judges, concur.