text:
    CURT YATES et al. v. STATE.
    No. A-2468.
    Opinion Filed August 4, 1917.
    (166 Pac. 904.)
    LARCENY — Information—Sufficiency1., An information charging larceny of live stock should contain an allegation to the effect that the property alleged .to have been stolen was taken without the knowledge or consent of the owner, and when no such allegation is set forth, and a demurrer is timely filed, it should be sustained and a proper information substituted.

      Appeal from District Court, Texas County; W. C. Crow, Judge.

    Cunt Yates and Roy Guffey were convicted in the district court of Texas county for the crime of larceny of domestic animals, and each sentenced to serve a term of one year’s imprisonment in the state penitentiary, and they appeal.
    Reversed and remanded.

      John S. Harris, Jas. E. Breslin, Jas. 0. Lynch, and R. L. Cooke, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Texas county, wherein the plaintiffs in error were convicted of the crime of the larceny of domestic animals, and their imprisonment fixed at one year’s imprisonment in the' state penitentiary. From said judgment of conviction they have appealed to this court, and assign some 20-odd reasons why this judgment should be reversed. It will be necessary to discuss only two of the alleged errors. It is contended that the court erred in overruling the demurrer to the information. The charging part of the information is as follows:

“That the said Curt Yates and the said Roy Guffey did in Texas county, State of Oklahoma, on or about the 16th day of March, 1914, then and there unlawfully, willfully, and- feloniously, by fraud and stealth, take, steal, and carry away, of the personal property of one Claude Terry, one certain light red steer yearling with white in its face, a more accurate description of which animal is to this informant unknown, with the unlawful, willful, and felonious intent on the part of the said Curt Yates and the said Roy Guffey to deprive the owner, the said. Claude Terry, thereof, and with the intent to willfully, unlawfully, and feloniously convert the same to the use and benefit of the said Curt Yates and the said Roy Guffey,” etc.

In the case of Dave Beck v. State, ante, p. 3, 166 Pac. 753, this court, in an opinion by Armstrong, J., held an information in language substantially the same as the foregoing to be insufficient because there was a failure to allege that the property was taken without the knowledge or consent of the owner thereof, the court citing the following cases: Bryan v. State, 11 Okla. Cr. 180, 144 Pac. 392; Jackson v. State, 10 Okla. Cr. 525, 139 Pac. 324; Case v. State, 10 Okla. Cr. 502, 139 Pac. 322. Upon the authority of the Beck Case, therefore, this judgment must be reversed, and the cause remanded, with instructions to the trial court to permit the information to be amended.

It also appears from the record in this case that the court in instructing the jury as to the punishment for the crime of larceny of live stock gave the minimum punishment at one year’s imprisonment in the state penitentiary, when by statute the minimum is fixed at two years’ imprisonment in the penitentiary. The jury returned a ver-diet fixing the punishment at one year’s imprisonment in the penitentiary. This instruction as to punishment is erroneous, and the trial court should be very careful in examining to- see whether or not the statutes of this state defining punishment have been amended by recent legislation.

If this court should sustain a judgment of conviction of grand larceny and permit the court to instruct, and the jury to return, a verdict fixing the punishment for said offense at that prescribed for petit larceny, we could, with equal good grace, permit a person to be tried and convicted of murder, and the punishment for assault and battery to be inflictéd. The instructions as to punishment-must conform with the punishment prescribed by the statute. The courts have no authority to encroach upon- -the legislative prerogative of prescribing the punishment for crime.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.

DOYLE, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    SHERMAN BILLINGS v. STATE.
    No. A-2769.
    Opinion Filed August 4, 1917.
    (166 Pac. 904.)
    1. WEAPONS — Dfeatfly Weapon — Pointing at Another — Information. An information for pointing a deadly weapon -at another which alleges: “The said Sherman Billings did then and there unlawfully; willfully, and' feloniously point a weapon, to-wit, a Winchester .rifle, at one J. L. Burns, contrary to the form of the statute,” 4tc., is sufficient. A Winchester rifle is a deadly weapon per se.

      2. SAME! — Evidence. Evidence examined, and held sufficient to sustain a judgment of conviction for pointing a deadly weapon at another person.
    3. SAME — Defenses—Unlawful Search.. If an attempted search • he unlawful, the party whose property is sought to be searched may use such reasonable force, proportioned to the injury attempted upon his property, as is necessary to prevent an unlawful trespass, hut no more; and he cannot do this by using, or offering to use, a deadly weapon, if he has no reason to apprehend a greater injury to his property than a mere unlawful search thereof.
    4. TRIAL — Instructions—Refusal. Where the instructions of the court are as favorable to the defendant as his own testimony would warrant and substantially cover the law of the case, it is not error to refuse the giving of other instructions which are cumulative.

      Appeal from, County Court, Choctaw County; W. T. Glenn, Judge.

    Sherman Billings was convicted of pointing a deadly weapon at another, and appeals.
    Judgment affirmed..

      Richardson & Warren, for plaintiff in error.

      S. P. Freeling, Aitty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This plaintiff in error was convicted in the county court of Choctaw county for the crime of pointing a deadly weapon at one J. L. Burns, a deputy sheriff of that county, and his punishment was fixed at a fine of $50 and imprisonment in the county jail for a period of six months.

Counsel contend that the information does not contain facts sufficient to charge an offense against this plaintiff in error. Omitting' the formal part of the information, it alleges: .

“The said Sherman Billings did then and there unlawfully, willfully, and feloniously point a weapon, to wit, a . Winchester rifle, at one J. L. Burns, contrary to the form of the statute,” etc.

Section 2553, Rev. Laws 1910, provides:

“It shall be unlawful for any person to point any pistol or any other deadly weapon whether loaded or not, at any other person or persons, either in anger or otherwise.”

Section 2554, Id., fixes the punishment for said offense at a fine of not less than $50 nor more than $500 and by imprisonment in the county jail for a period of not less than three nor more than 12 months.

The specific ground urged against this information is that it does not allege1 that the weapon pointed was a deadly weapon; it not being alleged that the defendant pointed a pistol at the prosecuting witness. We fail to see any merit in this contention. The information alleges facts sufficient to give a person of ordinary understanding to know and be informed of the charge against him. The purpose of the statute was to prevent the pointing at another of any kind of a firearm which, if discharged at said other person within the range of said weapon, would likely produce death. This information charges the pointing of a Winchester rifle, it is within the common knowledge of every person that a Winchester rifle is one of the most deadly of firearms, more deadly than a. pistol, because of its longer range and the accuracy with which it may be fired. The information, therefore, having alleged that the weapon pointed was a Winchester rifle, it clearly appeared from the allegation that the same was a deadly weapon.

It is also contended that there is no proof in the record to show that the defendant pointed the weapon at the prosecuting witness. In testifying the prosecuting witness stated that the defendant “threw his gun on me,” after stating that the defendant had a Winchester rifle. The defendant took'the witness stand in his own behalf and testified: “I throwed my gun on him.” The foregoing expression is the one ordinarily used in this state among officers and others to express the pointing of a weapon at another. The' prosecuting witness so understood it, and the defendant used a like expression. The jury was not misled by its use. The contention that the use of this expression was insufficient to convey the meaning to the jury that the defendant had pointed the Winchester rifle at the prosecuting witness is too technical for serious consideration.

It is also contended that the court erred in overruling the request of the defendant for a peremptory instruction of “not guilty.” The record discloses that when the defendant pointed this gun the prosecuting witness was endeavoring to search the buggy of the defendant for' the purpose of discovering whether or not the said defendant had at that time in his possession intoxicating liquors with intent to violate the laws of this state. The prosecuting witness was not armed with a search warrant.

Counsel contend that- the prosecuting witness was searching the property of this defendant in violation of the Constitution of this state against unreasonable searches and seizure, and in this connection it is contended that the defendant was authorized under the circumstances of this case to use a deadly wéapon to, prevent such trespass. It is claimed that the prosecuting witness was armed with a pistol and was attempting to use such force in order to carry out his unlawful trespass. Section 2342, Rev. Laws. 1910, among other things, provides:

“The use or attempt to use force or violence upon or towards the person of another is not unlawful in the following cases, * * * when committed either by the party ahput to be injured, * * * in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful .possession, provided the force or violence used is not- more than sufficient to prevent such offense.”

This contention of counsel for the defendant is not supported by the evidence. This court cannot take a more favorable view of what occurred at the time this weapon was pointed than that disclosed by the defendant’s own testimony. In detailing the circumstances under'which he pointed this weapon the defendant testified:

“Because the road was boggy, so he turned around and rode back nearly a mile with me — I judge about a mile from where he met me to my house — and so we drove on up and I had Mr. Cox and Mr. Saddiewhite putting up sorghum hay there, and so I came on up and Mr. Burns drove up with me. I pulled out my watch and said: ‘Well, it is nearly 11 o’clock, and you had just as well get down and eat dinner with us.’ I said, ‘It may be “sorter” rough grub, but you are welcome to come in and eat.’ And so Mr. Bums sat there a little bit, and when I got out of the buggy, Mr. Burns says, T am going to have to see what you have got in that buggy,’ and I said, ‘No, you are not going to search that buggy,’ and when he started to search the buggy I throwed my gun on him and told him he wasn’t going to do it. . So he said, ‘What do you want me to do?’ and I said, ‘Well, you got in here; you can get out, can’t you ?’ ”

It is nowhere contended by the defendant that ■ he pointed this gun at the prosecuting witness because the prosecuting witness was attempting by the use of force (in that he had drawn a pistol) to accomplish an unlawful search of his property, but the defendant only contends that, after the prosecuting witness had announced his intention to- search his buggy and had started to search the buggy, he threw his gun'on him and told him that he could not search it. The testimony of the defendant does not place him within the provisions of -the statute above quoted, permitting the use of force to prevent an unlawful trespass upon his, property. At the time the defendant pointed the rifle at the prosecuting witness, he had no reason to apprehend, according to his own testimony, a greater injury to his property than an unlawful search thereof. The use of a deadly weapon under the circumstances, as detailed by him, was unnecessary; and-, while the testimony of the prosecuting witness shows that he had a pistol, it nowhere appears that he used, or attempted to use, the same for the purpose of forcing the defendant to submit to a search of his buggy. In the case of State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R. A. (N. S.) 150, where an unlawful arrest Was attempted by an oflicer, it was held:

“If an attempted arrest be unlawful, the party sought to be arrested may use such reasonable force, proportioned-to the injury attempted upon him, as is necessary to effect his escape, but no more; -and he cannot do this by using, or offering to use, a deadly weapon, if he has not reason to apprehend a greater injury than a mere unlawful arrest.”

The doctrine announced in that case is established by other authorities, and is applicable to this.

We find no error in the refusal of the court to advise the jury to return a verdict of not guilty. ,

It is also contended that the court erred in refusing to give certain requested instructions relative to the right of this defendant to use force in resisting an unlawful search of his property. We -have examined the record in this respect and find that the court gave two of the instructions requested by the defendant, and other instructions covering the law of this case were given upon the court’s own motion. While the instructions in some respects are in-artistically drawn, they were as favorable to the defendant as his own testimony would warrant.

After a careful examination of the record, it is the opinion of this court that the judgment of the county court of Choctaw county should be affirmed; and it is so ordered.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    SAM COLE v. STATE.
    No. A-2673.
    Opinion Filed August 27, 1917.
    (166 Pac. 1115.)
    1. ADULTERY — Attempt to Commit. Mere solicitation to commit adultery cannot be prosecuted under the law as an attempt to commit adultery.
    2. SAM® — Information—Sufficiency. An information which charges only a solicitation to commit adultery does not state facts sufficient to constitute a public offense under the attempt statute.
    3 SAME. For an information held insufficient, a general discussion of the principles involved, and a review of authorities, see opinion.

      Appeal from, District Court, Haskell County; W. H. Brown, Judge.

    Sam Cole was convicted on a charge of attempt to commit adultery, and appeals.
    Reversed.

      A. L. Beckett, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Sam Cole, was convicted in the district count of Haskell county on a charge of attempt to commit adultery. The appeal is brought to this court, seeking a reversal of the judgment of conviction.

A consideration of the first assignment of error disposes of this case. This assignment is based upon the proposition that the information fails to state facts sufficient to constitute a public offense. The information, omitting formal parts, is as follows:

“That Sam Cole did, in Haskell county, State of Oklahoma, on or about the 5th day of August, in the year of our Lord one thousand nine hundred and fifteen, and anterior to the presentment hereof, commit the crime of attempt to commit adultery in the manner and form as follows, to wit: The defendant, Sam Cole, did then and there, unlawfully, willfully, and feloniously intend then and there to have carnal knowledge of the body of Vina Green, the lawful wife then and there of E. L. Green, who was then alive, and the said Sam Cole, in pursuance of said unlawful, willful and felonious intent by direction, invitation by word of mouth, and by laying on of hands by the said Sam Cole upon the person of the said Vina Green, did solicit and incite and endeavor to persuade the said Vina Green to then and there have intercourse with him, the said Sam Cole, no other persons being then and there present; he, the said Sam Cole, being then and there at the home of the said Vina Green, in the absence of the family of the said Vina Green, and he, the said Sam Cole, being then and there the husband of one certain person other than the said Vina Green, to wit, Mrs. Sam Cole, whose given name is to the county attorney unknown— contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

An exhaustive research has disclosed no cases directly in point which support the validity of this information. The information charges only solicitation. It naturally follows, then, that no public offense is stated, unless the solicitation of a Woman to commit adultery amounts to an attempt to commit adultery. The facts disclosed by the record support only the allégations of the information, but do not disclose a stronger case. In Ex parte Turner, 3 Okla. Cr. 168, 104 Pac. 1071, this court discussed an attempt to commit a crime, and among other things, after quoting authorities, said:

“Therefore the acts must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must be not merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense-after the preparations are made. McDade v. People, 29 Mich. 50; Bouv. Law Dict. ‘Attempt.’ It has been often held that the purchase of a gun with intent to commit murd'er, or the purchase of poison with the same intent, does not constitute "an indictable offense, because the act done in either case is considered as only in the nature of a preliminary preparation, and as not advancing the conduct of the accused beyond the sphere of mere intent. ‘To make the act an indictable attempt,’ says Wharton, ‘it must be a cause, as distinguished from a condition; and it must go so far that it would result-in the crime, unless frustrated by extraneous circumstances.’ 1 Whart. Crim. Law, par. 181. This principle is well illustrated by the case of People v. Murray, 14 Cal. 159. In that case the defendant was indicted for an attempt to contract an incestuous marriage with his niece. It was shown that, after declaring-his intention to marry her, he actually eloped with her, and sent for a magistrate to perform the ceremony, and at the trial he was convicted; but on appeal the j udgment was reversed, the appellate court holding that these were mere preparation's, and did not constitute an attempt, within the meaning of the statute. In delivering the unanimous opinion of the court, Field, C. J., said: ‘The evidence shows very clearly the intention of the defendant; but something more than the mere intention is necessary to constitute the offense charged. Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. To illustrate: A party may purchase and load a gun, with the declared intention to shoot his neighbor; but, until some movement is made to use the weapon upon the person of his intended victim, there is only preparation, and’ not an attempt. For the preparation he may be held to keep the peace, but he is not chargeable with any intent to kill. So, in the present case, the declarations and elopement and request for a magistrate were preparatory to the marriage; but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of marriage, it cannot be said in strictness (i. e., in a legal sense) that the attempt was made. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the party.”

In State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900, the identical question here under consideration was determined by the Supreme Court of Washington. The information considered by the Washington court is as follows:

• “Comes now E. K. Pendergrast, prosecuting attorney-for Douglas county, in the State of Washington, and by this, his information, as provided by law, charges one James Butler with the crime of attempting to commit adultery, in the following manner, to wit: He, the said James Butler, on the 3d day of September, A. D. 1892, in the county of Douglas and State of Washington, did unlawfully, willfully, maliciously, and feloniously intend then and there to have carnal knowledge of the body of one Caroline Skett, the lawful wife then and there of one Julius Skett, who was then alive; and the said James Butler, in pursuance of the said unlawful, willful, malicious, and felonious intent, then and there-falsely, wickedly, unlawfully, and maliciously, by means of promises of the payment of money and by direct invitation by word of mouth, and by laying on of hands by the said James Butler upon the person of the said Caroline Skett in a lewd and lascivious manner, and in the absence of all other persons, except the said James Butler and the said Caroline Skett, and by various other means, did solicit and incite and endeavor to persuade and procure the said Caroline Skett to have sexual intercourse then and there with him, the said James Butler, and the said James Butler was then and there the lawful husband of one certain person other than the said Caroline Skett, and whose true name is to said prosecuting attorney unknown. All of which is contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.”

The court, in discussing the proposition, said:

“The only question presented and argued by appellant is as to whether solicitation to commit adultery is an attempt to commit adultery. It is not contended that Caroline Skett was a consenting party, or willing to commit the act with the defendant. The information contains no such allegation, and the case stands as though she was an unwilling and resisting party. It is not contended that there was any act on the part of the defendant going to an attempting beyond soliciting the said Caroline Skett and endeavoring to obtain her consent. Is mere solicitation an attempt-to commit adultery? It being impossible for one alone to commit adultery, as that requires the cooperation of two persons, it would seem to follow logically that one acting singly could not make an attempt. One person could no, more attempt to commit adultery than he could attempt to commit a riot, which, under our statutes, requires the participation of three or more persons. The instances given in the books.where the solicitation of another to commit a crime is held to be an offense generally relate to those acts or crimes which can be performed or committed by one person, or .where the solicitation to commit the crime is an offense in itself, as distinguished from an attempt. It is urged that a person may be convicted of adultery, or of an attempt to commit adultery, although not a direct participant in the act, by reason of aiding or abetting; but in such a case, where an attempt is charged against such third person, it should appear that there were two persons willing to commit the act of adultery, and that something was done in the way of an attempt. The cases upon this subject are very limited in number. The case of State v. Avery, 7 Conn. 266 [18 Am. Dec. 105], cited by counsel for appellant, which was decided in 1828, does not sustain his contention. That case was based upon a letter sent by the defendant to the wife of another man, containing words importing that she had acted libidinously towards the writer, and inviting her to an assignation for adulterous purposes, and it was held that the writing and sending of such letter was libelous. It was further said that it was immaterial to inquire whether the facts stated in the information amounted to a libel, or a solicitation to commit a greater crime, for if they constituted an indictable offense, within the jurisdiction of the superior court, it was sufficient for the purposes of that case. It was not decided that solicitation was an attempt to commit adultery. In Smith v. Commonwealth, 54 Pa. St. 209, decided in 1867, it was held that such solicitation did not amount to an attempt. A distinction has been sought to be drawn in this particular to the effect that solicitation to commit adultery is indictable as an attempt in those states where adultery is a felony, which was the case in the State of Connecticut, while in Pennsylvania adultery was but a misdemeanor. The distinction attempted to be drawn, it seems to us, is not sound in principle. It is based on the ground that in trivial misdemeanors the law will look upon an attempt to commit them as not of sufficient gravity to justify or call for punishment. The decision of the case last cited, however, was not founded upon this distinction, although it recognizes the fact that such a one has been sometimes made, in citing State v. Avery. The court evidently entertained a different view. The opinion says: ‘An attempt to commit a misdemeanor is a misdemeanor, whether the offense is created by statute or was an offense at common law. These were the words of Baron Parke, in the case of Rex v. Roderick, 7 C. & P. 795, delivered in the year 1837. They have been adopted by the compilers on criminal law. 1 Russ. on Crimes, 46; 1 Arch. Crim. Plead. & Ev. 19; Wharton’s Crim. Law, 79, 873.’ And apparently this had the sanction of the court. The reasons given in that case, showing why solicitation should' not be held an attempt to commit adultery, apply with equal force whether adultery be a misdemeanor or a felony. These relate to the difficulty of determining what is a solicitation. ‘What expressions of the face,’ says the court, ‘or double entendres of the tongue, are to be adjudged solicitations? What freedoms of manners amount to this crime? Is every cyprian who nods or winks to the married men she meets upon the sidewalk indictable for soliciting to adultery? And could the law safely undertake to decide what recognitions in the street were chaste and what were lewd? It would be a dangerous and difficult rule of criminal law to administer.’ If adultery is a crime in this state, it.is a felony; and if solicitation is an attempt to commit adultery, it is a criminal offense here. Section 303, Penal Code. It will be observed that this section makes no distinction between an attempt to commit a felony and an attempt to commit a misdemeanor, except as to the degree of punishment; and the distinction above mentioned could not be recognized here, even if adultery was but a misdemeanor under the statutes. It may be well to note, however, what some of the courts and law writers have said relating to the subject under consideration. In the case of Commonwealth v. Willard, 22 Pick. [Mass.] 476, it was held that the purchaser of spirituous liquor sold in violation of the statute does not subject himself to any penalty, either at common law, for inducing the seller to commit a misdemeanor, or under the statute. It was said in that case: ‘It is difficult to draw any precise line of distinction between the cases in which the law holds it a misdemeanor to counsel, entice or induce another to commit a crime, and where it does not. In general, it has been considered as applying to cases of felony, though it has been held that it does not depend upon the mere legal and technical distinction between' felony and misdemeanor. One consideration, however, is manifest in all the cases, and that is that the offense proposed to be committed, by the counsel, advice, or enticement of another, is of a high and aggravated- character, tending to breaches of the peace or other great disorder and violence, being what are usually considered mala in se, or criminal in themselves, in contradistinction to mala 'prohibita, or acts otherwise indifferent than as they are restrained -by positive law.’ In the case of Commonwealth v. Harrington, 3 Pick. [Mass.] 26, it was held that the letting of a house for the purposes of prostitution, with the intent that it should be thus used, was an offense at the-common law. The keeping of such a disorderly house was not a felony, but a misdemeanor of a high and aggravated character, tending to general disorderly breaches of the peace,, and a common nuisance to the community. There was no statute in Massachusetts relating to it.
“In Wharton, Crim. Law (9th Ed.) sec. 179, in speaking of solicitations, the author says: ‘Are solicitations to commit crime independently indictable? They certainly-are, as has been seen, when they in themselves involve a breach of the public peace, as in the case with challenges to fight and seditious addresses. They , are also indictable when their object is interference with public justice, as where a resistance to the execution of a judicial .writ is counseled, or perjury is advised, or the escape of a prisoner encouraged.’ ‘But,’ says the author, ‘is a solicitation indictable when it is not either (1) a substantive indictable offense, as in the instances just named, or (2) a stage towards an independent consummated offense?’ And he says, ‘The better opinion is that, where the solicitation is not in itself a substantive offense, or where there has been no progress made towards the consummation of the independent offense attempted, the question whether the solicitation is by itself the subject of penal prosecution must be answered in the negative.’ And he maintains that solicitation is not an attempt to commit adultery. In speaking of the subject-further, he says: ÍFor we would be forced to admit, if we hold that solicitations to crminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories, are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed. It would be hard, also, we must agree, if we maintain such general responsibility, to defend, in prosecutions for soliciting crime, the publishers of Byron’s “Don Juan,” of Rousseau’s “Émile,’-’ or of Goethe’s “Elective Affinities.” Lord Chesterfield, in his letters to his son, directly advises the latter to form illicit connections with married women. Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such solicitations are so publicly and indecently made as to produce public scandal, they are indictable as nuisances or as libels. But to make bare solicitations or allurements indictable as attempts, not only unduly and perilously extends the scope of penal adjudication, but forces on the courts psychological questions which they are incompetent to decide, and a branch of business which would make them despots of every intellect in the land. What human judge can determine that there is such a necessary connection between one man’s advice and another man’s action as to make the former the cause of the latter? An attempt, as has been stated, is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime. But this cannot be affirmed of advice given to another, which advice such other person is at full liberty to accept or reject. Following such reasoning, several eminent European jurists have declined to regard solicitations as indictable, when there is interposed, between the bare solicitation on the one hand and the proposed illegal act on the other, the resisting will of another person, which other person refuses assent and co-operation.' In a somewhat later work, 1 Bishop, Crim. Law (7th Ed.) a partially contrary view is indorsed. This author goes farther. In section 768, he says: ‘Though, to render a solicitation indictable,. it is, as in other attempts, immaterial in general whether the thing; proposed to be done is technically a felony or a misdemeanor, still, as the soliciting is the first step only in a gradation reaching to the consummation, the thing intended must, on principles already explained, be of a graver nature than if the step lay further in advance.' He is of the opinion that solicitation is an attempt to commit adultery as a necessary step or ingredient in the offense. Section 767.
‘The question is a somewhat vexed one under the conflict of authorities relating to the various phases of the subject. The, inquiry in this case is not whether solicitation to commit adultery is an offense in itself of a distinct character, but whether it is an offense because it is an attempt to commit adultery. The instances of such solicitation which have been brought to the attention of the courts are but few indeed, extending over a long period of years, but resort can be had to some of a kindred nature, or perhaps, more properly, which have a bearing on some of the principles involved. In the case of Rex v. Butler, 6 Car. & P. 368, decided in 1884, sometimes cited, it was said: ‘An attempt to commit a misdemeanor created by statute is a misdemeanor itself,’ citing Rex v. Harris, 6 Car. & P. 129. In Shannon v. Commomoealth, 14 Pa. 226, it was held that a conspiracy to commit addltery was not an offense. And in Miles v. State, 58 Ala. 390, a similar decision was arrived at. Adultery was but a misdemeanor, however, in that state also, though it is not apparent that any importance was attached to this fact in either of these cases. In Cox v. People, 82 Ill. 191, it was held that solicitation to commit incest was not an attempt to commit the crime of incest, which was a felony. We have not failed to note the criticism of this case, and the citation it relies on from Whartoñ’s Criminal Law, above quoted by Mr. Bishop in his valuable work. But the case also relies on Smith v. Commonwealth, and Commonwealth v. Willard, supra, and these cases are authority as we view them, with other authorities herein cited, on the ground that the distinction mentioned sometimes drawn between attempts to commit felonies and attempts to commit misdemeanors, or between attempts to commit grave as distinguished from trivial misdemeanors, is not a well established one, nor well founded when viewed merely as an attempt, and not as a substantive offense. Now it seems to us that solicitation to commit adultery is no part of the act of adultery itself, and consequently cannot be held to be an attempt. What is it? It involves the expression of a desire and a willingness on the part of one person to commit the act of adultery with another, and an attempt to get that person’s consent, but no more. Follow it a step further. Suppose the consent of the other person is obtained, and in pursuance of it, if there is no immediate opportunity to gratify the then mutual desire, a conspiracy is entered into to commit the offense between these persons, which involves the expressed consent and agreement of both of them, and some understanding between them as to when and where the offense shall be committed, and the naming of a propitious time and place to. commit it. . It seems, that this would be much more in the way of an attempt than the case presented here, and if that does not amount to an offense or an attempt, how can it be said that such an intention and willingness, coupled with solicitation upon the part of one person only, can amount to an attempt to commit the offense.”

We have quoted.at great length from the opinion of the Supreme Court of Washington, because it reviews the authorities which have been called to our attention, and because the discussion of this question and the determination of it by that court appears by every reasonable canon of construction to be the only sound solution of the proposition.

The plaintiff in error could have been prosecuted for assault and battery, or under the statute penalizing indecent conduct, but could not be prosecuted for an attempt to commit adultery. As said by the Supreme Court of Pennsylvania, in Smith v. Com., 54. Pa. 209, 93 Am. Dec, 686:

“It is easy to say that solicitation is an attempt, but a study of the cases will show that every case of attempt has included something more than a mere solicitation, and the slightest reflection will persuade any observant man that a rule of law which should make mere solicitation to fornication or adultery indictable would be an impracticable rule — one that in the present usages and manners of society would lead to great abuses and oppressions. The morality of the law cannot undertake to regulate the thoughts and intents of the heart. The best it can do is to punish open acts of lewdness and repress indecent assaults. -For the rest, it must trust the people to the refining influences of Christian education. * * * In a high moral, sense, it may be true that solicitation is attempt, but in a legal sense it is not. And the law is as likely to be distorted by pressing it into extravagant reforms of the manners of men and womeh as it is by too loose an administration.”

We conclude, from a careful consideration of the authorities and. upon principle, that the doctrine in State v. Butler, supra, is to be approved as the proper determination of this, proposition. It follows, therefore, that the' information in the case at bar does not state facts sufficient to constitute a public offense, nor does the evidence establish the crime of attempt to commit adultery. The demurrer should have been sustained.

The judgment is reversed, and the cause remanded, with directions to the trial court to sustain the demurrer and discharge the plaintiff in error on this charge.

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


text:
    ROY CRANE v. STATE.
    No. A-2722.
    Opinion Filed August 27, 1917.
    (166 Pac. 1110.)
    X. LIBEL AND SLANDER — Libel Against Class of Individuals. The law of libel forbids the writing, publication, or circulation of libelous matter against a class as much so as against individuals.

      2. SAME. In order to render one amenable to prosecution for publishing or circulating libelous matter, it is not necessary that such matter name the individuals or any one of them composing the .class-against whom the matter complained of is libelous.
    3. ‘ SAME — Information—Sufficiency. For an information held sufficient. to charge libel against the members of the Knights of Columbus living in Canadian county, see opinion.

      Error from County Court, Canadian County; R. B. Forrest, Judge.

    Roy Crane was convicted of libel, and brings error.
    Affirmed.

      A. Turner, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., and Fogg & Bennett, for the State.
   ARMSTRONG, J.

The plaintiff in error, Roy Crane, was convicted at the January, 1916, term of the county court of Canadian county on a charge of libel. The information in the case, omitting the formal parts, is as follows:

“Now comes S. T. Roberson, county attorney of Canadian'county, State of Oklahoma, who prosecutes on behalf of the state, and gives the court to know and be informed that one Roy Crane, late of the county of Canadian and State of Oklahoma, on or about the 4th day of July in the year of our Lord 1915, at and within said county and state, did then and there unlawfully, willfully, and maliciously circulate a certain printed book, entitled ‘Barbarous Catholicism and Moral Theology of St. Liguori, by Prof. Roy Crane/ which printed book aforesaid contained certain false printed statements and matters of and concerning members of fourth degree Knights of Columbus, in that said printed statements and matters set out and stated, a purported part of the purported oath of said fourth degree Knights of Columbus, which said purported part of said purported oath was false and untrue; said Knights of Columbus being a Catholic fraternal lodge or association, members of which fourth degree Knights of Columbus, to wit, J. M. Harkin, W. E. Ross, T. H. Rasp, Dr. J. T. Riley, Rev. R. Sevens, A. J. Gerrer, and G. W. Flanigan, were on said date and are at this time residents of Canadian county, Okla., and which said false printed part of purported oath and statements and matter so circulated by the said Roy Crane, by the delivery and distribution of copies of said book to each of the following persons, to wit: G. F. Gossett, Joe Hainey, Ed Washecheck, Albert Edmen-ton, Fred Kimble, Rev. De Pew, Ernest Louchen, Guy Yow-ell, and Dave Taylor and others whose names are to the county attorney unknown — exposed the aforesaid fourth degree Knights of Columbus to public hatred, contempt, ridicule, and obloquy, and which said false printed purported part of purported oath and statements and matter tended to deprive said fourth degree Knights of Columbus, of public confidence, and which false printed purported part of purported oath, and statements and matter in said book so circulated by said Roy Crane as aforesaid is printed upon pages numbered 3, 4, 5, 6, and 7, in said book circulated as aforesaid, and is as follows, to wit:
“ ‘Introduction.
“ ‘Why I have written this book. During the last twenty-five years many of the devout and cultured protestants throughout the world have doubted that the intentions of the Roman Catholic religion was for the best interest of society, and in all times when they would read books put forth discussing the murderous, treasonable, dago philosophy called Catholicism, they would say, can this be true?
“ ‘But as the books they would read were either written by one who did not know or who was afraid to bind himself to write the truth under affidavit, and many, many are the times that well intending protestants would have liked to give good reasons for being opposed to Roman Catholicism, but as they had nothing that • they knew to be absolutely true against the Roman Catholic religion they would not discuss the question.
“ ‘It is in behalf of these classes of American Citizens that I give unto them and the world the greatest treatise of the subject of Roman Catholicism since the days of Martin Luther.
“ ‘And every word in this book is given under a sworcr affidavit and of itself establishes beyond a reasonable doubt that the book’s contents is true and correct, for if it were not the author would be sent to the penitentiary.
“ ‘Not only will you find a complete and correct record of the Massacre of Odessa, Russia, but you will also find a translation of the moral theology of Saint Liguori, which is the prescribed moral standard of the Catholic Church and unto-it every Priest is bound to be subject and the same questions that the Priest ask women and children •in the confessional* box are herein contained and given to you subject to your own honest and sincere consideration.
“‘This book also makes plain that the blessings and curses of the Pope of Rome accomplish nothing according to the statements given, not only does this book give unto you the spirit of the Catholic Church of the whole world and a record of the Pope’s blessings and curses, but it also gives to you the effect of this' immoral culture wherever Rome has become supreme and those who have doubted as to what Roman Catholicism is and when its doctrines were originated, will find in this book the standard doctrines of the church of Rome and correct statements as to when and from where they obtained their ideas and a record of the immoral lives of the different Catholic Popes of Rome is made plain to you as to what they did and as to the times they did it.
“ ‘With all doubt as to the truthfulness of this book removed, because of the affidavit affixed you can refer to it as being.true and correct and by and with its help and aid, you are enabled if opportunity presents, to refute every claim of Roman Catholicism being either Christian, American, civilized or respectable.
“ ‘Yours very truly, Prof. Roy Crane.
“ ‘Chapter One.
“ ‘The Fourth Degree Oath.
“ ‘On February 15, 1913, there appeared on the record of the report of Congress an oath • of the fourth degree Knights of Columbus, which was published by the “Menace” and a half dozen or more other Anti-Catholic papers published in the United States and the “Knights of Columbus” claimed said oath as published by the Menace and other Anti-Catholic papers was untrue, but as I have proof of the doctrine of said oath to be published in this book, and by undisputable evidence I shall prove that the doctrine of said oath was put in operation by the Catholic people, when they committed every crime indicated for them to commit in the Fourth Degree oath (as it appeared in the Menace). .
“ ‘For more than four years I have been lecturing against the Catholic Church, during this time I have debated with many of the most learned Catholic Priests of the United States and have always won the debate so completely that the Catholic press would not dare mention it to their fish fed dupes who maintain the holy “dads” who help souls out of purgatory, a place .where the departed dead go according to the church, but in fact, it is a' place located in that part of the Catholic head where there is no brains. If what I write in this book was not true, I would be sent to the State’s Prison at McAlester and if what I write in this book is true the Catholics are moral degenerates who should be driven out of the United States of America as their doctrine is both un-Christian and un-American, and places in danger every man, woman and child’s life who is not a Catholic; as in Odessa, Russia, they spared no Non-Catholics purposely.
“ ‘The Catholic Church has always been the same blood thirsty monster that it is today and I shall refer you to its doctrine and its teachings as evidence of its purpose as a world power; and as to its crimes I shall refer you to her history during the last 2,000 years, which would make the imps of hell blush with shame because of their heartless crimes and criminals. No dago shall ever be a god to me. And the rum soaked prayer peddler who receives his power from Heaven and buttons his collar behind to prove it, must either send me to the State’s Prison for writing this book, but only a coward wants to live forever, and Roy Crane is not afraid to die, as it is written, “Greater Love has no man than this, that he would lay down his life for his friends.”
“That part of the Fourth Degree oath that appeared to be most unbelievable, was printed in the “Menace” and is as follows:
“ ‘ “I do further promise and declare that I will, when opportunity presents, make and wage relentless war, secretly and openly against all Heretics,- Protestants and Liberals as I am directed to' do, to extirpate from the face of the whole earth and that I will spare neither age, sex or condition, and that I will hang, burn, waste, boil, flay, strangle and bury alive these infamous heretics, rip up the stomachs and wombs of their women, and crush their infants’ heads against the walls in order to annihilate their execrable race. That when the same cannot be done openly, I will secretly use the poison cup, the strangulation cord, the steel of the poinard or the leaden bullet, regardless of the honor, rank, dignity or authority of the person or persons, whatever may be their condition in life, public or private, as I at any time may be directed to do, by any agent of the Pope or Superior of the Brotherhood of the Holy Father of the Society of Jesus.
“ ‘ “In confirmation of which. I hereby dedicate my life, my soul, and all corporal powers, and with the dagger which I now receive, I will subscribe my .name, written in my blood, in testimony thereof, and should I prove false or weaken in my determination, may my brethren and fellow soldiers of the Militia of the Pope cut off my hands and my feet and my throat from ear to ear, my belly opened and sulphur burned therein with all of the punishment that can be inflicted upon me on earth and my soul shall be tortured by demons in eternal hell forever.
“ ‘ “All of which I, .........................., do swear by the blessed Trinity and Blessed Sacrament which I am now to receive, to perform and on my part to keep, this my oath.
“ ‘ “In testimony whereof; I take this most holy and blessed sacrament of the Eucharist, and witness the same further with my name written with the point of the dagger, dipped in my blood or be looked upon by every honest citizen as an enemy of humanity and not a fit subject to run at large.
“ ‘ “I know that the same class of murderers who killed William Black for telling the truth .may kill me for writing in my own blood, and seal, in the face of this holy Sacrament, (He receives the wafer from the Superior and writes his name with the point of his dagger dipped in his own blood taken from his heart.)”
“ ‘If the above oath does not make the blood of every true American boil with righteous indignation, he or she Is surely lacking in all the elements of patriotism.
“ T would not care about the oath of any body of men so long as their oath did not threaten human life and liberty, but as the Knights of Columbus denies this treasonable oath," I feel it my duty to prove it beyond a reasonable doubt, that every principle of this aforesaid oath was put in force in Odessa, Russia, where ninety per cent, of the people are Catholics and eighty per cent, cannot read or write, and as the Catholic Church claims to be the same all over the earth, then it is only reasonable to believe that what they do in one part of the earth when they have the power, that they would do the same in any other part of the earth if they but dared to do so, and what the Catholic Church does in one age of the world she would do now, on her own testimony she cannot change, “et semper eadem” that is: “she is always the same.”
“And so he, the said Roy Crane, did then and there unlawfully, willfully, and maliciously, in the manner and form above set forth, commit the crime of libel, contrary to the form of the statute in such case.made and provided, and against the peace and dignity of the state.”

A demurrer was filed to the information, and by the court overruled. The demurrer is as follows:

“Comes now the defendant, Roy Crane, and demurs to the information filed herein for the reason that, taking all the facts alleged in said information to be true, it does not show that the defendant, Roy • Crane, slandered or libeled any individual in Canadian county, State of Oklahoma, or any other portion of the State of Oklahoma, and does not show that the defendant has violated any of the laws of the State of Oklahoma, and that this court is without jurisdiction to try this case. Wherefore, defendant asks that this case be dismissed.”

The disposition of the question raised as to the validity of the information practically disposes of the case. There is no question about the guilt of the accused if the information is good.

It is urged by counsel that the court erred in overruling the demurrer and that this cause «hould be reversed for the reason that the information fails to show that the plaintiff in error, Roy Crane, mentioned the names of J. M. Harkin, W. E. Ross, T. J. Rasp, Dr. J. T. Riley, Rev. R. Sevens, A. J. Gerrer, and G. W. Flanigan in the articles published, and, further, on the ground that the said Roy Crane, in the book aforesaid, did not specifically refer to the organization known as the “Knights of Columbus” in Canadian county, Okla. The only authority cited by counsel for plaintiff in error is section 5751, Rev. Laws -1910, which is as follows:

“An indictment or information for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment or information is founded, but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be established on the trial.”

The argument is without merit. The information sufficiently charges the crime of' libel, as will be seen from the authorities quoted and cited below. Section 2380, Rev. Laws 1910, is as follows:

“Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his oc-.cúpation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.”

In State v. Brady, 44 Kan. 435, 24 Pac. 948, 9 L. R. A. 606, 21 Am. St. Rep. 296, considering the principle here involved, the Supreme Court of Kansas said:

“The appellant again contends that the statement published referred to no particular one of the Harvey family as having been a prison convict. While this objection might be urged with some force in a civil suit for damages, we do not think it is good in a criminal prosecution for libel. The law is elementary that a libel need not be on a párticular person, but may be upon a family, or a class of persons, if the tendency of the publication is to stir up riot and disorder, and incite to a breach of the peace. Rex v. Williams, 5 Barn. & Ald. 595; Rex v. Osborn, 2 Barnard, 166; Anon, Id. 138; 2 Bish. Crim. Law (7th Ed.) sec. 934; 2 Starkie, Slander & L. 213; Russ. Crimes (1st Amer. Ed.) 305, 332. A scandal published of three or four, or any one or two persons, is punishable at the complaint of one or more or all of them. Holt, Libel, 247. In Palmer v. City of Concord, 48 N. H. 211 [97 Am. Dec. 605] the Supreme Court said: ‘As these charges were made against a body of men, without specifying individuals, it may be that no individual soldier could have maintained a private action therefor; but the question whether the publication might not afford ground for a public prosecution is entirely different. Civil suits for libel are maintainable only on the ground that the plaintiff has individually suffered damage. Indictments for libel are sustained principally because the publication of a libel tends to a breach of the peace, and thus to the disturbance of society at large. It is obvious that a libelous attack on a body of men, though no individuals be pointed out, may tend as much-or more to create public disturbance as an attack' on one individual; and a doubt has been suggested whether the fact of numbers does not add to the enormity of the act.’ 2 McClain’s Crim. Law, sec. 1044.
“The defendant claims there was error in the court’s refusing the fourth special instruction asked — that, before the jury could convict, express malice must be proven. We do not think this is the legal rule. In prosecutions for libel, malice is inferred from the nature of the charge, and when the publishing of words libelous per se is once proved, malice is inferred, as a person is presumed to have intended the consequences of his own act. Chief Justice Shaw has clearly stated the rule: ‘It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill will toward the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of matters; but if in pursuing that design he willfully inflicts a wrong on others which is not warranted by law, such act is malicious.’ Newell, Defam. 317; Commonwealth v. Snelling, 15 Pick. [Mass.] 340; Pledger v. State [77 Ga. 242] 3 S. E. 320. The want of actual intent to vilify is no excuse for a libel; and if a man deems that to be right which the law pronounces wrong, the mistake does not free him from guilt. Curtis v. Mussey, 6 Gray [Mass.] 261; 1 Bish. Crim. Law, sec. 309; Reynolds v. U. S., 98 U. S. 145 [25 L. Ed. 244].”

The same principle was considered by the Court of Criminal Appeals in the State of Texas in Jones v. State, 38 Tex. Cr. R. 364, 43 S. W. 78, 70 Am. St. Rep. 751. In this latter case Jones was prosecuted and convicted for publishing certain libelous matters concerning street railway conductors of .the Galveston City Railroad Company. No particular one was mentioned in the article. The court, discussing the proposition on appeal, said:

“By reference to the libelous matter published, it will be seen that the first sentence in said publication refers to the conductors on the various street cars of this city [meaning the city of Galveston] as a class.' The libelous matter makes no exceptions among the conductors, but includes all of them. This has been held sufficient, without designating the names; and we hold this to be sufficient designation of .every conductor in the service of said railroad company at the time of said publication. It therefore would be a violation of our statute to libel any sect, company, or class of men without naming any person in particular who may belong to said class. See 13 Am. & Eng. Ency. of Law, 499, and notes; 2 McClain’s Criminal Law, “sec. 1044.”

The issue in the case under consideration is identical in principle with that in the Jones Case. Here the injured' parties belonged to the fourth degree Knights of Columbus, and the libelous matter applied to each member" of that organization and excepted none. In the Jones Case the libelous matter applied to each member of the street railway conductors’ organization and excepted none.

In State v. Hosmer, 72 Or. 57, 142 Pac. 581, Hosmer was prosecuted and convicted in the courts of Oregon of libel for publishing a pamphlet entitled, “The Escaped Nun from Mt. Angel Convent,” or “The Last Stand of Desperate Despotism.” The document purported to give a history of the alleged escape of Mary Lasenan from the convent at Mt. Angel, and, in addition, an account of commissions by priests of many acts of lawlessness. On appeal, the Supreme Court of Oregon discussed these propositions fully, and cited many authorities. We quote, with approval, the following:

“The argument proceeds upon the theory that the defendant could not be held responsible for a publication of an article, however libelous, if the inspiration thereof was from third parties, unless the defendant had made some intimation of its truthfulness. The essence of- the crime of libel is the publication of libelous language, and does not necessarily lie in the authorship of the article. Every repetition of a false and scandalous matter originated by a third person is a willful publication of it, rendering the person so repeating it amenable to the law. If he repeats the libelous words, he must be prepared to prove them, or suffer the legal consequences. An English author thus states the law: ‘Every repetition is a fresh defamation, and the defendant by repeating the words has made them his own and is legally as liable as if he had invented the story himself.’ Odgers, Libel and Slander, 172. And another author in treating of repetitions of scandalous matter originated by others, says: ‘Talebearers are as bad as talemakers, and it is no defense that the speaker did not originate the scandal, but heard it from another, even though it was a current rumor, and he in good faith believed it to be true. Nor is it any defense that the speaker at the time, named the person from whom he heard the scandal.’ Newell on Defamation, p. 350. It must be true that one who gives currency to a libel is equally guilty with the perpetrator of the libelous charge; otherwise ‘scandalous reproaches and foul infamies’ could be uttered with autocratic impunity by placing between the law and the iniquity of the act the presence of.a third person. As authority for our conclusions, we cite Harris v. Minvielle, 48 La. Ann. 908, 19 South. 925; 25 Cyc. 574; 18 Am. & Eng. Ency. of Law (2d Ed.) p. 1056; Wharton’s Criminal Law (11th Ed.) vol. 3, sec. 975; Funk v. Beverly, 112 Ind. 190, 13 N. E. 573. * * * When a libel has been committed, the state in its sovereign capacity seeks to avenge the wrong, not because of the injury done to the individual, but because the commission of the act tends to affect injuriously the good order of society and the dignity of the state. A single act or transaction in violation of .the law may, as a general rule, be charged in one count as a single offense, although the act involves several similar violations of law -yvith respect, to several different-persons. 22 Cyc. 383. If the gist of the crime of libel was the injury to the reputation of the person libeled, counsel’s argument would be unanswerable, and the indictment in mind would be duplicitous, but when we reflect that the perpetration of a libel is punishable because it tends to produce a breach of peace, then it will appear that the number libeled in the article is immaterial, and the libeler is punished for his own act of publishing a libel calculated to produce violence. Tracy v.. Commonwealth, 87 Ky. 578, 9 S. W. 822; State v. Hoskins, 60 Minn. 168, 62 N. W. 270, 27 L. R. A. 412; 22 Cyc. 383; Roberts v. State, 51 Tex. Cr. R. 27, 100 S. W. 150. Our conclusion is that the indictment is not duplicitous and that the trial court acted with wisdom in overruling the defendant’s motion to elect. * * * Defendant grieves at the court’s action in advising the jury that ‘to constitute a criminal libel it is not necessary that the publication should relate to a person. It can be committed by publishing scandalous matter about a corporation, and which has a direct tendency to injure it,in its business.’ The contention is made that a corporation cannot be libeled. Adverting to the statute, it will be observed that the word ‘person’ alone is used as a designating term of who might be libeled. However,, it is not necessary to turn to the adjudicated cases to determine the meaning of the word, as it is defined by statute at section 2403, L. O. L.: ‘The word “person” includes corporations as well as a natural person.’ Obviously by the strength of the statute a private corporation, as well as an individual, is included in the word -‘person,’ and therefore is an object of libel. State v. Herold, 9 Kan. 194; State v. Boogher, 3 Mo. App. 442; State v. Williams, 74 Kan. 180, 85 Pac. 938; Wharton’s Criminal Law (11th Ed.) vol. 3, sec. 923.”

In People v. Eastman, 188 N. Y. 478, 81 N. E. 459, 11 Ann. Cas, 302, Eastman was prosecuted in the courts of New York for circulating obscene matter entitled, “The Open Door to Hell.” The defendant demurred to the indictment on the ground that it did not state a crime. The demurrer was sustained at the trial court and again at the Appellate Division. The state again appealed to the Court of Appeals. Cullen, C. J., discussing the proposition, said:

“* * * The charges in the article being against a whole class, no single individual could maintain an action for libel against its author (Summer v. Buel, 12 Johns. [N. Y.] 475), but not so, however, as regards a criminal prosecution for libel. The foundation of the theory on which libel is made a crime is that by provoking passions of persons libeled, it excites them to violence and a breach of the peace. Therefore a criminal prosecution can be sustained where no civil action would lie, as, for instance, in this very case, where the libel is against a class (Sumner v. Buel, supra; Palmer v. Concord, 48 N. H. 211 [97 Am. Dec. 605]; State v. Brady, 44 Kan. 435, 24 Pac. 948 [9 L. R. A. 606, 21 Am. St. Rep. 296]), and also in the case of a libel against a deceased person. It may be urged that the question whether the defendant should be prosecuted for an indecent publication or for libel is a technical one. This is very far from being the fact. So careful have the people of the state been to secure freedom of speech, subject only to punishment when a jury has found that freedom has been abused, that by the various constitutions of this state, ever since that of 1822, it has been expressly enacted that in a prosecution for libel the truth may be given in evidence, and the jury shall have the right to determine the law as well as the fact. This applies to no other criminal prosecution.”

In People v. Turner, 28 Cal. App. 766, 154 Pac. 34, Turner was prosecuted in the courts of California on a charge of libel growing out of printing in a newspaper a statement charging that members of the fourth degree Knights of Columbus took an oath containing, among other things, the following matter:

“ ‘I do now denounce and disown any allegiance as due to any heretical king, prince or state, named Protestant or Liberals, or obedience to any of their laws, magistrates or officers.
“ ‘I do further promise and declare that I have no opinion or will of my own or any mental reservation whatsoever, even as a corpse or cadaver (perinde ac cadaver), but will unhesitatingly obey each and every command that I may receive from my superiors in the militia of the Pope and of Jesus Christ.
“ ‘That I will in voting always vote for a Knight of Columbus in preference to a Protestant — especially a Mason — and that I will leave my party to do so; that if two Catholics are on the ticket I will satisfy myself which is the better supporter of Mother Church and vote accordingly.
“ ‘That I will not deal with or employ a Protestant if in my power to deal with or employ a-Catholic. That‘ I will' place Catholic girls in Protestant families of the heretics.
“ ‘That I will provide myself with arms and ammunition that I may be in readiness when the word is passed, or I am commanded to defend the church as an individual or with the militia of the Pope.’ ”

Immediately following this' purported oath, the following comment is added:

“To the quiet, law-abiding, liberty-loving, American citizen, it is almost unbelievable that any fellow citizen or body of them can seriously undertake or hope to overthrow our present form of government and replace it with an absolute monarchy. It is still more unbelievable that such a proposed monarchy should be dominated by a foreigner, and that such a change be brought about under the guise of religion. Yet, if such a citizen will but open his eyes to the condition existing under his very eyes, and open his ears to the open, avowed purpose of the Roman Catholic Church, he will no longer rest easily 'in his present peaceful slumber.”

The Supreme Court of California, reviewing and affirming the conviction, among other things, said:

“It would seem that a mere statment of the published oath, coupled with an averment that it was false and malicious, would be sufficient to bring the publication within the terms of section 248 of the Penal Code. It would be a severe reflection upon the condition of the law of libel if it permitted to go uncondemned the publication of articles such as this, if false. It is clear that the published oath, if believed by the community to be taken by the members of the fourth degree Knights of Columbus, would have a tendency to expose those persons to hatred, contempt, or ridicule. While the publication may not, as claimed by the defendant, directly impeach their honesty and integrity, it does in a most direct and vital way assail their loyalty as citizens by charging them with the taking of an- obligation which is in itself a violation of their oath of allegiance and of the essential .duties and bonds of American citizenship, and thus in a general sense im-. peaches their reputations,' and exposes them to those attitudes of public feeling described in the section of the Penal Code. At the time of the publication of the article in question it appears from the record that .there was a political campaign in progress in Santa Cruz county, where the article was published; and perhaps it is fair to infer -from the record that some of the candidates for election were members of the fourth degree Knights of Columbus, but none of the prosecuting witnesses were such candidates. With the record in that condition defendant contends: First, that the publication was not of and concerning the prosecuting witnesses; and, secondly, that the alleged libelous matter applies to a class or generally to all. of the members of the fourth degree in the fraternal order-mentioned, and therefore has no individual application, and: that for these reasons the judgment of conviction cannot stand. While the ■ published matter may have been intended to apply only to persons who were candidates for office-at that election, nevertheless, in terms and in effect, it refers to each and every member of the order of the degree named. It is undisputed that the publication. was false, that the prosecuting witnesses were members of the society of the degree in question, and the inevitable‘conclusion to be drawn from the article is that every member of the order of the fourth degree had taken and subscribed to the published oath. The article asperses the character . of such members, and ascribes to them .base and dishonest motives, and as to them its publication constituted criminal libel, whether at that time a candidate for public office or not. The points presented by defendant might be urged , with some force in a civil action in mitigation of damages, but we do not believe they are good in a criminal prosecution for libel, for, as is said in the case of State v. Brady, [44 Kan. 435, 437] 24 Pac. 948, 949 [9 L. R. A. 606, 21 Am. St. Rep. 296] : ‘The .law is elementary that the libel heed not be on a particular person, but may be upon a family or a class of persons if the tendency of the publication is to stir up riot and disorder and incite to a breach of the peace. It is obvious that a libelous attack upon a body of men, though no individual may be pointed out, may tend as much or more to create a public' disturbance as an attack on one individual, and a doubt has been suggested whether the “fact of numbers does not add to the enormity of the act.” ’ This statement is a correct exposition of the law and of the causes of its existence. People v. Crespi, 115 Cal. 50, 46 Pac. 863.”

In further support of the sufficiency of this information, see State v. Dowd, 39 Kan. 412, 18 Pac. 483; State v. Williams, 74 Kan. 180, 85 Pac. 938; State v. Elder, 19 N. M. 393, 143 Pac. 482.

After a careful review of the authorities called to our attention • and those we have been able to find, there appears no question about the validity of the information in the case under consideration. It undoubtedly states facts sufficient to constitute a public offense, and is not objectionable upon the grounds urged or any others.

The proof offered on behalf of the state fully supports the allegations in the information, to the effect that Crane published and distributed a book containing the libelous matter set forth in said information. Numerous witnesses testified to the falsity of the scurrilous charges contained in the book. Many members of the Knights of Columbus residing in Canadian county offered in testimony the correct oath taken by the fourth degree Knights of Columbus. The court excluded this on the ground that it was not necessary to disclose the true oath of this order, but that it was sufficient to show that the purported oath was false, and was not the one taken by the members of that order. These witnesses testified that no part of the alleged oath set forth in the information was subscribed to by the members of the fourth degree Knights of Columbus, and no part of same was taken by them; and, further, that all those named in the information were members of the order and residing in Canadian county at the time Crane’s book was circulated in that jurisdiction. There was no proof offered contradictory to the facts testified to by witnesses on behalf of the state. Crane himself,1 although publishing a sworn statement that the matters set forth in his book .were true and holding himself out as the author of a document of unimpeachable verity, testified to no facts in support of his statements, and clearly discloses by his own offer of testimony that' his published statements on these propositions were based on hearsay of. unworthy origin.

It is to be regretted that the statute does, not prescribe imprisonment in the penitentiary as the punishment for this class of crime in order that such a character as this record discloses plaintiff in error to be should receive the-judgment which this author in this book says would be proper if his statements are untrue. That they are untrue and false in toto, the proof offered in this case overwhelmingly establishes. The writing, publication, and distribution of a book or document containing the matter complained of is libelous per se, and there is no contention made in the brief of counsel for plaintiff in error*to the contrary.

It is remarkable that in this country, where freedom of conscience in religious matters was one of the chief basic doctrines upon which the government was founded, people who hold themselves forth as possessing even ordinary intelligence would indulge in this character of criminal conduct. There are few, if any, intelligent people who can be duped by that class of writers who indulge in these vilifications and misrepresentations of those who happen to disagree with them in church or fraternal matters.

The fundamental law of both the state and the nation guarantees to each individual the right to associate himself with any religious creed of his own selection, and no person of any other faith has the right to interfere with or publish false statements against the individual or the organization, or its lawful mode or method of religious worship. Law-abiding citizens and law-supporting organizations — church or otherwise — are not given to the practices set forth in the libelous document complained of in this information. The purported oath set forth as that of the fourth degree Knights of Columbus would be a discredit to the most ultraanarchistic organization permitted to exist. The charge that members of an honorable organization, secret, religious, or otherwise, subscribe to such an oath as that complained of or the doctrines alleged is not tolerable, and is not permitted by the law.- The statute was intended to suppress criminality of this character, and its provisions are ample to punish those who have no more respect for themselves, society, or law than to indulge in this unwarranted and illicit business. The law is intended to, and does, protect the self-respecting, law-abiding citizen against these calumnies, whether made against an individual specifically, or a class of individuals collectively..

The plaintiff in error was properly convicted by the jury, There were no errors of law committed by the court which resulted in prejudice to the-rights of the plaintiff in error. It follows, therefore, that the judgment of conviction should be affirmed.

Affirmed.

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


text:
    ABE DOTSON v. STATE.
    No. A-2739.
    Opinion Filed August 27, 1917.
    Rehearing Denied September 22, 1917.
    (166 Pac. 902.)
    1. APPEAL AND ERROR — Verdict. When a judgment of conviction is based upon the finding of a jury on controverted questions of fact, this court will not disturb the same.
    2. INDICTMENT AND INFORMATION — Included Offenses — Assault to Kill. An information which charges assault with intent to hill, includes the crime of assault with a sharp and dangerous weapon with intent to do bodily harm without justifiable or . excusable cause, and every other form of assault defined by the statute down to and including simple assault.

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    Abe Dotson was convicted of assault with a dangerous weapon with intent to do bodily harm, and he appeals.
    Affirmed.

      L. C. McNabb, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Abe Dotson was tried in the dis- ' trict court of Sequoyah county on a charge of assault with intent to kill, and convicted of assault with a sharp and dangerous weapon with intent to do bodily harm. His punishment was fixed at imprisonment in the state penitentiary for one year and one day.

The information charges that the crime was committed upon the person of Henry Hart. The testimony discloses the following state of facts:

The plaintiff in error, Dotson, together with J. H. and C. B. Stout, who were jointly tried and acquitted, were white farmers living in Sequoyah county, and Hart was a negro farmer living in the same community. Hart owned a number of hogs, which it appears had been getting into the field of Dotson and damaging his crops.' A number of these hogs had been killed. Upon the day of the difficulty, Hart went to the field where Dotson and the Stouts were. He testified that they were killing his hogs at the time. They testified' that they were not killing the hogs, but were chasing them with dogs. Hart testified that when he .accosted Dotson about killing his hogs, Dotson, without provocation, assaulted him with an axe, and cut great wounds into his body; that some of his fingers were cut almost from his hand; that a gash was cut deep in his chest, from which he almost- bled to death; that other severe wounds were inflicted with the axe; that one of the .Stouts hit him over the head with a hammer. He exhibited a number of ugly scars to the jury in support of his account of the difficulty, and said that he made no assault upon the white men.

The three white men testified that the negro assaulted Dotson, and that the Stouts went to his rescue, and were not parties to the inflicting of any of the wounds on the negro. Dotson testified that he inflicted the wounds himself, and that the Stouts had nothing to do with -the trouble, and that he inflicted all of the wounds in his necessary self-defense;, the negro having assaulted him.

Dr. Holcomb 'testified that one of Hart’s fingers was out of joint; that he was cut in the chest, on the hand, and on the arm, and had from six to nine cuts on his head; that the largest wound was in his chest, and looked about the size of á common axe blade.

Dotson testified in his own behalf, admitting that he-had been convicted of a felony and had served a term in the penitentiary for passing counterfeit money.

There are three assignments of error argued in the-brief.

The first is based upon the contention that the verdict of the jury was clearly against the weight of the evidence. In support of this assignment, counsel cite the case of Cain v. State, 13 Okla. Cr. 252, 163 Pac. 958, and Jackson v. State, 13 Okla. Cr. 520, 158 Pac. 292. These cases do not support the contention of counsel. In the Cain Case irresponsible witnesses, whom the proof shows were bootleggers, testified that Cain had sold whisky unlawfully. Cain denied the charge, and made a clear defense, and proved by numerous witnesses that he was a law-abiding citizen of good character in the community. Practically the same state of facts was disclosed in the Jackson Case. The case at bar is altogether different. The plaintiff in error admitted inflicting the wounds on Hart, and said that he did so in self-defense, and also admitted that he was an ex-convict. The negro told a straightforward tale, and exhibited numerous scars which were the result of wounds inflicted, and nobody denied that they were so inflicted. The question, then, for the jury in this case resolved itself into the proposition of whether or not this negro went out and assaulted these farmers in such a manner that he had to be chopped to pieces in order to prevent him from inflicting serious injuries on them, when there is not a line of evidence to indicate that even a scratch was made upon the person of either of the three white farmers, or whether they assaulted him in the manner and form charged without justifiable or excusable cause. Under all these circumstances, this question of fact was for the jury. There appears no reason why this court should disturb the verdict upon the ground urged. There being clear-cut and competent evidence tending to establish the guilt of the accused, the judgment of the trial court and the finding of the jury on the facts will not be disturbed on appeal. This doctrine has been uniformly followed by this court in so many cases that it is unnecessary to recount them here. No other rule has been followed, and no other doctrine announced, under a state of. facts similar to those under consideration, by this court since it was organized.

The second proposition is based upon the contention of counsel that the information charges assault with intent to kill; that there is no charge of assault with a sharp and dangerous weapon with intent to do bodily harm without justifiable or excusable cause, and therefore the offense for which the plaintiff in error was-convicted is not included in the information. This assignment is wholly without merit. An information or indictment charging assault with intent to kill includes every form of assault down to and including simple assault. The contention is not supported by any authority.

The third assignment is based upon the contention that the county attorney was guilty of improper conduct during the trial. This assignment is also without merit.

Counsel cite Taggart v. State, 12 Okla. Cr. 509, 159 Pac. 940, and Borah v. State, 12 Okla. Cr. 540, 160 Pac. 27. These authorities do not support the contention made.

The county attorney in arguing to the jury referred to a cáse that he had previously tried in the district court of Sequoyah county, and which had heen prosecuted by counsel for plaintiff in error in this case. The court de-dined to permit the county attorney to use the name of the person convicted, but did permit him to use an illustration in some comment on the evidence upon which the conviction was secured. The record indicates that this argument was given in answer to argument advanced by counsel for the plaintiff in error in his presentation of the instant case to the jury. We find no error in the action of the court in this connection.

A careful review of the record in this case discloses no error prejudicial to the substantial rights of the plains tiff in error.

The judgment of the trial court is therefore affirmed.

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