author: BAKER, Judge,

text:
    Houston Hudson v. State.
    No. 138.
    Opinion Filed March 30, 1909.
    (101 Pac. 275.)
    1. INTOXICATING LIQUOIRS — Interstate Commerce — -Conveyance to Home. Under subdivision 3, sec. 8, art. 1, of the Constitution of the United States, a resident of this state has a right to order and receive a shipment of intoxicating liquor by interstate commerce from another state, and convey the same from the railroad .station in the original package to his home.
    2. SAME. An interstate shipment of intoxicating liquor into th-state, imported for the -personal use of the consignee and his family, is protected, under the interstate commerce clause of the Constitution of the United States, from seizure until such shipment reaches the home of the consignee by continuous conveyance.
    3. SAME — Instructions. It was error for the court below to instruct the jury that, at the ti-me of the trial below, if the accused when arrested had in his possession, for the purpose of transporting from one place in this state to another, intoxicating liquors, said transporting was unlawful, unless the jury found from the evidence that said liquors were lawfully purchased wiithin the state, and that under the law a lawful purqháse could be made only upon -the sworn statement of the purchaser, setting forth the purpose for which the liquors are to be used, and such sworn statement to be accompanied by a bona fide prescription, signed by a regular practicing physician, for the reason that, at the time said instructions were given, there was no law in this state to support it.
    4. SAME — “Upon Arrival” in State. The expression “upon arrival in such state,” as used in Act Cong. Aug. 8, 1890, c. 728, 26 Stat. 313 (U. S. Comp. St. 1901, p. 3177), providing that liquors transported into any state shall, upon arrival in such state, be subject to the operation of the laws of such state to the same extent as tho-ugh they had been produced in such state, means neither on entrance w.ithin the borders of the state, nor on delivery to the consignee, but on reaching its destination.
    (Syllabus by the Court.)

      Error from Love County Court; G. H. Montgomery, Judge.

    Houston Hudson was convicted of unlawfully transporting liquor from one place in the state to another place therein, and he brings error.
    Eeversed and remanded.

      ■ The plaintiff in error, who will be herein referred to as the accused, was prosecuted in Love county, in this state, upon complaint of the county attorney of said county, charging him with unlawfully transporting intoxicating liquor from one place within the said state of Oklahoma to another place therein, and was, on the 12th day of February, 1908, convicted and sentenced to pay a fine of $50, and to serve 30 days in the county jail of said county. This case was tried on an agreed statement of facts, which is as follows:
    “It is agreed that the defendant left his home near Eastman on the 23d day of December, 1907, for Gainesville, Tex., and, before he left his father gave him money with which to purchase three quarts of whiskey his brother, money with which to purchase two; and two of his neighbors, money with which to purchase three quarts each, and that he came to the town of Marietta, left his team in the wagon yard, took the train for Gainesville, and purchased this whisky, including three quarts for himself, making 14 quarts in all. He had the whisky done up in two packages, but the train was late that night, and he got off the train at Marietta about 3 o’clock in the morning, with the two packages of whisky containing 14 quarts, and was arrested as he left the depot at Marietta, and that he had gotten about 200 feet going in the direction of the wagon yard, and that he intended to get his wagon that night, and go to his home near Eastman.”
    The accused requested the court below to instruct the jury as follows:
    “First. You are charged in this case that the state has failed tp make a case against the defendant, as charged in the complaint; and you will therefore, return a verdict of not guilty. Second. You are charged that, under the law, the defendant had the right to go to the state of Texas and purchase the liquor in controversy, and, having so purchased it, he had the right to transport or convey the same into the state of Oklahoma, and to his place of destination, provided his journey from the state of Texas to his home or place of destination in the state of Oklahoma was a continuous journey; and, if you find from the testimony that his purchase of whisky was made in the state of Texas, and he was transporting the same from the state of Texas to within the state of Oklahoma, and be was still on a continuous journey from the state of Texas to the place of his destination when arrested, it would be your duty to return a verdict of not guilty.”
    These instructions were refused, to which the accused at the time duly excepted, and also excepted to the whole charge as given by the court in said case. The court instructed the jury as follows:
    “You are further instructed that, if you believe from the evi-' deuce that the defendant, Houston Hudson, when arrested had in his possession, for the purpose of transporting from one place in the state to another, intoxicating liquors, said possession and said transporting were unlawful, unless you further find from the evidence that said liquors were lawfully purchased, as a lawful purchase is hereinafter defined. You are instructed that under the law a lawful purchase can be made only upon the sworn statement of the purchaser, setting forth the purpose for which the liquors are to be used, such statement to be accompanied by a bona fide prescription, signed by a regular practicing physician. If you find from the evidence in this case that the defendant, Houston Hudson, had in his possession, at the time of his arrest, .any intoxicating liquors, and if you further find from the evidence that the said defendant was then and there in the act of transporting or conveying such liquors from one place in this state to another place therein, you will find the defendant guilty, unless you further find from the evidence that said liquor was lawfully purchased within this state, as a lawful purchase is above defined, or unless you find that such liquor constituted an interstate contract under the interstate commerce laiv, in either of which events you will find the defendant not guilty.”
    The accused, in due time, filed his motion asking for a new trial in the court below, for the following reasons: Because the verdict was contrary to the evidence, contrary to law, and contrary to both the law and the evidence; and because the court erred in not giving, at the close of the testimony, the instructions asked for by the accused; and because the court erred in its charge fio the jury. This motion was overruled, to which the accused, at the time duly excepted. From the overruling of said motion for a new trial, and the judgment upon the verdict, the accused prosecutes his appeal to this court. Briefs on both sides were filed. The brief of the counsel for the state, being exhaustive and highly instructive, deserves the commendation of this court.

      Cruce, Cruce & Bleakmore, for plaintiff in error.—

      Bermuda’s Claimants v. U. 8., 70 U. S. 514; Rhodes v. Ioiva, 170 U. S. 412.

      Bred 8. Caldwell, for the state. — •

      Rhodes v. Iowa, 170 IT. S. 412; Ileyman v. Ry (IT. S.) 51 L. Ed. 178; Vance v. V andar cook, 170 IT. S. 438; Americam, Express Co. v. Iowa, 190 U. S. 133; Foppiano v. -Speed, 199 IT. S. 501; Delamaer v. Dak. (IT. S.) 51 L. Ed. 724; Pabst Brew. Co. v. Crenshaw, 198 II. S. 17; Nutting' v. Mass., 183 IT. S. 553; Mugler ■v. Kansas (IT. S.) 431 I,. Ed. 205.
   BAKER, Judge,

(after stating the facts as above). The petition in error alleges: (1) The court erred in refusing to charge the jury to return a verdict for the defendant upon the agreed statement of facts; (2) the court erred in refusing to give to the jury requested charge asked for by the defendant; (3) the court erred in its general charge; (4) the court erred in neglecting and refusing to charge the jury what it took to constitute an interstate contract; and (5) the court erred in overruling defendant’s motion for a new trial.

Now it is insisted by the accused that that portion of the prohibition ordinance which provides that “any person» * * * who shall ship, or in any other way coüvey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished * * * by a fine of not less than fifty dollars and by imprisonment for not less than thirty days for each offense” is repugnant to, and incompatible with, the third ■ clause of section 8, art. 1, of the Constitution of the United States, commonly known and referred to as the Interstate Commerce Clause of the Constitution, by which clause power is delegated to the Congress of the United States to regulate commerce with foreign nations, and among the several states of the United States, and with the Indian tribes within the United States; that under the provisions of said section of said prohibition ordinance just quoted it is attempted to prevent all-persons from shipping, or conveying in any manner, intoxicating liquors from one place within this state to another place therein, except such liquors purchased in the regular and legal way from the state agency. On the other hand, the defendant in error contends that that portion of the act of Congress approved August 1890, entitled “An act to limit the effect of the regulations of commerce between the several states, and with foreign countries in certain • cases,” otherwise known as the Wilson Act (Act Aug. 8, 1890, c. 728; 26 Stat. 313 [TJ. S. Comjp. St. 1901, p. 317?]), permits the adoption and enforcement of said provision contained in the prohibition ordinance. The Wilson Act reads as follows:

“That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

The so-called “Billups Prohibitioin Enforcement’ Bill” was not in force at the time of the commission of the offense charged in the complaint in this case; said bill being approved March 24, 1908. Laws 1908, p. 594, c. 69. The date of the crime fixed in the complaint in this case is December 23, 1907. Hence the Billups Law has no application to the case at bar; and this ease is therefore to be considered in the light of the provisions of the prohibition ordinance of the Constitution of this state, the Wilson Act, above quoted, and the adjudicated cases. This brings us directly to the consideration of the construction of that portion of the state Constitution or prohibition ordinance hereinabove quoted.

We have read and considered all the.cases in point and having any bearing thereon. We find the case of Vance v. Vandercook Company, 170 U. S. 452, 18 Sup. Ct. 674, 42 L. Ed. 1100, very important. The court, after discussing the facts in that case, said in substance, that: A bill in equity was filed by Yance against 17. A. Yandercook Co., averring that said company was the owner of large vineyards in the state of California, from which it produced wines, brandies, and other liquors, and through a traveling salesman, a resident of the state of Virginia,^ it took orders from the residents of the state of South Carolina to deliver to them, within said state of South Carolina, products of said vineyards, and had so taken orders, and had shipped 71 original packages to the city of Charleston, in said state of South Carolina, by con-, tinuous interstate carriage; that under the dispensary law of said last named state the officers of said: state had seized said packages, and prevented the delivery thereof, openly avowing their intention to continue to prevent such delivery, and the delivery of all other liquor shipped into the state of South Carolina in violation of the law of the state. The bill further alleges that said company intends, in the course of its business, to make additional shipments of liquor, ordered by its customers 'in advance, and to ship the same from San Francisco, Cal., to its' agent in South Carolina, and to store and warehouse the same in the state of South Carolina for the lawful use and consumption of the residents and citizens of said state, and that in such shipments and sale said company was exercising a lawful intercourse, trade, and commerce with the citizens and residents of the state of South Carolina, under the Constitution and laws of the United States; that such shipments were 'seized by the defendant, Yance, and others claiming to act as state constables; that such seizures were to the manifest wrong, damage, and injury to said company and its trade, averring, also, that the state law upon which the officers relied in the seizure of said liquors was void, because it was repugnant to the Constitution of the United States; and that, to prevent the continuing wrong which would necessarily arise from the conduct of the state officers, and to avoid a multiplicity of suits, a writ of injunction was necessary to restrain said officers of said state from interfering with said company in shipping its said products from the state of California to the state of South Carolina, to its agents there, for the purpose of selling the same. A restraining order was granted, as prayed for, which was perpetuated, and a final decree was entered in favor of said company, in accordance with the prayer of the bill. The syllabus in said case reads as follows:

“(1) That the respective states have plenary power to regulate the sale of intoxicating liquors within their borders, and the scope and extent of such regulations depend solely on the judgment of the lawmaking power of the states, provided, always, they' do not transcend the limits of state authority by invading rights which are secured by the Constitution of the United States, and provided further that the regulations as adopted do not 'operate a discrimination against the rights of residents or citizens of other states of the Union; (2) that the right to send liquors from one state into another, and the act of sending the same, is interstate . commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the Constitution of the ‘United States; (3) that the power to ship merchandise from one state into another carries with it as an incident the right in tire receiver of the goods to sell them in the original packages, any state regulation to the 'contrary notwithstanding — that is to say, that the goods received by interstate commerce remain under the shelter of the interstate commerce clause of the Constitution until by a sale in the original package they have been commingled with the general mass of property in the state — but, since the passage of Act Aug. 8, 1890, c. 728, 26 Stat. 313, which provides That all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein, shall upon- arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had be'en produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise/ while the receiver of intoxicating liquors in one state, sent from another state, has the constitutional right to receive them for his own use, without regard to the state laws to the contrary, he can no longer assert a right' to sell them in the original packages in defiance of state law.”

Mr. Justice White, in delivering the opinion of the court in said case, said:

“But the right of persons in one state to ship liquor into another state to a resident for his own use is derived from the Constitution of the United States, and does not rest on a grant of the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do — and we shall hereafter examine this contention — then they are void. If they do not, then there is no lawful ground of complaint on the subject. We are thus brought to examine whether, the regulations, imposed by the state law on the right of the residents of other states to ship into the state of South Carolina alcoholic liquor to the residents of the state when ordered by them for their use, are so onerous and burdensome in their nature as to substantially impair the right: that is, whether they so hamper and restrict the exercise of the right as to materially interfere with or, in effect, prevent its enjoyment.”

The same high court, in the case just cited, also held:

“That the goods received by .interstate commerce remained under the shelter of the interstate clause of the Constitution until by sale in the original package they may have commingled with the general mass of property in the state'. * * * ”

It will be observed that the prohibition requirements of the Enabling Act.entirely omit the question of interstate shipments or conveyances, and were, in all probability, drawn so as not to be repugnant to, and inconsistent with, the interstate commerce clause of the federal Constitution. If the prohibition ordinance of the Constitution of this state did, in so many words, forbid the shipment of liquors from out of the state to residents in the state for their own use and consumption, such a provision would be repugnant lo the -Constitution of the United States, as also distinctly decided in the case of Scott v. McDonald, 165 U. S. 66, 17 Sup. Ct. 265, 41 L. Ed. 632. In the last case the plaintiff sought to recover damages, caused by the action of the defendants, who were state constables of the state of South Carolina, in seizing and taking possession of several packages of wines and liquors belonging 'to the plaintiff, and at the time of the seizure were in the possession of the railroad company, which, as a common carrier, had brought the packages within the state of South Carolina. Mr. Justice Shiras, who delivered the opinion of the court, said in part:

“The evils attending the vice of intemperance in the use of spirituous liquors are so great that a natural reluctance is felt in appearing to interfere, even on constitutional grounds, with any law whose avowed purpose is to restrict or prevent the mischief. So long, however, as state legislation continues to recognize wines, beer, and spirituous liquors as articles of lawful consumption and commerce, so long must continue the duty of the federal courts to afford to such use and commerce the same measure of protection under the Constitution and laws of the United States, as is given to other articles. We cheerfully concede that the law in question was passed in the Iona fide exercise of the police power. We disclaim any imputation to the lawmakers of South Carolina of a design, under the guise of a domestic regulation, to interfere with the rights and privileges of either her own citizens, or those of her sister states, which are secured to them by the Constitution and laws of the United States. But, as we have had more than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the state from the evils of unrestricted importation, manufacture, and sale of ardent spirits, cannot control the final determination whether the statute, in some of its provisions, is not repugnant to the Constitution of the United States. As was said in Mugler v. Kansas, 123 U. S. 661, 8 Sup. Ct. 273, 31 L. Ed. 210, ‘if a statute, pur-porting to have been enacted to protect the public health, tire public morals, or the public safety, has no real substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution/ ”

After reviewing many decisions, the learned justice, says further:

“In the light of these cases the act of South Carolina of January 2, 1895, must, as to those of its provisions which affect the plaintiff in the present suit, stand condemned. It is not an inspection law. The prohibition of the importation of the wines and liquors of other states by citizens of South Carolina for their own use is made absolute, and does not depend on the purity or impurity of the articles. Only the state functionaries are permitted to import into the state and thus those citizens who wish to use foreign wines and liquors are deprived of the exercise of their own judgment and taste in the selection of commodities. To empower a state chemist to pass upon what the law calls the ‘alcoholic purity’ of such importations by chemical analysis can scarcely come within any definition of a reasonable inspection law. It is not a law purporting to forbid the importation, manufacture, sale, and use of intoxicating liquors as articles detrimental to the welfare of the state and to the health of the inhabitants, and hence it is not within the scope and operation of the act of Congress of August 8, 1890. That law was not intended to confer upon any state the power to discriminate injuriously against the products of other states in articles whose manufacture and use are not forbidden, and which are therefore the subjects of legitimate commerce. When that law provided that ‘all fermented, distilled, or intoxicating liquors transported into any state or territory, remaining therein for use, consumption, sale, or storage therein, should, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and should not be exempt therefrom by reason of being introduced therein in original packages or otherwise/ evidently equality or uniformity of treatment under state laws was intended. The question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors and be valid. Or it may provide equal regulations for the inspection and sale of all domestic and imported liquors and be valid. But the state cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful.”

Another case which is of great importance in this case and which is directly in point, is the case .of In re Langford, found in 57 Fed. (C. C.). Commencing at page 573, Judge Simonton, discussing what is meant by the term “upon its arrival,” says:

“The respondent insists that by this term is meant its entrance within the borders of the state. Thus it is the prohibition of the importation of intoxicating liquors into this state. That does not seem to be within the scope of the Wilson Act. It provides Tor all fermented, distilled or other intoxicating liquors or liquids (transported into any state’; and declares them not exempt from the operation of the police laws by reason of being introduced therein in original packages or otherwise. It is clear that the Wilson Act deals with liquors after their introduction within the state and therefore the word 'arrival’ cannot be construed to be at the border of the state. Goods 'arrive’ when they reach their destination. In the term is involved a cessation of the transit. Goods shipped from Virginia to Alabama cannot be said to arrive in North Carolina, South Carolina, or Georgia. They 'arrive’ when they reach their destination in Alabama.”

In the second syllabus of this case the court defines the meaning of ''upon arrival” as follows:

"The expression 'upon arrival in such state’ means neither on entrance within the border of the state, nor'on delivery to the consignee, but on reaching its destination.”

Attention is also called to the following authorities: Leisy v. Hardin, 139 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Rhodes v. State of Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088; Re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Heymann v. Southern Ry. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, and cases therein cited.

From the agreed statement of facts in this case it clearly appears that the accused, on the 23d day of December, 1907, resided in the state of Oklahoma; that on said date he went to Gainsville, Tex., and there purchased 14 quarts of intoxicating liquor, namely whisky; that said purchases were made for his father, his brother, two of his neighbors, and for himself, and were being conveyed by him in two packages; that his place of residence was Eastman, in this state; that he left the train upon which he convej^ed the said whisky from Gainsville, Tel., to this state at Marietta, and was intending to take the whisky by wagon to his home, near Eastman; and that, when he had gotten off of said train at Marietta, and had gone about 200 feet with said whisky in his possession, he was arrested, tried, and found guilty on the charge of conveying whis-ky from one place within the state to another place therein. The principal question therefore is, Was the purchase an interstate contract, and had the delivery been made in pursuance of such interstate contract ? If so, the accused was properly convicted. If not, then no offense was committed.

It is the* opinion of this court that the purchase of said whisky was an interstate contract, and was entitled to the sheltering influence and protection of the interstate commerce clause of the Constitution of the United States until said whisky was in fact delivered at the home of accused, near Eastman, in this state. This view is sustained by this court in an opinion written by Associate Judge Doyle, in „the case of Webb High, Curley Bradley, Harry Whittemore, and George Broughton v. State of Oklahoma (decided at this term of court,) ante, p. 161, 101 Pac. 115, which decision is referred to and approved. The question involved in this case was also passed upon by the Supreme Court of the state in the case of Wm. Schwedes v. State of Oklahoma, 1 Okla. Cr. 245, 99 Pac. 804, in which said court held as follows:

"‘Under subdivision 3, § 8, art. 1, of the Constitution of the United States commonly referred to as the ‘interstate commerce clause’ of the Constitution, a resident of one state has the right to have shipped to him from another state alcoholic liquors, when ordered by -him for his and his' family’s use, and to keep the same for such use, and the state cannot under its police power enact laws so as to substantially hamper or burden such constitutional right to have such shipment made, and to receive and retain the same, for personal use.”

Inasmuch as the journey of the accused from Gainsville, Tex., to his home or place of destination within this state was a continuous journey, and had not been completed at the time of his arrest and the seizure of the liquor in question, the court below erred in not giving the jury in charge the instructions requested by the accused, and said court also erred in instructing the jury that under the' law a lawful purchase of intoxicating liquor could then be made only upon the sworn statement of the purchaser, setting forth (the purpose for which the liquors are to be used, such statement to be accompanied bjr a bona fide prescription signed by a regular practicing' physician. It is evident the court below, in instructing the jury in this case had in mind the provisions of the Billups Bill, which was then pending in the Legislature, but had not become a law. The charge as given was ljianifestly erroneous, because, as we said before, the so-called “Billups Prohibition Enforcement Law” was not in force, either at the time of the commission of the alleged offense charged in the complaint in this case, or at the time the trial .took place in the court below, and was manifestly prejudicial to the substantial rights of the accused.

Inasmuch as this case must be reversed for the reasons stated, we do not pass upon, and especially reserve, the following questions :

(1) Whether the whisky levied upon might be seized after delivery on .the charge that it had not been bona fide brought in the state, and whether or not said whisky was intended for personal use of the persons for whom the same was brought. .

. (2) Although such goods may be brought into this state for the personal use of the consignee or his family, but not for the purpose of sale, which is prohibited under the law of this state, can such consignee be prevented from receiving and transmitting same to his home, place of business, or storage house ?

Eor the reasons above stated, the judgment of the court below is reversed, and the ease is remanded to the county court of Love county for new trial.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

author: BAKEK, Judge,

license: Public Domain

text:
    State v. Henry Clifton.
    No. A-2.
    Opinion Filed April 6, 1909.
    (100 Pac. 1124.)
    1. JURISDICTION — Transfer of Cases — Procedure. The provisions of section 1, art. 2, c. 16, p. 210, Sess. Laws Í907.-08, providing for the transfer of cases from the district court to the county court, must be substantially complied with to give the county court jurisdiction in the cause transferred. Upon a cause being improperly transferred, the record of such transfer cannot be cured by filing additional proper certificates of transfer after the county court has sustained a motion dismissing the case and discharging the defendant for want of jurisdiction by reason of su-Oh improper transfer.
    SAME. When an indictment for misdemeanor is presented in the district court, it is the duty of the district court to transfer the same- to -the proper inferior court, by complying with the provisions of section 1, art. 2, c. 16, p. 210, Sess. Laws 1907-08. After such transfer the district court has lost all jurisdiction of the case.
    (Syllabus by the Court.)

      Error from, Goal County Court; B. II. Wells, Judge.

    Henry Clifton was indicted for _ unlawful sale of liquors From an order of dismissal, the state brings err.or.
    Affirmed.
    The defendant, Henry Clifton (who will be hereinafter referred to as the “accused”), was indicted by the grand jury of Coal county at the March, 1908, term of the district court of said county, charging him with bartering, selling, and furnishing to one Taylor Altman intoxicating liquor to wit, whisky, on the- day of December, 1907, and said indictment was duly returned into said district court on April 2', 1908. On the 11th day of April, 1908, the district court made an order transferring the case to the county court of Coal county, for the reason as stated in the order. On the 28th day of May, 1908, the indictment in this case was filed in the county court of said county, and said indictment was accompanied by a printed slip or copy of the following order:

      “State of Oklahoma, County of Coal — ss.: State of Oklahoma v. Henry Clifton. No. 12. An indictment for selling whisky. And it appearing that said cause is a misdemeanor, and that this court has no jurisdiction to try the same, it is therefore ordered said cause be and the same is hereby transferred to the county court of Coal county, state of Oklahoma. A. T. West, District Judge.”
    Upon this order the following indorsement appears:
    “Transferred as per the foregoing order. 4 — 11—08. H. A. Davis, District Clerk. Geo. E. Jahn. Filed May 28, 1908. K. H. Wells, County Judge, by» Sallie Bruce, Clerk.”
    On the 6th day of August, 1908, accused filed a challenge to the panel of the grand jury, which was by the court overruled. On the 12th day of August, 1908, accused filed a plea to the jurisdiction of the court, attacking the transfer of the case from the district court to the county court, and on the same day said plea was sustained by the court, and this case was dismissed for want of jurisdiction, to which ruling the state by its attorneys duly excepted. After the plea to the jurisdiction of the court had been sustained, the court permitted the district clerk to file certain papers showing transfer of this case and ordered the clerk of the court to file such papers and date the filing thereof as of July 8, 1908; but said papers were no part of the record in the case at the time: the court passed upon the plea of the accused to the jurisdiction of the county court. Thereafter the county attorney of Coal county gave -notice of appeal to the Supreme Court of this state, said notice being served on the accused as provided by law; and this case was pending in the Supreme Court of this state at the creation of this court, when it was duly transferred by said Supreme Court ■to this court. On the 27th day of November, 1908, the defendant in error filed a motion to dismiss this action, for the following reasons: (1) Because said appeal is not upon a judgment for the defendant, to quash or set aside the indictment or information; (2') because said appeal'is not upon an order of the court arresting the judgment in said cause; (3) because said appeal is not upon a question reserved by the -state of Oklahoma. The plaintiff in error prosecutes error herein to reverse the judgment of said county court dismissing this action for want of jurisdiction.

      F. S. Caldwell, C. S. Wortman, and J. I. Howard, for the state.

      Gutter & Trice, for defendant in error.
    — On sufficiency of transfer of cause: Mitten v. State, (Tex.) 6 S. W. 196; Austin v. State, (Tex.) 40 S. W. 725; Johnson v. State (Tex.) 79 S. W. 27; Coll v. State, (Tex.) 102 S. W. 1151.
   BAKEK, Judge,

(after stating the facts as above). The motion of the defendant in error to dismiss the appeal herein will first .receive our attention. It is urged that this motion to dismiss should be- allowed, because said appeal is not on a judgment for the accused in quashing or setting aside an indictment or information, that said appeal is not upon an order of the court arresting the judgment in said case, and because said appeal is not upon a question reserved to the state of Oklahoma. We think this appeal is authorized under the third subdivision of section 5608, Wilson’s Eev. & Ann. St. 1903, and therefore said motion 4s not well taken, and the same is overruled.

The principal proposition in this case is the question: Did the county court err in sustaining the motion of the accused below, which resulted in his discharge, for the reason that said county court had no jurisdiction to try the accused under the indictment presented in the district court and filed in the county court. The' accused, in support of said motion, contended that inasmuch as the indictment in this case was found and returned into the district court of said county, as authorized by section 1, art. 2, e. 16, p. 210, Session Laws 1907-08, the county court had no jurisdiction unless said district court transferred said ease to the county court. Section 2, art. 2, c. 16, p. 210, Sess. Laws 1907-08, reads as follows:

“It shall be the duty of the clerk of the district court, without delay, to deliver the indictment in all cases transferred, together with all the papers relating to each ease, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each ease with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases.”

Section 3 of said article and chapter reads as follows:

“All cases transferred from the district court shall be entered on the docket of the court to which they are transferred and all process thereon shall be issued, and the defendant tried in the same manner as if the cause had originated in the court to which they have been transferred.”

Was this case transferred from the district court to the county court in compliance with said statute? If so, then the county court had jurisdiction. If not, said motion to dismiss and discharge the prisoner was properly allowed.

Section 183, p. 48, of Bunn’s Constitution of this state, provides :

“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases in which justices of the peace have no jurisdiction.” „

Section 190, p. 50, Bunn’s Constitution of this state, provides:

“Justices of the peace shall have concurrent jurisdiction with the county court in all misdemeanor cases in which the punishment does not exceed a fine of two hundred dollars or imprisonment in the county jail for not exceeding thirty days, or both such fine and imprisonment.”

Section 1, art. 1, c. 27, p. 2'84, Sess. Laws 1907-08, provides:

“County courts, in their respective counties, shall have such jurisdiction and exercise such powers as have been conferred upon ¡them by the Constitution of this state, and shall have such other jurisdiction and powers as are herein conferred or may be conferred by law.”

Under the Constitution and laws of this state there can be no doubt that the illegal selling of whisky, as charged in the indictment in this ease, is a misdemeanor, specifically defined by section 1, art. 3, e. 69, p. 603, Sess. Laws 1907-08, commonly known as the “Billups Bill, Senate Bill No. 61.” This question has been settled by the Supreme Court of this state in the case of Ex parte Cain, 20 Okla. 125, 93 Pac. 974. The opinion in said case, being-written by Chief Justice Williams, and unanimously concurred in by all the justices, conclusively holds that the county courts have general jurisdiction to hear and determine cases involving the violation of said provisions of the Constitution and statutes wherein the sale of whisky is made in any county in this state iii violation of law.

The plaintiff in error contends that a certificate of transfer in the following form is sufficient:

“State of Oklahoma, County of Coal — ss.: In the • District Court, County and State Aforesaid. State of Oklahoma v. Henry Clifton. Numbered 12. An- indictment for selling whisky. And it appearing that cause is a misdemeanor, and that this court has no jurisdiction to try the same. It is therefore ordered that said cause be, and the same is hereby, transferred to the- county court of Coal county, state of Oklahoma. A.- T. West, District Judge. Transferred as per the foregoing order. 4 — 11—08, II. A. Davis, District Clerk. Geo. E. Jahn.” Indorsed: “Filed May 28, 1908. E. H. Wells, Co. Judge, by Sallie Bruce, Clerk.”

It is conceded that the order of transfer just quoted was, at •the time of the filing of the motion to dismiss for want of jurisdiction by reason of the alleged improper transfer of this ease to the county court, the- only order of transfer, and the only certificate is the alleged certificate reading as above: “Transferred as per the foregoing- order. 4 — 11—08, on file in said county court. [Signed] H: A. Davis, District Clerk. Geo. E. Jahn.” It appears from the record that, after the motion to dismiss for want of jurisdiction by the court had been by the county court sustained, said court permitted the district clerk to file certain papers showing transfer of this case, and ordered the clerk of the court to file such papers and date the filing thereof as of July 8, 1908, which last-named date ante-dated the action of the court in sustaining said motion. It is true that section 2', art. 2, c. 16, p. 210, Sess. Laws' 1907-08, above quoted does not prescribe a proper form of transfer, but it does direct that the clerk of the district court shall, without delay, deliver to the proper court, the indictment, together with, all the papers relating to each ease, and he shall accompany each ease with a certified copy of all’the proceedings taken therein in the district court, and also with a bill of the costs that have accrued. The defendant in error contends that there was not such compliance with the law providing for transfer of indictments in misdemeanor cases to the county court as would give the county court jurisdiction in this case. The second, third, fourth, fifth, and sixth grounds urged in said motion of the accused are not, in the opinion of this court, well taken, and therefore each and all are overruled. This then leaves but the first ground of said motion, which reads as follows: “The said court has no jurisdiction to try defendant under the indictment presented and filed in the county court of Coal county, Okla.”

The state of Texas has a statute practically the same as said section 2', art. 2, c. 16, p. 210, above quoted, and its courts have been called upon to construe said section. In the case of Austin v. State, 38 Tex. Cr. R. 8, 40 S. W. 724, tried by the Court of Criminal Appeals of Texas, Judge Davidson, writing for the court, said:

“Appellant was tried and convicted of inclosing a large tract of land, being a part of the unappropriated public domain, without having leased the same from the state. The indictment was presented in the district court on March 13, 1893, and said district Court adjourned on the 18th of the same month. The record of the presentment was' duly entered upon the minutes of the court. So far as this record discloses, this was the only order made 'by the district court in reference to this case. On the-21st day of November, 1893, the clerk of the district court of Coke county sent to the county court a transcript of the orders made in the district court with reference to the indictment herein. He certifies to the correctness of said transcript, and we find the only order entered in said district court was as stated above. When the case was called for trial in the county court,-appellant filed a plea to (the jurisdiction, because there had been no order entered in-the district court transferring the indictment from that court to -the county court. It was further urged as a plea to the. jurisdiction that the itemized bill of costs did not accompany the transcript of the'orders, as required by the statute. By article 473 of the Code of Criminal Procedure of 1895, it is made the duty 'of the clerk of tbe district court, without delay, to deliver indictments in cases transferred from said district court to the inferior courts, as directed by the order of transfer made in the district court, and to accompany each case with a certified copy of all the proceedings taken therein in the district court, and also that the bill of costs accruing in the district court shall accompany the same. Without the order of transfer having been entered by the district court, the clerk has no authority to transfer indictments from the district courts to the inferior courts. The law has not vested in him such authority, and, without the order of such transfer by the district court, the inferior court can acquire no jurisdiction, because the indictments could not be filed therein. It is also made the duty of the clerk to include in the transcript a bill of the costs that have accrued in the case up to and including the fees of the transcript. Because the transcript made out by the district clerk and filed in the county court does not contain an -order of transfer from the district court.to said county court, the plea.to the jurisdiction should have been sustained. Because it was not done, this judgment is reversed and the cause remanded.”

In Cobb v. State, 51 Tex. Cr. 464, 102 S. W. 1151, syl. 2, the Court of Criminal Appeals of Texas held:

“On a transfer of a criminal case from the district court to the county court, the transcript was vitiated where no'seal was attached thereto, and the affixing of the seal after the papers were filed in the county court was unauthorized.”

See cases in point 14 Cent. Dig. § 202.

In Johnson v. State (Tex. Cr. App.) 79 S. W. 27, the same court holds:

“A prosecution based on an indictment returned by the grand jury in the district court should have been dismissed by the County court on motion made before defendant announced ‘Beady for -trial/ where no order of transfer from the district to the county court appeared in the record.”

See, also, Mitten v. State, 24 Tex. App. 346, 6 S. W. 196, stating above doctrine.

This court thinks, and- so holds, that the certificate of attempted transfer, consisting of a printed slip, as shown by the record in this case, was not a proper certificate, and did not properly transfer this case from the district court to the county court, and therefore tbe county court had no jurisdiction to hear and determine the same.

The next question to he considered is: Did the papers filed under date, of July 8th, after the motion to dismiss for want of jurisdiction had been granted by the county court, cure the record and give the county court jurisdiction? This court, in the case of Ex parte Wade, ante, p. 100, 100 Pac. 35, in an opinion written by Presiding Judge Furman, holds:

“When a grand jury returns into a district court an indictment for a misdemeanor the district court is without power to issue a warrant for the arrest of the defendant upon such indictment. The power of the. district court is limited to make an order directing the transfer of such case to the court having jurisdiction. * iji

The district court, after making the order of transfer, had spent its jurisdiction and could do nothing more in the case. This court feels that this is a proper time to encourage the clerks of both the district and county courts, and the county attorneys, to carefully consider the statutes- with respect to the transfer of cases from the district to the county courts, and to comply with the requirements of the same. This decision contains our first impressions in regard to the propositions involved herein, and, while it is based upon the law as we see it, is not free from the desire of this court to instill in the minds of the proper officers a wholesome regard for the statutes referred to and the necessity for a more careful compliance with the provisions thereof. The alleged certificate of transfer filed in the county court was, in our opinion, insufficient to- give said court jurisdiction in this case and the motion to discharge the accused for want of jurisdiction in said court ivas properly allowed, and no error AAras thereby committed.

Therefore the judgment of the court below is affirmed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur:


text:
    Joe Pickering v. United States.
    No. 815,
    Ind. T.
    Opinion Filed April 6, 1909.
    (101 Pac. 123.)
    1. LARCENY — Instructions—Weight of Evidence. It is prejudicial error in a larceny ease for the court to instruct the jury that “the laiw presumes, where a party who is in possession of stolen property soon after the property is stolen, that he is the person who took the property. That is the presumption of the law, and in the absence of. any proof whatever the jury would be justified in finding- the defendant guilty of stealing it, if stolen property should be found in his possession soon after it is stolen.”
    2. RECEIVING STOLEN GOODS — Instructions. It is prejudicial error, in a case charging the defendant with receiving stolen property, for the court to instruct the jury that: “If, however, you do not find from the testimony in this case, beyond a reasonable doubt, or the evidence rather, that he stole these mules, or'either of them, but that he did receive these mules soon after they were stolen with the knowledge that the property was stolen, or under such facts or circumstances as would cause a reasonably prudent man to believe they were stolen — that is, under such facts as would put a reasonably prudent man upon inquiry before he too]:: the property — then, in that state of the case, if 'the evidence justifies it beyond a reasonable doubt, you should find him guilty of having received stolen propert3'.”
    3. SAME — Elements- of Offense — Intent. To constitute the crime of receiving stolen property knowing the same to have been stolen, the act of receiving or concealing the same must be accompanied by a criminal intent of the accused to aid the thief, or hope to obtain some gain or reward for restoring the stolen property to the owner, or in some way to derive a benefit or profit therefrom. The evidence must show beyond a-reasonable doubt the fraudulent intent of the accused concomitant with receiving the stolen property, and the question of intent must be submitted to the jury for determination.
    (Syllabus by the Court.)

      Error from the United States Court for the Western District of the Indian Territory; William B. Lawrence, Judge.

    Joe Pickering was convicted under an indictment charging larceny and receiving stolen property, and brought error to the United States 'Court of Appeals in the Indian Territory, whence the cause was transferred.to the Supreme Court of the state of Oklahoma, and by that court to the Criminal Court of Appeals.
    Reversed and remanded.
    On April 25, 1906, the plaintiff in error, who will be hereinafter referred to as the accused, was indicted in the United States Court for the Western District of the Indian Territory, at Muskogee, on the charge of larceny and receiving stolen property. On the 5th day of October, 1906, the jury returned a verdict of guilty against the accused under the second count of the indictment. On the 9th day of October, 1906, the accused filed his motion for a new trial, and on the 19th of October of the same year the motion for a, new trial was heard and overruled, and judgment entered upon the verdict. The court, after overruling the motion for a new trial, sentenced the accused to serve a period of 18 months in the United States penitentiary at Ft. Leavenworth, Kan., and to pay a fine of $100, together with all the costs. From said judgment the accused appealed to the United States Court of Appeals in the Indian Territory, from which court, upon statehood, this cause was transferred to the Supreme Court of this state and by said Supreme Court transferred to this court upon the creation thereof.

      P. L. Soper, J. II. Huckleberry, Thos. II. Owen, and IF. J. Crump, for plaintiff in error.

      William M. Mellette, U. S. Atty., Charles West, Atty Gen., and W. C. Beeves, Asst. Atty. Gen. for the United States.
   BAKER, Judge,

(after stating the facts as above). The petition in error contains 11 assignments. The eighth assignment complained of the following instructions given by the court below to the jury: »

“If, however, you do not find from the testimony in this case, beyond a reasonable doubt, or the evidence rather, that he stole these mules, or either of them, but that he did receive these mules soon after they were stolen with the knowledge that the property was stolen, or under such facts or circumstances as would cause a reasonably prudent man to believe they were stolen — that is, under such facts as would put a reasonably prudent man upon inquiry before he took the property — then, in'that state of the case, if the evidence justifies it beyond a reasonable doubt, you should find him guilty of haying received stolen property."

The tenth assignment complained of the following instruction given .to the jury:

“Now, if you believe from the testimony that he was found with this property the next morning after the taking of it — the property was taken, say, in the night, and he was found with it the next morning, or soon thereafter — and the law does not define any particular time, but ‘soon thereafter’ means soon thereafter from all the circumstances of the case, and there has not been a reasonable explanation by him of having that property in his possession, if it was in his possession, that is for you to say whether it was found in his possession or not, and, if he has not made a reasonable and fair explanation of that, the jury is to assume that he stole the property, or received the property, though he might not have stolen it."

The Attorney General filed in this case the following confession of error: ■

“The appellee in the above-entitled cause, by W. C. Beeves, Assistant Attorney General, of the state of Oklahoma, hereby confesses error in said cause, same being based on the giving of the instruction shown at page 143 of the printed record and set out in the eighth assignment of error of appellant; also the giving of the instruction shown on page 143 and set out in the tenth assignment of error by appellant."

It is the opinion of this court that the Attorney General was fulty justified in filing said confession of error, for the reason that the court did err in giving each of said charges. These questions have been disposed of by this court. In the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, this court holds:

“It is error to instruct the jury that the possession of property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence."

And in Dan Askew v. United States, ante, p. 155, 101 Pac. 121, this court holds:

“Tile inculpatory inference to- be drawn from the possession of property recently stolen is not- a presumption of law, but is a deduction of fact to be drawn by the jury alone, unforestalled by any instructions from the court upon the weight of the evidence. It is error in a larceny case for the court to instruct the jury as follows: ‘The unexplained possession, if there should be such unexplained possession, of recently stolen property, is prima facie, but not conclusive, evidence of his guilt/ ” •

The same doctrine has also been held in the following cases: Haley v. State, 49 Ark. 148, 4 S. W. 746; Shinn v. Tucker; 37 Ark. 581; Fitzpatrick v. State, 37 Ark. 239; Keith v. State, 49 Ark. 439, 5 S. W. 880; Smith v. State, 58 Ind. 343; Underwood v. State, 72 Ala. 220; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298.

Adhering to, and approving, our decisions in the case of Slater v. United States, and Askew v. United States, and in conformity with the many other well-considered cases above cited, we find that the court committed prejudicial error in the instructions complained of in the eighth and tenth assignments of error herein. This ease is therefore reversed and remanded for a new trial.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


author: BAKEB, Judge,

text:
    Earl Howard v. State.
    No. A-37.
    Opinion Filed April 6, 1909.
    (101 Pac. 131.)
    1. TRIAL — Time to Plead — Waiver of Continuance. When a defendant in a misdemeanor ease fails to require time to plead •before filing his challenge to the array of jurors, he waives his right to further time by filing such challenge.
    2. INDICTMENT AND INFORMATION — Amendment—When Allowed — .Delay of Trial. An -information may be amended in matter of substance or form at any time before the defendant pleads without leave of the court, and may be amended after plea on order of the court' where the same can be done without materia] prejudice to the rights of the defendant. No amendment shall cause any delay of the trial unless for good cause shown by affidavit; and it is not error for the trial court to require the trial to proceed unless the defendant by affidavit duly filed shows good cause for delay.
    3. SENTENCE — Time of Entering. Defendant is not entitled, under . section 5563, Wilson.’s Rev. & Ann. St. 1903, to two days after the rendition of a verdict of guilty against him before pronouncing sentence upon him, it a.nnears affirmatively from the record that the court expected to and did remain in session that long after the rendition of such verdict. In the absence of such'showing in the record, it will be presumed by the appellate court that the court below acted in conformits' with the law, and, if two days had not expired after the rendition of the verdict and before sentence, the time was as remote as could reasonably be allowed, and the court .complied with said statute as nearly as the time remaining- of -the session permitted.
    (-Syllabus by the Court.)

      Error from Grady County Court; N. M. Williams, Judge.

    Ear] Howard was convicted of selling liquor, and brings error.
    Affirmed.
    The plaintiff in error, who will for convenience be hereinafter referred to as the accused, was prosecuted on information in the county court of Grady county, charging him with the crime of furnishing intoxicating liquor to an unknown person. On the 4th day of May, 1908, the jury in this case returned a verdict against the accused, and the court entered a judgment upon the verdict, fixed the punishment to be a fiñe of $300 and confinement in the county jail of said county for a period of 60 days, to all of which the accused excepted, and in due time filed his motion for a new trial, setting forth the following grounds:
    (1) The court erred in overruling the challenge to the array of jurors; (2) the verdict is contrary to the evidence; (3) the verdict is contrary to the law; (4) the court erred in refusing to instruct the jury to return a verdict of not guilty; (5) the court erred in each paragraph of instructions given to the jury over defendant’s objection; (6) the court erred in refusing to give special instructions 1, 2, 3, 4, and 6, as requested by the accused; •(?) the court erred in permitting the state to introduce over defendant’s objection the record of the conviction of the negro, Lee Liverpool; (8) the court erred in permitting evidence over defendant’s objection; (9) the court erred in denying and overruling defendant’s request for statutory time in which to plead; (10) the court erred in swearing the jury to try the issue involved in this case Before any plea was entered by defendant, and proceeding to try defendant after the plea had been entered tty the court in his behalf; (11) the court erred in permitting the county attorney to argue any testimony regarding the actions of the witness Harris; (12') the court erred in not sustaining defendant’s peremptory challenge to two of the jurors; (13) the various errors of law occurring during the process of the trial; and (14) various errors of the court occurring during the progress of the trial to the defendant’s prejudice.
    This motion was overruled, to which the accused, in due time excepted, and prosecutes error to this court to reverse the judgment of the court -below. The petition in error sets forth 10 of the grounds contained in the motion for a new trial.

      F. E. Biddle, for plaintiff: in error.—
    On question of defendant’s right to time to plead after amendment of information: Dansby v. U. S. (Ind. T.) 61 S. W. 1083; Bishop’s Grim. Proc. (3rd. Ed.) §• 733; Gain v. U. 8., 162 U. S. 643; Stale v. Hughes, 1 Ala. 655; Sartorious v. State, 24 Miss. 602 ; Parhlcinscm v. Peo-ple, 155 Ill. 401; State v. Ghenier, 32 La. 103; People v. Moody, (Cal.) 10 Pac. 392; Hat-ji,eld v. State (Ind.) 36 N. E. 644.

      F. S. Caldwell, for the state.
   BAKEB, Judge,

(after stating the facts as above). Taking the assignments of error in the order made in the brief of the accused, we are first brought to a consideration of the first, third, fourth, and ninth assignments, which are grouped and treated together in the brief of the accused.

The accused contends that the filing of the amended information after the jury was sworn was prejudicial error; that the court erred in denying the accused time in which to plead: that the •court also erred in placing the accused upon trial before he pleaded or the court had entered a plea of not guilty for him; and that the court erred in allowing the introduction of testimony against the accused over his objection before a plea had been entered by him. The record discloses that the information was filed on April 18th; that some time between that date and the 8th day of May follow•ing (the record does not show the date) the accused filed a challenge to the array of jurors, which challenge was by the court overruled on the 8th day of May, 1908, and on the same day, and, so far as the record discloses, before the commencement of the trial, the accused, being arraigned and called upon to plead to the information, either stood mute or refused to plead, whereupon the court ■entered a plea of not guilty for him and proceeded to the taking of testimony, to which ruling the accused duly accepted. After the first witness took the stand, the accused objected to the introduction of any testimony on the part of the state, for the reason that a copy of the information had just been furnished him, and then requested 24 hours or “until to-day” in which to plead. Said request being refused, the accused duly excepted. This court is of the opinion that the accused in this case waived further timé to plead after having first filed a challenge to the array of jurors.

This question is settled by the Supreme Court of the territory of Oklahoma in Grant Stanley v. United States, 1 Okla. 336, 33 Pac. 1025. In this case the court had under consideration section 5397, Wilson's liev. & Ann. St. 1903 (then section 5543, St. 1890), and in construing said statute held:

“If a defendant fails to require time before moving to set aside the indictment and demurring thereto, he waives his right to further time, and it Avas too late to demand it after his motion to quash, demurrer, and plea in abatement had been overruled.”

The record showing affirmatively that the accused filed a challenge to the array of the jurors, which being overruled he was called upon to plead and did not plead, and the court entered a plea of not guilty for him, he had waived his right to additional time, the trial proceeded properly, and no error was committed to the prejudice of tbe accused.

Coming now to tbe point as to whether or not tbe jury was properly impaneled, will say this court has passed upon this question in the cases of Price v. Territory of Oklahoma, 1 Okla. Cr. 508, 99 Pac. 151 and in Cavett v. Territory of Oklahoma, 1 Okla. Cr. 493, 98 Pac. 890. It held that the provisions of the act providing for the selection of grand and petit jurors in this state .was directory only. Therefore, in the absence of the record showing that the accused was prejudiced by the selection of incompetent and improper persons to sit as jurors in the case at bar or some improper conduct of the officers in selecting the jury to the prejudice of the accused, this court will not disturb a verdict rendered by an impartial jury, though their selection is not' in all respects in conformity to the strict provisions of the statutes providing for the selection of grand and petit jurors. The challenge of the accused to the array of the jurors was therefore properly overruled.

In the eighth assignment of the accused he says that the Constitution of Oklahoma “requires the court to fix a specified time with in which to pass sentence upon any person for any crime,” but doe# not point out the statutes. But no doubt counsel had in mind section 5562, Wilson's Eev. & Ann. St. Okla. 1903, which provides:

“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.”

On the 9th day of May, within the statutory time, the accused filed his motion for a new trial. This motion came on for hearing May 12, 1908, and the record shows the following entry:

“Coming on the motion above set out (referring to motion for a new trial) and the court being fully advised in the premises overrules the same, and the defendant was fined $300.00 and costs and 60 days in the county jail. * * * The defendant stated that he desired to appeal to the Supreme Court and serve notice as required by the statute of the state of Oklahoma, which said request was allowed. * * *”

It therefore appears from the record that the accused did not except to the pronouncing of the sentence of the court at that time. Not having objected to the pronouncing of the, sentence at the time it was so pronounced, and saving no exceptions to the action of the court in this connection, the accused may properly- stand as having waived further time, and as having waived the fixing of a .day at which time sentence should be passed upon him. The record does not disclose whether the court adjourned on the 12th day of May, or when in fact it did adjourn. Therefore this case comes within the rule laid down by the Supreme Court of the territory of Oklahoma in the ease of Keith v. Territory of Oklahoma, 8 Okla. 307, 57 Pac. 834. Justice McAtee, writing for the court, in construing section-5274 of the Revised Statutes of Oklahoma of 1893, which reads the same as section 5562 hereinabove quoted says:

“It is provided in section 5274 of the Statutes of Oklahoma of 1893 that 'after a plea or verdict of guilty * * * the court must appoint a time for pronouncing judgment’; and by section 5275 that 'the time appointed must be at least two days after the verdict, if the co-urt intends to remain in .session so long; or, if not, at as-remote a time a's can reasonably be allowed.’ The verdict was rendered on the 17th day of March, 1898, judgment and sentence were pronounced on the 18th day of March, 1898, and it is contended that the sentencing of the defendant before the expiration of two days from the time of the rendition of the verdict was error. It does not appear in the record in any manner whether or not the court intended to remain in session longer than the 18th day of March, 1898, and, in the absence of any such showing, it will be presumed that the court acted in conformity with the law, and that, inasmuch as two days had not expired after the rendition of the verdict and before sentence, the time was as remote as could reasonably be allowed, and that the court complied with the law as nearly as the time remaining of the session permitted.”

The doctrine in the case of Keith v. Territory of Oklahoma is approved by this court.

The tenth assignment of error relates -to the introduction of alleged incompetent, irrelevant and immaterial testimony over the objection and exception of the accused. We have carefully read the entire record, and we find that no prejudicial error was committed in the introduction of the testimony objected to.

This brings us -to the fifth and sixth assignments of error, which are directed to the charge as given by the court and the refusal by the court to give the instructions requested by the accused. It is urged by the accused that the court erred in instructing as follows:

“All of. the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty. If upon which proof there is a reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal.”

We think the instruction just quoted substantially states the law on reasonable doubt, and that it could not in the light of the whole charge have misled the jury to the prejudice of the accused.

The next instruction complained of is the instruction given on circumstantial evidence, the accused contending that the instruction does not state the law, and is misleading and ambiguous, and would tend to confuse the minds of the jury. The court charged on this subject as follows:

“The state in this case relies upon circumstantial evidence for a conviction at your hands. You are charged that, to warrant a conviction on circumstantial evidence, each fact necessary to a conclusion sought to be established must be consistent to each other and upon the main facts sought to be proved, and the circumstances taken together must be of a conclusive nature, leading on a whole to a satisfactory conclusion, and producing to a moral certainty and beyond a reasonable doubt that the accused committed the offense as charged, and it must exclude every reasonable hypothesis of his innocence.”

We think said charge substantially states the law, and is favorable to the accused, and the accused therefore should not be heard to complain.

The accused also- contends that the court erred in • refusing instructions requested by him, reading as follows: Charge No.-1:

“Gentlemen of the Jury, you are instructed that in this case the evidence fails to show the defendant’s connection with the crime charged in the information, and your verdict will be a verdict of not guilty'.”

This, as well as all of the other instructions requested by the accused, go to the sufficiency or insufficiency of the evidence, except the sixth instruction, which reads as follows:

“Under the law the defendant has a right or not to take the witness stand in his own behalf. It is a privilege he has, but he likewise has the right and privilege of remaining silent, and the fact that he did not testify shall not be taken into consideration by the jury, and the jury will not presume anything against the defendant by reason of the fact he did not testify.”

This instruction was properly refused, because it had been given in identically the same words as shown in the second paragraph of the charge on page 45 of the record.

The other requested and refused charges involve the consideration of all the testimony in the case. We have read and carefully considered all the testimony, and it is shown from the testimony of George A. Brown that the accused was the proprietor of a place in Chickasha, known as the “Legal Tender,” and that he had seen the accused there, sitting at the desk writing, also saw him in the back room of the place, had a talk with him about two weeks before the arrest in this case, at which time the accused said he was the owner of the place where the whisky and beer in this case was found;' that Brown asked him to unlock two certain safes in the place, but accused refused, stating “he did not want his money exposed to everybody”; that on the day the arrest was made in this case Brown was accompanied by Mr. Whited and Deputy Sheriff Doss; that they all went'into the back door of the place known as the Legal Tender, kept by the accused, placed Mr. Whited at the basement door while the witness went after the key; that, getting the key, they unlocked the door, and found 10 cases of whisky and four barrels of beer; that the name of the accused was on each of the cases of liquor and barrels of beer; that the witness had assisted in raiding the same place about two weeks before the arrest was made in this ease, at which time he saw two negro porters there, one named Harris, who was also .there on the day of the arrest in this case, also saw a negro named, Lee Liverpool, the same Liverpool that was convicted in the county court of Grady county for unlawfully selling liquor at the Legal Tender place, the same place kept by the accused, and where the liquor in this ease was found; that he was present when Liverpool was sentenced. in said case, and saw the accused pay Liverpool's fine and costs in said case. M. B. Louthan, sheriff of Grady county, testified in substance that he has known the accused about 12 years, and that the accused is not the legal city agent for dispensing liquors at Chickasha in Grady county, or any other place in Grady county, and that the accused was not then a pharmacist nor was he engaged in the drug business, and was present when the accused was arrested in this case, and saw the 10 cases of liquor taken in this case, all marked wiith the name of the accused thereon.

. While other witnesses testified to many immaterial facts in this ease, we think the testimony adduced was in all respects ample to warrant the verdict. Therefore the’charges requested by the accused and known as Nos. 1, 2, 3, 4, and 5, set forth at pages 45 and 47 of the record were each and all properly refused, and that the rights of the accused were not thereby prejudiced; that the trial of this case was in all respects fair and impartial to the accused; that, if there was an error in the introduction and exclusion of testimony, it was decided in favor of the accused. The instructions asked for by the accused, not being sustained or warranted by the evidence, were properly refused, and the instructions as given by the court fully and amply protected all his rights.

Therefore we are unable to find prejudicial error in this case, and judgment of the county court is affirmed, and the sheriff of Grady county is ordered to execute the sentence and judgment of said court without unnecessary delay.

FURMAN, Presiding Judge, and DOYLE, Judge, concur.


author: BAKED, Judge,

text:
    Josh McCord v. State.
    No. A-40.
    Opinion Filed April 6, 1909.
    (101 Pac. 135.)
    1. TRIAL — --Time to Plead — Waiver. When a defendant in a misdemeanor case fails to require time to plead before filing his challenge to the array of jurors, he waives his right .to further time by filing such challenge.
    2. SENTENCE — Review—Presumption in Favor of Action of Lower Court. Defendant is not entitled under section 5563, Wilson’s Rev. & Ann. St. 1903, to two days after t'he rendition of a verdict • of guilty against him before pronouncing sentence upon him, unless it appears affirmatively from the record that the court expected to and did remain in session that long after the rendition of such verdict. In the absence of such showing in the record, it will be presumed by the appellate court that the court below acted in conformity with the law, and, if two days had not expired after the rendition of the verdict and before sentence, ■the time was as remote as could reasonably be allowed, and the court complied with said statute as nearly as the time remaining of the session permitted.
    3. INDICTMENT AND INFORMATION — Amendment — Right to Postponement — Affidavit Showing Cause. An information may be amended in matter of substance or form at any time before the defendant pleads without leave of court, and may be amended after plea .on order of the court where the same can be done without material prejudice to the rights- of the defendant. No amendment shall cause a-ny delay of the trial unless for good cause shown by affidavit, and it is not error for the trial court to require the trial to proceed unless the defendant by affidavit duly filed shows good cause 'for delay.
    (Syllabus by the Court.)

      Error from• Grady County Court; N. M. Williams, Judge.

    Josh McCord was convicted of unlawfully selling intoxicating liquor, and he brings error.
    Affirmed.
    On the 9th day of December, 1907, there was died in the county court of Grady county an information charging the plaintiff in error, who will hereinafter be referred to as tbe accused, with the unlawful sale of intoxicating liquor, to wit, whisky; that such unlawful sale was made on the 8th day of December, 1907, in quantities unknown and to parties unknown to the informant. On the 4th day of May, 1908, the county attorney, after first obtaining leave of court therefor, filed an amended information in said court charging said accused with furnishing intoxicating, liquor, to wit, whisky, to a person unknown. Upon the filing of the said amended information, the accused requested the statutory time within which to plead, which was refused, to which the accused excepted. On the 23d day of March, 1908, the case was upon the application of the accused continued in the court below to May 4, 1908, on which date this cause came on regularly to. be heard. The jury was summoned and appeared, and the accused filed a challenge to the array of jurors, which challenge was by the court overruled, to which the accused excepted. Trial was thereupon had, which resulted in a verdict of guilty. The accused in due time filed his motion for a new trial, and the same was overruled, to which ruling he duly excepted. On the 7th day of May, 1908, the accused filed an amendment to his-motion for ’a new trial, which was also overruled and excepted to by him, whereupon the court pronounced sentence, fixing the punishment at $300 fine and 30 days’ confinement in the county jail, from which judgment the accused prosecutes error to this court.

      F. E.. Biddle, for plaintiff in error.

      F. S. Caldwell, for the State.
   BAKED, Judge,

(after stating the facts as above). The petition in error alleges that the court erred in overruling the challenge of the accused to the array of jurors summoned; that the court erred in selecting and swearing the jury to try the issue involved before they had been made up for trial, and in entering a plea of not guilty for the accused after such jury had been sworn to try the case; that the court erred in permitting the county attorney on behalf of the defendant in error to introduce any evidence tending to show the accused guilty upon the amended information filed, and in refusing, to allow the accused 24 hours or until tbe next day to plead to said information; that the court erred in permitting the county attorney to ask leading questions, suggesting the answers, and in introducing oyer the defendant’s objection incompetent, irrelevant and immaterial testimony; that the court erred in its instructions and charge to the jury, as shown in paragraphs 2, 3, 7, and 8 of the charge; that the court erred in refusing to charge the jury peremptorily as requested in writing bjr the accused; that the court erred in refusing to give special instructions requested in writing by the accused; that the court erred in overruling the amended motion for a new trial; that the court erred in attempting to pass sentence upon the accused on the verdict of the jury for the reason of the many errors assigned herein, and the court also erred in not setting a special time to pronounce sentence.

Addressing our attention to the assignments of error as made in the brief by the plaintiff, we come, first, to the question: Did the court below err in overruling the challenge filed by the accused to the array of jurors? This question was passed upon in the case of Howard, Plaintiff in Error, v. State of Oklahoma, ante, p. 200, 101 Pac. 131, in which it is held that said challenge is not well taken and was properly overruled.

The second assignment alleges that the court erred in selecting and swearing the jury to try the issues in this case before they had been made up for trial by the entering of a plea of not guilty by the accused. The record does not disclose whether the court entered a plea of not guilty for the accused or whether he stood mute and refused to plead before or after the trial commenced. It will therefore be presumed by this court that the court below did that which the law required, and that the plea of not guilty was entered before the trial began. If so, the position of the accused in claiming that the court erred in this particular is not well taken, and all the authorities cited, though in most instances good law, do not apply to the case at bar. We think the statutes were fully complied with, and the plea of not guilty was properly entered.

The third assignment of error complains of the action of the court below in permitting the state to introduce any evidence or testimony tending to show the guilt of the accused upon tlie amended information herein because the court refused to allow the accused 24- hours or until the next day to plead to said amended information. Section 5307 of Wilson’s Revised and Annotated Statutes of Oklahoma of 1903 reads as follows:

“An information may be amended in matter 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 rights of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

This assignment is readily-disposed of, for the record discloses that the accused did not file an affidavit showing cause for delay. Therefore the court did not err in requiring the trial of this cause to proceed immediately after the filing of said amended information.

The fourth assignment of error is predicated upon .the alleged error of the court in permitting counsel for the state to ask leading questions and suggesting the answers, and introducing over the objection of the accused incompetent, irrelevant, and immaterial testimony. We have read every word of the evidence, and we fail to find that the court erred to the prejudice of the accused in the admission of evidence offered by the state. In fact, the record is singularly free of objection on these grounds. If the court erred at all in this connection, it was in favor of the accused.

In the fifth assignment the accused contends that the court erred in its instructions to the jury. We have read the instructions carefully, and we think they are substantially in' conformity to the facts and law of this case. The accused urges that the court erred in refusing to give the following instruction requested by him:

“G-entlemen of the jury, you are instructed in this case that' the court has wholly failed under the testimony to make out a case against said defendant as charged in the information, and .your verdict shall be a verdict of acquittal.”

From the testimony in this case the accused is not entitled to this instruction, for it is the opinion of this court that the evidence abundantly supports the verdict, and said instruction was properly refused.

Other instructions were requested by the accused and refused by the court. All these instructions involved a consideration of the evidence in this case. From the evidence we fail to find that the court committed error prejudicial to the rights of the accused in refusing to give the jury the instructions requested by the accused for the reason that the evidence does not authorize the same.

The ninth and last assignment of error is as follows:

“The court erred in attempting to pass sentence upon the plaintiff: in error on the verdict of the jury for the reason of the many errors assigned herein, and erred in not setting a special time to pass sentence upon said plaintiff in error.”

The verdict in this case was returned into court May 4, 1908. On the next day the accused filed a motion for a new trial. On the 7th day of May be filed his amended motion for a new trial. On the 12th day of May judgment on the verdict was rendered, and the accused sentenced, but no time was appointed by the court in advance at which sentence would be pronounced, as provided' by section 5562, Wilson’s Kev. & Ann. St., which is as follows:

“After a plea or verdict of guilty * * * if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.”

Section 5563 reads:

“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long, or, if not, at as remote a time as can reasonabty be allowed.”

The record does not disclose when court intended to adjourn or did adjourn. It must therefore be presumed that the court gave •the accused the benefit oí all the time possible. This question is fully decided by the Supreme Court of the territory of Oklahoma in the case of Keith v. Territory of Oklahoma, 8 Okla. 307, 57 Pac. 834. In said case the court in construing the section just quoted says:

“The verdict was rendered on the 17th day of March, 1898, judgment and sentence were pronounced on the 18th day of March, 1898, and it is contended that the sentencing of the defendant before the expiration of two days from the time of the rendition of the verdict was error. It does not appear in the record in any manner whether or not the court intended to remain in session longer than the 18th day of March, 1898, and, in the absence oE such showing, it will be presumed that the court acted in conformity with the law, and that, inasmuch as two days had not expired after the rendition of the verdict and before sentence, the time was as remote as could reasonably be allowed, and that the court complied with the law as nearly as the time remaining of the session permitted.”

Not finding any reversible error in the record, the judgment oE the court below is affirmed, and the sheriff of Grady county is directed to carry said judgment into execution without unnecessary ■ delay.

FURMAN, PresidiNG Judge, and DOYLE, Judge, concur.