author: RICHARDSON, Judge.

text:
    E. P. JAMES et al. v. STATE.
    No. A-189.
    Opinion Filed January 5, 1911.
    1. GAMING — Conduct of Turf Exchanges — Issues and Proof. Under an information charging- a defendant with conducting a banking and percentage -game, played with certain devices, for money and other representatives of value, a conviction cannot be had upon proof that the accused conducted a “Turf Exchange” where his patrons congregated and bet upon horse-races run at another place.
    2. GAMING — “Banking or Percentage Games” — Construction of Statute. To be guilty of violating section 2422 of Snyder’s 'Comp. L. Okla., the accused must deal, play, carry on, open or conduct the game upon which money or other representative of value is wagered, and the game which he so deals, plays, carries on, opens or conducts must be one of those specially mentioned in said section, or some banking or percentage game played with dice, cards or some other device.
    3. SAME — “Device”—Definition. By the word “device” as used in section 2422 of Snyder’s Comp. I.. Okla., is meant the means, instrument, contrivance or thing by which a banking or percentage game is played.
    4. NUISANCE — Gaming—Turf Exchanges. A house or place kept for the purpose of enabling persons to place bets or wagers upon horse races is a common gambling house, is a nuisance per se and those who conduct it are indictable and punishable under section 2465 of Snyder’s Comp. I*. Okla.
    ('Syllabus by the Court.)

      Appeal from, Canadian County Court; H. L. Fogg, Judge.

    E. P. James, Ollie James and C. E. Hillswick were convicted of violating section 2422 of Snyder’s Comp. L. Okla. 1909, and they appeal.
    Reversed and remanded.

      Gillette, Libby & Gillette, Davidson £ Malloy, Kistler £ Has-kell and Flynn, Ames £ Chambers, for plaintiffs in error.
    Citing State v. Ayers (Or.) 88 Pac. 653.

      Charles West, Atty. Gen., and Smith G. Matson, Asst. Acty. Gen., for the State.
    Citing Miller v. U. S., 6 App. Cas. (D. C.) 10.
   RICHARDSON, Judge.

The charging part of the information in this case was as follows:

“The said defendants, E. P. James, Ollie James, C. E. Hills-wick and Gale Pendleton, did, then and there unlawfully conduct, as owners and for hire, a certain banking and percentage game, played with and by means of a certain device, towit, a blackboard and telegraph connections, together with tickets with the name of the supposed horses and the amounts wagered on them, for money, checks and other representatives of value.”

To this information plaintiffs in error interposed a demurrer on the ground that the act charged did not constitute an offense. This was overruled. After trial and verdict, plaintiffs in error filed a motion for a new trial, in which they alleged that the court erred in overruling the demurrer, and that the verdict of the jury was contrary to the law and the evidence, which motion was overruled. These are the only assignments we deem it nec-essaffy - to consider. The statute under which this information was drawn, being section 2422 of Snyder’s Comp. L. Okla. 1909, reads as follows:

“That every person who deals, plays or carries on, or opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, poker, roulette, craps, or any banking or percentage game played with dice, cards, or any device, for money, checks, credit, or any representative of value, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, and by imprisonment in the county jail for a term not less than thirty days nor more than six months.”

This statute makes it an offense for any person to conduct, either as owner or employee, whether for hire or not, any banking or percentage game played with any device, for money, checks, credit, or any representative of value. This information alleged that plaintiffs in error did conduct, as owner and for hire, a certain banking and percentage game played with and by means of certain named devices, for money, checks and other representatives of value. The information is substantially in the words of the statute, and, though inaxtificially drawn, is probably sufficient. The devices named are unusual ones for that purpose, but the court could not §ay as a matter of law that they could not be so used.

We think, however, that the allegations of this information were not supported by the evidence. The evidence tended to show that plaintiffs in error were engaged in operating what is known as a “Turf Exchange” in the city of El Reno. It was shown that they had rented a building for that purpose, and kept therein a blackboard, a telegraph instrument and a telegraph operator; that this was conducted for the purpose of enabling patrons of the exchange to lay bets and wagers upon horse races run in other states; that on tire day previous to the running of such races the names of the horses entered therein were sent to the exchange by leased wires, and were posted on the blackboard, as were also the odds on the horses as made by bookmakers at the tracks. When the odds were posted the patrons of the exchange selected the horse or horses which they wished to back, and placed their bets thereon. They were given tickets showing the amount of money wagered, the name of the horse upon which they had bet, and the terms of the wager. After the race was run the result was telegraphed to the exchange, and the wagers were settled accordingly. Generally all bets were taken by the exchange.

The authorities are to the effect that running a horse race is a game, but in this case the games were not played at the “Turi Exchange/’ and were not conducted by plaintiffs in error. They did not conduct the races and therefore did not conduct the game. Neither was the game played by means of the devices alleged in •the information; that is, the races upon which the money, checks, credits or representatives of value were wagered and were won or lost, were not run in any sense by means of telegraph wires, telegraph instruments, blackboards or tickets. The game, the horse race, was run and played by means of horses. All that was done in the “Turf Exchange” was to make bets upon the result of the races. The tickets given the gamblers were only memo-randa of their bets, and the telegraph wire and instrument and the blackboard were merely means of showing what horses were to run, the odds placed, and of making known the result of the race. They furnished advance information in regard to the game, and made known the result as determined upon the track.

Section 2019 of Snyder’s Comp. L. Okla. 1909 provides that no act or omission shall be deemed' criminal or punishable' except as prescribed or authorized by the code. In U. S. v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37, it is said by Chief Justice Marshall:

“To determine that a case is within the intention of the statute, its language must authorize us to say so. It would be dangerous indeed, to carry the principle that a ease which is within the reason or mischief of a statute, is within its provisions, so far as to punsh a crime not enumerated in the statute, because it is of equal atrocitjr, or of kindred character, with those which are enumerated.”

We think the above quotation applicable to this case, and are of the opinion that the facts proven herein are within neither the letter nor the spirit of the statute under which the information was drawn. Statutes identical with or similar to the one under consideration have been enacted in many of the states, and have often been construed by the courts; and, so far as we have been able to ascertain, it has been uniformly held that the conducting of a turf exchange or the selling of pools upon races in the manner shown here was not a violation of such statute. Thus it is said in State v. Hayden, 31 Mo. 25:

“It is a great perversion of language to call a horse race a gambling device. If the Legislature desires to prohibit horse races it is easy for them to say so in plain terms. No one would even suppose that penalties inflicted upon keepers of faro banks and tables and such like gaming devices, were intended to apply to horse races, or foot races, or boat races. A criminal code cannot be so loosely interpreted.”

The same question was before the Supreme Court of New York in the ease of People v. Engeman, 114 N. Y. Supp. 174, the syllabus of which case is as follows:

“A ‘device or apparatus for gambling’ is a device or apparatus designed for carrying on actual gambling, or determining whether the player is to win or lose, like a wheel of fortune and (contrivances of that sort. A paper commonly called ‘advance information,’ conveying information as to horses entered to take part in a race to be run, the names of the jockeys, the names of the horses withdrawn, the length of the race and its number, though useful to a gambler in placing his wager, is not a ‘device or apparatus for gambling’ denounced by Penal Code, par. 344.”

And in the body of the opinion it.is said:

, “This is the test: Whether the implement or device is used in determining who shall win or lose; whether it is an integral part of the actual gambling. A gambling device is defined (20 Cyc. 871) as an invention often used to determine the question of who wins and who loses, that risk their money on a contest or chance of any land; anything which is used as a means of playing for money or other thing of value, so that the result depends more largely on chance than skill.”

And this decision was affirmed by the Court of Appeals of New York in 195 N. Y. 591, 89 N. E. 1107. In construing a similar statute the Supreme Court of Minnesota, in the case of State v. Shaw, 39 N. W. 305, said:

“The statute enumerates cards, dice and gaming tables, which are well defined devices used in gambling, and then follow the word ‘or any other gambling devices whatever.’ Gambling is defined to be ‘a risking of money or other property between two or more persons on a contest of chance of any kind, where one must be the loser and the other the gainer.’ A horse race may therefore be a game, and betting on a horse race gambling, and undoubtedly the parties charged in the indictment were gambling, and it might well be held that persons betting on such games would be liable to prosecution under section 296 of the Penal Code, and that the house or place kept by defendants was a common nuisance, and the keepers might have been indicted under the common law ‘for keeping a common gaming house.’ But the offense here charged is gambling with ‘gambling devices,’ and ‘keeping gamblng devices designed to be used in gambling.’ The term ‘device’ has the same meaning in both sections. Though the words ‘any other gambling device whatever,’ are doubtless intended to include any kind of apparatus, contrivance, or any instrument which may be used in games of chance, and upon the manipulation or operation of which the result of the game is determined, yet these terms, ‘gambling devices,’ must be construed ejusdem generis with the particular devices which are described in the preceding porttion of the same section in fixing the general character of such device referred to in the statute. In Re Leo Tong, 18 Fed. 257. A horse race is not a gambling device, nor are descriptive lists of such races, or statements or annorfnjcements of the particulars thereof, from which those desiring to bet on the races may more conveniently obtain information in respect to the same, and we are unable to- see that the boards and lists or records of pool sold described in the indictment are anything more. There is no element of chance in their use, which we think is the test. The defendants’ methods undoubtedly serve to facilitate gambling, and so does the fact that they keep open a place for gambling, and the same may be said also of the published schedule of races and games, and many other acts and things, which, however, cannot be denominated ‘gambling devices’ within the meaning of the statute. The betting is on the races exclus'ivelv and tire result is in no way determined by the use of the instrumentalities in question, and no additional element of chance is introduced thereby.”

A similar statute was passed upon in the case of Ives v. Boyce, 85 Neb. 324, 123 N. W. 318, and it was there held that the telegraph wires and instruments, blackboard and tickets alleged in this information to be gambling devices, were not such within the meaning of the statute. In that opinion the court said:

“Plaintiff seeks to bring the action within the scope of the above proviso by alleging that the telegraph wire, the blackboard and the ticket constituted a ‘gambling device’; but we think this would be a forced and strained construction of the same. The appliances mentioned may be and are used for legitimate purposes, and are no more ‘gambling devices’ than many other instru-mentalities of trade and commerce.”

And the Supreme Court of the Territory of Oklahoma, in Proctor v. Territory, 18 Okla. 37, in construing this statute, said:

“When the charge is for playing at some one of these unnamed games it will be necessary to set out the description of the game or device sufficiently to show that it was played with dice or cards, or some other device upon which something was hazarded, for money or something of value.”

See, also, James et al. v. State, 63 Md. 242; Crow v. State, 6 Tex. 334; McEllroy v. Carmichael, 6 Tex. 454, and State v. Bryant (Mo.) 2 S. W. 836. We deem it useless to multiply, authorities upon this question; we believe that none can be found holding that the acts proved .constituted a violation of this statute, and we do not think that any such conclusion can be drawn from even a casual reading of the section in question.

We concur with many good people, in believing that the operation of these so-called “Turf Exchanges” are pernicious and should be specifically prohibited, but the making of laws to that end is a legislative and not a judicial function; and the Legislature has clearly negatived its intention to bring them within the terms of this particular statute by the language it employed in framing the statute.

There 'is no doubt but that the making of bets and wagers in these exchanges constitutes gambling, and the exchanges themselves are common gambling houses, and are therefore nuisances per se. Rex v. Rogier, 1 B. & C. 272, 8 E. C. L. 117, 2 Dowl. & B. 431; U. S. v. Dixon, 4 Cranch (C. C.) 107; Vanderworker v. State, 13 Ark. 700; State v. Layman, 5 Harr. (Del.) 510; State v. Black, 94 N. C. 809; People v. Weithoff, 51 Mich. 203, 47 Am. Rep. 557; Anderson v. State (Tex.) 12 S. W. 686. See, also, 14 Am. & Eng. Enc. L., page 694, and cases there cited. They are such under our statutes. Under section 5771 of Snyder’s Comp. L. Okla., their operation may be enjoined; they may be abated as provided in chapter 71 of said laws; and under section 2465 of said laws their operation constitutes a misdemeanor, and those who conduct them may be prosecuted criminally and have inflicted upon them the punishment prescribed by section 2032; but a prosecution will not lie on an information based upon section 2422. Reversed and remanded.

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


source: Caselaw Access Project

author: DOYLE, Judge.

license: Public Domain

text:
    OPINION OF THE JUDGES.
    Filed January 5, 1911.
   Hon. Charles N. Haskell,

Governor of the State of Oklahoma.

The Criminal Court of Appeals, responding to your official communication of December 17th ult., addressed to this court, accompanied by the record and a transcript of the testimony in the case of the state of Oklahoma v. Frank Henson, being ease “Number 708 Criminal,” in the district court of Tulsa county, Oklahoma, wherein said defendant, Frank Henson, upon his trial was, by the verdict of the jury, found guilty of murder, and the death penalty assessed, and thereafter, on the 3rd day of December, 1910, said defendant was sentenced by the court, in accordance with the verdict, to be hanged on January 27, 1911, with the request that we give an opinion thereon pursuant to section 6928 pf Snyder’s Statutes.

We hereby respectfully submit the following opinion of the court.

From the record it appears that, in compliance with section 6927 of Snyder’s Statutes, which prescribes:

“The judge of a court at which a conviction requiring a judgment of death is had, must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and' judgment, and of the testimony given at the trial.” — •

Hon. L. 11. Poe, presiding judge, transmitted to the Governor of the state of Oklahoma the record and transcript of the testimony in said cause.

We have examined the records of this court and find that no appeal has been filed in this court in said cause. The record as submitted shows that the court allowed only the statutory time, to wit, thirty days, to make and serve a case-made. It is now apparent that no appeal has been taken.

Section 6928, Snyder’s Statutes, provides:

“The Governor may thereupon require the opinion of the judges of the Supreme Court (the Criminal Court of Appeals) or any of them upon the statement as furnished.”

As we view it, the statute contemplates an advisory opinion, where an appeal has not been taken in a capital case, where the death penalty has been assessed.

“The proposition then presented would be: Has there been an observance of all the formalities of law essential to the taking of human life ? Or has the trial, conviction and sentence .of death been in accordance with the law of the land?” (Opinion of the Judges, 3 Okla. Cr. 315.)

We have carefully examined the record and the transcript of the testimony. The information charges that, on the 9th day of October, 1910, in Tulsa county, the defendant, Frank Henson, did kill and murder Charley Stamper. The facts as disclosed by the evidence, briefly stated, are as follows:

In the town of Dawson, Tulsa county, Oklahoma, on Sunday, October 9, 1910, the defendant, a negro, in a fight with another negro or Indian, fired eight or ten shots. The deceased, Charley Stamper, a deputy sheriff living at Dawson, attempted to arrest the defendant, whereupon defendant, with a forty-five caliber pistol, shot him, the ball shattering his jaw and passing out through his neck, from which wound he died that day. The evidence shows that the defendant, seeing Stamper with several other persons coming toward him, said, in substance: That if an officer came near liirn he was going to shoot his damn brains -out. All the' witnesses testify that when the deceased told the defendant to “consider yourself under arrest,” the defendant fired the fatal shot. After the shooting the defendant attempted to escape, and was captured by those present when the shooting occurred. A plea of self-defense was interposed, and the defendant in' his own behalf testified that he did not know that Charley Stamper was an officer; that the deceased, with another man, walked up to him and said: “Consider yourself under arrest, young man.” And that he told him “all light”; that the deceased then shot him, hitting him on his right leg; that he then pulled his gun and shot the deceased; that the deceased then shot him a second time. The defendant is not corroborated by any person present when the shooting occurred. All the' witnesses testify that the deceased shot at the defendant only after the- defendant had shot him.

No question requiring discussion is presented in the record. The information correctly charges the crime- of murder, and the demurrer thereto was properly overruled. The instructions as given by the court fully and correctly state the law, and are more favorable to the defendant 'in some particulars than the evidence demands. There can be no doubt as to the sufficiency of the evidence.

The deceased, as an officer in the performance of his duty, attempted to arrest the defendant for a felony committed in his presence. The killing of a peace officer in resisting lawful arrest is not only murder, but is deemed a murder of more than usual aggravation. Thus, it has been said by an author of high, authority that:

“Ministers of justice, while in the execution of their offices, are under the peculiar protection of the law. This special protection is founded in great wisdom and equity, and in every principle of political justice. For without fit the public tranquility cannot possibly be maintained, or private property secured, nor, in the ordinary course of things, Will offenders of any kind be amenable to- justice; and for these reasons the killing of officers so employed hath been deemed murder of malice prepense.”

Premeditated design, as well as the motive actuating the defendant to commit the murder, is conclusively shown by the evidence. It was a brutal and deliberate murder, well meriting the extreme penalty assessed by the jury.

We axe of the opinion that, by a fair and impartial trial, the defendant has been adjudged to suffer the just penalty of the law.

Opinion by

DOYLE, Judge.

All the Judges concurring.


text:
    LOGAN BILLINGSLEY v. STATE.
    No. A-169.
    Opinion Filed January 5, 1911.
    1. INTOXICATING LIQUIORS — Unlawful Possession — Statute—Sufficiency of Title. A portion of the title of the Act approved March 24, 1908, (oh. 61, .Snyder’s Comp. L. Okla.) is, “Prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquor”; and that .provision of sec, 1, art. 3 of said act, (sec. 4180, Snyder’s Comp.' L. Okla.) declaring it unlawful for one to have in possession any of the liquors mentioned in said section with the intent to sell the same, is incident to prohibiting the sale of such liquors, and is .within the title of the act.
    2. INTOXICATING LIQUORS — Interstate Commerce — Delivery— State Control. When liquor, shipped from without this state to a consignee in this state, has been received by the latter from the railway company, and hauled to his place of business and unloaded and deposited in the place designated by him for that purpose, it is no longer an interstate shipment; and if the consignee intends to violate the prohibitory law with such liquor,, the same instantly becomes subject to seizure and the consignee to prosecution.
    3. INTOXICATING LIQUORS — Possession With Intent to Sell-Evidence. In a. prosecution for having liquor in possession with the intent to sell the same, the quantity in possession is a. circumstance which may be considered in determining the existence or absence of the intent to sell. .

      4. SAME. In a prosecution for having liquor in possession with the intent to sell the same, proof that the defendant frequently received shipments of liquor in quantities larger than he himself might reasonably consume, may be received as a circumstance tending to show the intent to sell.
    5. INSTRUCTIONS — Credibility of Witnesses — Harmless Error. An instruction that the jury may disregard the entire testimony of any witness whom they believe to have testified falsely to any material fact, and which leaves out of consideration the question whether such false testimony was wilfully and knowingly given, is erroneous; but where the defendant did not testify himself or introduce any witness in his behalf, the error is not prejudicial to him.
    6. INTOXICATING LIQUORS — Possession With Intent to Sell-Evidence — Internal Revenue Record. A certified copy of the record of the collector of internal revenue, made by the deputy collector in the name of the collector, under the seal of the latter’s office, showing' that a defendant has paid the special tax required of liquor dealers by the laws of the United States, is admissible as evidence in a prosecution for having liquor in possession with intent to sell same, and constitutes prima facie proof of the intent to sell.
    7. EVIDENCE — Copies of Official Records — Explanatory Notes— Judicial Notice. It is not proper for an officer, in makling & certified copy of a record in his possession, to testify in his certificate to the meaning of the terms or abbreviations used in such) record; but -where he does so, and the terms or abbreviations are such that the court will take judicial notice of their meaning, and the meaning of the terms as given in the officer’s certificate is in accordance with the court’s judicial knowledge, the mere fact that such explanation or definition is contained in the certificate is no ground for excluding the certified copy from evidence.
    8. SAME. The courts in this state will take judicial notice that the abbreviation, R. L. D„ as used in the records of the collector of internal revenue, means “Retail Liquor Dealer.”
    (iSyllabus by the Court.)

      Appeal from Caddo- County Court; B. F. Holding, Judge.

    Logan Billingsley was convicted of having in Ms possession intoxicating liquor with the intent to sell same, and he appeals.
    Affirmed.

      C. H. Carswell and Brislow & McFayden, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   RICHARDSON, Judge.

Plaintiff in error demurred to the information in this ease on the ground that that provision of see. 1 of art. 3 of the act approved March 24, 1908 (sec. 4180, Snyder’s Comp. L. Okla.) which declares it to be unlawful for any person to have in possession any of the liquors mentioned in said section with the intent to sell the same, is unconstitutional and void, because it is not expressed in the title of the act as required by see. 57, art. V of the Constitution; and he assigns the action of the court in overruling the demurrer as error. The title of the act in question is as follows:

“An act to establish a State Agency and local agencies for the sale of intoxicating liquors for certain purposes; and providing for referring the same to the people; prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney, and for the enforcement of the provisons of this act; making an appropriation and declaring an emergency.”

It will be observed that a portion of the title is, “Prohibiting the manufacture, sale, barter, giving away or otherwise furnishing of intoxicating liquor”; and we think the provision against having liquor in possession with the intent to sell the same is so clearly incident and relevant to prohibiting the sale of such liquor, and is so evidently a legitimate means to that end, as to render either argument or a citation of authorities to that effect superfluous. This provision is plainly within the legitimate scope and purview of the title of the act, and the demurrer was therefore properly overruled.

It is urged that the verdict herein was contrary to the law and the evidence, in that it was shown that the liquor in question was an interstate shipment, that it had not reached its destination when it was seized, that it was not in plaintiff in error’s possession, and that 'it was not shown that plaintiff in error intended to sell, barter, give away or otherwise furnish the same to any person. It was shown that the liquor in question, consisting of four cases of whisky, was shipped to plaintiff in error from Weston, Mo.; that (it was received by him at the railway depot in Anadarlro, and at his instance was hauled by a drayman to plaintiff in error’s place of business and was there unloaded by the drayman and deposited at the place designated by plaintiff in error for that purpose, near the bade door of the latter’s place of business; that, as the drayman was leaving, the sheriff and his deputies seized the whisky, reloaded it on the dray and had the drayman haul it to the jail. The liquor had therefore reached its destination before it was sdized; the shipment had terminated, and if plaintiff in error intended to violate the law with the liquor, it was then as fully subject to seizure, and plaintiff in error to prosecution, as if the liquor had been in his possession for a month. There is nothing in the. contention that the whisky was not in plaintiff in error’s possession. It was his, was in the place where he directed that it be put, and was in his custody and control; and that constituted possession. As to plaintiff in error’s intent to sell the liquor, the quantity in possession was a fact to be considered in determining that question. Also it was shown that, within a period of less than two months immediately preceding this shipment, he had received nineteen different shipments of whisky aggregating 1,941 pounds in weight. It was further shown that he had paid the special tax required of retail liquor dealers by the laws of the United States, and plaintiff in error did not testify himself or 'introduce any witnesses in his behalf. Nothing was produced in explanation or rebuttal of the case made by the state. These facts amply justified the jury in finding that he intended to sell this particular whisky.

A portion of the twelfth instruction given is complained of, and was as follows:

“You are further permitted, under the law, to disregard the whole or any part of any witness’ testimony who has testified before you, who, in your judgment, you believe has testified falsely to any material fact, except in so far as such testimony is corroborated by other and competent testimony.”

This instruction was not correct. The court may properly instruct the jury that, if they believe from the evidence that any witness has wilfully and knowingly sworn falsely as to any material matter, then they may, if they deem proper, disregard the entire testimony of such witness, unless they find it corroborated on other points by other and credible evidence; or they may, without such corroboration, give the testimony of such witness on other points such weight and value as they think it entitled to have, the jury being the sole judges of the credibility of all the witnesses and the weight and value to be given their testimony. But the mere fact' that a portion of a witness’ testimony respecting a material matter may be found to be untrue, without considering whether the witness acted in' good faith in giving it, and without determining that he wilfully and knowingly testified falsely, does not justify applying to such witness and to his testimony the maxim, Falsus in uno, falsus in omnibus. The question is not alone whether the witness is wrong as to a particular matter about which he has testified, but also whether he has knowingly and wilfully falsified and thereby shown that he has no regard for the truth. But it is not every time that an erroneous instruction of this character will furnish cause for reversal; and that it does not do so in this case is plain, for the reason that plaintiff in error did not testify himself or introduce any witnesses in his behalf; and the only effect the instruction could have had, if it had any, was to weaken the force oj some of the evidence against plaintiff in error.

The state offered and the court admitted in evidence a certified copy of the records of the collector of 'internal revenue at Leavenworth, Kan., as follows:

“Becord of Special Taxes, District of Kansas.
“Name, Anadarko Distg. Co., Logan Billingsley; Business B. L. D.; Place, Anadarko, Ok.; Date of Payment, Dec. 3, 1908; Amount of tax, $35.00; Prom what time, July, ’08; No. of Form, 11, 3846; Serial No. of stamp, 56580; Bemarks, 13/3/08. Present location.
“Treasury Department, Dee. 30, ’08.
“Leavenworth, Kansas,
“Collector’s Office.
“I, J. M. Simpson, the undersigned, hereby certify that I am the Collector of Internal revenue for the District of Kansas and the custodian of revenue record No. 10 for the District of Kansas; that the above and foregoing is a true and correct copy of said record No. 10 in my office and a true and correct copy of the above and foregoing names as they appear and are on said record No. 10 in my office of the Collector of Internal revenue for the District of Kansas, as above set forth.
“Record No. 10 is a record of all special tax payers in the District of Kansas.
“E. D. D. is an abbreviation for retail liquor dealer.
“W. L. D. is an abbrevation for wholesale liquor dealer.
“R. M. L. D. is- an abbreviation for retail malt liquor dealer.
<rW. M. L. D. is an abbreviation for wholesale malt liquor dealer.
“Per (SEAL.) J. M. Simpson,
“C. L. Daniels, ■ Collector,
“Deputy Collector.”

Plaintiff in error objected to the admission of this certified copy in evidence on the ground that it was not properly authenticated, and on the further ground that that portion of the certificate wherein the meaning of the abbreviations, R. L. D., W. L. D., R. M. L. D., and W. M. L. D., is explained was an attempt on the part of the collector to give testimony in his certificate. The Act of Congress of June 21, 1906, ch. 3509, 34 Stat. L. 387 (Fepd. Stat. Ann., Supp. 1909, p. 250), requires the collector of internal revenue to furnish certified copies of these records to the prosecuting officer of any state, county or municipality; and by that article of the Constitution relating to prohibition and by sections 4181, 5905, and 6834 of Snyder’s Comp. L., such copy is admissible in evidence in this state. State v. Dawdy, 145 N. C. 432, 58 S. E. 1002. The certified copy may be made by the deputy collector in the name of the collector under the seal of the latter’s office, as was done in this ease. State v. Shook, 75 Kan. 807, 90 Pac. 234. It is not proper for an officer, in making a certified copy of a document or record in his possession, to testify in his certificate to the meaning of the terms or abbreviatons used in the record. But the fact that the officer in his certificate to this record explained the meaning of the abbreviations mentioned was not prejudicial, for the reason that the courts in this jurisdiction will take judicial notice of the meaning of the abbreviations above set out as used in the records of the internal revenue collector, and it was the duty of the trial court to instruct • the jury in this case that the letters “R. L. D.,” as used in this certified copy, meant “Retail Liquor Dealer.” State v. Nippert, 74 Kan. 371, 86 Pac. 478; City of Topeka v. Stevenson, 79 Kan. 394, 99 Pac. 589; State v. Howard (Me.) 40 Atl. 65. The alleged testimony contained in the certificate was therefore harmless. The certified copy in question was admissible, and under our Constitution and statutes was prima facie proof of plaintiff in error’s intent to sell the liquor in question.

The judgment of the county court is affirmed.

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


text:
    NABERT BONAPARTE v. STATE.
    No. A-231.
    Opinion Filed January 5, 1911.
    1. INDICTMENT — Necessity—'Felonies Antedating Statehood. Article 5 of the 'amendments to the Constitution of the United. States, providing' that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” guarantees to a defendant charged with the commission of a felony in the Indian Territory prior to statehood an unalterable right to be accused by indictment only.
    2. SAME — Jurisdiction. In such cases the indictment is a necessary prerequisite to give the court jurisdiction.
    (iSyllabus by the Court.)

      Appeal from District Court, Pushmataha County; Malcolm E. Rosser, Judge.

    Nabert Bonaparte was convicted of uttering a forged instrument, and appeals.
    Reversed and remanded.

      J. B. Whitehead, for plaintiff in error.

      Qhas. West, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   DOYLE, Judge.

Nabert - Bonaparte, plaintiff in error, was prosecuted for the crime of uttering a forged instrument, alleged to have beeh committed in that part of the Indian Territory that is now Pushmataha county, on the 5th day of June, 1907. On August 24, 1908, A. J. Arnote, county attorney of Pushmataha county, filed a verified information in the district court of said county charging the defendant with said crime.

Upon arraignment the defendant filed a demurrer, on. the ground that the court had no jurisdiction of the cause, which demurrer was overruled and exception taken. On this information, at the February, 1909, term, the defendant was tried, and the jury returned a verdict, which, omitting the formal parts, reads as follows:

“We, the jury, duly empaneled and sworn, in the above styled cause, do upon our oaths find from the law and the evidence the above named defendant, Nabert Bonaparte, guilty in manner and form as charged in the information herein, and assess Ms punishment at imprisonment for the term of two years and six months in the state penitentiary.”

The defendant filed a motion for new trial and a motion in arrest of judgment, which motions were by the court overruled and exceptions allowed. Judgment and sentence in accordance with said verdict was entered on February 25, 1909. The defendant appealed by'filing with the clerk of this court on June, 1909, his petition in error with case-made attached.

It is assigned as error:

“That the district of Pushmataha county had no jurisdiction of the said case for the reason that the same was an offense alleged to have been committed prior to the admission of the State of Oklahoma into the Union, and that there was no indictment returned by a grand jury against the plaintiff in error in said cause.”

On the part of the state, the Attorney General concedes that the district court of Pushmataha county was without jurisdiction to proceed to the trial of the defendant for the crime charged by information and without indictment, and therefore confesses that this cause should be reversed. The offense is alleged to have been committed prior to statehood in that part of the state of Oklahoma which was formerly the Indian Territory. .

In section 20 of the amendments to the Enabling Act, approved March 4, 1901?1, it is provided that:

“All criminal cases pending in the United States courts in the Indian Territory, not transferred to the United States circuit or district courts in the state of Oklahoma, shall be prosecuted to a final determination in the state courts of Oklahoma under the laws now in force in that Territory.”

In Garnsey v. State, ante, 112 Pac. 24, this court said:

“These provisions of the Enabling Act and the Schedule preserve the rights of persons who are charged with the commission of offenses prior to the admission of the state and render them liable to punishment under the law. Eor this reason we are clearly of opinion that the constitutional provision providing for the prosecution of felonies by information was not intended to be retrospective or retroactive in its operation, and has reference only to prosecutions for crimes committed after statehood. However, it is immaterial whether the enabling act permitted, or the framers of oiir Constitution intended to provide, a new method for the prosecution of crimes committed before statehood, because in respect to such crimes the Constitution- of the United States gave to the accused an unalterable right to be accused by indictment only.”

And, continuing, said:

“The courts of this state, in exercising the jurisdiction conferred upon them by the enabling act and the state Constitution over crimes committed in Oklahoma Territory, can not deprive the accused of substantial rights secured to him by the Constitution of the United States, such as depriving him of the right to be accused by indictment for an infamous crime, or the right to be tried by a common law jury.”

"We are of opinion that the district court of Pushmataha county did not, .upon the information filed by the county attorney, acquire jurisdiction to try, convict and sentence the defendant for a felony charged to have been committed in the Indian Territory before statehood.

The judgment is therefore reversed and the cause remanded.

FURMAN, Presiding Judge, and RICHARDSON, Judge, concur.


author: FURMAN, Presiding Judge.

text:
    LUCY A. HEACOCK and SIDNEY MORRIS v. STATE.
    No. A-197.
    Opinion Filed January 9, 1911.
    1. INFORMATION — Adultery—Verification by Husband or Wife. (a) The statute requiring that an information should Ibe verified by the oath of the county attorney or some other person applies only to prosecutions for misdemeanors.
    (b) If, in a prosecution for adultery, the husband or wife of one of the defendants verifies the information filed before the committing magistrate, this constitutes commencing the prosecution as provided for by section 2366, -Snyder’s Comp. Laws of Okla. 1909. •
    2. INFORMATION — Felonies—Allegation of Preliminary Trial— Matters of Defense. (a) In prosecutions for felonies by information, it is not necessary for the state to either alleg'e or prove that the defendant has had a preliminary hearing or examining trial before a_ magistrate, and that upon such trial defendant was bound over to answer the charge prererred against him in the information, or that the defendant had waived isuch examining trial.
    (b) Where felonies are being prosecuted by information, if in fact defendant has not bad a preliminary examination and •been bound over to answer the charge contained in the information, or the defendant had not waived such examination, these matters can only be presented by a motion to set aside the information, and can not be raised by motion to exclude the testimony -of witnesses.
    3. WITNESSES — Adultery—Competency of Husband or Wife. Under section 2366, Snyder’s Comp. Laws of Okla. 1909, adultery is a personal offense against an injured wife or husband, and such wife or husband is a competent witness to prove the offense.
    4. INSTRUCTIONS — Credibility of Particular Witnesses. It is error for the trial court to single out any witness and direct special attention to such witness and instruct the jury as to the credibility of such witness.
    (Syllabus by the Court.)

      Appeal from, District Court, Woodward County; B. H. Loofbow-row, Judge.

    Defendants were convicted of adultery. Defendant Lucy A. Heacock was sentenced to pay a fine of $100 and defendant Sid Morris was sentenced to pay.a fine of $350, and they appealed.
    Eeversed and remanded.

      Charles Swindall and S. M. Smith, for appellants.

      Smith C. Matson, Asst. Atty. Gen., for appellee.
   FURMAN, Presiding Judge.

First. The information in this case is as follows:

“Information.
“State of Oklahoma, Woodward County, ss. In the District Court in and for Woodward County, Oklahoma, for the Nineteenth Judicial District, May Term, 1908. State of Oklahoma v. Lucy A. Heacock and Sid Morris. In the name and by the authority of the State of Oklahoma: “Now comes B. F. Willett, county attorney in and for the state and county aforesaid, and gives the court to know and be informed that one Lucy A. Heacock and S!id Morris, late of the county of Woodward and State of Oklahoma, on the 33rd day of January, in the year of our Lord one thousand nine hundred and eight; at and within the said county and state, did then and there unlawfully, voluntarily and feloniously have sexual intercourse with each other, the said Lucy A. Heacock then and there being a married woman and the wife of Joseph Heacock and not the wife of the said Morris, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Oklahoma.
“B. F. Willett, County Attorney.”

Appellants were duly arraigned and pleaded not guilty. The case being called for trial, both parties announced ready for trial, and after the jury had been selected and sworn and the county attorney had made his opening statement the appellants objected to the introduction of any evidence under the information because the information was not verified by the husband of the accused, Lucy A. Heacock, or the wife of Sid Morris. This objection was overruled by the court. In a prosecution for a felony it is not necessary that the information should be sworn to by any person. The statute requiring that an information should be verified by the oath of the county attorney or some other person applies only to prosecutions for misdemeanors. In re Talley (ante); A. H. Davis v. State (ante), both decided at the present term of court. IL appears from the record that the original affidavit filed before the justice of the peace on which the examining trial of appellants was had was verified by the affidavit of the husband of the defendant Lucy A. Heacock. This established the fact that he commenced this prosecution. The trial court therefore did not err in overruling the objection to the introduction of evidence upon the ground named.

Second. The appellants further objected to the introduction of any testimony under this information because no showing had been made that the justice of the peace or committing magistrate had bound them over upon an examining trial to answer the charge preferred against them in the information or that they had waived such examining trial. We have time and again held that in prosecutions for felonies by information it is not necessary for the state to either allege or prove that the defendant has had a preliminary hearing or examining trial before a magistrate, and that upon such trial the defendant had been bound over to answer the charge preferred against him in' the information, or that the defendant had waived such examining trial, and that these matters should be presented by the defendant in a motion to set aside the information, if, in fact, there had been no preliminary examination and the defendant has not been held to answer the charge contained in the information, or that the defendant had not waived such examination. Ran Wood v. State, 3 Okla. Cr. 553. The court therefore did not err in overruling the objections made by counsel fbr appellants to the' introduction of the testimony.

Third. Joseph H. Heacock being sworn as a witness for the state, counsel for appellants objected to his giving any testimony, upon the ground that he was the husband of one of the defendants. This objection was by the cotrt overruled, to which counsel excepted. This objection was based upon section 6834, Snyder’s Comp. Laws of Okla. 1909, which, among other things, provides “that neither husband or wife shall in any case 'be a witness against the other except in a criminal prosecution for a crime committed one against the other.” The .courts of the different states have placed a different construction upon statutes similar to this. So far as numbers are concerned, the majority of the courts hold that the wife or husband cannot testify against the other except as to personal offenses committed by one against the other. Upon the other hand, it has been held, under a similar statute, that on a, charge of adultery the testimony of the injured husband or wife is competent to prove the charge. See Lord v. State, 17 Mich. 526; State v. Hazen, 30 Iowa, 648; State v. Vollander, 57 Minn. 225; State v. Russell, 90 Iowa, 569. But be this as it may, we are of the opinion that under our statute upon the subject of adultery the husband or wife of the offending party is a competent witness -to prove the offense.

Section 2366 of Snyder’s Comp. Laws of Okla. 1909 is as follows:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecutions for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime. Provided; That any person may make complaint when persons are living together in open and notorious adultery.”

Anything short of living together in open and notorious adultery is not an offense against society in general. If a husband or wife assaults the other, the offender may be prosecuted, convicted and punished, although the injured party may not consent to, or even may oppose, such'prosecution. But in cases of ordinary adultery no grand jury can indict and no person can prefer a charge and no prosecuting attorney or court can present or try a defendant or defendants upon the charge of ordinary adultery, unless such prosecution is commenced and carried on by the husband or wife of one of the defendants. This clearly makes adultery a personal offense against the injured husband or wife. If it is not a personal offense, what character of an offense is it? The law has not made it only a public offense, because the public officers are prohibited from prosecuting it unless the prosecution is commenced and carried on by the injured husband or wife. How could a husband or wife commence and carry on a prosecution unless he or she could testify in support of such prosecution? It is a familiar rule of statutory construction that whenever the law gives a right to do a certain thing, that this, by necessary implication, carries with it the power to do all other things which are necessary to the complete accomplishment of the right expressly given. To deny to such husband or wife the right to testify would practically make a dead letter of this statute. We therefore hold that under our statute adultery is an offense against the marital relation and against the injured husband'or wife, and that such husband or wife is a competent witness to prove the offense.

Fourth. Upon the trial of this cause the court instructed tñe jury, among other things, that in determining the degree of credibility that should be accorded the testimony of the defendants -the jury had the right to take into consideration the fact that they were interested in the result of the prosecution, as well as their demeanor and deportment while upon the witness stand and during the trial, and all other evidence, facts and circumstances in the case tending to corroborate or contradict them, if any such are shown or proven. This instruction was duly excepted to at the time of the trial. We have time and again held that it is error for the trial court to single out the defendant or any other witness and instruct the jury as to his credibility. This would be equivalent to allowing the court to suggest to the jury that any such witness was likely to swear falsely. . Such a suggestion coming from the court0 could not have other than an injurious effect whenever the witness so singled out and personated had testified to any facts material to the rights of the defendant. It is all right for the prosecuting attorney to give reasons- why anjr witness may testify falsely, but such an intimation should never come from the trial court. See Hughes v. State, 3 Okla. Cr. 387, and authorities there cited.

For error of the trial court in instructing the jury as above indicated, the judgment of the lower court is reversed and remanded for a new trial.

DOYLE and BICHAEDSON, Judges, concur.


text:
    PHILIP HENDRIX v. STATE.
    No. A-270.
    Opinion Filed January 9, 1911.
    .1. WITNESSES — Cross-Examination—Criminal Record. Por the purpose of affecting the credibility of a’witness, he may be asked as to whether or not he has ever been convicted of a violation of the prohibitory liquor law of the state; 'but it is improper to ask him as to whether or not he has been arrested, imprisoned or indicted for any offense whatever, before conviction.
    2. INSTRUCTIONS — Credibility of Witnesses. An instruction that the jury mas'- disregard the entire testimony of any witness whom they believe to have testified falsely to any material fact, and which leaves out of consideration the- question whether such false testimony was wilfully and knowingly given, is erroneous.
    (Syllabus by the Court.)

      Appeal from, Caddo County Court; B. F. Holden, Judge.

    Defendant was convicted of violating the prohibitory liquor law, and was fined $100 and sentenced to 60 days’ imprisonment in the county jail, and he appeals.
    Eeversed.

      C. H. Carswell, for appellant.

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

First. Upon the trial of this case when the defendant was upon the witness stand, the state was permitted on cross-examination for the purpose of affecting the credibility of the witness to prove that he had previously been convicted of violating the prohibitory liquor law of the state. In the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, this court held that, upon cross-examination for the purpose of affecting the credibility of a witness, he may be asked if he has ever been convicted of a felony or for any crime which involves a want' of moral character, but it is improper to ask such .witness if he-had ever been indicted, arrested, or imprisoned before conviction for any offense whatever. Under this ruling, it would have been error to have asked the witness if he had ever been indicted, arrested, or imprisoned for any offense whatever; but to prove that he had been convicted of a felony or of any crime which involves a want of moral character goes directly to his credibility as a witness, and it is therefore proper. For the reasons supporting this distinction, see Slater v. United States, hereinbefore quoted.

The illegal sale of intoxicating liquor, wrongfully and deliberately committed, is an immoral, degrading, and degraded act, and is committed only by the lawless and unreliable classes of our population. It is a matter of common notoriety that in nine cases out of ten the “bootlegger” will not only not hesitate to commit perjury in his own behalf, but also he expects every man to whom he vends his stuff to commit perjury for him, should the occasion arise. The unlawful sale of intoxicating liquor involves moral turpitude, and shows a want of moral character. Therefore, for the purpose of affecting the credibility of a witness, he may be asked and required to answer whether 'he has been convicted of this offense.

Second. Upon the trial of this ease the court instructed the jury as follows:

“You are further 'permitted under the law to disregard the whole or any part of any witness’s testimony who has testified before you who in your judgment you believe has testified falsely to any material fact except insofar as such testimony is corroborated by other and competent testimony.”

This instruction is erroneous. For a full discussion of our views upon this question, see Logan Billingsley v. State (ante), decided at the present term. The testimony in this case was conflicting. The evidence for the defense directly contradicted that for the state. We therefore have no means of knowing as to whether this instruction weakened the force of the testimony for the defendant or for the state, and cannot say tnat the defendant was not injured by the erroneous instruction given.

The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

DOYLE and EICHABDSON, Judges, concur.