text:
    Kelly Baker v. State.
    No. 44.
    Opinion Filed September 25, 1909.
    (103 Pac. 1072.)
    1. • APPEAL — Case-Made—Petition in Error. An appeal cannot be taken except on a case-made or on a transcript of the record, to which must be -attached a petition in error.'
    (Syllabus by the Court.)

      Appeal from Garter County Gourl; 1. B. Mason, Judge.

    Kelly Baker was convicted of violating the prohibition law and he appeals.
    Dismissed.

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

What purports to be the record in this case is not attached to a petition in error, and does not contain the information, the testimony of the witnesses, the instructions to the jury, or the judgment.of the court. It only contains the verdict of the jury and a motion to quash the information upon the gro-und that the enforcement act is unconstitutional. The pretended record sent np it not settled and signed by the trial judge, and no notices of appeal were served and .filed, as directed by law. Neither have any briefs been filed. Further comment is unnecessary.

The attempted appeal is dismissed.

DOYLE and O'WEN, Judges, concur.


source: Caselaw Access Project

author: FURMAN, PRESIDING Judge.

license: Public Domain

text:
    O. B. McCullough v. State.
    No. 100.
    Opinion Filed September 25, 1909.
    (103 Pac. 1071.)
    APPEAL — Notice of Appeal — Necessity. The service and filing of notices of appeal as directed by statute is essential to give this court jurisdiction of the appeal. Without such notices this court has no legal authority to consider an appeal.
    (Syllabus by the Court.)

      Appeal from Musk,ogee Counly Court; W. C. Jackson, Judge.

    O. B. McCullough was convicted of violating the prohibition law, and he appeals.
    Dismissed.

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

This is an attempted appeal from a conviction for violating the prohibition law. It was filed in the Supreme Court on the 13th day of March, 1908, and transferred to this court upon its creation. On the 15th day of March, 1909, a motion ivas filed by the attorney for the state to dismiss the appeal for want of jurisdiction upon the ground that no notices of appeal had been served and filed as required by section 5610, Wilson’s Rev. & Ann. St. 1903, which is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment! I-f taken by the defendant, a' similar notice must be served upon the prosecuting attorney. If taken by the territory, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

This statute is mandatory, and must be complied with, or this court is without power to consider the appeal.

The appeal is therefore dismissed.

DOYLE and OWEN, Judges, concur.


author: OWEN, Judge,

text:
    Joe Thurman et al. v. State.
    No. 384.
    Opinion Filed September 25, 1909.
    (104 Pac. 67.)
    COURTS — Jurisdiction. A county court does not acquire jurisdiction of a case where a complaint signed and verified by a private individual, is’ filed with a justice of the peace, charging the defendant with a crime over which the justice has no jurisdiction, and the case transferred to the county court and the proceedings not amended or information filed by the county attorney.
    (Syllabus by the Court.)

      Error from Oherolcee County Court, Bitting at Tahlequah; J. T. Paries, Judge.

    Joe Thurman and another were convicted of reckless shooting, and they appeal.
    Reversed and remanded.
    The plaintiffs in error, who were defendants below, were arrested on warrant issued by Ross Daniel, justice of the peace in Cherokee county, on a complaint made by Andy Miller, charging the defendants with a misdemeanor “by shooting recklessly and in a manner liable to injitre some one.” On motion of the county attorney the case was transferred to the county court of Cherokee count}1-. The defendants were tried.and convicted, and prosecute appeal to this court.

      Bruce L. Keenan, for plaintiffs in error.

      Chas. West, Atty. Gen., and Chas. L. Mooref Asst. Atty. Gen., for the State.
    No copies of briefs reached the reporter.
   OWEN, Judge,

(after stating the facts as above). The complaint filed in this case before the justice of the peace was in the following language:

“Now comes Andy Miller, after being duly qualified, say that Tobe Thurman and Jim Thurman * * * did in Cherokee county, and in the state of Oklahoma, on or about the 14th day of March, in the year of our Lord 1908, and anterior to the presentment hereof, commit the crime of misdemeanor in the manner and form as follows, to wit: By shooting recklessly and in a manner liable to injure some one and which was done in Cherokee county, state of Oklahoma and which was contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state. [Signed.] Andy Miller/’

This complaint was sworn to in due form before Boss Daniel, justice of the peace. On motion of the county attorney the case was transferred to the county court. This complaint, together with the appeal bond of defendants and a certified copy of the docket entries of the justice of the peace, was filed in the county court of Cherokee county.

After the defendants were arraigned and before entering their plea, they filed the following protest: •

“Defendants each protest against beine- tried on the complaint read for the reasons that (1) the court has not jurisdiction in this case to try the defendants or either of them; (2) the complaint does not state a public offense against the defendants by the allegations therein.”

This protest was by the court overruled, and the defendants saved their exceptions.

This protest should have been sustained by the court.

Section 17, art. 2, Const. Okla. (Bunn’s Ed. § 26), provides as follows:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than bv presentment or indictment or by information,” etc.

The complaint filed in this case, signed by Andy Miller, is not an information. The record discloses that Andy Miller was not the county attorney or such person as is authorized by law .to sign an information.

Section 5306 (Wilson’s Bev. & Ann. St. 1903) is as follows:

“The county attorney shall subscribe his name to informa-tions filed in the probate or district court and indorse thereon the names of the witnesses known to him at the time' of filing the same,” etc.

In the case of Evans v. Willis, 22 Okla. 310, 97 Pac. 1047, and reported and annotated in 19 L. R. A. (N. S.) 1050, the Supreme Court of this state in a well-considered opinion by Justice Williams held that no original prosecution can be instituted in a court of record in this state except by presentment or indictment by a grand jury or by an information exhibited by a count}^ attornej' or some other officer thereto authorized by law. After reviewing the authorities at length, the justice in delivering the opinion used this language:

“Hence, since the adoption of our state Constitution no person can be prosecuted criminally in any court of record in this state for felony or misdemeanor other than by presentment or indictment bjr a grand jury, or by information exhibited by the county attorney or other officer authorized by law. The information filed in this case by the private prosecutor, -who was neither the county attorney nor any officer authorized by law, -was void.”

It cannot be urged that inasmuch as this prosecution was begun before the justice of the peace, and that this complaint signed by Andy Miller would authorize the prosecution there, that an information was not required in the county court. If the justice of the peace had jurisdiction to transfer this case to the county court, it was under section 5848, which provides:

“If, on a trial before a justice of the peace, it appears that the defendant is guilty of a misdemeanor, the punishment of which is beyond the jurisdiction of the justice of the peace, he shall at once stop the trial, and certify the cause to the probate court, and it shall then be amended and proceeded with as if originally brought in that court. If such action be brought be- ' fore the probate court sitting as a justice, he shall cause the information to be amended and shall then proceed in like manner," ete.

This statute clearly gives the right to the county attorney to add to the proceedings before the justice of the peace whatever is necessary to bring them up to the statutory requirements for the prosecution to be begun in the county court. In this case he did not do that.

The protest filed by the defendants should have been sustained also for the ‘second reason urged, that the complaint does not charge a public offense against the defendants.

Section 2393, Wilson’s Eev. & Ann. St. 1903, under which this prosecution was had, is as follows:

“Every person who wilfully discharges any species of firearm, air gun or other weapon or throws any other missile in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor."

These defendants are charged with violating this section “by shooting recklessly and in a manner liable to injure some one,” etc.

The statute prohibits “wilfully discharging any species of fire-arms."

The allegation — shooting recklessly — is not synonymous. It is not always necessary that the indictment or information should follow the exact language of the statute. It is sufficient if the words are of the same meaning. But the word “recklessly” is not the same as “wilfully." The word “wilfully" when employed in penal statutes is used as a synonymous term with “intentionally" or “designedly," or “without lawful excuse." The word “recklessly" means heedlessly, carelessly, or indifferent to consequences, without contemplating or intending those consequences. As a general rule, there is a wide difference between intentional acts and those results which are the consequences of recklessness or carelessness. Harrison v. State, 37 Ala. 154, and Felton v. United States, 96 U. S. 699, 24 L. Ed. 875.

In the case of Felton v. United States, in defining the word “wilfully,” the court uses this language:

“Doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. ‘The word “wilfully,”J says Chief Justice Shaw, ‘in the ordinary sense in which it is used in statutes, means not merely voluntarily, but with a bad purpose/ 20 Pick. (Mass.) 220. ‘It is frequently understood/ says Bishop, ‘as signifying an evil intent without justifiable excuse/ ”

The county court did not acquire jurisdiction of this .case for the reason no information was filed. Therefore the judgment of the lower court is reversed and remanded, with directions to discharge the defendants.

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


author: BESSEY, J.

text:
    LEWIS B. OMEY v. STATE.
    No. A-3429.
    Opinion Filed Sept. 26, 1921.
    (200 Pac. 785.)
    (Syllabus.)
    Appeal and Error — Review—Insufficient .Circumstantial Evidence of Guilt. Ordinarily this court will not consider the question of the preponderance or weight of testimony, but where the evidence tending to establish the guilt of the accused shows no malice towards the injured party and no expectation of private gain to the perpetrator, and the evidence of guilt is wholly circumstantial, and of doubtful probative force, and not inconsistent with a reasonable hypothesis indicating the innocence of the accused, it is the duty of this court to set aside -a verdict founded upon such evidence.
    Appeal from District Court, Woods County; W. C. Crow, Judge.
    Lewis B. Omey was convicted of the larceny of a hog, and was sentenced to serve two years in the state penitentiary, and he appeals.
    Reversed and remanded.
    C. H. Mauntel, J. W. Barry, and L. T. Wilson, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 19th day of February, 1919, in the district court of Woods county, OMa., Lewis B. Omey was convicted of the crime of hog larceny, alleged to have been committed the night of the 22d of May, 1917. From the judgment of conviction and sentence, fixing his punishment at two years in the state penitentiary, he appeals. For convenience Lewis B. Omey, the plaintiff in error, will be referred to in this opinion as the defendant.

The facts and transactions out of which this prosecution grew, as shown by the testimony on the part of the state, were as follows:

That the defendant, Robert S. Evans and Charley Ringer, on the night of the 22d of May, 1917, drove from the home of the defendant to the home of Walter G-. Howell, the prosecuting witness, a distance of 25 miles; in a big Buick Six car belonging to the defendant. That about a quarter of a mile from the residence of the prosecuting witness, and adjoining the public road, was a hog lot, in which was kept, along with other hogs, a big boar hog, weighing about 300 pounds, and the subject of the larceny in this case. That these parties drove this Buick ear from the beaten path of the road towards the fence inclosing this hog lot. That they entered the hog lot, killed this boar hog with an axe, dragged its body out of the lot, placed it in the Buick car, and drove by the nearest traveled road, a portion of which was through fields and pastures, to the defendant’s home, where they skinned and dressed the hog and hung the dressed portions in the blacksmith shop on the premises of-the defendant. That the entrails and offal lay scattered on the ground in various parts of the premises.

That early on the morning of the 23d of May the prosecuting witness discovered that this particular hog was missing, and noticed that there was blood on the ground near the fence parallel to the road, and saw evidences on the ground and fence indicating that the hog might have been dragged through the fence to where an automobile had stood. That this automobile was equipped with diamond tread tires, the tread' of which was considerably worn. That the prosecuting witness immediately communicated with the sheriff’s office and that he and the sheriff the same morning followed these diamond tread tracks to near the home of the defendant, arriving there about 9 o’clock.

It was tbe theory of the state: That when the prosecuting witness and the sheriff got to the defendant’s place the meat of this hog was hanging in the blacksmith shop, and that while the sheriff and the prosecuting witness went on beyond the defendant’s place in search of the lost automobile track this meat was carried away. As the sheriff and the prosecuting witness were leaving the defendant’s premises in search of this trail they met a neighbor, Frank Axtell, going towards, the defendant’s house, and informed him privately of the theft of the hog, and asked him to remain on the defendant’s premises and watch the movements of the defendant and others who might be there until they returned. That in 20 or 25 minutes they did return, and found the offal and parts of the slaughtered hog, but found none of the dressed meat. That while the. sheriff and the prosecuting witness had been away looking for the lost trail the defendant and Axtell were down at the bam, but not out of sight of the other farm buildings, and it was the theory of the state that while they were .there Evans and Ringer, who were on the premises at the time, took the meat from the blacksmith shop, past the garage, and placed it in a Ford car belonging to Evans, covered it with a tarpaulin, and drove past the home of a. neighbor, Mrs. Lemon, over across a creek, and there buried the two halves of the hog in the creek bed, about 500 yards from where the road crossed the creek. That some days later these portions of the dressed meat were found in the place where they had been buried, and that there were identifying marks, on the portions of the carcass found indicating that it was the boar hog belonging to the prosecuting witness.

Originally the defendant Omey, Evans, and Ringer were jointly informed against for the larceny of this. hog. The evidence on the part of the defendant Omey, corroborated by a tenant and his wife and by Ringer, alleged codefendant, was to the effect that Omey and Ringer, stayed all night at the Omey ranch the night in question. Other witnesses testified that Evans, the owner of another ranch near by, was at home all of that particular night, and that no one of the three ever went to the Howell place or into that vicinity the night in question, and that they had nothing whatever to do with the taking and disposing of this hog.

The evidence shows that the defendant was a farmer and ranchman, owning 1,640 acres of land in Woods county, where he kept a large number of cattle, hogs, and other live stock; that he owned a fine residence in Alva, where his wife and children lived during the winter months, in order to permit the children to attend school; that he was not acquainted with the prosecuting witness, and knew nothing about the location of his ranch, and had never met him until the morning after the alleged theft, when he arrived at defendant’s place with the sheriff.

It was the theory of the defendant that Jim MeMoran, a neighbor ranchman with whom he was on bad terms and had been for several years, had placed the portions of offal, hide, and other identifying pieces of the hog on defendant’s premises, or that it had been done by some one else under Me-Moran’s direction, or that it had been done by some other enemy of the defendant. The testimony shows that it was MeMoran who discovered the place where the meat was buried. When the sheriff confronted the defendant with the pieces of offal and other portions of the hog foünd on his premises the defendant stated that he did not know how they came there, and he. maintained that attitude throughout the trial.

The record of the testimony in this case is voluminous, covering about 1,000 pages, all of which has been carefully examined by this court. It would serve no good purpose to analyze the testimony in detail. The evidence upon which this conviction was based was wholly circumstantial, and that portion of it casting suspicion upon the defendant is not, in our judgment, sufficient to support the verdict, for the reason that it does not exclude to a moral certainty a number of other reasonable hypotheses consistent with his innocence.

It was the theory of the state, and apparent from the testimony, that the defendant could not have committed this larceny and disposed of the remains of this hog without the assistance of Evans and Ringer, or of some other confederates. The testimony on the part of the defendant shows that John Hampton and his wife lived in a part of defendant’s ranch house, and that defendant and Ringer slept in the house that night; that about 12 o’clock that night Reuel Sehrimpscher, a neighbor ranchman, went through the defendant’s ranch on his way home from some point in Kansas, and left in the Buick car belonging to the defendant a slicker that he had borrowed the day before. The testimony of the tenant Hampton is to the effect that before going out to his work on the place early that morning, and before the arrival of the sheriff and the prosecuting witness, he went into the blacksmith shop to get a lister share, and that at that time there was no part of the dressed carcass of a hog hanging in the blacksmith shop. Besides the disinterested witnesses who testified that the defendant and Ringer were at the defendant’s house all of that night, the defendant, as well as Ringer and Evans, took the stand and gave a logical, reasonable account of themselves and their actions on the particular night in question, and maintained that they knew nothing about the alleged theft, and nothing about the parts and offal found, or claimed to have been found, on the defendant’s premises on the morning following.

There is also direct testimony by disinterested witnesses that Ringer and Evans did not convey the dressed carcass of this hog to the place where it was found buried, and there is no evidence that they were in that vicinity; on the contrary, there is evidence that they took this Ford roadster, passed over the ravine and creek at the regular crossing, continued on the road on the opposite side and passed on over the hills beyond,- where they went to get some cane seed; that they did not stop in the canyon or ravine, and could not have been on that morning at the place- where this meat was found buried. This conclusion is corroborated in part by Mr. Ax-tell, a witness for the state, who had been instructed by the sheriff to watch the defendant and others while he was in search of the lost trail of automobile tracks. From the testimony of this witness it appears that it would have been impossible for these two men to have taken the two halves of a 300 pound hog and placed it in this Ford and covered it up with a tarpaulin without his having known about it. Upon this point it seems that the testimony of Axtell was not pleasing to the county attorney, and he sought by cross-examination of his own witness to get him to state in effect that this meat might have been taken out of the blacksmith shop without his having known about it.

In cases of this character, where the state relies wholly upon circumstantial evidence not of a conclusive nature, it is proper to look carefully into the motive of the person accused. We cannot understand why a person situated as this defendant was, with cattle and hogs of his own, would go 25 miles to’ the home of a neighbor ranchman whom he did not even know and with whom he had no quarrel, thus eliminating all suspicion of malice, and slaughter a boar hog weighing 300 pounds, and selected out of a pen where there were other hogs better fitted for slaughter for human consumption. Unreasonable as this seems upon its face, if we can assume that he did do this, it seems probable that he would take some precaution against being discovered, and that he would not permit the offal and certain portions of the feet, hide, and genital organs of the animal to be scattered about his premises in the manner shown by the testimony.

Ordinarily this court will not consider the question of the preponderance or weight of testimony, but where the evidence tending to establish the guilt of the accused shows no malice towards the injured party and no expectation of private gain to the perpetrator, and the evidence of guilt is wholly circumstantial and of doubtful probative force, and is not inconsistent with a reasonable hypothesis indicating the innocence of the accused, it is the duty of th'is court to set aside a verdict founded upon such evidence. Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504; Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260; De Bose v. State, 18 Okla. Cr. 549, 197 Pac. 176, 8 R. C. L. 226.

In this case, from the testimony as a whole we suspect that' this hog was taken from the pen of the prosecuting witness on the night alleged, and that the dressed carcass of this particular hog was buried at the place disclosed by the evidence, and that the offal, feet, hide and other identifying parts of the hog found at the places on the premises of the defendant were probably portions of this particular hog, but the testimony that the defendant placed them there is not convincing. Other reasons might be given for arriving at the conclusion we' have reached, but without further comment we hold that the testimony in this case was insufficient to support the verdict, and that the trial court should have directed a verdict for the defendant, as was done in the ease of the codefendant Evans.

The case is therefore reversed and remanded.

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


author: BESSEY, J. MATSON, J.

text:
    WILLIAM COURY v. STATE.
    No. A-3619.
    Opinion Filed Sept. 26, 1921.
    Dissenting Opinion September 29, 1921.
    (200 Pac. 871.)
    (Syllabus.)
    1. Intoxicating Liquors — Illegality of Substitute Beverages. Under the Constitution and statute laws of this state, the sale and keeping for sale of all intoxicating beverages is prohibited. The Legislature, in the exercise of its police power, has the right to prohibit and has prohibited the sale and keeping for sale of wine, ale, beer, and substitutes therefor, not necessarily intoxicating.
    2. Same — Sale of Nonintoxicating Apple Cider — Whether Cider Intoxicating a Jury Question. In this state the sale and keeping for sale of nonintoxicating apple cider is permitted, and it is expressly excluded from the provisions of the statute relating to beverages containing in excess of one-half of 1 per cent, of alcohol. Unlike the several other beverages named in section 3605, Rev. Laws 1910, the question of whether or not any particular apple eider is in fact intoxicating, by the exception provided in section 3606, is a question of fact for the jury, and such exception takes it out of the police regulations of section 3605.
    3. Same — Criminal Intent a Jury Question. Where there is substantial positive evidence showing that the accused sold the apple eider in good faith, believing that it was nonintoxi-catirig, the question of criminal intent becomes an issue in the case, under the provisions of subdivision 5 of section 2094, Rev. Laws 19.10.
    Matson, J., dissenting.
    Appeal from County Court, Woods County; R. M. Chase, Judge.
    William Goury was convicted of knowingly keeping in bis possession apple cider, with the intention of -wrongfully selling or giving away the same, and was sentenced to pay a fine of $250, and to confinement in the county jail for 45 days, and he appeals.
    Reversed and remanded.
    E. W. Snoddy and J. P. Grove, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 1st day of May, 1919, William Coury was convicted of the crime of knowingly keeping. in his possession 20 gallons of a certain intoxicating compound and liquor, which the proof shows was apple cider, with the intention of wrongfully selling, bartering and giving away the same. His punishment was assessed at a fine of $250, and confinement in the county jail for a period of 45 days. From the verdict and judgment he appeals.

For convenience in this opinion, the appellant, William Coury, will be designated as the defendant. The conviction and judgment of sentence imposed upon the defendant was based on a charge filed on March 15, 1919, by information signed by the county attorney of Woods county, the substance of the charging part being as follows:

“That on the 12th day of March, 1919, the above-named defendant, William Coury, did willfully, wrongfully, unlawfully, feloniously, and intentionally have and knowingly keep in his possession, for and with the intention' of wrongfully selling, bartering and giving away the same, about 20 gallons of a certain compound and liquor, the exact nature of which is to your informant unknown, and cannot therefore be herein stated; which said gallons of said compound. and liquor was then and there intoxicating, and contained more than 4 per cent., measured by volume, of alcohol, and was capable of being used and was used as an intoxicating beverage, the sale of which alcoholic compound and liquor above stated being prohibited by the laws of the state of Oklahoma.”

The testimony discloses that the defendant was a naturalized Syrian, unable to read or write the English language; that he had been for some years engaged in a general mercantile business in the town of Waynoka, having one of the leading stores in that town; that besides this mercantile business he was the owner of valuable town property in Way-noka, and of a valuable farm in the country' nearby; that for a period of about 2% years prior to this time he had been dispensing soft drinks from a soda fountain in his store, and among other beverages sold apple eider, purchased from the Clarksville Cider Company, of St. Louis, Mo., under a written guaranty from them that the eider was • nonintoxicating, and not subject to an internal revenue tax. The defendant claimed that the eider was in fact nonintoxicating- and offered in evidence the guaranty from the cider company. As evidence of good faith the defendant further claimed that, upon the question of whether or not it would be permissible for him to sell this cider, he had made inquiry of certain representatives of the sheriff’s office and had been advised that it would be all right for him to do so. This, however, was denied by the representatives of the sheriff’s, office.

A number of witnesses testified that at various times, they had purchased and drunk of this cider, and that it was. hot intoxicating; others testified that if drunk in sufficient quantities it would intoxicate.

On the night of March 12, 1919, the sheriff and two of his deputies, Johnson and Montgomery, went to Waynoka to meet another deputy, Wolcott; they then-went to the home-of the defendant at about midnight, woke him up, and- told him they wanted him to go and get them some of the cider he was selling. The defendant dressed, and went with them to his store and gave them a jug full of the eider from an open barrel from which he had been selling. These deputies, or some one of them, placed this jug of cider in an automobile-in which they were traveling, and took it to Alva with them. At- a later date, Deputy Montgomery testified, he took this, sample of cider to an expert chemist, Mr. Pereival, of the State Normal School at Alva, for analysis. The sample was not sealed, or in any way marked for identification until after-the analysis was made, which analysis showed that the eider contained more than 4 per cent, of alcohol, measured by-volume.

It was the contention, of the defendant that, if this analysis- was1 correctly made, and the cider was in fact intoxicating liqnor, the defendant had no knowledge of the fact, and that the sales made by him were innocently made, without negligence or culpable criminal intent; and that the defendant . did not feloniously, intentionally, and knowingly have and keep in his possession, with the intent of wrongfully selling, bartering, and giving away, the eider in question, as charged.in the information.

Upon that question the court submitted the following instructions:

“It is the theory of the defense that the liquor taken from the defendant, William Coury, and for the possession of which he is charged, was pure and unadulterated apple eider, and for that reason it was not a violation of the law to have possession of same with the intent to sell the same. Upon this branch of the case you are instructed that it is not a violation of the law for the defendant to have in his possession, for the purpose of selling it, pure and unadulterated apple cider that is nonintoxicating; that if the cider in question was fermented, and had reached such state of fermentation that it contained a sufficient percentage of alcohol to render the same intoxicating, then the defendant would not have the right to have the same in his possession with intent to sell, give away, or otherwise furnish to others; and as to whether or not the cider in question was an intoxicating liquor is question of fact for the jury; and unless jury are satisfied beyond a reasonable doubt, after a careful consideration of all the evidence in the case, that the cider in question was an intoxicating liquor within the meaning of the law, and capable of being used as an alcoholic beverage, you must acquit the defendant.”
“You are instructed that intoxicating liquor, within the meaning of the law, is such liquor as is intended for use as a beverage and is capable of being so used, which contains alcohol either obtained by fermentation or by the additional process of distillation in such proportion that it would produce intoxication when taken in such quantities as may practically be drunk; and you are further instructed that by reason of the statute the Legislature has fixed the amount of alcohol necessary for such liquor to contain to render it intoxicating at one-half of 1 per cent., measured by volume; and in this case, if you find that the liquor in question contained more than one-half of 1 per cent, of alcohol measured by volume, then you would be justified in finding that such liquor was-an intoxicating liquor, within the meaning of the law.”

The defendant requested, among others, the following instructions:

“You are further instructed that the defendant had the lawful right to keep for sale, within this state, and sell, apple eider, if the same was manufactured either in this state or elsewhere from the unadulterated juice of apples, even though the same contained more than one-half of 1 per cent, of alcohol, measured by volume, unless the state proves by ihe evidence beyond a reasonable doubt that the alcohol, if any, was placed therein by or for the defendant.”
“The jury is instructed that the information in this case charges the defendant with knowingly keeping for sale a certain compound, capable of being used as a beverage, and containing about 4 per cent, of alcohol, measured by. volume, and the jury are instructed that, if they believe from the evidence that the defendant in good faith kept for sale and sold only apple eider of the character permitted by the laws of this state, that then he did not knowingly and unlawfully sell the same; and'your verdict should be not guilty.”

The charging part of the information, in part, is in the language of section 3605, R, L. 1910, which section is. as follows :

“Misdemeanor to Manufacture, Sell or Furnish Liquor. It shall be unlawful for any person, individual, or Corporate, to manufacture, sell, barter, give away or otherwise furnish except as in this chapter provided, any. spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture,.sell, barter or give away or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; or to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized; or to solicit the purchase or sale of any such liquors, either in person or by sign, circular, lettér, card price list, advertisement or otherwise, or to distribute, publish, or display any advertisement, sign or notice where any such liquor may be manufactured, bartered, sold, given away, or otherwise furnished, or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter. A violation of any provisions of this section shall be a misdemeanor, and shall be punished by a fine of not' less than fifty dollars nor more than five hundred dollars, and by imprisonment for not less than thirty days nor more than six months: Provided, however, that the provisions of this chapter shall not apply to the manufacture and sale of unfermented eider and wine made from apples, grapes, berries or other fruit grown in this state, and to the use of wine for sacramental purposes in religious bodies.” Rev. Laws 1910, § 3605.
“Sale of Apple Cider Lawful. It shall be lawful tó sell in this state apple cider manufactured either within or without the state from the unadulterated juice of apples, if the same is of such character as not to be subject to a special tax under the internal revenue laws of the United States, and shall comply with the requirements of the pure food laws of the United States and of this state.” Rev. Laws 1910, § 3606.

In this state the manufacture and sale of all intoxicating beverages, of every kind and character, is prohibited by the Constitution. To guard against artifice and fraud, the Legislature, in the exercise of its police power, has made the traffic illegal in certain other beverages not necessarily intoxicating, such as ale, wine, beer, near beer and substitutes therefor.

Section 3605, quoted above, is a negative statute, a "thou shalt not” statute, a prohibitory statute relating to the police powers of the state, affecting the prohibition provisions of our Constitution. Section 3606 following, which should be read and considered along with section 3605, unlike the latter, is an affirmative statute, a declaratory statute, explaining that apple cider may or can be kept for sale within the meaning of the Constitution, if such eider be nonintoxicating, •even though the alcoholic content might be more than one-half of 1 per cent. Section 3606, excepting apple cider from police regulations imposed against ale, wine, beer, near beer, and substitutes therefor, is a permissive statute, and is not, in a true sense, a police regulation, but an exemption or an exception, taking it out of such regulations.

Construing the two sections last quoted, together with ■other parts of our prohibitory laws, we conclude that it was the intention of the Legislature to prohibit the sale and disposal of wines, ale, beer, and substitutes known as near beer, containing more than one-half of 1 per cent, of alcohol, measured by volume, but it was the intention of the Legislature to except cider from such provision, making it a question of fact, for the jury to determine whether or not any particular cider, sold or kept for sale, contained sufficient alcohol to make it intoxicating when used as a beverage. To hold otherwise would be to hold for naught and make nugatory section 3606, quoted above.

Unlike the statutes of most other states, our statutes, in section 2094, B. L. 1910, provide that all persons are capable •of committing crimes except those belonging to certain classes, and in subdivision 5 of said section except "persons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse, from punishment for its violation.”

As a general rule, a reasonable and bona fide belief in the existence of facts which, if they did exist, would render an act innocent is a good defense, but there are apparent and real exceptions to this rule. Clark on the Law of Crimes (2d Ed.) p. 100; 16 Corpus Juris, 84-86; 8 R. C. L. 60. In Texas, prior to the adoption of the Penal Code of 1895, in cases involving a violation of the local option laws of that state, it was held in a number of cases that they who sell liquor must know at their peril whether it is intoxicating, and if it is intoxicating, no matter if the accused is ignorant of the fact, he is deemed guilty of a violation of the law. Later, article 46 of the Penal Code of 1895 provided:

“No mistake of law excuses one committing an offense; but if a person laboring under a mistake, as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense.”

In Patrick v. State, 45 Tex. Cr. R. 587, 78 S. W. 947, the court held that, if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense, and that this provision of the statutes was applicable to a violation of the local option laws. This case expressly overruled whatever might have been held by courts to the contrary prior to that time Upon that point.

In another case, where the accused was charged with unlawfully selling a bottle of intoxicating liquor known as “Frosty,” he testified that he had been informed that it was perfectly harmless, and that he would not have sold it if he had believed it intoxicating, and asked for a charge submitting the mistake of fact to the jury; held, that such an instruction should have been given. Mayne v. State, 48 Tex. Cr. R. 93, 86 S. W. 329; Uloth v. State (Tex. Cr. App.) 87 S. W. 822; McRoberts v. State, 49 Tex. Cr. R. 288, 92 S. W. 804; Walker v. State, 50 Tex. Cr. R. 495, 98 S. W. 843.

We have been unable to find any other appellate court decisions construing statutes like our own, touching on the good faith, ignorance, or mistake of fact of the accused charged with illegal possession or disposal of intoxicating beverages. By the great weight of authority in states having no statute similar to ours on criminal intent, it has been held that criminal intent or guilty knowledge is not an essential element of the violation of a criminal statute enacted in the exercise of the police powers of the state. 8 R. C. L. 62, § 12; Troutner v. State, L. R. A. 1916D, 266, notes and cases cited.

Touching the sale of apple cider in which the alcoholic content is a matter of dispute, we would be inclined to follow the majority rule on the question of guilty knowledge or intent if our statutes were silent on that point, but we do not feel justified in reading out of the statutes, by judicial construction, provisions so plain and unequivocal as set out in section 2094, subd. 5, R. L. 1910, and section 3606, before quoted.

To us it seems that the Legislature intended to take the question of intent out of the statute so far as ale, wine, beer, and beverages known as near beer are concerned, because the statute has arbitrarily fixed the amount of alcoholic content permissible in such beverages as one-half of 1 per cent., measured by volume, in positive prohibitive terms, and that the Legislature intended that any person selling these beverages containing more than one-half of 1 per cent., of alcohol did so at his peril, irrespective of his knowledge or intent to violate the law.v But by the terms of section 3606, apple eider is not classified with ale, beer, wine, and near beer, or substitutes therefor. The Legislature, by arbitrarily prohibiting the sale-or the knowingly keeping for sale of beverages not necessarily intoxicating, doubtless intended to cut out or make difficult the sale of such beverages of doubtful or unknown alcoholic content, and so arbitrarily fixed the content permissible, to prevent fraud and imposition by the sale of substitutes for known alcohol beverages. All such beverages are bylaw made contraband — outlawed; but for some reason the Legislature excepted from this list nonintoxicating apple eider, and affirmatively Authorized its sale, and in that sense eliminated it from police regulations.

In some instances the doing of a prohibited act constitutes a crime, irrespective of the moral turpitude or purity of the motive, as.the case may be, or of ignorance or mistake of fact. When the prohibition in a statute against doing a certain act or series of acts is couched in general terms, courts have often injected into the statute a proviso that the denoted act shall be done from a guilty mind. These two classes of eases, diverging as they do, and seemingly standing apart from each other, may at first view appear to be irreconcilable in point of principle; nevertheless, such is not the ease. They all rest upon one common ground, and that ground is the legal rules of statutory construction. Each set of eases is or should have been the result of the judicial ascertainment of the mind of the Legislature in the given instance. And it will be found that in the considered adjudications this inquiry has been the judicial guide. • Naturally, in such an inquiry the decisions have fallen into two classes, because there have been two cardinal considerations of directly opposite tendency influencing the minds of judges; the one being the injustice of punishing unconscious violations of law, and the other the necessity, in view of public utility, of punishing at times some of that very class of offenses. This difference in construction may be seen in the way the courts construe the word, “knowingly” when used in statutes which penalize a person who knowingly does something. The word is sometimes construed to be used in the sense of “intentionally”, in which cases it must be made to appear that the party charged was aware of. the illegality of his conduct. A more general construction is that thé word so employed, imports a knowledge of the essential facts from which the law presumes a knowledge of the legal consequences arising there'from. 8 R. C. L. 62,63.

In this case it is charged that the defendant feloniously and intentionally had and knowingly kept this cider, with the intent of wrongfully selling the same, which, to us, considered in connection with our statute on criminal intent, indicates that a culpable, guilty knowledge is an essential ingredient of the crime charged. Why apple cider has been placed in a different class from ale, wine, beer and substitutes therefor we do not know, but the classification is properly for the Legislature, and not for the courts.

In the case of Lightle v. State, 5 Okla. Cr. 263, 114 Pac. 277, involving guilty intent and purpose in the sale of malt beverage known as “Amber Mead”, without commenting on our statute on guilty intent, the learned Judge Furman said:

“The contention of counsel for appellant was that the intent with which an act is done is always material, and that no act can constitute a crime unless it is performed with a criminal intent. The illustration was offered in argument that if A. takes possession of a horse honestly believing it to be his own property, and it afterwards turns out that he' was mistaken, and that the horse really belonged to B.,. that A.’s good faith in taking the horse on a mistaken claim of ownership would be a complete defense to a charge of larceny. This would be true. Why? Because the evil intention with which property is taken is a necessary constituent element of rthe crime of larceny; but this illustration would have no application to a case coming under what is known as police regulations, which makes it criminal to do a certain act, irrespective of the intention with which such act is done.”

In the Lightle Case the beverage was a near beer, and the statute fixes the maximum alcoholic content allowed, and applying the' rule of statutory construction above stated, the innocent intent of a person vending such substitute would be immaterial, and not a proper issue in the case. But, as we have seen, this condition would not apply to apple cider, for the reason that the Legislature has placed apple cider in a class by itself, leaving the question of its alcoholic content and intoxicating properties a question of fact in each particular case, to be determined by the jury. To make the keeping of apple cider for sale illegal it must in fact be intoxicating, and if the defendant in this case honestly believed, either from the guaranty of the vendors or for other good and sufficient reasons, that this particular eider was nonintoxicating, under the provisions of subdivision 5, § 2094, R. L. 1910, the defendant was entitled to have the question of guilty knowledge submitted to the jury under proper instructions.

For the failure to submit this issue to the jury the cause is reversed and remanded.

DOYLE, P. J., concurs.

MATSON, J.

(dissenting.) I cannot concur in the application made in the majority opinion of section 2094, Revised Laws 1910, to a purely police regulation. Such an application is opposed to the views expressed by the Supreme Court of the Territory in Garver v. Territory, 5 Okla. 342, 49 Pac. 470, wherein it is said:

“A demurrer to the indictment was duly filed, and counsel insist that such demurrer should have been sustained, because the indictment -failed to aver that the negligent acts of Garver, which constitute the offense, and which are set out in the indictment, were not done or committed under an ignorance or mistake of fact; and in- support of this contention cite tbe fifth division of section 2, art. 2, p. 424, Statutes of 1893. The section in which this subdivision is found, together with the explanatory provision of the section found at the beginning thereof is as follows: All persons are capable of committing crimes, except those belonging to the following classes. * * *
‘Fifth. Persons who committed the act or made the omission charged under an ignorance or mistake of fact which disproves any criminal intent. But ignorance of the law does not excuse from punishment for its violation.’
“It is contended that the statute applies to the charge contained in the indictment against Garver, and that an omission to negative the exception makes the indictment bad on demurrer; that the statute has a general application to all classes of crimes, and that, if the defendant is guilty, he must come within the excepting clause. * * * As we view this law it is of that class of prohibitive statutes which are designed for the protection of the public, such, for instance, as statutes which prohibit the sale of intoxicating liquors without a license, or to prohibit such sale to minors, or prohibit the sale of adulterated goods, or which prohibit sexual intercourse with a girl under 16 years of age, or keeping a house of ill fame, or bigamy, and other statutes of like character.”

Such an application is also in principle opposed to the view expressed by this court in Lightle v. State, 5 Okla. Cr. 259, 114 Pac. 275, wherein it is held:

“Where a defendant sells or unlawfully handles any prohibited liquors in Oklahoma, he does so at his peril; and he cannot escape punishment by proving that he was informed and believed that the sale of such liquor was not prohibited by the laws of Oklahoma.”

In .the body of the opinion it is said:

“The information in this case is in the language of the statute., and is sufficient. Indeed, counsel for the appellant did not seriously contest that proposition in oral argument before the court, but claimed that the court erred in refusing to give the following instruction which was requested by the defendant: ‘ Gentlemen of the jury, you are further instructed that if you find from the evidence beyond a reasonable doubt that the defendant was misled in the purchase of the beverage he was selling, and that he honestly believed that the beverage contained the less than one-half of 1 per cent.’ of alcohol, and that defendant did think in good faith, and believed, that it contained less than one-half of 1 per cent., then and in that event you should acquit.’
“The contention of counsel for appellant was that the intent with which an act is done is always material, and that no act can constitute a crime unless it is performed with a criminal' intent. The illustration was offered in argument that if A. takes possession of a horse honestly believing it to be his own property, and it afterwards turns out that he was mistaken, and that the horse really belonged to B.,. that A. ’s good faith in taking the horse on a mistaken claim of ownership would be a complete defense to a charge of larceny. This would be true. Why? Because the evil intention with which property is taken is a necessary constituent element to the crime of larceny; but this illustration would have no application to a case coming under what is known as police regulations, which makes it criminal to do a certain, act irrespective of the intention with which such act is done. Joyce on Intoxicating Liquors, p. 722 § 680, states the law as follows: ‘Where by statute an act is made an offense under the liquor laws without regard to the intent with which it is done, evidence of an intent is not material.’ • ‘
“Black on Intoxicating Liquors, p. 489, § 418, is as follows: ‘Where a statute commands that an act be' done or omitted which, in the absence of such statute, might have been done or omitted without culpability, ignorance ■ of the fact or state of things contemplated by the statute will not excuse its violation. There is nothing anomalous in this rule. In a great variety of eases of statutory offenses, more especially such as have to do with matters relating to police regulation, the laws impose criminal penalties, irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.’
"See, also, State v. Hartfiel, 24 Wis. 61; People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; McCutcheon v. People, 69 Ill. 601; State v. Kinkead, 57 Conn. 173, 17 Atl. 855.
"In Halstead v. State, 41 N. J. Law, 552, 32 Am. Rep. 247, the court said: ‘There is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act. ’
"In Regina v. Tolson, 16 Cox’s Criminal Cases, 629, the English court said: ‘Although prima facie and as a general rule there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. ’
"Further citation of authorities is unnecessary. Our statute makes it a crime to sell, or to have possession for the purpose of selling the same, any spirituous, vinous, fermented, or malt liquors, or any imitation or substitute therefor, without regard to the intention with which such sale is made. If we were to sustain the contention of appellant, we would not only be going contrary to all of the authorities on the subject of police regulations, but we would place it in the power of any man who so desired to set the prohibitory liquor law of Oklahoma at defiance. He could simply say, ‘I did not know or I had been misinformed as to a matter of fact,’ and this would grant him perfect immunity from punishment. Every man is bound to take knowledge of the law, and, if he undertakes to sell prohibited liquor in Oklahoma, he does so at his peril; and any guaranty given to him by any brewing company that the liquor which he sells is not prohibited by the laws of Oklahoma is not worth the paper it is written upon. The fact that appellant took a guaranty shows that he knew he was playing with fire. Now that he has been burned, he has no one but himself to blame. His guaranty is worthless, for no guaranty which involves a violation of law is valid.”

It is also opposed in principle to the views expressed by the majority of the appellate courts of the United States, of which the case of Haynes v. State, 118 Tenn. 709, 105 S. W. 251, 13 L. R. A. (N. S.) 559, 121 Am. St. Rep. 1055, 12 Ann. Cas. 470, is an example, and so aptly states the reasons for not applying the principle, ignorantia facti excusat, to statutes of this kind, and in that connection it is said:

“The second error assigned is to the exclusion by the trial judge of the testimony of Ode Smith, a salesman' for the Dyersburg Wholesale Company, who sold the cider to plaintiff in error. The following is the excluded testimony. ‘When I sold this cider to W. G. Haynes, I represented and guaranteed that it contained no alcohol and would not intoxicate,’ He further testified, which was excluded, that he sold the cider to the general trade; had eight or ten customers in Lauderdale county who buy the cider; that he never knew or heard of any complaint by any customer handling this cider, except in this ease. .
“The following is our legislation on the subject (Shannon’s Code,' § 991): ‘The right to sell spirituous, vinous, or fermented liquors is a taxable privilege in the sense óf the twenty-eighth section of the second article of the Constitution.’ Shannon’s Code, § 6795: ‘It shall not be lawful for' any person to sell or tipple any intoxicating liquors, including wine, ale and beer, as a beverage^ within 4 miles of any schoolhouse,’ etc. Acts 1899, p. 309, c. 161, § 1: ‘That any person or persons selling, of aiding in selling, in any way whatever, intoxicating liquors, without a license required by law, shall be guilty of a misdemeanor,’ etc.
“The court charged the jury on the subject as follows: ‘What is meant by intoxicating liquors is anything that will intoxicate, and it does not make any difference by what name it is called. If Mr. Haynes sold to Luther Yaughan the stuff of any kind that intoxicated him, or that was intoxicating, you should convict.’
“Defendant disclaims knowledge of the intoxicating character of the cider. His counsel'urges that it is a fundamental principle of criminal law that there must be a criminal intent of the' mind, coupled with the act, in order to constitute a crime. He cites the case of Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614, decided by the Supreme Court of Ohio. In that case the defendant had been selling bitters, and was indicted for selling intoxicating liquors. The court says: ‘In such ease the 'maxim of the criminal law, “Ignorantia faeti exeusat,” applies-to his case. The excusing principle of this maxim applies with great force where the business is recognized as lawful, and a transaction in its prosecution only becomes criminal when it is carried on with a purpose to violate the law. To give this maxim practical effect in a proper case is but an assertion of natural justice, for the reason that to render an act criminal the intention with which it is done must be so — the will must concur with the act. To make a transaction criminal, there must be both will and act entering into the transaction.’
‘‘The opinion in that case was by a divided court; and, even had it been otherwise, it is not sound in principle, and is contrary to the weight of authority in this and other states. It is the sale of intoxicating liquors without license which the statute prohibits, and it is unlawful to sell intoxicating liquor of any character without license. This being so, the seller must find out at his peril whether the liquor he proposes to sell is intoxicating or not. Guilty knowledge is not by the statute made an ingredient of the offense.
“Quite a number of authorities might be cited in support of this. In the ease of State v. Hartfiel, 24 Wis. 60, it is held that the sale of intoxicating liquors to a minor is an offense under the statute, though the vendor did not know that the purchaser was a minor. The court in that case says: ‘The words “knowingly” or “willfully,” or other words of equivalent import, are omitted from the statute, and the offense is made to consist solely in the fact of a sale of intoxicating liquors or drinks to a minor.’
“Numerous authorities could be cited to the effect that where a statute commands that an act be done or omitted, which in the absence of such a statute might have been done or omitted without culpability, ignorance of the * * * * statute will not' excuse violation. 3 Greenleaf on Ev. § 21; Barnes v. State, 19 Conn. 398; Com. v. Mash, 7 Metc. (Mass.) 472; Com. v. Boynton, 2 Allen (Mass.) 160; Merrick y. Plumley, 99 Mass. 567.
“In Ulrich v. Com., 6 Bush (Ky.) 400, it is said: ‘It is as incumbent on the vendor of liquor to know that his customer labors under no disability as it is for him to know the law, and his ignorance of neither will excuse him.’
“In the ease of Com. v. Boynton, # * * cited supra, it is said: ‘The court are of the opinion that the sale of intoxicating liquors, in violation of the statute prohibition, is not one of those cases in which it is necessary to allege or prove that the person charged with the offense knew the illegal character of his act, or in which a want of such knowledge would avail him in defense. If the defendant purposely sold the liquor, which was in fact intoxicating, he was bound at his peril to ascertain the nature of the article which he sold. Where the act is expressly prohibited, without reference to the intent or purpose, and the party committing it was under no obligation to act in the premises unless he knew that he could do so lawfully, if he violates the law, he incurs the penalty. The salutary rule that every man is conclusively presumed to know the law is sometimes productive of hardship in particular eases; and the hardship is no greater where the law imposes the duty to ascertain the fact.’
“It is said in 1 Wharton, Cr. Law, § 88: ‘It is no defense (for instance) to an indictment for keeping or selling adulterated or intoxicating- liquors, that the defendant did not believe them to be intoxicating or adulterated. So, on an indictment for selling adulterated milk, the defendant is not protected by ignorance of the adulteration, or even by belief that the milk was pure; and the same rule applies to indictments for selling other deleterious- drinks. In several states, selling intoxicating liquors to minors is indictable by -statute, and in such cases also arises the question whether the defendant knew that the vendee was a minor. Here, again, we have the rule before us applied; it having been repeatedly held that, in eases in which knowledge is not part of the statutory offense, ignorance in this respect, coupled with an honest belief that the vendee was of full age, is not a defense. And the same rule applies to all cases of dealing illegally with minors. It is also no defense to an indictment for selling to persons of intemperate habits that the defendant did not know that the vendee was of intemperate habits; though it is otherwise when the statute makes the offense to be selling to persons of known intemperate habits, in which case knowledge is an ingredient of the prosecutor’s case.’
“In 2 Wharton, Cr. Law, § 1507, after discussing the same question, it is said: 'But to such defense the answer has been already given that when a specific act is made by the law indictable, irrespective of the defendant’s motive or intent, his belief that he was right in what he did, based on a mistake of fact, is no defense. Eminently is this the case with regard to intoxicating drinks.’
“In 17 Encyc. PI. & Pr. p. 384, it is said: 'In all prosecutions for violations of the liquor laws, the defendant’s ignorance of the intoxicating properties of the liquors sold or kept for sale constitutes no defense. He is bound at his peril to know whether the liquors are.intoxicating.’
“In Atkins v. State, 95 Tenn. 474, 32 S. W. 391, it is held that one believing that he has a lawful right to operate a gambling contrivance is no defense for violation of the laws against gaming.
“In Moore v. State, 96 Tenn. 544, 35 S. W. 556, the trial judge charged the jury that the statute against the sale of intoxicating liquors was intended to and did prohibit the sale as a beverage of wine, ale, and beer, and also all other liquors which were intoxicating whether called beer, wine, whisky, ale, cider, hop tonic, or whatever name they be known by, and that defendant could not lawfully sell hop tonic or cider within 4 miles of a sehoolhouse where a school is kept, if such hop tonic or cider was intoxicating, and would make men drunk, and was sold as a beverage, and was not in an incorporated town. ’
“ 'This,’ says the court, through Coldwell, J., ‘is a sound interpretation of the law applicable to the case before the court — a construction manifestly in accord with the contemplation of the Legislature.’
‘ ‘ So it can make no difference under what guaranty plaintiff in error purchased the cider. If he sells it, he must know at his peril whether it,is intoxicating or not; and his belief that it was not, however honest, is no excuse.”

The majority holding is in my opinion opposed to the purpose and intention of the people in adopting the constitutional provision. It is also opposed to the intention of the Legislature in enacting laws to make effective such constitutional provision.

Further, it permits ignorance of the kind of cider which may be lawfully sold under the provisions of section 3606, Revised Laws 1910, to be interposed as a defense to the possession with intent to sell of intoxicating apple cider. A consideration of the provisions of section 3606, supra, clearly indicates that it was not the intention of the Legislature to make lawful the sale of hard or intoxicating apple cider, as the Constitution specfieally prohibited the sale of intoxicating liquors of any kind. Therefore, in my opinion, the result of the conclusion reached in the majority opinion is to permit ignorance of the law — that is, ignorance of the kind of apple cider that may be lawfully sold — to be pleaded under the guise of mistake of fact against a prosecution for the unlawful possession of apple cider of a kind which it is unlawful to sell either under the constitutional or statutory provisions.

If the people and the Legislature, as a police regulation, intended specifically to prohibit the manufacture, sale, barter, and giving away of intoxicating liquors, or the possession of the same with intent to sell, et cetera, irrespective of the knowledge and intent with which such acts are done, a mistake of fact as to the intoxicating quality of the liquor sold or possessed on the part of the defendant would be, ignorance of what the law really is. Therefore, the courts have given the construction contended for by me in applying the well-known principle, ignorantia faeti excusat, to this class of legislation; because to give force to such maxim as against a plain prohibitory statute would, in effect, destroy the prohibition desired, and permit ignorance of the law, under guise of ignorance of the fact, to be a defense thereto.

Succinctly stated, therefore, it is my opinion that the constitutional provision relative to intoxicating liquor, and the statutory enactments in furtherance thereof, are pólice regulations enacted while section 2094 was in existence; that section 2094 is but the embodiment of a well-known common-law principle; that the general construction and great weight of authority is that such a principle has. no application to police regulations, as held in Lightle v. State, supra; and that for such reason the question of defendant’s knowledge of whether or not the liquor possessed by him was intoxicating is immaterial, and forms no defense to a prosecution either under the constitutional or statutory provisions.

I concur with .the view expressed by the majority that, in the ease of cider, it was necessary to allege and prove its intoxicating quality, or that it was a fermented beverage, such an issue being for the jury under proper instructions.


author: MATSON, J.

text:
    STATE v. JOHN WHEATLEY.
    No. A-3226.
    Opinion Filed Sept. 29, 1921.
    (200 Pac. 1004.)
    (Syllabus.)
    1. Indictment and Information — Series of Acts Constituting an Offense — Charging Conjunctively in One Count. Where a statute enumerates a series of acts, either bf which or all together constitute the offense, all such acts may be charged in a single count in the conjunctive.
    2. Constitutional Law — Statutes—Contstituti'onality—Liberal Construction. A liberal construction will be applied to acts of the Legislature and constitutional provisions in determining whether or not such enactments violate the Constitution, and it is only when acts of the Legislature are clearly contrary to the Constitution that the -court will hold them invalid.

      3. Same. It- is a well-knlo-wn canon of construction that, where the constitutionality of a statute is involved, it . must appear to the court to be unconstitutional beyond a reasonable doubt. To doubt its constitutionality is to uphold it.
    4. Fish — Power of State to Prohibit Pollution of Waters. This state may, under its police power, for the protection in the streams, lakes, and ponds of this state, and for the- purpose of encouraging the breeding of fur-bearing animals and other game which have access to the public waters of the state, prohibit the depositing' of crude oil and other deleterious substances therein.
    5. Evidence — Judicial Notice of Legislative Policy to Protect Fish and Game. This court will take judicial notice of the policy of the Legislature to encourage the propagation and protection of the fish and game of the state.
    6. Statutes — Sufficiency of Title — Act Prohibiting Pollution of Waters. For reasons holding section 3301, Rev. Laws 1910, as amended by section 11, c. 185» Session Laws 1915, referable and cognate to the subject-matter contained in the title to the .aot, and not, for that reason, in violaitibn of Const, art. 5, sec 57, see body of opinion.
    Appeal from County Court, Osage County; Elmer J. Black, Judge.
    John Wheatley was indicted for placing crude oil or other deleterious substances in a natural stream, and from a judgment sustaining a demurrer to the information, the State appeals on reserved questions of law.
    Reserved questions decided in .favor of the State, but because the trial court did not order a new information, the prosecution dismissed.
    S. P. Freeling, R. McMillan, and W. C. Hall, for the State.
    Leahy & Macdonald, for defendant in error.
   MATSON, J.

In this case the state of Oklahoma has taken an appeal from a judgment rendered in the county court of Osage county, Okla., sustaining a demurrer to an information filed in said court by the county attorney of said county, the charging part of which is as follows:

“That the said John Wheatley, on or about the 4th day of April, 1917, in said county and state, did willfully and unlawfully deposit and place, and permit to be deposited and placed in Wild Horse creek, a stream in said county and state, crude oil and other deleterious substances to affiant unknown, whereby the fish in said stream and the fur-bearing animals and game drinking therefrom and frequenting the same were killed and driven away, and the breeding of fur-bearing animals and fish and game thereby discouraged and prevented, contrary,” etc.

The demurrer to the information is based on the following grounds:

“First. That said information does not substantially conform to the requirements of chapter, 62, Statutes of Oklahoma 1910, in the following particulars, to wit:
“ (a). That the offense sought to be charged in said information is not set' out in ordinary and coneise language, and not in such manner as to enable a person of common understanding to know what is intended.
“(b). Said information is not certain and direct as to the offense charged.
“(e). Said information does not contain a statement of the particular circumstances of the offense sought to be charged.
“(d). That the act charged as the offense is not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.
“Second. That the facts stated in said information do not constitute a public offense. ’ ’

This information is based upon section 3301, Revised Laws 1910, as amended by section 11, c. 185, Session Laws 1915, and as amended said section reads as follows:

“No person shall deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite, poison, drug, sawdust, crude oil or other deleterious substance, in any of the streams, lakes or ponds of this state, and any person violating the provisions of this section shall be punished by a fine óf not less than five hundred dollars, or by imprisonment in the county jail not exceeding one year.”

It is the' contention of the state that the information, being in the language of the statute, is sufficient (the statute setting out the particular acts constituting the offense). ‘ Counsel for defendant contend, first, that the information is insufficient for want of clearness and for duplicity, and in support of this contention counsel advance the following argument:

“The pleader in this information attempted to follow to a very large extent the language of the statute, except that in place of the word ‘or,’ used in the statute, he uses the word ‘and.’ The statute contemplates that any person who shall deposit or place, or permit to be deposited or placed, crude oil, etc., in streams, shall be guilty of an offense, but it is a distinct and separate offense to deposit or to place, or to permit to be deposited or placed, etc. In other words, the statute covers two, if not four, distinct offenses. We don’t know from this information whether we are to be prosecuted for depositing crude oil and other deleterious substances or for placing crude oil and other deleterious substances, or for permitting crude oil and other deleterious substances, to be deposited or placed. Neither do we know whether we are to be prosecuted for depositing crude oil only, or other deleterious substances; nor are we advised by the- information as to what the other deleterious substances are composed of. The statute names a number of deleterious substances, the depositing of .either one of which, if the statute is good, would be an offense, and is broad enough to make an offense out of the depositing of any deleterious substances in stream, lake, or pond. ’ ’

We are of opinion that the information is clearly sufficient and contains a valid charge against defendant for depositing and permitting to be deposited crude oil in Wild Horse creek in Osage county, Okla. Nor do we believe the information bad for duplicity.

In the case of Sherman v. State, 19 Okla. Cr. 269, 200 Pac. 262, this court held :

“Where a statute enumerates a series of acts, either of which or all together constitute the offense, all such acts may be charged in. a single count in the conjunctive.”

In the body of the opinion it is said:

“It is first contended that the information is duplicitous, in that defendant is both charged with buying and receiving stolen property, which constitute two separate and distinct offenses, and that the court therefore erred in overruling defendant’s demurrer to the information on this ground.

“Section 2664, Revised Laws 1910, defines the offense as follows:

“ ‘Any person who buys or receives, in any manner, upon any consideration, any personal property of any value' whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment. ’
“The demurrer was properly overruled. The statute defines but one offense, and enumerates disjunctively the acts which, either committed separately or together, constitute the offense. The rule is well established that where. a statute' enumerates a series of acts, either of which or all together may constitute the offense, all such acts may be charged in a single count, since, though each by itself may constitute the offense, all together do no more and constitute but one and the same offense, and the indictment or information, if it charges more than one of such acts, which it may do and that in the same count, should do so in the conjunctive. State v. Pirkey, 22 S. D. 550, 118 N. W. 1042, 18 Ann. Cas. 192; People v. Swaile, 12 Cal. App. 192, 107 Pac. 134; 22 Cyc. 380; Bishop’s Statutory Crimes, § 244.”

The statute here under consideration is similar in its provisions to the statute defining the offense of receiving stolen property. By its terms it makes it an offense to deposit ox place or permit to be deposited or placed, any substances named or any other deleterious substances in any of the streams, lakes or ponds of this state. If defendant did any one of the acts prohibited by the statute he is guilty of but one offense,, and though each by itself may constitute the offense, if he did all of the acts prohibited he did nothing more than commit the same offense, and as held in the Sherman Case, supra, under such a statute the indictment or information may, in the same count, charge defendant with more than one of such acts, and if it does so charge him, it must do so in the conjunctive, as was done in this case.

Counsel for defendant further contend that, the section of the statute on which this prosecution is based is unconstitutional and invalid, because the, same is not clearly expressed in the title to the act nor is it cognate to the same.

In support of this contention, the following argument is advanced:

.“We desire to say that said section 11 is an amendment to section 3301 of the Bevised Laws of'Oklahoma, which was intended to prevent throwing or using deleterious substances in streams, lakes or ponds of the state, for the purpose of injuring, poisoning or catching fish, and is clear and specific on that point. Section 11 referred to as being an amendment to section 3301 reads as follows:
“ ‘No person shall deposit, place, throw, or permit to be deposited, placed or thrown,, any lime, dynamite, poison, drug, sawdust, crude oil dr other deleterious substanee, in any of the streams, lakes or ponds of this state, and any person violating the provisions of this section shall • be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not exceeding one year.’ -
“It will be noticed that this section; makes no reference to streams, lakes or ponds containing fish or fur-bearing animals, or in which fur-bearing animals water. It attempts to prohibit depositing, placing or throwing, or permitting to be deposited, placed or thrown, any lime, etc., in any of the streams, lakes or ponds of the state, regardless of whether the stream, lake or pond into which such deleterious substance may be deposited, contains fish, or not, and yet it is well known that, generally the ponds throughout the state do not contain fish, but are constructed and kept up as watering places for live stock. ■ Many of the streams throughout the state do not contain fish, for the reason that they are small, and during the dry season of the year do not have any water, and therefore contain no fish. The title to this act reads as follows:
“ ‘An act relating to fish and game, and providing for encouraging the breeding of fur-bearing animals, fish and game. ’
“If this had been an act to protect live stock against poisonous waters, and providing a penalty therefor, this section might possibly be sustained, but the title to this act does not have any reference to live stock; it in no way has anything to do with encouraging the breeding of fur-bearing animals, fish and game, nor does it in any way relate to fish and game, and a section of this character would not be expected to be found under this heading.
“Section 57, art. 5, of the Constitution, provides:
“ 'Every act of the Legislature shall embrace but oné subject, which shall be clearly expressed in its title.’
“Section 11 is clearly the embracing of a different subject in the act than the matter of encouraging the breeding of fur-bearing animals, fish and game, and it cannot be said that it in any sense is clearly embraced in the title to the act; neither is the question of a penalty for violation of this section embraced, by innuendo or otherwise, in the title to the act.”

Prior to its amendment, section 3301 read as follows:

“No person shall deposit, place, throw or use any lime, dynamite, poison, drug or other deleterious substance in any of the streams, lakes or ponds of this state, for the purpose' of injuring, poisoning or catching fish therein, and any person violating the provisions of this section shall be punished by fine of not less than one hundred nor more than five hundred dollars, or by imprisonment in the county jail not exceeding one year.”

Section 57, art. 5, of the Constitution, has frequently received construction by the appellate courts of this state, and the established rule now is that the title to an act may bej general and need not specify every clause in the statute; it being sufficient if the various provisions are referable to and cognate to the subject expressed. Pond Creek v. Haskell, 21 Okla. 711, 97 Pac. 338; Insurance Co. of North America v; Welch, 49 Okla. 620, 154 Pac. 48, Ann. Cas. 1918E, 471, and eases cited; Adams v. Iten Biscuit Co., 63 Okla. 52, 162 Pac. 938, 942.

In the case of In re E. B. Ambler, 11 Okla. Cr. 449, 148 Pac. 1061, this court held:

“Section 57, art. 5, Const., providing that an act of the Legislature shall embrace but one subject, etc., has reference only to the body of the bill. The provision as to the explicitness of the title to the bill is, directory and is not fatal to a measure simply because the title is broader than the act itself.
“It is a well-settled rule, recognized by all the courts, that where a statute is subject to two constructions, one of which would render it invalid, the other sustain its validity, that construction which sustains the validity of the act should be adopted by the court, and this rule is equally applicable to titles to legislative enactments.
“It is equally well-settled that a liberal construction should be applied to the acts of the Legislature and constitutional provisions as well in determining whether or not such enactments violate constitutional provisions, and only when acts of the Legislature are clearly contrary to the Constitution should the court hold them invalid.”

It only remains to be seen, therefore, whether or not the depositing of crude oil; etc., in any of the streams, lakes, and ponds of this state, is referable to and cognate to and bears relation to the subject of the protection of fish and game of this state and the encouraging of the breeding of fur-bearing animals, fish, and game.

It is a well-known canon of construction that where the constitutionality of a statute is involved, it must appear to the court to be unconstitutional beyond a reasonable doubt. To doubt its constitutionality is to uphold it. Leach v. State, 17 Okla. Cr. 322, 188 Pac. 118; State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 243; McCord v. State, 2 Okla. Cr. 215, 101 Pac. 280.

We' think there is no question but that the state may under its police power, for the protection of food fish in the; streams, lakes, and ponds of this state, and for the purpose of encouraging the breeding of- the same, as well as for the protection and breeding of fur-bearing animals and other game which have access to the public waters of this state, prohibit the depositing of crude oil and other deleterious substances therein. State v. Haskell, 84 Vt. 429, 79 Atl. 852, 34 L. R. A. (N. S.) 286.

This court will take judicial notice of the policy of the Legislature to encourage the propagation and protection of the fish and game of this state. Fish hatcheries have been established and from time to time sums appropriated for the distribution at the expense of this state of food fish to the various waters of the state. Game preserves have also been established, and the state is annually expending large sums of money to protect and preserve the wild game of this state of all kinds.

It is our opinion, therefore, that it is clearly cognate to the subject of fish and game, and encouraging the. breeding of the same, to keep the waters of this state free from deleterious substances, and this is equally true whether such waters be inhabited by fish at the time said substances are placed therein or not. Fish are a valuable article of food, and various game animals are also valuable for food purposes, and the hides of others are valuable for the purpose of making wearing apparel of different kinds. It is evident that the breeding of fish in this state would be greatly curtailed were not the streams thereof kept free from deleterious substances. It is equally true that the breeding of fur-bearing animals, a number of which inhabit the waters of this state, would be seriously diminished were such waters not kept free from contamination. In the course of time, were poisonous and deleterious substances permitted to be deposited in the streams of this state, fish and fur-bearing animals inhabiting such waters would become extinct. This court is not concerned with the policy of legislation of this kind. That question is solely for the Legislature. We must presume that the Legislature on sufficient evidence determined that the substances named in the statute were of a character detrimental to fish and fur-bearing animals, and also that there might. be other substances equally deleterious which were at the time of the passage of the statute unknown to the Legislature.

That the Legislature saw fit to amend section 3301, Revised Laws 1910, by omitting therefrom the clause, “for the purpose of injuring, poisoning or catching fish therein,” is of ¡no concern to the court, provided the act as amended' is a| reasonable exercise of the police power. We think it is. Undoubtedly the Legislature based its action upon evidence of the fact that numerous streams of the state which had formerly contained large quantities of food fish were practically depopulated of fish, because of the fact that their waters had become so thoroughly impregnated with crude oil and other deleterious substances and refuse from the oil, mining, and manufacturing industries of the state as to render them- practically useless and of no value as breeding grounds for fish, game, and fur-bearing animals.

It could with truth be stated that the oil, manufacturing, and mining industries are of greater monetary value to the state than is the policy of the propagation of fish, etc., and that to hamper such industries by legislation of this kind would so handicap them as to prevent their present operation and future development; that this species of legislation forms a practical bar to the'proper development of the state’s natural resources. Argument of this kind must be addressed primarily to the legislative branch of the government, whose sole duty it is to determine the policy of the law. The judiciary is concerned with the construction of the law as it is written.

The conclusion is reached that section 3301, Revised Laws 1910, as amended by chapter 185, Session Laws 1915, is referable and cognate to the subject-matter contained in the title to the act, and is not, for that reason, in violation of section 57, art. 5, of the Constitution.

In this case the trial court did not order a new information to be filed against defendant. It is the opinion of the court, therefore, that the judgment sustaining the demurrer to the information is final and that the accused may not now be subjected to another prosecution for the same offense. State v. Vaughn, 15 Okla. Cr. 187, 175 Pac. 731, and cases cited; State v. Shafer, 15 Okla. Cr. 610, 179 Pac. 782.

The reserved questions of law are decided in favor of the state, but for the reason that the trial court did not order a new information to be filed the attempted prosecution is at an end, and the cause must be dismissed.

DOYLE, P. J., and BESSEY, J., concur.


author: DOYLE, P. J.

text:
    ED GILL v. STATE.
    No. A-3689.
    Opinion Filed Sept. 29, 1921.
    (200 Pac. 882.)
    (Syllabus.)
    Intoxicating Liquors — Burden of Proof as to Intoxicating Natura of Liquor — Instructions. On. a trial for selling alleged malt liquor, commonly called “choc beer,” where the evidence showed that the liquor or mixture alleged to have been sold was made out of bran and Karo syrup, and there was no evidence tending to show that the same was intoxicating, or that it contained as much as one-half of 1 per cent, of alcohol, measured by volume, or that it was such liquor as the courts judicially know to be malt and intoxicating liquor, it was error to instruct the jury that “The burden of proof is on the defendant to show that it was not intoxicating. And if from the evidence he shows that the liqufer was not intoxicating, then he is entitled to an acquittal,” and it was error for the court to refuse a requested instruction that, before the jury would be warranted in finding the defendant guilty, they must find from the evidence beyond a reasonable doubt that the mixture, which the state’s witnesses called beer, was intoxicating.
    Appeal from County Court, Bryan County; Lewis Paullin, Judge.
    Ed Gill, convicted of violating the prohibitory liquor law, appeals.
    Reversed.
    Robert Crockett, for plaintiff in error.
    The Attorney General and W. C. Hall,' Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, was tried, convicted, and sentenced to be confined in the county jail for 30 days, and pay a fine of $50, on an information which in effect charged that Ed Gill did in Bryan county, on or about the 15th day of March, 1919, unlawfully sell, give away, or otherwise furnish to one West Brannon one gallon of beer. To' reverse the judgment, an appeal by case-made was perfected. On motion of the Attorney General, the judgment was affirmed for failure to file briefs. Upon a proper showing that briefs had been duly filed, a rehearing was granted, and the case submitted on briefs.

The errors assigned question the sufficiency of the evidence to sustain the verdict and the giving and refusing of certain instructions. The evidence for the state was substantially as follows:

“West Brannon testified that he lived in the town of Caddo, and at the date alleged was boarding with the defendant, Ed Gill, and was arrested for being drunk; that he had been drinking that day with Claude Nail and George James; that at the time of his arrest he had a little choc, beer in a jug; that he got it from a stranger, and not from the defendant. Witness was then confronted with a statement purporting to be made by him after his arrest and while he was in jail at Durant, in which he accused the defendant of selling the beer to him. Witness admitted that he made such statement, but that it was under duress; that the arresting officer told him ‘they would stick me if I would not try to. stick some one else.’ ”

Coleman Robinson, deputy sheriff, testified that he arrested West Brannon, and that he had some choc beer, and was in company with Claude Nail and George James; that he went to the defendant’s house and found a keg of choc beer, and arrested the defendant, who stated that he had let Brannon have some beer, but did not sell any; that the beer at the defendant’s house looked like the beer West Brannon had.

Claude Nail testified that he was with West Brannon and George James, and a dollar was made up, and West Brannon went off, and in about 30 minutes returned with the beer in a jug; that he did not know who Brannon got the beer from.

The state rested, and the defendant asked the eourt to direct a verdict of acquittal, which was overruled. Upon reconvening of court after the noon recess, the state again called the witness West Brannon, who testified as follows:

“The testimony I gave this morning was all false, and I will have to admit I told a lie; the first statement I made while in jail was true, and I did get the beer from Ed Gill.’.’ •

On - cross-examination he stated that, during the recess, deputy sheriff Robinson told him they were liable to get him for perjury; that he might get 5 years in the penitentiary for swearing a lie; that he was in Mr. Crockett’s office, and there made the false statement in writing; that he told Mr. Crockett the statement was the truth, because he did not want to do the defendant, who was a poor hard-working boy, any wrong.

As a witness in his own behalf, the defendant, Ed Gill, denied selling any beer to West Brannon,' but admitted that he had tried-to make a beer out of wheat bran and Karo syrup, and that he got as a result of the mixture only sour water; that he only made a gallon and a half; that it was not intoxicating, but was nauseating; that what little he drank made him sick; that at the time of his arrest one of the officers tasted the mixture, and said he could drink five gallons of it and it would not have any effeet on him whatever.

Will Faulkner testified that in March, 1919, he was boarding, with the defendant, and that on or about the 15th day of March, 1919, there was a mixture in the house that the defendant made out of bran and Karo syrup; that the result was only sour water, and was not intoxicating; that he was at the defendant’s house nearly all day on the date alleged, and that West Brannon, after leaving the defendant’s house that morning, did not return that day; that he saw Brannon when he left that morning, and he did not carry any with him —a jug, bottle, or anything else; that he was present when one of the officers tasted the mixture, and the officer said there was nothing to it; that the defendant’s reputation for being a moral, law-abiding citizen was good.

Three or four other witnesses qualified, and testified that the defendant’s character and reputation for being a moral, law-abiding citizen in that community was good. Instruction No. 2, as given by the court, reads:

“Gentlemen of the jury, the court instructs you as the law in this case that, if you find from the evidence that beer-'was sold or given, then the burden of proof is on the defendant to show that it was not intoxicating. If from the evidence he shows the liquor was not intoxicating, then he is entitled to an acquittal.”

To this instruction objection was duly made and exception reserved. The defendant then asked the court to give an instruction to the effect that, before the jury would be warranted in finding the defendant guilty, they must believe from the evidence beyond a reasonable doubt that the mixture which the state witnesses called beer was intoxicating, and that the defendant sold the same to West Brannon; which instruction was refused, and exception allowed.

By the instruction objected to the jury were, in effect, told to find the defendant guilty unless he showed that the liquor was not intoxicating.

As a general rule, in criminal cases the burden of proof' never shifts, but rests on the prosecution throughout, and before a conviction can be' had the jury must be satisfied from the evidence beyond a reasonable doubt of the a£firma.tive of the issue presented in the accusation*; so in this case, where it was not such liquor as the courts judicially know to be malt and intoxicating liquor, if the state, upon the whole evidence, failed to prove that the so-called beer or liquor was intoxicating, or that it contained as much as one-half of 1 per cent, of alcohol, measured by volume, it fails to make out a ease.

It follows that the instruction given was erroneous, and under the issues raised by the evidence in this ease it was error to refuse the instruction requested. For the errors indicated, the judgment of the trial court is reversed.

MATSON and BESSEY, JJ., concur.