source: Caselaw Access Project

author: BAKIpR, Judge,

license: Public Domain

text:
    State v. R. J. Rayburn.
    No. 209.
    Opinion Filed May 25, 1909.
    (101 Pac. 1029.)
    1. HIGHWAYS — Failure to Work — Time of Filing Complaint. The provision of section 6109 of Wilson’s Revised and Annotated Statutes of 1903 of this state, providing that it shall he the duty of the road overseer to file a complaint as therein provided against a person violating the provisions of section 6090, is directory only.
    2. SAME — Work on Road by Taxpayers — “Poll Tiaxes.” The statute imposing compulsory labor upon persons residing in the several road districts of this state for the purpose of keeping the highways in repair, with the privilege of providing a substitute, or the payment of a stipulated sum in lieu of such personal services, is not a levying of taxes by the poll within the meaning of section 284, Bunn’s Constitution of Oklahoma.
    3. SAME. Section 6090, which provides that all male persons between 21 and 50 years of age, who have resided 30 days in this (state) territory, who are capable of performing labor on public highways, and who are not a township or county charge, shall be liable each year to perform four clays’ work of eight hours each on the public roads under the direction of- a road overseer within whose district or ward they may reside, or furnish, a substitute to do the same, or pay the sum of $1.00 per day to the road supervisor, etc., is in full force in this state, notwithstanding section 284 of Bunn’s Oklahoma Constitution, which reads: “The Legislature may authorize the levy and collection of a poll tax on all electors of this state, under sixty years of age, not exceeding two dollars per capita, per annum, and may provide a penalty for the non-payment thereof.-”
    (■Syllabus by the Court.)

      Error from Ellis County Court; A. E. Williams, Judge.

    R. J. Rayburn was arrested upon a complaint filed in the county court charging him with wilfully failing or refusing to perform road work as required by Wilson’s Rev. & Ann. St. Olda. 1903, .§ 6090. The complaint was dismissed on motion of accused, and the state brought error to the Supreme Court, whence the cause is transferred to the Criminal Court of Appeals.
    Reversed.
    On March 10, 1908, complaint was filed in the county court of Ellis county against the defendant in error, who will hereinafter be referred to as “the accused,” charging him with wilfully failing or refusing to comply with section 6109, Wilson’s Rev. & Ann. St. 1903, which reads as follows:
    “Any person liable to perform road work as required in this act who having been duly notified to perform such work or furnish a substitute therefor as required in this act, shall be deemed guilty of a misdemeanor and punished by confinement in the county jail for a period of ten days, or by a fine of not less than ten dollars nor more than twenty-five dollars, or by both such fine and imprisonment: Provided, that it shall be the duty of the road overseer to file a complaint before some justice of the peace of bis township against such person so refusing or failing to comply with such notice within ten days after such failure or refusal. And any road overseer failing to file such complaint shall be guilty of a misdemeanor and punished as in this section provided for the person so refusing. * * * ”
    That on the 21st day of February, 1908, accused was a citizeL and taxpayer of road district No. 2, in Ellis county, in this state, and that be was a person liable to perform work under the laws of the state of Oklahoma. That he was duly and lawfully notified as required by law, on the.21st day of February, 1908, to appear and commence the performance of such road work upon the roads in said district on the 2'5th day of February, 1908. That the accused wilfully failed and refused to comply with said notice, by performing such work or furnishing a substitute therefor, and refused to pay in lieu of such work the sum of $1 per day* as provided by section 6090, Wilson’s Eev. & Ann. St. 1903.
    The accused was arrested upon said complaint, and, appearing in said court, filed the following motion:
    “Comes now E. J. Bayburn by his attorney, S. A. Miller, and moves the court to dismiss his cause, and says: That said complaint was not filed within the 10 days’ statutory limit, as provided by the statute and laws of the state of Oklahoma.”
    . This motion was sustained, and the accused was discharged,' to which ruling the state duly saved an exception. The county attorney of said county, in behalf of the state, filed a motion for a new trial, setting forth in substance: That the court erred in sustaining the motion of the accused to dismiss;, that the court erred in holding that the provisions of section 6109, Wilson’s Eev. & Ann. St., are words of limitation upon the right of the state to prosecute the accused for the crime set forth in the complaint; and that the court also erred in not holding that the statute of limitation applying to misdemeanors generally, which fixes the period of limitation at three years after the commission of the offense in which prosecution shall be commenced, applied to the case at bar. From the judgment of the county court discharging the accused, the state prosecutes error.
    The appeal in this case was originally filed in the Supreme Court of this state, and was, upon the creation of the Criminal Court of Appeals, duly transferred to, and is now properly pending in, this court.

      O. B. Leedy, County Atty., and W. O. Beeves, Asst. Atty. Gen., for the State.
    — Cooley on Constitutional Limitations, pp. 109-119; Ilasseti v. Walls, 9 Nev. 387; Short v. State, 80 Md. 392; Jjesdy v. Bourbon, 12 Ind. App. 486; Furboll v. Meisner, 20 Minn. 396.
   BAKIpR, Judge,

(after stating the facts as above). Section 6090, Wilson’s Rev. & Ann. St. 1903, reads as follows:

“All male persons between twenty-one and fifty years oE age, who have resided thirty days in this territory, who are capable of performing labor on public highways, and who are not a township or county charge, shall be liable each year to perform four days work of eight hours each on the public roads, under the direction of the road overseer within whose district or ward they may respectively reside, or furnish a substitute to do the same, or pay the sum of one dollar per day to any road overseer, who shall receipt for the same and expend it in repairs on the public roads within his district or ward * * ”

Section 6092 of said statute reads as follows:

“Whenever it shall appear in consequence of sickness or absence from home, or from any other cause that the road work aforesaid shall not be performed within the time specified in this act, or when the township board shall deem such work unnecessary, the overseer is hereby authorized to require the performance of such work at any time prior to the tenth day of November then next ensuing, and in case any person shall neglect or refuse to do four days work, or furnish a substitute, or pay the sum of one dollar per day, or plant the trees as provided by this act, or if any person shall appear at the proper time and place as directed by the overseer and neglect or refuse to do a reasonable day’s work according to his ability, the road! overseer shall certify all such delinquent road taxes to the county clerk, who shall place the same on the tax roll for collection, subject to the same penalties and to be collected in like manner as other taxes are by law collected, and the same when collected shall be paid to the road district from which collected, and- be expended in improving the roads and highwaj^s therein.”

The only defense made by the accused in the court below is stated in his motion to dismiss, in which he alleges that: For the reason that the prosecution against him was not commenced within 10 days from -the expiration of the time limited in the notice requiring the accused to comply with the provisions of section 6090 of the Statutes of this state, the action is barred by said limitation, and therefore he could not be successfully prosecuted. It is therefore fair to assume that the accused was in all respects liable under said section 6090 for the performance of said labor or the furnishing of a substitute, or the payment of $1 per day as therein provided.

The first question, therefore, presented for our consideration is the proposition raised by said motion upon which the accused was discharged; the accused relying on that part of section 6109, which reads as follows:

“Provided, that it shall be the duty of the road overseer to file a complaint before some justice of the peace of his township against such person so refusing or failing to comply with such notice within ten days after such failure or refusal. And any road overseer failing to file such complaint shall be guilty of a misdemeanor and punished as in this section provided for the person so refusing * * *”

In order to arrive at an intelligent conclusion upon this proposition, it is necessary to carefully consider section 6092', above quoted, together with section 6090. It will be observed that section 6092 expressly provides that if a person liable for the performance of the work provided to be done under section 6090 fails to either perform the work, furnish a substitute, or pay the $1 per day after being notified as the law requires, he can be prosecuted criminally under section 6109-, or the tax may be collected under the provisions of section 6092 the same as other taxes, if the same is properly certified by the overseer to the county clerk. Reading all these sections together, this court is of the opinion that the provision of section 6109, which provides for the filing of the complaint by the overseer within 10 days'after the person liable has failed to perform said work, furnish' a substitute, or pay the $1 per day, does not extinguish the right of a criminal prosecution within the statute of limitation applying to misdemeanors generally; that the purpose of said provision of the stat-nte was twofold: First, to compel vigilance on the part of the overseer; and, secondly, to make the overseer liable for failing to file such complaint and applying the same penalty to the overseer that applied to the person liable under said section; and that She failure of the overseer to do this duty within the time specified in said section would not inure to 'the benefit of the accused and render him free from liability or'punishment; that the provisions of said section are directory merely.

One of the tests laid down by eminent law-writers in determining whether .a statute is directory or mandatory is the presence or absence of negative words plainly importing' that the act should be done in a particular manner or time and not otherwise. Lord Mansfield would have the question, whether the statute was mandatory or not, depend upon whether that which was directed to. be done was or was not of the essence of the thing required. The Supreme Court of New York, in the case of People v. Cook, 14 Barb. 290, declared the rule to be that:

“Statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute.”

Furthermore, there is nothing in the language of the statute in question that would limit the time in which the state could file a complaint. It can also be contended with logic and force that the 10-day limitation and statute under consideration' had1 the further purpose in view of making the overseer liable as well as the person originally liable. We think it cannot be claimed with much degree of .reason to support it that, in the event the overseer failed to. do his duty within the- 10 days- prescribed by said statute, the remedy secured under this statute to the road district would utterly fail. On the contrary, it is the opinion of this court that a criminal prosecution under this section would not be barred, except-by the general statute of-limitation applying to misdemeanors, because the statute in express words makes -the offense charged against the accused in this case a misdemeanor. Another rule of law which we think applies is this: That, this being, a remedial statute, it should be liberally construed, and that such interpretation would promote the ends of justice and further the design of the Legislature in enacting’it. And. further, that, while the statute under consideration provides that it is the duty of the road overseer to file the complaint within 10 days, it does not provide that, if he failed to file the complaint within the 10 days, the remedy -intended to be provided by the statute should thereby fail.

This .brings us to the proposition raised by the brief of tbe Assistant Attorney General, which calls attention to section 284 of Bunn’s Constitution of Oklahoma, which reads as follows:

“The Legislature may authorize the levy and collection of a poll tax on all electors of this state, under sixty years of age, not exceeding two dollars per capita, per annum, and may provide a penalty for the nonpayment thereof.”

In this connection it must be remembered that the laws in force in the territory of Oklahoma prior to the adoption of the Constitution of this state are only in force -in this state, if at all, by reason of the provisions of section -2 of the Schedule of Snyder’s Constitution, p. 381, which reads as follows:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this -Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma iintil they expire by their own limitation or are altered or repealed by law.”

It will be noted, therefore, that the provisions of said section 2 of the Schedule, just quoted, only extended and put in force such laws in the territory of Oklahoma at the admission of the state into the Union as were not repugnant to any of the provisions of the Constitution of this state. It therefore becomes important to determine whether or not the provisions of section 6090, requiring that all male persons between 21 and 50 years of age in this state who are capable of performing labor on public highways, and who are not a township or county charge, shall be liable each year to perform'four days’ work of eight hours each on the public roads, constitutes a poll tax; and, if so, said section 6090 is in contravention of and repugnant to tbe provisions of section 284 of Bunn’s Constitution of Oklahoma, which provides that the Legislature may authorize the levy and collection of a poll tax on electors of this state under 60 years of age not exceeding $2 per annum.

It will be agreed that, if said provisions of section 6090 is a poll tax, then the requirement of the payment of $4 per year would be repugnant to the provisions of the Constitution just referred to. We have carefully examined the authorities on this subject, and we find many ■ instructive cases.

In Short v. State of Maryland, 80 Md. 392, 31 Atl. 322, 29 L. R. A. 404, in an opinion delivered by Chief Justice Robinson, this question is ably and thoroughly discussed. This was a case in which the state of Maryland prosecuted Short for violating the statute imposing compulsory labor upon persons residing in the several election districts of the county for the purpose of keeping the roads in repair; which also provided for a substitute, or the payment of a stipulated sum in lieu of such personal services. Therefore, the prosecution was founded upon practically the same statute as section 6090 of Wilson’s Revised and Annotated Statutes of this state. The plaintiff in error in this case insisted that because the statute sought to enforce a poll tax, the collection of the poll ,tax is in violation of the fortieth section of the third article of the Constitution, of the state of Maryland, and therefore the Legislature had no such power; that said act also violates section 15 of the Declaration of Rights of said state, and is repugnant to the thirteenth and fourteenth amendments to the Constitution of the United States. Counsel for the state in said case, among other things, contend that the legislation complained of by the accused Is a familiar mode of providing for the repairing of public roads, and that the state had the right to call upon its people, either to render services themselves for such purpose, or to furnish substitute, or to pay in money an equivalent to such services; and the corresponding duty of such citizen to respond to such call was universally treated as standing upon the same footing as compul-sorj'- militia service by persons between specified ages, and compulsory jury service, also by designated persons. It was also contended that this sj^stem of compulsory service was almost as old as the common law itself; it appearing that as early as 1550 the care of the public roads of England was first left to the male inhabitants of parishes, citing 1 Blackstone, Commentaries, 538, which reads:

“Every parish is bound of common right to keep the highroads that go through it in good and sufficient repair, unless, by reason of the tenure of lands, or otherwise, this care is consigned to some particular private' person. From this burden no man was exempt by our ancient laws, whatever other immunities he might enjoy; this being a part of the irinoda necessiias, to which every man’s estate was subject.”

The learned justice, in discussing this case, said:

‘'By the Public Local Laws of Dorchester county all -able-bodied residents of the county above twenty and under fifty years of age are compelled to labor two days at least in every year in repairing the roads of said county, with the privilege, however, of furnishing a substitute, or paying to the road supervisors seventy-five cents for each day such person may be summoned to labor, the money thus paid to be expended in repairing the roads. And it further provides that any one neglecting or refusing to perform such labor, or to provide a substitute, or to pay seventy-five cents per day for each and every day he may be summoned to work, shall be guilty of a misdemeanor, and upon trial and conviction before a justice of the peace shall be fined seventy-five cents for each day’s delinquency and costs, and shall stand committed until the fine and costs are paid. The main question, and the only one, it seems to us, about which there can be any real contention, is whether this local law is in conflict with the Constitution, which declares ‘that the levying of taxes by the poll is grievous and oppressive, and ought to be prohibited. Article 15, Declaration of Bights, Const. 1867. And, in construing the meaning of this article, we must bear in mind that the same declaration is to be found in the ‘Constitution of 1776, and in every Constitution adopted in this state down to the Constitution of 1867. So the question comes to this: Is compulsory labor imposed upon persons residing in the several election' districts of a county for the purpose of keeping the roads in repair, with the privilege of providing a substitute, or the payment of a stipulated sum in lieu of such personal service a levying of taxes' b)r the poll ?’ within the meaning of the Constitution.”

This learned justice, after citing many cases in support of the final conclusion of the court, holds: That the provision of said statute requiring certain compulsory labor upon the public highways was not a poll tax and not in contravention of either the Bill of Rights or the ■ Constitution of the state of Maryland, and not repugnant to the Constitution of the TJnited States; and affirmed the judgment of the lower court imposing a sentence upon the accused for violating the provisions of said statute, and declaring the law in Maryland to be as follows:

“The term 'poll tax’ within the meaning of the Constitutional proyision prohibiting poll tax, does not include compulsory labor imposed by statute upon persons residing in the several election districts of a county for the purpose of keeping the roads in repair, and therefore such statute is constitutional.”

In Leedy v. Incorporated Town of Bourbon, 12 Ind. App. 486, 40 N. E. 640, the Appellate Court of Indiana held:

“The liability',to work on highways, imposed by Burns’ Ann. St. 1894, § 6819, on all able-bodied male citizens between the ages of 21 and 50 years, is not in the nature of a poll tax, but of the nature of the military or jury service.”

In Dennis v. Simon, 51 Ohio St. 233, 36 N. E. 832, it is held:

“Section 471? of the Revised Statutes, which provides that certain persons therein named shall be liable annually to perform two days’ labor on the highways, under the direction of the road supervisor of the road district in which any such person resides, is not in .conflict with the Constitution of Ohio, and is a .valid enactment. That section does not, in our opinion, infringe the article and section of the Constitution by which the General Assembly is forbidden to levy a poll tax for county or state purposes; nor is it in violation of the section of the Bill of Rights which provides that there shall be no involuntary servitude in this state.”

The Supreme 'Court of Illinois has also spoken on this subject, in Herman Fox v. City of Rockford; 38 Ill. 451:

(First Syllabus) “An assessment of road labor is not a capitation tax; therefore the Legislature may authorize a city to make such an assessment upon all persons above the age of twenty-one years without violating section 1 of article 9 of the Constitution, which exempts persons over sixty years of age from the payment of the capitation tax.”
(Third Syllabus) “The general law of the state authorizing counties and townships to impose the burden of road labor only on persons between twenty-one and fifty years of age cannot operate as a limitation upon an express power given to a city by special charter to impose such burden upon all persons over twenty-one years of age.”

This question was again decided by .the Supreme Court of the state of Ohio, but based upon a different state of facts, in the ease of William Houston and Daniel W. Cline v. Silas H. Wright, 15 Ohio St. 318. This case was based upon a statute of the state of Ohio providing for the organization and disciplining of the militia of that state, and which provides that all persons subject to military duty and who are not members of some voluntary organization shall either become members of some voluntary organization, or shall pay into the county treasury annually the sum of $4, which sum shall be in commutation for fines and penalties for neglect to perform military service, etc. Chief Justice Brinkerhoff, in delivering the opinion of the court, says:

“The first section of the twelfth article of the Constitution provides that ‘the levying of taxes by the poll is grievous and oppressive; therefore, the General Assembly shall never levy a poll tax for county or state purposes/ The first section of the ninth article provides that ‘all white male citizens of this state, being, eighteen years of age and under the age of forty-five years, shall be enrolled in the militia and perform military duty in such manner, not incompatible with the Constitution and laws of the United States, as may be prescribed by law/ The fourth section prescribes that ‘all persons who are subject to military duty under the provision's of this act, and are not now members of some volunteer organization, shall either become members of some volunteer organization, or shall pay into the county treasury annually, the sum of four dollars, which sum shall be a commutation for fines and penalties for neglect to perform military service. * * *’ .We are of the opinion that the commutation money named in the fourth section of the act is not in any sense, a -tax. The primary requirement of that section is personal military service in a voluntary organization.”

Several other states have held in harmony with the cases herein cited. Several'states have, however, decided differently. For instance, in the case of Hassett v. Walls, found in 9 Nev. 387. In this state-the law was enacted requiring the payment of a road tax annually, or two days’ labor in lieu thereof. The court held the levy of service upon an individual for road purposes as an emanation from the taxing power, and that the road tax of $4 annually, or two days’ labor imposed upon individuals by the highway act, whether regarded as a levy in money or service, is a capitation tax, or poll tax. Chief Justice Whitman, in discussing the propositions involved in this case, prefaces his statement, and, by way of introduction, says in substance, that by the general revenue law of said state an annual poll tax of $4 is levied upon each able-bodied male resident of any road, district of that state from 21 and under 60 years of age. Thus he assumes in the beginning of his discussion that it is a poll tax. Having decided that it is a poll tax, the court’s conclusion that the law under consideration is unconstitutional and void was to be expected. This learned judge, however, in referring to the Illinois statute, which is identical with the statute in this state upon this subject, says:

“But a contrary rule, as before indicated, appears so clearly correct that these authorities will not be followed. Where the law of this state like that of Illinois, which requires labor and allows it to be commuted into money, while Nevada levies a money tax but allows commutation in labor, the conclusions would be the same. Either is, and both are, capitation or poll taxes; one in money, the other in service, but both in excess of the limitation imposed by the Legislature; if in money, both in amount and in the disposition made of the proceeds; if in service, because no other poll tax than the one prescribed by the Constitution may lawfully be levied. The indication of this one has excluded from legislative power any other.”

In" Illinois, road, military, and jury duty are placed upon the same plane, and it is held that neither is in the nature of a poll tax'; citing Sawyer v. City of Alton, 3 Seam. (Ill.) 127; Town of Pleasant v. Kost, 29 Ill. 490; Fox v. City of Rockford, 38 Ill. 451.

In Virginia, in Proffit v. Anderson, Deputy Sheriff, 20 S. E. 887, the Supreme Court held in a habeas corpms case as follows':

“The road law for Louisa county, requiring all able-bodied men between 16 and 60 years old to work the roads two days in each year, and conferring authority on the overseer of roads to impose a fine upon persons refusing so to work, and to collect it by levy as in case of taxes, and providing for the imprisonment of one so refusing, is void under article 10, § 5, of the Constitution which authorizes the General Assembly to assess a capitation tax not exceeding $1 per annum on every male citizen over 21 years old, to be dedicated to the public schools, and confers on counties and corporations the power to impose a capitation 'tax, not exceeding 50 cents for all purposes.”

To this holding Justices Lewis and Lacy dissented. A careful reading of this case shows that the habeas corpus was granted, not upon the theory that, because the statute under which Proffit was prosecuted provided a poll tax, it was therefore unconstitutional, but on the ground that the Constitution of Virginia authorized the General Assembly to assess the capitation tax not exceeding $1 per annum on every male citizen over 21 years, the money to be applied exclusively in aid of public free schools, and limited the power of counties and corporations to impose a capitation tax not exceeding 50 cents per annum for all purposes; the court holding in this ■ case that the burden imposed on the accused was nothing less than a requisition tax, and, being in excess of the capitation prescribed by the said fifth section of article 10 of the Constitution of Virginia, is unconstitutional and void. The only case cited in the opinion is People v. Mayor of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266. A careful reading of the last- cited case discloses that the principal question discussed by Justice Ruggles, and the principal point in the decision, is the drawing of a distinctive line between taxation for public improvement, and levying an assessment on the property to be benefited by the improvement, and the taking of private property for public use under the rights of eminent domain. In other words, this case points out the distinction between the right of taxing an individual as his share of the public burden for which the taxpayer is supposed to receive just compensation in the benefits conferred by government, and the right to take private property for public use, making the distinction between taxes assessed against his property and the taking of the individual's property under the rights of eminent domain. Therefore, we fail to see wherein this case supports the doctrine declared in the Profit Case.

After carefully examining all the authorities we could find which in any way shed light upon the'question involved in the case at bar, and without expressing our opinion on the justness of the provisions of section 6090, supra, we find that the overpowering weight of authority holds in favor of the proposition that the provisions of said section do not constitute a poll tax, and that the provisions of said statute rest upon the same principle that military and jury duty rests; and! that the right to impose such burden is justified on the further theory that it is compensated for in the advantages derived from both the benefits of government and the benefits directfy or indirectly from the proper application of either the service or the money paid in lieu thereof.

In this state the provisions of section 6090 can more properly be denominated a tax, for the reason .that it is provided in section 6092 that, if the person liable to perform the labor, furnish a substitute, or pay in lieu thereof the sum of $4 fails to do so, upon proper certificate of that fact by the road overseer to the clerk of the county in which the roa'd district interested is located, this •burden or tax is placed upon the tax rolls against such person, and may be collected the same as other taxes.

This court may entertain an entirely different impression of the wisdom of this law than did the Legislature that enacted it, but that has nothing to do with the decision of the question under consideration. If the law is an unjust and unwise one, the remedy should be sought in the legislative department of the state, and not from the judiciary. The duty of this court is to decide and determine questions brought before it upon the law as it is written, regardless of the court’s opinion as to the wisdom or righteousness of the law under consideration.

This court is of the opinion that the county court committed error in this case in sustaining the motion of the accused on the ground that the 10-day limitation contained in section 6109 is mandatory, and that a noneompliance therewith absolved the accused from prosecution; and it is the opinion of'this court that such provision is merely directory, and does not destroy the right to prosecute the offender Within the time limited by the statutes of this state applying to misdemeanor cases.. Sections 6090, 6092, and 6109 of Wilson’s Bevised & Annotated Statutes of 1903 of this state are therefore in full force.

For the reasons stated, this cause is reversed.

FUBMAN, PRESIDING Judge, and. DOYLEi, Judge, concur.


author: DOYLE, Judge,

text:
    Walter Washington v. State.
    No. 382.
    Opinion Filed May 25, 1909.
    (101 Pac. 863.)
    1. VENUE — Right to Change — Misdemeanor Before County Court. The laws of Oklahoma (Sess. Haws 1903, p. 220, c. 25, art. 1) providing for a change of venue have no application to misdemeanor cases before county courts.
    2. INTOXICATING LIQUORS — Criminial Prosecution — Evidence— Sufficiency. See opinion for evidence held to be sufficient to sustain a conviction for violation of a provison of the prohibition ordinance of the Constitution.
    (Syllabus by the Court.)

      Error from Pushmataha County Court; L. P. Davenport, Judge.

    Walter Washington was convicted of an unlawful sale of intoxicating liquor, and brought error to the Supreme Court, whence the cause was transferred to the Criminal Court of Appeals.
    Affirmed.
    The plaintiff in error, W alter Washington (hereinafter designated defendant), was on the 13th day of July, 1908, in the county court of Pushmataha county, tried and convicted upon an information charging that said defendant “did in said county and state, on or about the-day of December, 190?1, unlawfully sell, barter, and furnish to John Bryan two quarts of whis-ky.” The court sentenced him to be imprisoned in the county jail of said county for 30 days and to pay a fine of $100 and costs. On September 8, 1908, defendant filed his petition in error, case-made, and proof of service of notice of appeal on Charles D. Mixon, clerk of the county court, and A. J. Amóte, county attorney of said county, with the clerk of the Supreme Court. Dp-on the organization of the Criminal Court of Appeals, said cause was duly transferred to this court, as by law provided. At the March, 1909, term, said cause was submitted.

      G. B. Wilcox, for plaintiff in error.

      Fred S. Caldwell, for the State.
    — On question of change of venue in county court: Garrison v. Territory (Oída.) 76 Pac. 182.
   DOYLE, Judge,

(after stating the facts as above). The first proposition presented- by defendant’s brief is that the court erred in overruling his application for a change of venue,' “for the reason that said defendant had fully complied with the act of 1903 (Sess. Laws Oída. p. 220).” We do not think that this contention is well founded. Section 1, art. 1, c. 2'5, p. 220, Sess. Laws 1903, provides that “any criminal 'cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed fir.om the county in which it is pending to some other county in said judicial district,” etc. It is clear from a reading of the statute that it has no application to misdemeanor eases in county courts, and an application for a change of venue in a misdemeanor case when district courts had jurisdiction of misdemeanors was unheard of. The law of this state is liberal in its provisions for a change of judge, but it is absurd to argue that this law contemplates changes of venue in misdemeanor cases before county courts.

Defendant’s next contention is based on his seventh, eighth, and ninth assignments of error, and questions the ruling of the trial court with reference to the admissibility of certain testimony. The evidtence in this case is certainly not as satisfactory as it might be. However, it is unnecessary to consider any of the testimony other than the defendant’s in order to sustain the verdict. The defendant, testifying in his own behalf, states that his home was at Durant; that he had been at Antlers since about the 1st of November, 1907; that he came there to go hunting in the mountains with one J. N. Dupree, who, the record shows, in May commenced serving a sentence in the state penitentiary; that said Du-pree asked him to spend the winter with him at Antlers; that said Dupree at this time was the proprietor of a pool hall in said town, and that defendant stayed around there some; that in the absence of Dupree, and while defendant was in charge of said pool hall, one "John Bryan came to Dupree’s place of business after the whiskey, and asked me when he came in if there was any whisky there, and,I replied to him that, if he had a search warrant, he might be able to find some”; that John Bryan "then went around and opened a drawer in one of the cigar eases and 'got the whisky and put it in his raincoat, and went away.” Under this testimony (which we consider to be a clear admission of guilt on the part of the defendant as to the offense charged) it is unnecessary to discuss the other questions in the case. It shows the defendant was in the actual possession of the premises o'f Du-pree at the time that Bryan came there and secured the whisky, and that he took said whisky with the consent at least of said defendant. The record discloses this case to be a repetition of the story of "Old Dog Tray.” On his own evidence defendant is guilty.

For this reason, the judgment of the county court of Push-mataha county is hereby affirmed, with directions to carry out the judgment and.sentence of the court.

FURMAN, PRESIDING Judge, and BAKER, Judge, concur.


author: BAKER, Judge,

text:
      Ex parte Arthur Flowers.
    No. A-139.
    Opinion Filed May 25, 1909.
    (101 Pac. 860.)
    1. HABEAS CORPUS — Remedy by Appeal. A writ of habeas corpus Will not be allowed when the petitioner has an adequate remedy by appeal.
    2. INDICTMENT AND INFORMATION— Preliminary Proceedings — Sufficiency of Affidavit. An information, based upon a .sworn affidavit, or sworn testimony filed in, the county court, charging the commission of a misdemeanor, is sufficient to give such court jurisdiction of the subject-matter of such charge.

      3. SAME. Under the lá.ws of this state no particular form of affidavit charging the commission of a misdemeanor is prescribed. Such affidavit sufficiently complies with the requirements of the statutes when it substantially states an offense defined iby the statutes, and such affidavit is sufficient to hase an information upon, provided that the information predicated on such affidavit is positively sworn to 'by the county attorney.
    (Syllabus by the Court.)
    Original petition by Arthur Flowers for a writ of habea's corpus.

    Writ denied.
    In his duly verified petition Arthur Flowers alleges that he is restrained of his liberty, and is unlawfully imprisoned at Clare-more, in Rogers county, by Hiram Stephens, sheriff of said county, and that the cause of said restraint, according to his best knowledge and belief is that on the - day of -, 1909, the county attorney of said Rogers county requested the county judge of said county to subpoena witnesses before the said county judge, for the purpose of inquiring into whether or not the prohibitory law of this state had been violated, and that one P. Fisher was subpoenaed before said court, and gave evidence as follows:
    “Q. Mr. Fisher did you, at any time, at Chelsea buy any intoxicating liquor from Arthur Flowers? A. Yes, sir. Q. When and what was that? A. I bought whisky from him at two different places; one known as the ‘Squirrel Joint’ and at the new place. Q. About what day was it? A. I have bought so many times I hardly know. I think a couple of days before last Saturday. Q. Who was present? A. Sid Fletcher, Taylor Goin, Jim Kell. I paid Arthur Flowers for the drinks that day. It was Budweiser beer. This was at the new place, the skating rink, Chelsea, Rogers county, Okla. P. Fisher.
    “Sw-orn and subscribed to before me this March 11, 1909. Archibald Bonds, County Judge.”
    He also alleges that upon said evidence the county attorney, Wm. M. Hall, who prosecutes in behalf of Rogers county, filed his information in the county court of said county, accusing the petitioner of the offense of selling intoxicating liquors, which information was (omitting the formal parts) in the following words:
    “Be it remembered that W. M. Hall, county attorney in and for the county of Rogers,' state of Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes here in person into the county court of the said county, this 11th day of March, A. D. 1909, and upon, the evidence of P. Fisher had and obtained an order of the county court in and for Rogers county, Oklahoma, duly subscribed and sworn to by him, as .provided by law, and the same is hereto attached, marked ‘Exhibit A.’ and made a part hereof, gives the court to understand and be informed that on or about the 4th day of March, A. D. 1909, in the county of Rogers, state of Oklahoma, one Arthur Flowers, then and there being, did then and there wilfully and unlawfully sell spirituous, vinous, and fermented liquor to P. Fisher, contrary to the form of the statutes in such cases made and provided, and against the. peace and dignity of the state. Wm. M. Hall, County Attorney.”
    The verification of said information is as follows:
    “Personally appeared before me, J. M. York, clerk of the county court,, within and for the county of Rogérs and state of Oklahoma, W. M. Hall, of lawful age, who, being duly sworn upon his oath states: ‘That he is the county attorney of said county, that he has read the foregoing information, and knows the contents thereof, and that the facts and allegations therein contained are trued”
    That upon said information a warrant was issued, and the petitioner arrested;, and on the 10th day of April, 1909, was tried in the county court by a jury, who rendered a verdict of guilty against him. That a.t the time the petitioner was arraigned in said court he excepted to said information, for the reason it was not duly verified, and, filed his motion to quash said information on the grounds that the evidence upon which the same was based was illegally obtained, and without authority of law, which motion or plea in abatement alleges, in substance, as follows: That there was no'affidavit to support the information herein; that the information is supposed to be based upon evidence taken before the county judge of said county by witnesses brought before said court, under section 4 of the prohibition enforcement act of this state (Laws 1907-08, p. 604, c. 69), and that there was no information filed with said court charging any person with a violation of the provisions of said enforcement act,, and that tbe witnesses brought before said court were -not there at the request of the county attorney, andi that the evidence that was obtained was without authority of law and by force, and is therefore not sufficient to base an information upon; that there was no charge pending before said county judge against the petitioner supported by the affidavit of any person, nor was the request of the county attorney of said county supported by affidavit, nor does the record in said court disclose the fact that any subpoena was issued, and that there was no cause pending before said court which would have authorized the county court to have issued subpoenas for witnesses; that the whole of said evidence was illegally obtained/ and wholly insufficient to base a complaint or information upon. Petitioner prays that he may be dismissed from custody.
    A writ of habeas corpus issued out of this court commanding the sheriff of said county to have the body of said petitioner in this court on the 24th day of April, 1909. In answer to this writ said sheriff m'ade return, stating, in substance, that the body of the petitioner was placed in his custody on the 14th day of April, 1909, and that the petitioner is now held in custody by him by virtue of an order of commitment, duly issued under the seal of the county court of Bogers county, commanding him to imprison the petitioner in the jail of said county. He attaches a copy of said commitment to his return. Said sheriff, in obedience to said writ of habeas corpus, produces the body of said petitioner before this court to be dealt with according to law. The order of commitment is in the usual form, and recites that on the 10th day of April, 1909, Arthur Flowers was brought before the county court of Bogers county charged with the selling of intoxicating liquors, and was on said date found guilty, and in punishment for said crime was ordered by said court to pay a fine of $50 to the state of Oklahoma, and that he be confined in the jail of Bogers county for a term of 30 days, and adjudged to pay the costs of said action, taxed at $37, and, if he failed to pay said fine and costs, that he be confined in said jail an additional term of one day for each $2 of the fine and costs, to wit, 43 days; that he holds the body of said petitioner in obedience to the command of said commitment, and for no other reason. The petitioner filed in support of his petition the affidavit of Archibald Bonds, judge of said county, a copy of the information, a copjr of the testimony of P. Fisher, taken before said county judge, and a copy of a plea in abatement filed in the county court. Both sides were fully heard in oral arguments.

      Eight, Ezzard & Iloltzendorff, for petitioner.

      Wm. M. Hall, Co. Atty., and Charles L. Moore, Asst. Atty. Gen., for the State.
   BAKER, Judge,

(after stating the facts as above). It is contended by counsel for the petitioner that he was unlawfully restrained of his liberty by the sheriff of Rogers county, state of Oklahoma, for the reason, notwithstanding the filing of an information, the trial and conviction in the county court of said county, that the alleged information was not predicated upon sworn proof, and that the testimony of P. Fisher, upon which the county attorney based the information charging the petitioner with the offense of unlawfully selling intoxicating liquors, was improperly obtained, and that said ease comes within the law announced in the case of Ex parte Gudenoge, ante, p. 110, 100 Pac. 39, in which this court held that:

“Under section 21 of the Bill of. Rights (Bunn’s Ed. § 30), which declares that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided/ and section 2'7' of the Bill of Rights (Bunn’s Ed. § 36), which'provides that ‘any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws .of the state, shall not be excused from giving testimony or producing evidence, when legally, called upon so to do, on the ground that it may tend to incriminate him under the laws' of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may so testify or produce evidence5 — where a person is under examination before a county judge in an investigation into supposed violations of the prohibitory law, otherwise known as the ‘Enforcement Act5 (Laws 1907-OS, p. 604, c. 69), under the provisions of section 4 of said act he is not obliged to answer questions where his answers will tend to incriminate him, unless the inquisition is held for the purpose of inquiring into a complaint made, supported by affidavit. charging an oifense against the provisions of the prohibitory- law.55

It must be borne in mind that Gudenoge was imprisoned for contempt of court, for refusing to give testimony before the county judge. The decision in the Gudenoge Case is based upon the proposition that there was no action pending before said county judge, or in said county court, which would subject him to the contempt of said court for failing or refusing to testify. Thus it will be seen that there is a marked distinction between the Gudenoge Case and the case at bar, for -the reason that it is claimed by the petitioner that he should not be prosecuted for unlawfully selling intoxicating liquor, because the information against him is not predicated upon sworn testimony, or an affidavit authorizing the county attorney to file the information against him, contending that Fisher in the case at bar testified before the county court when in fact there was no case pending against any one in said court in which the evidence of Fisher would be competent. But it is admitted that Fisher testified before said county judge, signed his testimony and swore to it; said testimony thereby taking the form of an affidavit. Therefore, if the contention of counsel for the petitioner is correct, this court must first conclude that, because the evidence of Fisher was not given in an actual case pending in said court, because the affidavit sworn and subscribed to by him was not filed in a proceeding actually pending at the time said affidavit was made, then it could not be used to base an information upon. .Tn other words, under the theory of counsel for petitioner, the affidavit made by Fisher, for the reasons contended for by him, would vanish into thin air, or would be suspended in mid-air beyond the reach of the county attorney, and therefore useless for any legal purpose. This position we cannot endorse. The facts stated in the affidavit were sworn to and subscribed by Fisher, remained in existence in proper form, and could legally be used by the county attorney on which to base an information; and, when the information based upon Fisher’s affidavit was filed, the county court had jurisdiction. Therefore the trial court properly overruled petitioner’s plea in abatement. ' The distinction between the case at bar and the Gudenoge Case is clear and concise. Gudenoge was imprisoned for refusing to testify under conditions and circumstances that were not authorized by law, and hence was not a witness in the sense that he could be punished for contempt, and therefore could not be guilty of contempt for failing to testify under such circumstances. Hence his incarceration was unauthorized and illegal, and habeas corpus was the proper remedy in that case.

It is also claimed by counsel for petitioner that the case of Ex parte Reynolds, 35 Tex. Cr. R. 437, 34 S. W. 120, 60 Am. St. Rep. 54, is analogous to the ease'at bar, upon the theory that the information, being based upon no affidavit, or upon an affidavit improperly obtained, was no information. We agree with counsel for the accused that, if the information in the case at bar was void ab initio, then the Texas case is in point. In Ex parte Reynolds, supra, the court found that Reynold's was convicted and sentenced under an indictment found and returned by a jury composed of more men than is required by the law to constitute a legal grand 'jury, and was entitled to be released from custody upon a writ of habeas corpus, 'for the reason that he was restrained^ of his liberty upon an indictment and sentence which were absolutely void. If counsel were right in the claim that the information in the case at bar was absolutely void, than the remedy by habeas corpus would be proper; but in this counsel is not supported by the record.

For the reasons stated, the writ of habeas corpus should be, and is, denied the petitioner, at his cost.

If tlie contentions of petitioner are true that his substantial rights have been violated, and that the judgment upon which his incarceration is based is illegal, then he has an adequate remedy by appeal to this court. This court feels that every man accused of crime is entitled to, and should be given, a full opportunity to make every proper and lawful defense guaranteed to him by law, and that if he feels aggrieved at the iudemtent of the trial court, and thinks he has not been accorded his legal rights, and therefore stands improperly convicted, and desires to appeal his case, he should be given an opportunity to perfect his appeal. Therefore, it is ordlered by this court that the county court of Rogers county give the petitioner 30 days’ additional time to the time originally given him by said court to prepare and serve his case-made in this ease.

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


author: DOYLE, Judge.

text:
      Ex parte W. L. Walton.
    No. A-126.
    Opinion Filed May 27, 1909.
    (101 Pac. 1034.)
    1. HABEAS CORPUS — Void Judgment — Discharge. Where a party is arrested and brought before a justice of the peace acting as police judge, charged with the violation of a town ordinance, and upon arraignment refuses to enter a plea, and -the justice, without hearing any evidence to support the complaint, finds the defendant guilty and sentences him to imprisonment, and he is so imprisoned, held, upon a petition for a writ of habeas corpus, that said judgment is void, and the imprisonment illegal and without authority of law.
    2. ARRAIGNMENT AND PLEA — Plea of Guilty — Conviction Without Evidence. When no evidence is offered to support a criminal complaint, a plea of guilty is indispensable to sustain a judgment of conviction.
    3. HABEAS COIRIPUS — Record of Justice — Impeachment. The recitals of the record, as shown by the judgment rendered by 'a justice of the peace, that the defendant refused to plead, and that no 'testimony was taken, is conclusive and parol evidence is incompetent in a collateral proceeding to impeach said record.
    (Syllabus by the Oourt.)
    Application of W._ L. Walton for writ of habeas corpus.

    Writ allowed, and petitioner discharged.
    On April 1, 1909, a petition, duly verified by petitioner, W. L. Walton, praying that a writ of habeas corpus be issued, was filed with the clerk of the Criminal Court of Appeals, and ’ said petition was on said date presented to Hon. H. G. Baker, one of the judges of this court, and the writ was allowed by said judge as prayed for in said petition and made returnable to this court on the 15th day of April, 1909, at which time respondent N C. Stowell, city marshal of Clinton, appeared in person, and by his attorney, A. J. Welch, produced petitioner, and filed his return, showing that he held said petitioner by virtue of a commitment issued as alleged in said petition by A. P. Brown, a justice of the peace in and for the town of Clinton, Custer county, Olda., in a case entitled Town .of Clinton v. W. L. Walton. Copies of the complaint, judgment, and sentence, and the commitment, are as follows:
    Exhibit A:
    “Justice Court. State of Oklahoma, Custer County,. The (City of Clinton — ss.: Complaint. W. L. Walton. Before me, A. P. Brown,'justice of the peace within and for the city of Clinton, Custer county, in said state, personally appeared S. J. Storm, who, being sworn, upon his oath, says that on or about the 20th day of January, 1909, in said county and town, W. L. Walton, did unlawfully violate Ordinance No. 96 of said town, by contracting brick work, cement work, and carpenter work in said town without first having paid his occupation taxes as provided in said ordinance, and against the peace and dignity of the state of Oklahoma, wherefore, affiant prays that a warrant may issue for the arrest of said W. L. Walton, that he may be dealt with according to law. S. J. Storm.
    “Subscribed and sworn to before me this 2'0th day of January, 1909. A. P. Brown. Justice of the Peace.
    “I have examined the facts in this case, and recommend that a warrant do issue, and that the following witnesses be subpamaed on part of the state as witnesses. A. J. Welch, Prosecuting Attorney.”
    Exhibit B:
    "Town of Clinton, Plaintiff, v. W. L. Walton, Defendant. Before A. P. Brown, Justice of the Peace of the Town of Clinton, Okla. The above-named defendant was arrested on the 20th day of January, 1909, and arraigned on a charge of violating the occupation ordinance of the town of Clinton, Okla., and defendant stated to the court that, if he was granted a little time, he would pay the required tax. Consequently he was given two- months in which to make the payment, and at the end of that time he refused to pay any tax at all. The defendant was arraigned the second time on the 20th day of March, 1909, at 10 o’clock a. m., and refused to enter a plea. The court having considered the evidence in the complaint, also that of the defendant, finds the defendant guilty as charged in the complaint and the defendant is fined in the sum of $100.00 and costs of suit, costs taxed at $9.00. A. P. Brown, Justice of the Peace.”
    Exhibit C:
    "Commitment. State of Oklahoma, Custer County — ss.: In the Justice Court of the City of Clinton, Okla. The City of Clinton v. W. L. Walton, Defendant. Greeting — To the City Marshal of the City of Clinton: Whereas, the above named defendant has been arrested and brought before me, A. P. Brown, justice of the.peace, within and for the city of Clinton, said county and state, and after being duly arraigned, tried and convicted of the crime of violating the Occupation Ordinance No. 96 of the town of Clinton, Okla., and fined in the sum of $100.00 and costs, and taxed $9.00 and in default of payment of the same you are therefore commanded to take said defendant into your custody and imprison him in the common jail of said city and to hold him subject to the street commissioner of said city. Upon the order of of said commissioner you will deliver him to said commissioner to work upon the streets of said city of Clinton. And you are further commanded to release said defendant upon payment of said fine and costs, and due return thereof make. Witness my official hand this 31st day of March, A. D. 1909. A. P. Brown, Justice of the Peace.
    “It is admitted by both parties that no witnesses were sworn, and that no testimony was taken before the justice that issued the commitment. The respondent requested that he be 'permitted to show by witnesses that petitioner did in fact upon arraignment enter a plea of 'guilty/ and the court permitted petitioner and respondent to offer their oral proof. Petitioner was given 20 days to file briefs and respondent 10 days to file an answering brief, and said cause was set for final determination on May 8, 1909. Petitioner to be released from custody pending the determination of said cause by giving a good and sufficient bond, conditioned to abide the judgment of this court in the sum.of $300. Said bond to be approved by A. P. Brown,'jiistice of the peace in and for the town of Clinton, Custer county, Olda. Holcombe and Bulow, Attorneys for Petitioner. A. J. Welch, City Attorney, for respondent.”

      Holcombe & Bulow, for petitioner.

      A. J. Welch, for respondent.
   DOYLE, Judge.

The facts are these: The petitioner is in the custody of the respondent, who is marshal of the town of Clinton, under a warrant of commitment issued by A. P. Brown, a justice of the peace in and for said town. It appears from the record that on the 2'0th day of January, 1909, a complaint was filed against petitioner, charging him with a violation of an occupation tax ordinance of said'town. The petitioner was arrested, brought before said justice of the peace, and arraigned and refused to plead, but promised to pay said occupation tax. Whereupon he was given 60 days to pay the same. At the end of this time he had failed and refused to pay said tax. Whereupon, on the 20th day of March, 1909, he was again arraigned, and refused to plead. Whereupon, without any evidence being offered to support the complaint as filed, he was by said justice of the peace adjudged guilty and sentenced to pay a fine of $100, and costs, and the commitment issued. The record purports to show a complaint, also the judgment,. sentence, and commitment, but it wholly fails to show that the petitioner ever entered a plea to the complaint, or that any testimony was offered in support of said complaint.

Where there is a judgment, sentence, and, commitment, the record- must show that a plea of guilty was entered, or that evidence to support the complaint was offered-. One or the other are imperatively required to give the justice jurisdiction of the accused, in order that the justice may have authority to pronounce judgment and sentence, and issue a commitment thereon. The recitals of the record show that in the proceedings had there w-as no plea entered, and-there was no evidence offered. While this court is disposed to regard tolerantly any mere technical irregularities, or defects of form in proceedings before justices of the peace, it would be going too far to hold the record in this case to be sufficient to support a judgment of conviction, sentence, and commitment. Justices of the peace acting as police judges in the towns of this state for the trial of offenses, under the town ordinances, are controlled by the provisions of procedure criminal, except where it is otherwise prescribed by statute.

Bespondent before this court sought to contradict the recital in the record that defendant “refused to enter a plea” by parol testimony, showing that petitioner did-, in fact, plead guilty. This testimony was wholly incompetent. The records of a court, even a justice of the peace court, import absolute verity, and cannot be overthrown by parol testimony in a collateral proceeding. Where a justice of the peace has acquired jurisdiction, the only competent evidence of the proceedings had is the record required by law to be made, and the record is conclusive as against any parol attack in a collateral proceeding attempting to impeach it. The record of the justice of the peace court must stand or fall by itself, and cannot be supported, supplemented, or contradicted by parol proof in a collateral proceeding.

As this question is decisive of this case, it is unnecessary to discuss the other questions presented.

Wherefore the prayer of petitioner is granted, the writ allowed, and petitioner discharged.

FTJBMAN, Presiding Judge, and BAKEiB, Judge, concur.


author: BAKEB, Judge,

text:
      J. G. Mitchell v. State.
    No. 99.
    Opinion Filed June 3, 1909.
    (101 Pac. 1100.)
    1. INTOXICATING LIQUORS — Information—Name of Purchaser. An information charging- a single sale of intoxicating liquor must allege the name of the person to whom the sale was made, if known; if unknown, this fact should be averred.
    2. INSTRUCTIONS — Credibility of Accused. It is error for the trial court to single out the accused, and instruct the jury upo-n the credibility of -his evidence. The accused, in respect to his evidence, should be treated in the court’s charge in -the same manner as other witnesses in the case.
    3. SAME — ’Presumption of Innocence. It is error for the court to charge the jury as follows. “The jury is instructed that the defendant must be presumed to be innocent until Ms guilt is fully established by legal evidence” — for the reason that, before tihe jury can lawfully convict, they must find the accused guilty of the charge against him beyond all reasonable doubt.
    4. SAME — Time of Offense. It is error in a misdemeanor case for the court to charge the jury that, if the testimony shows the commission of the offense charged at any time since the date mentioned in the information and the time of the trial, they may convict. Instructions as to time should be limited to a date anterior to the date of the filing of the information, and within the limits included in the statute of limitation. Proof of offenses committed subsequent to the date of the filing of the information and before the date of the- trial should not be admitted in evidence, and should not be included in the instructions.
    (Syllabus by the Court.)

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

      J. G. Mitchell was convicted for unlawfully selling intoxicating liquor, and he brings error.
    Eeversed and remanded, with directions.
    The plaintiff in error, who will for convenience sake be hereinafter referred to as the accused, was, on the 8th day of Jannary, 1908, prosecuted in the county court of Muskogee county upon an information charging “that the said J. G. Mitchell did, on the 26tb day of December, 1907, in tbe county of Muskogee, state of Oklahoma, unlawfully sell one pint of (intoxicating liquor, against the peace and dignity of the state.” To this information accused filed a demurrer, alleging that the information does not state facts sufficient to constitute an offense against the state; that the court has no jurisdiction of the subject-matter of the offense; that the information does not set forth the name of the person, or persons, to whom the intoxicating liquors were sold. The 'demurrer was overruled, and the accused saved an exception. The trial resulted in a verdict of guilty. Accused filed a motion for a new trial alleging that the verdict is contrary to the law, contrary to the evidence, contrary to the law and the evidence; that the court erred in its instructions to the jury, and erred in refusing the request of the accused to instruct the jury to return a verdict of guilt}1'. The motion for a new trial was overruled, to which the accused duly excepted. The court, in rendering judgment upon said verdict, sentenced the accused to the payment of a fine of $50 and costs of prosecution, and that be be confined in the county jail of Muskogee county for a period of 30 days. From this judgment the accused appeals to this court.

      M. Or. Bailey and 8. M. Rutherford, for plaintiff in error.

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

(after stating the facts as above). The petition in error alleges the same grounds for reversal as are stated in the motion for a new trial, and that the court erred in overruling the motion for a new trial. In briefing the case counsel for the accused rely upon the fact that the information filed herein does not state to whom the intoxicating liquors were sold, and cites in support of this contention the case of Weston v. Territory of Oklahoma, 1 Okla. Cr. 407, 98 Pac. 360. This court has also passed upon this question in the case of Charley Fletcher v. State of Oklahoma, ante, p. 300, 101 Pac. 599. The opinions in these cases were written by the presiding judge of this court, and this subject is ably and exhaustively treated, and all the leading and well-considered authorities are therein cited, wherein the doctrine announced in the cases above cited is fully and completely sustained. The county court committed reversible error in not sustaining the demurrer, for the reason that the information does no't state to whom the intoxicating liquors were sold; and, without further discussion, and approving the reasoning of the court in the cases above cited, this court holds that the trial court erred in not sustaining the demurrer, for the reasons stated.

The record discloses that the trial court erred in its instructions to the jury, when the jury was instructed as shown by paragraph 3 of the charge in this case, as follows:

“The court instructs the jury that the defendant in this case is a competent witness in this case, and you must consider his testimony in arriving at- a verdict; but, in determining what weight and credibility you must give to his testimony in making up your verdict, you may take into consideration the fact that he is the defendant in this case and on trial, his interest in the result of the trial, together with any other fact or circumstance of the trial affecting the credit to be given the testimony of any of the witnesses in the case.”

This court held in Charley Fletcher v. State, supra, that it is error for the trial judge to single out the accused personally and instruct the jury upon the credibility of his evidence. This doo trine is supported by reason and justice. The accused should be treated as any other witness, and his evidence should not be burdened by the court especially referring to it. The evidence of the accused should be treated the same as the evidence of all the witnesses. The instructions to the jury should apply alike to all the witnesses. The trial court therefore erred in giving paragraph 3 of the charge.

The trial court also erred in giving instruction No. 1, as shown by the record, in this: That the court charged that, if che jury believes beyond a reasonable doubt that the accused did, at any time, since the 16th day of November, 1907, within the county of Muskogee, state of Oklahoma, sell intoxicating liquors of any kind, it was their duty to find the accused guilty, as charged in the information. This instruction is too broad. The time should be confined between the 16th day of November, 1907, and the date of the filing of the information. The sale must be anterior to the date of the filing of the information. The jury could, under said charge,have based their verdict on any sale after December 26th and the day of the trial. This question was passed upon by this churt in the case of Banks v. State, reported in this volume, 101 Pac. 610, in which it is held, in an opinion written by Presiding Judge Furman:

“It is error for the court to instruct the jury that, if the testimony shows the commission of the offense charged at any time since the date mentioned in the indictment, they may convict. Instructions as to time must be confined to the time extending back from the filing of the prosecution to the date included in the statute of limitations.”

The trial court also erred in its instruction No. 4 in this case, in which thé jury is charged as follows: “The jury is instructed that the defendant must be presumed to be innocent until his guilt is fully established by legal evidence.” The error consists in not going far enough in this instruction, by adding to it the words “beyond a reasonable doubt.”

The court also erred in giving the fifth charge, in which the jury is instructed as follows:

“The court instructs the jury that, before they can convict the defendant; they must be satisfied of his guilt beyond a reasonable doubt. • Such to authorize an acquittal upon a reasonable doubt alone, must be a substantial doubt as to defendant’s guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant’s innocence.”

The unfortunate part of the charge is that the court places the cart before the horse. The legal proposition is not that the accused should be acquitted upon a reasonable doubt, but he must be found guilty beyond a reasonable doubt. Figuratively speaking, before the law puts its hands upon him, and taires from him either his liberty or his life, the evidence must show his guilt beyond a reasonable doubt. This instruction was therefore misleading and erroneous. Shoemaker v. Territory, 4 Okla. 118, 43 Pac. 1059; Patzwald v. United States, 7 Okla. 232, 54 Pac. 458; Johnson v. State, 29 Tex. App. 151, 15 S. W. 647; Weber v. Oklahoma, reported in this volume, 101 Pac. 355. In the last cited case this court, in an opinion written by Judge Doyle, considers and approves the eases herein cited.

For the various reasons pointed out, the judgment of the lower court is reversed, and this case remanded to the county court of Muskogee county, with instructions that the demurrer filed by the accused be sustained.

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


text:
    M. C. Simmons v. State.
    No. 98.
    Opinion Filed June 3, 1909.
    (101 Pac. 1102.)
    INTOXICATING LIQUORS — Illegal Sale — Indictment—Names of Purchasers. An information charging a single sale - of intoxicating liquors to “divers persons’" is bad for uncertainty. The information should aver to whom the sale was made; and, if the person, or persons to whom such sale was made are unknown, that fact should be averred.
    (Syllabus by the Court.)

      Error from, Muskogee County Court; W. G. Jackson, Judge.

    M. C. Simmons was convicted of an unlawful sale of intoxicating liquors, and appeals.
    Reversed and remanded.
    The plaintiff in error, hereinafter referred to as the accused, was prosecuted in the county court of Muskogee county, on an information charging that he, on the 29th day of November, 1907, "unlawfully did sell one pint of intoxicating liquor to divers persons, contrary to the statute, and against the peace and dignity of tbe state of Oklahoma.” The accused demurred to the information, alleging that said information does not state facts sufficient to constitute an offense against the state of Oklahoma, that the court has no jurisdiction of the subject-matter of the offense charged, and that the information does not set forth the name of the person, or persons, to whom the liquor was sold. This demurrer was overruled, to which the accused saved an exception. Trial was had on the 11th day of January, 1908, which resulted in a verdict of guilty. Accused filed his motion for a new trial, setting up that the verdict is contrary to the evidence, and contra^ to the law, and contrary to the evidence and the law.; that the court erred in the instructions given to the jury. This motion was overruled, to which the accused excepted. The court rendered judgment upon the verdict, sentencing the accused to pay a fine of $50 and the costs of prosecution, and that he be confined in the county jail of Muskogee county for a period of 30 days, to which judgment the accused excepted. To reverse said judgment this appeal is prosecuted.

      M. G. Bailey, for plaintiff in error.

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

(after stating the facts as above). The petition in error contains the following assignments: That the court erred in overruling the demurrer of accused, in the instructions to the jury, and in overruling the motion of accused for a new trial. Having carefully examined the record in this case, this court is of opinion that the trial court erred in overruling the demurrer to the information, for the reason that the information 'does not state the name of the person to whom the alleged unlawful sale of intoxicating liquor was made, and does not aver that the name of such person is unknown to the prosecution, and therefore not set forth. The information charges that the' sale was made to “divers persons.” This form of pleading is bad, for the obvious reason that the accused is not properly advised of the charge against him with such particularity as to enable him to prepare and make an intelligent defense. This proposition is fully discussed and decided by this court in Weston v. Territory, 1 Okla. Cr. 407, 98 Pac. 360, Banks v. State, 101 Pac. 610, Fletcher v. State, 101 Pac. 599, Weber v. State, 101 Pac. 355, and Mitchell v. State, (the latter four eases reported in this volume) 101 Pac. 1100. The doctrine clearly established by this 'court is this: An indictment or information, charging a single sale of intoxicating liquor, must allege the name of the person or persons to whom such sale was made. If the names of such persons are unknown, then this fact must be stated. The trial court in the case at bar therefore committed prejudicial error in not sustaining the demurrer of the accused, for the reason that the information does not give the names of the “divers persons” to whom sales were made. The charge in the case is the same (verbatim) as the charge in the case of Mitchell v. State, tried in the same court, and decided by this court at the present term, in which all the questions raised by the record in the case at bar are fully passed upon and determined. This court, therefore, deems if unnecessary to do more than refer to the Mitchell Case, supra, in disposing of this case.

For the reasons herein stated, and. the additional reasons set forth in said Mitchell Case, the judgment of the trial court must be reversed and remanded.

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


author: FURMAN, PRESIDING Judge,

text:
    Dan Price v. United States.
    No. 914,
    Ind. T.
    Opinion Filed June 4, 1909.
    (101 Pac. 1036.)
    1. EVIDENCE — Expert Evidence. It is error to allow physicians to testify to their opinions, as experts, as to the position of the arm of the deceased at the time that he received the fatal wound, which opinions are based upon the range of the bullet after it entered t<he body of the deceased.
    2. INSTRUCTIONS — Weight of Evidence. It is.error for the court to single the defendant out and instruct the jury upon the weight of -his evidence.
    3. APPEAL — Briefs. Counsel for the defendant in their briefs must clearly present the grounds upon which they rely for a reversal.
    (Syllabus by the Court.)

      Appeal from the United States Court for the. Central District of the Indian Territory; T. C. Humphñes, Judge.

    Dan Price was convicted of murder, and appeals.
    Eeversed and remanded.
    On November 13, 1906, Dan Price (hereinafter called the defendant) was indicted by the grand jury of the Central District of the United States Court for the Indian Territory, sitting at Atoka, for the murder of one Naith Dillingham, alleged to have been committed on the 3rd day of July, 1906. The defendant was arraigned, and pleaded not guilty. On the 26th day of April, 1907, the defendant was placed on trial upon said indictment, and was by the jury found guilty of the offense of manslaughter. A motion for a new trial was made by the defendant, and was overruled by the court, to which the defendant reserved an exception. Sentence was then pronounced by the court upon the verdict of the jury. Defendant prayed an appeal, as provided bylaw. An appeal was taken to the United States Court of Appeals for the Indian Territory. Upon the incoming of statehood this ease was transferred, as directed by law, to the Supreme Court of the state' of Oklahoma; and, upon the creation of the Criminal Court of Appeals, the case was transferred to this court, and is now regularly before us for decision.
    For a proper' understanding of one of the questions inyolyed, a brief statement of the evidence is necessary. On the evening of .the homicide the deceased received a box containing several bottles of whisky and became intoxicated. The undisputed fact is that the deceased fired a shot in his own home, which caused the wife of deceased to leave home in great fear of her life. She remained at the home of a neighbor until after her husband had been shot by the defendant, and only returned home when she became satisfied that he was powerless to harm her. The defendant was in the employ of the deceased. There had been no previous trouble or ill will between the defendant and the deceased. To make a long story short, the evidence tended to show that, after the wife of the deceased had fled from her home, the deceased with two bottles of whisky in his left hand and a pistol in his right hand, went to where the defendant was at the bam, and abused and threatened the defendant and assaulted him with the pistol. The defendant procured a pistol, and returned to the discharge of his duties in earing for the stock of the deceased. He states that he had drawn a bucket of water, and was going to give it to an animal of the deceased, when the deceased approached him and attempted to shoot him, and snapped his pistol at the defendant, and that he shot the deceased in self-defense. When others came to where the decased had fallen, they found two bottles of whisky on the ground by him, and the pistol of deceased was within a few inches of his right hand. There were two freshly fired cartridges in the pistol, and one loaded cartridge, which indicated it had been snapped in an attempt to fire it. The state attempted to prove that the statement made by the defendant that the deceased had attempted to shoot him at the time of the homicide was false, by the introduction of the testimony of two physicians as to their opinion as to the position of the arm of the deceased at the time he receiyed the fatal wound, based upon the-range of the bullet after it entered his body. The killing occurred after dark, and no witness, except the defendant, testified to the position of either party at the time.

      Balls Bros., for appellant.
    — -On admissibility of expert evidence: Wilson v. U. S., 5 Ind. T. R. 610; Brown v. State, 55 Ark. 593; Cooper v. State, £3 Tex, 331; People v. Smith, 29 Pac: 64; Williams v. State, 1? S. W. 1071.

      Charles West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for the State.
   FURMAN, PRESIDING Judge,

(after stating the facts as above). First. The second and third assignments of error relate to the same subject-matter, and are as follows:

“(2') The court erred in overruling the objections of the defendant to the evidence of the witness Dr. G. R. Ellis, who was a witness for the prosecution, and which evidence was offered by the prosecution and permitted to go to the jury, and was as follows, to wit: ‘Q. What would it indicate when a probe could not be introduced into the wound with the arm in that position, but would be with the arm lying against the body — what would that indicate at the time the wound was inflicted ? A. That would indicate that the arm was down to the side when the wound was inflicted. To which question the defendant objected for the reason that said question called for the opinion of the doctor as to matters to be determined by the jury, and which matters the jury were as entitled to determine as the doctor/ (3) The court erred in overruling the objections of the defendant to the evidence of E. L. Mead, a witness for the prosecution, which evidence was offered by the prosecution, and was permitted to go to the jury, and was as follows, to wit: ‘Q. If a probe would not enter when the arm was in this position, horizontal to the body, but would enter when the arm was lying against the body, what would that indicate as to the position of the arm when the wound was inflicted? A. The arm would necessarily be down, it would have to be down. Q. It would necessarily be down? A. Yes, sir; it would have to be down. To each of which questions the defendant objected, for the reason that the said question called for a matter of opinion that was exclusively for the jury to determine/ ”

Medical science does not undertake to decide what range a bullet, fired from a gun or pistol, will take after coming in contact with, or entering, the human body. The reports of army surgeons and of army hospitals prove that there is no rule upon this subject. They present the most astonishing, contradictory, and apparently impossible results. Therefore it has been uniformly held by the courts that this is not a proper subject for expert evidence. From this it necessarily follows that a physician should not be permitted to testify as an expert to the position of the body of the deceased when the wound was received, based upon the range of the bullet after it entered his body. This is a matter of speculation, with reference to which the opinion of one man is as good as that of another. It was entirely proper for the physician to describe fully the location, character, and range of the wound, but it was error to permit the physicians to go further and give their opinion as to the position of the arm of the deceased at the time the fatal wound was received. But it is not eveiy error in the admission or rejection of testimony which constitutes ground for the reversal of a conviction. For our views on this question, where the improper admission of expert evidence was field to constitute harmless error, see Byars v. Territory, 1 Okla. Cr. 677, 100 Pac. 261.

The pivotal question in this case was the position of the'arm of the deceased at the time that the defendant fired the fatal sfiot. If it was hanging down by his side, then the jury would be authorized to believe that the defendant has testified falsely, as to the most material point in his defense, and, believing this, they would be bound to convict him. The issue was clear-cut and decisive of the case.

We have a case by the Supreme Court of California (People v. Smith, 93 Cal. 445, 29 Pac. 64), which so clearly expresses our views as to the injurious effects of this testimony that we shall quote and adopt it in full. In that case the court, speaking through Justice De Haven, said:

“The defendant was charged with the crime of murder, and was convicted of manslaughter. The defendant was himself shot by the deceased during the difficulty which resulted in the homicide, and it was a contested question upon the trial as to whether the defendant or the deceased fired first, the contention of the defendant being that he acted in self-defense, and did not shoot until after he himself was wounded; and, in the determination of this question, it became material to ascertain the position in which-the defendant was at the time when he was shot. Upon the trial Dr. Hayden, a physician and surgeon, was called as a witness on behalf of the people, and was asked: ‘'Will you state, if you can, from your examination of this man’s arm and your familiarity with gunshot wounds, if you are familiar with them, in what position, in your judgment, this man’s arm was at the time that wound was received?’ The question was objected to by defendant as incompetent, which objection was overruled, and the witness in giving his opinion stated that the defendant when shot was in one of two positions: First, standing with his side towards the discharged weapon, with the forearm flexed almost to a right angle to the upper arm, and the arm and elbow curved in front of, and well towards, the right side of the trunk, the trunk being inclined to the right of a perpendicular; or, second, ‘the arm may have been only partially flexed in the upper arm, and hanging at the side, the wounded party having his back towards the party firing the shot.’ But the general tenor of his testimony was to the effect that it was his opinion rather that the wound was received while the defendant was in this latter position. The court erred in the admission of this evidence. The subject-matter of the inquiry was not one in relation to which the opinion of an expert can be properly received. The position of the wound being given, and the course taken by the bullet known, the jury was fully as competent to determine the relative positions of the parties to the difficulty as was the witness. Kennedy v. People, 39 N. Y. 245; Cooper v. State, 23 Tex. 331; People v. Westlake, 62 Cal. 303.
“Nor can we agree with the Attorney General and associate counsel for the people that the admission of this incompetent evidence was a harmless error, and therefore without prejudice to the appellant. It went to sustain the theory of the people in relation to the pivotal point in the case and at the same time to discredit the testimony of the defendant. The defendant testified, in effect, that he did not draw his weapon, or fire, until after he had been shot by the deceased; that after firing the first time he continued to face the deceased, at the same time backing to and against the door, and; while thus backing, he shot at the deceased again. On the other hand, the theory of the prosecution seems to have been that the defendant fired the first shot, and then turned and ran, and, while running towards the door, was shot by the deceased; and, in this connection, Brown,, a witness for the people, who was present and engaged in the difficulty, and was himself knocked down by the defendant, testified: T don’t know who drew his pistol first. I know that during the shooting Mr. Smith started to run, and ran fast. Q. Did he turn his back, or bade out? A. Turned his back.’ If the testimony of this witness is true, then the deceased must have received his mortal wound before the defendant turned his back upon him and started to run away; and, if the defendant was shot,' as Dr. Hayden seems to think more probable, while his arm was hanging down by his side, and his back turned towards the deceased, the inference would be that he was himself shot while running away, in the manner described by the witness Brown, and that the testimony of the defendant that he did not fire his weapon until after he was himself shot was therefore untrue. In this state of the case we do not think it can be said with any certainty that this incompetent evidence .did not have any influence upon the minds of the jurors in reaching a verdict; and, for the error in admitting it, the judgment must be reversed. Judgment and order reversed.”

We, therefore, hold that the admission of the'testimony complained of under the second and third assignments of error was ‘ injurious to the defendant, and that for this cause the conviction of defendant was illegal.

Second. There are 15 assignments of error, but tire second and third assignments are the only ones so presented in the brief as to call for the judgment of this court. We repeat what we have often heretofore said with reference to the manner of presenting questions to this court for review: Counsel must clearly point out the alleged errors upon which thejr rely, and niust give this court the benefit of the arguments and authorities which support their contentions, or this court will treat their assignments as abandoned unless they relate to fundamental questions. -But in view of the fact that this case will probably be tried again, we desire to say that we do not approve the action of the trial conrt in singling out the defendant as a witness, and charging upon the weight of his evidence. For our views upon this question, see Green v. United States, reported in this volume, 101 Pac. 112; Fletcher v. State, reported in this volume, 101 Pac. 599; Banks v. State, reported in this volume, 101 Pac. 610.

For error in permitting experts to give their opinion as to the position of the arm of the deceased at the time that the fatal shot was fired, the convietion of the defendant is set aside, and the cause is remanded for a new trial.

BAKEK and DOYLE, Judges, concur.