author: PEE CITKIAM.

text:
    Campbell George v. State.
    No. A-253.
    Opinion Filed May 23, 1910.
    (109 Pac. 1114.)

      Appeal from Goal Oounty Court; B. E. Wells, Judge.

    Campbell George was convicted of an illegal sale of liquor, and appeals.
    Affirmed.

      Fred S. Caldwell, for the State
   PEE CITKIAM.

-Plaintiff in error, Campbell George, was convicted in the' county court of Coal county of the crime of unlawfully selling intoxicating liquor, and was on the 17th day of .April, 1909, sentenced to be confined in the county jail for a term of 60 days and pay a fine of $100, from which judgment he appeals.by filing in this court on July 16, 1909, his petition in error with case-made attached. No briefs have been filed, and we are not advised as to what plaintiff in error relies upon for a reversal of said judgment. Counsel for the state has filed a motion to dismiss or affirm for want of prosecution. We have examined the record, and no error is apparent. The motion to affirm is allowed and the judgment of the lower court is hereby affirmed. The clerk of this court will issue mandate to the county court of Coal county, directing said county court to cause the judgment and sentence to be enforced.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bill Jones v. State.
    No. A-247.
    Opinion Filed May 23, 1910.
    (109 Pac. 1116.)

      Appeal from Garter County Court j I. B. Mason, Judge.

    Bill Jones was convicted of violation of the prohibition law, and appeals.
    Affirmed.

      J. B. Champion, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The case-made herein, together with plaintiff in error’s petition in error, was filed in this court on July 9, 1909. No briefs have been filed, and we are not advised as to what plaintiff in error relies upon for a reversal of the judgment against him. Counsel for the state has filed a motion to dismiss the appeal or affirm the judgment for want of prosecution, to which motion no response has-been filed. We have examined the record, and no errors are apparent. The motion to dismiss is sustained, and the judgment of the lower court is hereby affirmed. The clerk o'f this court will issue a mandate to the county court of Carter county, directing said court to enforce its judgment and sentence herein.


text:
    John Bonner v. State.
    No. A-246.
    Opinion Filed May 23, 1910.
    (109 Pac. 1113.)

      Appeal from Carter County Court; I. B. Mason, Judge.

    John Bonner was convicted of an illegal sale of liquor, and appeals.
    Affirmed.

      J. B. Champion, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

The petition in error herein, together with _ the case-made was filed in this court on July 9, 1909. No briefs have been filed,, and we are not advised as to what plaintiff in error relies upon for a reversal of the judgment against him. The state has filed a motion to dismiss the appeal or affirm the judgment for want of prosecution, to which plaintiff in error has filed no response. We have examined the record, and no error is apparent. The motion to affirm is sustained, and the judgment of the lower court is hereby affirmed. The clerk of this court will issue a mandate to the county court of Carter county, directing-said court to enforce its judgment and sentence against the plaintiff in error.


author: PEE CHBIAM.

text:
    James Horton v. State.
    No. A-245.
    Opinion Filed May 23, 1910.
    (109 Pac. 1115.)

      Appeal from Lincoln County Court; Fred A. Wagoner, Judge.

    James Horton, at the July, 1908, term of the county court of Lincoln county, was convicted of violating the prohibition law, and he appeals,
    Appeal dismissed.

      E. A. Foster and Hoffman & Robertson, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PEE CHBIAM.

In March, 1910, the state filed a motion to dismiss this appeal, for the reason that no notice of appeal was served and filed as required by se'etion 6949 of Snyder’s Compiled Laws of Oklahoma. The record shows the service of such notice upon the county attorney; but there is nothing in the record before us to show the service of such notice upon the county judge or the clerk of the county court. Wherefore the motion to dismiss the appeal is sustained. It is therefore ordered that the purported appeal herein be and the same is hereby dismissed, and that this cause be remanded to the county court of Lincoln county, with directions to enforce its judgment and sentence herein.


text:
    Deak Hokey v. State.
    No. A-257.
    Opinion Filed May 23, 1910.
    (109 Pac. 1115.)

      Appeal from Pittsburg County Court; R. W. Higgins, Judge.

    Deak Hokey was convicted of the crime of violating the prohibition law, and he appeals.
    Affirmed.

      J. G. Harley, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

Petition in error herein, with case-made attached, was filed in this court on July 19, 1909. No briefs have been filed, and we are not' advised as to what plaintiff in error-relies upon for a reversal of the judgment against him. The state has filed a motion to dismiss or affirm for want of prosecution;, and plaintiff in error has made no response to said motion. We have examined the record, and no error is apparent. The motion to affirm will therefore be sustained, and the clerk of this court will issue a mandate to the county court of Pittsburg county directing said court to enforce its judgment and sentence herein.


text:
    William Meirholtz v. State.
    No. A-186.
    Opinion Filed May 23, 1910.
    (109 Pac. 1116.)

      Appeal from Beckham County Court; Fleetwood Bell, Judge.

    William Meirholtz was convicted of the violation of the prohibition law, and he appeals.
    Affirmed.

      Harrison & Hendricks, for plaintiff in error.

      Fred S. Caldwell, for the State.
   PER CURIAM.

The petition in error herein, with case-made attached, was filed in this court on May 21, 1909. No briefs have been filed, and no further appearance has been made by or in behalf of plaintiff in error. We are not advised as to what plaintiff in error relies upon for a reversal of the judgment against him. The state has filed a motion to dismiss the appeal or affirm the judgment for want of prosecution, and plaintiff in error has made no response to said motion. We have examined the record, and no error is apparent. The motion to affirm is sustained. The clerk of this court will issue a mandate to the county court of Beckham county, directing said court to enforce its judgment and sentence herein.


author: PEE CTTEIAM.

text:
    Bob George v. State.
    Two Cases, Nos. A-254 and A-255.
    Opinion Filed May 23, 1910.
    (109 Pac. 1114.)

      Appeal from Goal County Court; R. U. Wells, Judge.

    Bob George was convicted of selling intoxicating liquor, and appeals.
    Affirmed.

      Fred 8. Caldwell, for the State.
   PEE CTTEIAM.

Plaintiff in error, Bob George, was convicted in the county court of Coal county of the crime of selling intoxicating liquor, and was on the 14th day of April, 1909, sentenced to be confined in the county jail for a term of thirty days and pajr a fine of fifty dollars, from which judgment he appealed by filing in this court on July 16, 1909, his petition in error with case-made attached. No briefs have been filed and we are not advised as to what plaintiff in error relies upon for a reversal of said judgment. Counsel for the state has filed a motion to dismiss or affirm for want of prosecution. We have examined the record and no error is apparent. The motion to affirm is allowed and the judgment of the lower court is hereby affirmed. The clerk of this court will issue mandate to the county court of Coal county, directing said- county court to cause the judgment and sentence to be enforced.


text:
    Tom Talley v. State.
    No. A-143.
    Opinion Filed May 23, 1910.
    (109 Pac. 1118.)

      Appeal from Okfuskee County Court; T. T. Doyle, Judge.

    Tom Talley was convicted of a violation of the prohibition law. and appeals.
    Appeal dismissed.

      Huser & London, for appellant.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Okfuskee county for the crime of unlawfully selling intoxicdting liquor, and was on the 19th day of February, 1909, sentenced to pay a fine of $300 and stand committed to the county jail for a term of four months, and, failing to pay said fine, to be further confined in the county jail until said fine is satisfied in proportion to one day imprisonment for every $2 of the fine. From such judgment and sentence an appeal was attempted to be taken by filing in this -court on April 21, 1909, a petition in error, with transcript attached. On March 19, 1910, on behalf of the state, there was filed a motion to dismiss the appeal for the reason that “no notices of appeal have ever been served and filed as provided and required by section 6949, Snyder’s Statutes.” In order to give this court jurisdiction, the notices prescribed by the statute must be served upon the clerk of the court and the prosecuting attorney, and proof of the service of such notices must be filed with the record in this court within the time within which an 'appeal may be taken. That was not done in this case. The motion to dismiss the appeal must therefore be sustained. It is therefore ordered that the purported appeal be and the same is hereby dismissed, and the cause remanded to the county court of Okfuskee county, with direction to enforce the judgment and sentence.


author: PEE CURIAM.

text:
    James De Force v. State.
    No. A-123.
    Opinion Filed May 23, 1910.
    (109 Pac. 1116.)

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

    James Le Force was convicted of a violation of the prohibition law, and appeals.
    Appeal dismissed.

      R. K. Robinson and Bristow '& McFayden, for appellant.

      Fred 8. Caldwell, for the State.
   PEE CURIAM.

Plaintiff in error was convicted in the county court of Caddo county for the crime of unlawfully selling intoxicating liquor, and on January 23, 1909, was sentenced to be confined in the county jail for a period of 108 days and pay a fine of $500. No briefs have been filed. Counsel for the state has filed a motion to dismiss or affirm for want of prosecution We have examined the information,’ the instructions of the court, and the judgment and sentence, and we have discovered no ’ error which will warrant a reversal of the case. The judgment of the county court of Caddo county is therefore affirmed. The clerk of this court will issue mandate to the county court of Caddo county, directing said county court to cause the judgment and sentence to be enforced.


text:
    C. M. Nichols v. State.
    No. A-146.
    Opinion Filed May 23, 1910.
    (109 Pac. 1117.)

      Appeal from Wagoner County Court; W. T. Drake, Judge.

    C. M. Nichols was convicted of a violation of the prohibition law, and he appeals.
    Dismissed.

      Allen & Finson, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Wagoner county for the crime of unlawfully selling intoxicating liquor, and was on the 30th day of October, 1908, sentenced to be confined in the county jail for a term of 30 days and to pay a fine of $50, from which judgment and sentence an appeal was attempted to be taken by filing in this court on April 26, 1909, a petition in error, with case-made attached. On March 19, 1910, on behalf of the state there was filed a motion to dismiss the appeal, for the reason that no notices of appeal have ever been served and filed as provided and required by section 6949, Snydqr’s Statutes. In order to give this court jurisdiction, the notices prescribed by the statute must be served upon the clerk of the court and the prosecuting attorney, and proof of the service of such notices must be filed with the record in this court within the time within which an appeal may be taken. That was not done in this ease. There is nothing in the record before us to confer upon this court jurisdiction to consider the appeal. The motion to dismiss the appeal must therefore be sustained. It is therefore ordered that the purported appeal be and the same is hereby dismissed, and the cause remanded to the county court of Wagoner county, with direction to enforce the judgment and sentence.


text:
    Sam Smith v. State.
    No. A-107.
    Opinion Filed May 23, 1910.
    (109 Pac. 1117.)

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

    Sam Smith was convicted of a violation of the prohibition law, and he appeals.
    Appeal, dismissed.

      F. F. Biddle, for plaintiff in error.

      Fred 8. Caldwell, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Grady county for a violation of the prohibition law, and was on the 16th day of October, 1908, sentenced to be confined in the county jail for a term of 30 days and pay a fine of $75 and costs, from which judgment and sentence an appeal was attempted to be taken by filing in this court on March 1, 1909, a petition in error, with case-made attached. On March 19, 1910, there was filed a motion to dismiss the appeal, for the reason that no notices of appeal have ever been served and filed as provided and required by section 6949, Snyder’s Statutes. There is nothing in the record before us to show the service of said notices. Wherefore the motion to dismiss appeal is hereby sustained. It is therefore ordered that the purported appeal be and the same is hereby dismissed, and the cause remanded to the county- court of Grady county, with direction to enforce the judgment and sentence.


text:
    In re J. N. MITCHELL.
    No. A-4615.
    Opinion Filed March 28, 1925.
    (234 Pac. 1117.)
    Application of J. N. Mitchell for writ of habeas corpus to be admitted to bail.
    Bail allowed.
    Williams & Luttrell, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

The petition of J. N. Mitchell shows that he was committed by James F. Keeshen, a justice of the peace in- and for McClain county, after a preliminary examination to answer to the district court of said county upon a charge that he did kill and murder one Charley Eld-ridge ; that an application for bail was made to the district judge of said county, and was denied. Petitioner alleges that he is not guilty of the crime charged, and the proof of his guilt is not evident nor the presumption thereof great. Attached to said petition is a transcript of the testimony taken upon the preliminary examination. Upon a consideration of the evidence and the argument of counsel, it was adjudged and ordered that petitioner be admitted to bail in the sum of $20,000, bond to be conditioned as by law required, and to be approved by the court clerk of McClain county, and upon approval of the same said court clerk shall notify the sheriff of said county, who shall discharge said petitioner from custody.


author: DOYLE, J.

text:
    GROVER RHODES v. STATE.
    No. A-4762.
    Opinion Filed April 1, 1925.
    (234 Pac. 645.)
    (Syllabus.)
    1. Indictment and Information. — When Information Charging Offense in Words of Statute Sufficient. When an offense is created by statute which sets forth with precision and certainty all the elements of the offense, an information is sufficient which charges the offense in words of the statute.
    2. Trial — Instructions Construed with Reference to Evidence. Instructions must be construed with reference to the evidence introduced.
    3. Evidence — Extent of Burden of Proof on Accused. A person accused of crime should have no greater burden than is created by the evidence produced against him on the trial.
    4. Intoxicating Liquors — Statutes—(Terms of Penal Statute not Extended Beyond Clear Legal Meaning — Word “Sell” in Statute Forbidding Selling Liquor Given Ordinary Legal Meaning. A court will not extend the terms of a penal statute beyond their clear legal meaning. So the word “sell“ in section 6996 — 7, C. <3. 1921, declaring it a felony “to barter, sell or give to any minor,” liquors, will not be construed to mean something different from ' its ordinary legal import.
    5. Same — Instruction that if Accused Furnished Liquor to Party and Others Actually Handed it to Minor He Would be Guilty of Supplying Liquor to Minor, Held Erroneous. On the trial for giving intoxicating liquor to a minor, the evidence showed that defendant sold a pint of whisky to an adult, driver of a car with four other occupants; one being a minor. It was error for the court to instruct the jury that it would make no difference as to whether defendant actually handed the whisky to the minor or whether he just furnished it to the party and some of the rest of them actually handed it to the minor, if he furnished it for that party, and the minor thereby procured it, then he would be as guilty as though he may have handed it to the minor himself.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.
    Grover Rhodes was convicted of giving. intoxicating liquor to a minor, and he appeals.
    Reversed, and new trial granted.
    Babcock & Trevathan and P. P. Duffey, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Canadian county on or about the 13'th day of April, 1922, Grover Rhodes did then and there willfully, unlawfully, and feloniously give to and otherwise furnish Ruth Early, a minor, intoxicating liquor, to wit, corn whisky; she, the said Ruth Early, then and there being under the age of 18 years. On the trial the jury returned a verdict, finding the defendant guilty of furnishing intoxicating liquor to a minor as charged in the information, and fixing his punishment at confinement in jail for six months, and a fine of $500. He has appealed from the judgment rendered in pursuance of the verdict. The overruling of the defendant’s demurrer to the information is assigned as error. This was a prosecution under section 6996 — 7, C. S. 1921, which makes it a felony “for any person to barter, sell or give to any minor,” any spirituous, vinous, fermented or malt liquors. It is a companion case to that of Carey v. State, 27 Okla. Cr. 276, 226 P. 1063. The information is sufficient and the demurrer thereto was properly overruled.

The evidence shows that Ruth Early, a minor 14 years of age, went riding with Bert Carey, Paulin Henderson, and Elmer Green; that they drove a few miles north of El Reno, then returned to the city and stopped in front of the Bergren barber shop; Grover Rhodes and Harry Laird were standing on the sidewalk; Carey called to Grover Rhodes and they had a conversation, after which Rhodes went away and came back, and he and Harry Laird got into the car; Carey drove a mile or two south of town and stopped, there the four men and one of the girls, Ruth Early, each took a drink of corn whisky from a pint bottle. Ruth Early testified that when she got into the car there was a bottle in the seat containing a small amount of grape juice and corn whisky mixed, and she drank it; then Carey drove back to El Reno and stopped in front of the barber shop; 'Grover Rhodes was standing there, and Carey called him and whispered something to him; Rhodes went away and came back and got into the car; Carey asked Rhodes how much he wanted, Rhodes said $2.50, and Carey handed him a bill, and Rhodes gave Carey $2.50 in change; that a mile or two south of town they stopped; that Rhodes handed her a pint bottle and she took a drink, and it was corn whisky; that Rhodes and Carey each took a drink; that she did not know whether any one in the back seat took a drink.

Harry Laird testified that Bert Carey called Grover Rhodes to the car and wanted him to get some whisky for him, and Grover said that he would go and see if he could find any, and went away, then came back, and got into the car; Carey drove south a mile or two and stopped. All four men and Ruth Early took a drink from a pint bottle of whisky. That the first time he saw the bottle Grover Rhodes handed it to Elmer Green, Green handed it to him, and he handed it to Bert Carey. The defendant requested the court to give the following instruction:

“You are instructed that, if you find from the evidence that the defendant, Grover Rhodes, sold the whisky in question to Bert Carey, or obtained the same for him, and that Carey paid therefor, then, and in that event, the defendant would not be guilty of the offense charged in the information.” Refused. Exception allowed. James I. Phelps, Judge.

The court instructed the jury in part as follows:

“The laws of this state provide that it shall be unlaw-, ful for any person to barter, sell, or give to any minor any spirituous, vinous, fermented, or malt liquors, or any imitation thereof or substitute therefor. And, in this connection, if you find and believe from the evidence in this case beyond a reasonable doubt that on the 13th day of April, 1922, in Canadian county, state of Oklahoma, Grover Rhodes furnished to Ruth Early intoxicating liquor, to wit, corn whisky, as alleged in the information, and that at said time said Ruth Early was a minor under the age of 18 years, then the defendant would be guilty of the charge against him, and in this connection, you are instructed, gentlemen, that it would make no difference as to whether he actually handed the whisky to the girl or whether he just furnished it to the party in the automobile and some of the rest of them actually handed it to her, if he furnished it for that party and Ruth Early thereby procured it, then he would be as guilty as though he may have handed it to her himself directly.” Excepted to by defendant and exception allowed. James I. Phelps, Judge.

It is contended by counsel that the court erred in refusing to give the requested instruction and erred in misdirecting the jury to the defendant’s prejudice in giving the instruction excepted to.

It will be observed that the words of the statute are “to barter, sell or give to any minor.” The word “furnish” does not occur in the statute nor the phrase “otherwise furnish” as alleged in the information, or the word “furnish” as used by the court in the instruction excepted to.

In Scott v. State, 6 Okla. Cr. 492, 119 P. 1023, this court said:

“If one is to be charged with furnishing liquor, the facts constituting the furnishing should be pleaded. ‘Furnishing’ is a very indefinite term. Every sale is a furnishing, but not every furnishing is a sale.”

It is not the province of the court to bring acts with-' in the scope of the law simply because it may be thought that such acts fall within the spirit of the law. A penal statute will not be extended by implication or construction to cases which may be within the mischief which the statute was designed to cure, if they are not at the same time within the limits of the act, fairly and reasonably interpreted. Hence an act not expressly prohibited by such a statute cannot be reached by it, merely because it resembles the offense provided against, or may be equally and in the same way demoralizing or injurious. Black Interp. Laws, 287.

To furnish is to provide or supply anything wanted by another, and necessarily carries with it the idea of ownership, property in, or dominion over the thing furnished by the one who furnishes.

To “sell” a thing is to part with the ownership thereof to the buyer for a compensation.

In the case of Siegel v. People, 106 Ill. 89, the court said:

“The word ‘sell’ has a well-known legal signification, and, in the absence of anything to the contrary appearing in the statute, we must assume that it is here intended to have that signification. * * *
“We cannot extend the terms of a criminal act beyond its clear legal meaning. We cannot construe the word ‘sell,’ in such a statute, to mean something different from its ordinary legal import, and we can therefore only understand a prohibition against persons selling to minors to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. The prohibition against selling is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall apply the liquor.”

In the case of People v. Neumann, 85 Mich. 98, 48 N. W. 290, the Supreme Court of Michigan, distinguishing the Siegel Case, said:

“Our statute goes further than the Illinois law, and punishes the ‘furnishing’ of liquor to a minor, and the furnishing of liquor is ‘letting a minor have liquor,’ and is something more than giving. A narrow and technical definition of the word ‘giving’ might restrict its meaning to the handing of the liquor to him direct by the person giving it, as seems to be held by the Supreme 'Court of Illinois; but it is not necessary that a person should hand the liquor to a minor in order to furnish it. If the liquor, belonging to the person, and under his control, is, by his consent or connivance, permitted to be taken and drunk by the minor, whether it is passed to him direct or through the hands of another, is immaterial: the liquor in either case is furnished to such minor, within the meaning of our statute.”

The case of State v. Scoggins, 107 N. C. 959, 12 S. E. 59, 10 L. R. A. 542, is also cited by the Attorney General. In that case the bartender delivered the spirituous liquor to the buyer and his minor companion by placing the bottle and the glasses on the bar.

In the case of Bartman v. State, 38 Tex Cr. 543, 43 S. W. 984, the Court of Criminal Appeals of Texas held:

“A seller of a glass of intoxicating liquor, delivering it to a minor at the purchaser’s request, is not guilty of selling or giving it to the minor.”

That learned and eminent jurist, Judge Davidson, said:

“We believe that the testimony excludes a sale to Bisland by the employee. The fact that he visited the saloon with Branson, who purchased the intoxicants, and participated in the drinking at Branson’s request, would not make Bisland a purchaser. It may be that the jury convicted appellant because his employee, in response to Branson’s request, set out the glass of beer to Bisland, believing this to be a gift by the employee to Bisland. If this was the theory upon which the conviction is predicated, it cannot be sustained. If there was a gift at all, it was from Branson to Bisland, and not from the employee. This was no more a gift to Bisland than it was to Branson. Branson paid for the drinks, and caused the beer to be given to Bisland. As the evidence presents this case to us, there was neither a sale nor a gift by appellant or his employee to Bisland of the intoxicants, as alleged in the information.”

It is for the Legislature to define crime, and to provide for its punishment. And the courts should not invade the domain of legislative authority and undertake by judicial interpretation to enlarge the meaning of the words of a penal statute beyond their natural import and legal signification, or attempt to read into it words which it does not contain, in order to reach a kindred mischief to the one which the statute clearly makes an offense, although the mischief which is sought to be reached may appear to fall within the spirit of the act.

In conclusion we simply add that a person accused of crime should have no greater burden than is created by the evidence produced against him on the trial.

It follows from what has been said that the court committed error prejudicial to the substantial rights of the defendant in giving the instruction objected and excepted to.

The judgment of the trial court is therefore reversed and a new trial granted.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


author: BESSEY, P. J.

text:
    GUS KEY v. CITY OF ARDMORE.
    No. A-4352.
    Opinion Filed April 1, 1925.
    (234 Pac. 793.)
    (Syllabus.)
    L Constitutional Law — Municipal Corporations — Appeal Lies from Conviction of Violation of Ordinance to County Court — Statutes Giving Cities Power to Enact Ordinances Punishing Misde-meqnors Held Valid. The Legislature has delegated to urban communities the power to aid the state in keeping the peace, and has provided for the enactment of penal ordinances punishing offenses commonly termed misdemeanors and for appeals to the county court, and finally to this court; and the delegation of these functions was expressly and by implication authorized by the Constitution.
    2. Constitutional Law — Statute not Declared Unconstitutional, Except in Cases Free from Doubt. Courts will not declare a statute unconstitutional except in clear and urgent cases — eases so clear as to be free from doubt.
    3. Constitutional Law — Power of Legislature to Delegate Authority to Inferior Courts or Enlarge Jurisdiction of Existing Courts. The Legislature may delegate authority to inferior courts and provide for their jurisdiction, or enlarge the jurisdiction of existing courts, so long as the changes made are in no way in conflict with some fixed constitutional limitation.
    Appeal from Comity Court, Carter County; M. F. Winfrey, Judge,
    Gus Key was convicted of violating a municipal ordinance of the city of Ardmore, and he appeals from an order of the county court dismissing his appeal thereto.
    Reversed and remanded.
    Chas. A. Coakley and Thos. Norman, for plaintiff in error.
    R. B. Brown, City Atty., for defendant in error.
   BESSEY, P. J.

The plaintiff in error, Gus Key, was convicted of violating a municipal ordinance of the city of Ardmore by having illegal possession of whisky, with his punishment assessed at a fine of $19 and costs amounting to $1. From this judgment rendered in the municipal court, he appealed to the county court. The county court held that it was without jurisdiction to entertain the appeal and made an order dismissing the cause. From the judgment dismissing the appeal, plaintiff in error has appealed to this court.

The defendant in error, the city of Ardmore, claims that the county court of Carter county is without jurisdiction to entertain an appeal from a judgment of conviction for violating- a municipal ordinance, in this case, prescribing a punishment for the illegal possession of whisky. The city attorney claims that this was not a “criminal action,” within the meaning of sections 2346 and 2347, Comp. Stat. 1921, and that the action is therefore a civil action; and that an appeal, if authorized by law, must be lodged and prosecuted in the district court and not in the county court.

The sections of the statute mentioned read as follows:

“The proceeding by which a party charged with a public offense is accused and brought to trial and punishment is known as a criminal action.
“A criminal action is prosecuted in the name of the state of Oklahoma as a party against the person charged with the offense.”

These statutory provisions must be construed with other provisions of the Statutes and of the 'Constitution, relating to crimes and penalties and methods of appeal, some of which are as follows:

Section 1500, C. S. 1921:

“No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code. The words ‘this code’ as used in the ‘penal code’ shall be construed to mean ‘statutes of this state.’ ”

Section 1501, Id.:

“A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments:
“First. Death.
“Second. Imprisonment.
“Third. Fine.
“Fourth. Removal from office; or
“Fifth. Disqualification to hold and enjoy any office of honor, trust or profit under this state.”

Section 1, art. 7, Constitution of Oklahoma:

“The judicial power of this state shall be vested in the senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.”

A part of section 12, art. 7, provides:

“It [the county court] shall have such appellate jurisdiction of the judgments of justices of the peace in civil and criminal cases as may be provided by law, or in this Constitution.”

It will be seen that the Constitution provides for municipal courts, and section 4652, C. S. 1921, provides as follows:

“The term ‘municipal courts,’ as herein used, is hereby defined to mean and include all courts in the state of Oklahoma, organized and existing in the various towns and cities thereof, that shall have and possess under the Constitution and laws of the state, original jurisdiction to hear and determine offenses against ordinances of municipalities, and offense is hereby defined to mean the doing of some act prohibited, or failure to perform some duty commanded by the municipal ordinances, and for the violation of which a penalty or punishment is provided.”

In the year 1915 a statute was enacted providing for appeals from municipal courts, being section 4653, Comp. St. 1921, as follows:

“In all cases before a municipal court, except a judgment rendered on confession, an appeal may be taken by the defendant to the county court, and to such court only, where the trial thereof shall be had de novo on questions of both law and fact.”

In the year 1917 provision was made for appeals from judgments in municipal cases in the county court to the Criminal Court of Appeals as follows: '

“Appeals may be taken from the county court to the Criminal Court of Appeals from the judgment of such county court in the same manner as appeals in criminal cases are now prosecuted from the county court to the Criminal Court of Appeals.” Comp. St. 1921 § 4657.

No matter what the law may have been prior to the year 1915, since that time the Legislature has delegated to urban communities the power to aid the state in keeping the peace and has provided for the enactment of penal ordinances punishing offenses commonly termed misdemeanors and for appeals to the county court, and finally to this court; and the delegation of these functions was expressly and by implication authorized by the Constitution.

In the early history of the United States Supreme Court, that court established the principle that courts will not declare a statute unconstitutional except in clear and urgent cases — cases so clear as to be free from doubt. 6 R C. L. 75, and cases cited.

Applying that rule here, the statute authorizing appeals from penal judgments in municipal courts to the county court shall be upheld if it can be done by any rational construction. The powers delegated by the state to municipalities to enact penal ordinances to aid the- state to keep the peace cannot, under the Constitution and laws now existing, be construed as a part of our system of civil procedure. The violation of a penal ordinance is at least quasi criminal — usually denominated a misdemeanor. Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233; Franks v. City of Muskogee, 14 Okla. Cr. 391, 171 P. 492.

The statute designates a prosecution for a violation of a city ordinance as “offense,” and authorizes the imposition of a fine and costs, which may carry with it imprisonment; provides for the issuing of a commitment, the issuance of warrants of arrest and criminal complaints, and for pleas of a criminal nature. Section 4639, Comp. Stat. 1921.

This is, we think, a proper delegation of authority to the municipality by the law-making power of the state. The provisions of the Constitution, section 12, art. 7, supra, in no way limit the authority of municipal courts or affect the mode of appeal from judgments therein rendered. And where there is no constitutional prohibition the Legislature may delegate authority to inferior courts and provide for their jurisdiction, or enlarge the jurisdiction of existing courts, so long as the changes made are in no way in conflict with some fixed constitutional limitation. State v. Hooker, 22 Okla. 712, 98 P. 964; Burks v. Walker, 25 Okla. 353, 109 P. 544.

This court has in a number of instances entertained appeals from the county courts of this state imposing penalties for the violation of municipal ordinances. Miller v. State, 17 Okla. Cr. 734, 191 P. 1119; City of Blackwell v. Burgett, 14 Okla. Cr. 682, 166 P. 442; Franks v. City of Muskogee, 14 Okla. Cr. 391, 171 P. 492.

The appellate jurisdiction of the county court was not challenged in any of the cases just cited, but even so, this court could not entertain an appeal from a judgment rendered in a county court upon a conviction for a violation of a municipal ordinance, unless the county court was invested with jurisdiction to try such an offense on appeal from the municipal court; so that, inferentially, at least, this court held in those cases that an appeal may be taken in such cases from a municipal court to the county court, and finally from the county court to this court.

This court held in the Blackwell Case that the municipality could not appeal, for the reason that appeals are of statutory origin and the statute made no provision for an appeal by a municipality. But the statute does provide that an appeal may be taken by the accused. Section 4653, Comp. Stat. 1921.

For the reasons stated, the holdings that an action based upon a violation of a city ordinance is a civil action, in the cases of Fortune v. Town of Wilburton, 142 F. 114; 73 C. C. A. 338, 4 L. R. A. (N. S.) 782, 6 Ann. Cas. 565; Everts v. Town of Bixby, 24 Okla. 176, 103 P. 621, and McKee v. De Graffenreid, 33 Okla. 136, 124 P. 803, will not apply here.

No opinion is expressed as to the validity of the ordinance on which this prosecution was based, or as to whether the original process issued was sufficient to acquire jurisdiction.

The judgment of the county court dismissing the appeal and the order remanding the case to the municipal court for execution are ordered vacated and set aside, and the cause is remanded to the county court of Carter county for further proceedings de novo not inconsistent with this opinion.

DOYLE, J., concurs.

EDWARD'S J., absent and not participating.


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    J. H. LEE v. STATE.
    No. A-4893.
    Opinion Filed April 2, 1925.
    (233 Pac. 654.)
    (Syllabus.)
    1. Evidence — Eccentricities Alone not Evidence of Insanity. Temperamental eccentricities of mind and conduct, alone, are not evidences of insanity.

      2: Same — Peculiarities of Conduct May be Symptoms of Insanity, if Due to Disease of Mind. Idiosyncrasies, peculiarities, or unreasonable conduct may be symptoms of insanity, where these are due to some disease of mind, and where it is shown that at some prior period of the man’s life he was not possessed of such traits.
    3. Same — For Trial Judge to Determine Whether Proffered Testimony Reasonably Justifies Inference of Insanity. Where testimony tending to establish insanity is offered, the trial judge must determine, in the first instance, whether the proffered testimony reasonably justifies an inference of insanity.
    4 Same — Opinion Evidence on Insanity to Be Basedi on Facts Submitted. Opinion evidence on insanity must be shown to be based upon facts submitted as a foundation for that opinion. Mere conclusions of a witness, based upon observation, without a showing of facts from which such conclusions may logically be drawn, are insufficient.
    Appeal from District Court, Tulsa County; Preston S. Cole, Judge.
    J. H. Lee was convicted of murder, and lie appeals.
    Affirmed.
    H. F. Fulling and A. L. Harbison, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of the murder of C. W. Young, with his punishment fixed at life imprisonment. The defendant and his victim were brothers-in-law, between whom there had been hostile feeling for a long time. The two men met, by chance, on the streets of Tulsa, where, according to the testimony of the state, the defendant, without any new provocation, deliberately fired the shot which caused the death of Young. The defendant’s testimony tended to show that the deceased was the aggressor and that the defendant acted in self-defense,. As an additional defense there was an effort made to show that the defendant was of unsound mind at the time of the homicide.

The only claim of error urged in defendant’s brief is that the court excluded and withdrew from the jury testimony offered in some instances and given in others, which testimony tended to show that the defendant at the time of the homicide was insane. No attempt was made to establish defendant’s insanity by expert wit-neses, or those skilled as alienists, or persons trained and competent to diagnose or analyze disease of the mind.

A witness, Mr. Esley, said the defendant talked to him about building a cistern a short time before the homicide, and that at that time, as well as in earlier conversations, extending over a period of several years, defendant was prone to talk about his domestic troubles; that there did not seem to be anything particularly wrong with his appearance, except that he looked wan and tired, and that at times his conversations were more or less incoherent. Upon this statement of fact the court would not permit the witness to give his opinión as to the sanity of the defendant.

A witness, Seagrove, talked with the defendant for a period of five minutes about a month before the homicide. During this conversation the defendant seemed to be nervous, and talked about his family troubles. The witness had known the defendant some five years before the homicide, when he was a night watchman, and noticed that the defendant talked to himself frequently. The court refused to permit the witness to give his opinion as to the sanity of the defendant, based upon these facts.

John B.'Means, a lawyer, testified that the defendant, about a year prior to the homicide, had been employed by him as a night watchman; that on different occasions he talked about his family troubles; that he was rather nervous and excitable, and did not seem to be right in some respects. Upon this showing the wiU ness was permitted to anwer: “I would say that he [the defendant] was of unsound mind” — at the time of the conversations had with defendant a year before.

R. E. Berger, a lawyer, said the defendant came to his office nearly every day for a week or more, a short time before the homicide, for the purpose of obtaining professional assistance in regard to a collection; that defendant appeared to be disturbed in mind, nervous, and excited, but rational,. The witness had known the defendant long before this, and noticed that he had a wild stare in his eyes, and often appeared excited and talked a great deal, with constant repetitions, about his domestic troubles. The witness then stated that for the past four years he believed the defendant was irrational.

J. J. Moran, manager of a detective agency, testified that the defendant was of a nervous temperament, prone to talk about his family affairs; that these conversations took place some months prior to the homicide. In reply to a question witness said: “I would say that he was of unsound mind.” On cross-examination the witness admitted that he had employed the defendant as a night watchman, and that as such he was authorized to and did carry firearms.

William O’Connor, another witness, stated that about one month previous to the homicide he talked with the defendant concerning the city officials, and that the defendant’s conversation was disconnected and unreasonable — in a sense irrational.

Walter Large, the jailer in charge of the defendant, said that about three weeks after the defendant was incarcerated in jail he noticed that the defendant would ■walk to and fro from one cell to another and try to shake the doors, and that he sometimes uttered a loud, moaning noise. The court refused to allow this witness to give an opinion touching the sanity of the defendant.

Another witness, O. L. Gent, a plasterer by trade, Said that about 30 days before the homicide the defendant followed him about on the streets of Tulsa to tell the witness about his domestic troubles, and that he would repeat the same thing over and over; that defendant appeared nervous and his eyes did not look exactly right. The court refused to permit this witness to express an opinion as to the sanity of the defendant.

Before submitting the case to the jury the court instructed the jury not to consider any of the evidence relating to the question of insanity. It has been held.that temperamental eccentricities of mind and conduct, alone, are not evidences of insanity. A man may do the most extraordinary things; he may recklessly squander his 'money; his conduct may be the subject of ridicule; he may be addicted to sudden bursts of passion and of harsh treatment towards those he should treat with tenderness; his deportment upon a particular occasion may be an outrage upon decency and propriety. All this, if it be the result of eccentricity of character, or "of depraved taste, or an unfortunate temper, and does not proceed from a permanent disorganization of the mental faculties, will not support a plea of insanity. 16 Corpus Juris, 99, 100; 32 Corpus Juris, 597; Hopkins v. State, 4 O’kla. Cr. 197, 108 P. 420, 111 P. 947.

The opinion of a nonexpert witness that a person is irrational, based on observations of this character, is .a conclusion merely, not warranted by the facts. Most •persons have some temperamental peculiarities of thought and action that to others seem queer. The term “irrational” is an elastic term, one that may convey one idea to one person and an entirely different idea to another. “Irrational” may mean unreasonable, foolish, absurd, and a person in such sense may be irrational, and still not be, in any legal sense, insane. If it could be shown as a defense in every homicide case that the perpetrator at some period of his life acted queer, unreasonable, or absurd, that defense could be interposed and relied upon in all homicide cases. To establish a legal defense on the ground of insanity, there must be a showing that at the time of the commission of the deed the person accused was laboring under such a defect of reasoning, from some disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know, that he did not know that what he was doing was wrong. Notes and cases cited, 32 C. J., supra.

Idiosyncrasies, peculiarities, or unreasonable conduct may be a sympton of insanity, where these are due to some disease of the mind, and where it is shown that at some prior period of the man’s life he was not so afflicted.

Where testimony tending to establish insanity is offered, the trial judge must determine in the first instance whether the proffered testimony reasonably justifies an inference of insanity. Turner v. Territory, 11 Okla. 660, 69 P. 804. It follows, therefore, that if such evidence has been admitted, and the facts so shown do not justify an inference of insanity, the court may withdraw the testimony from the consideration of the jury.If, however, the evidence in any slight degree tends to support the plea of insanity, it should be admitted. If there is any competent testimony tending to establish insanity, the weight of such testimony is for the jury. Turner v. Territory, supra; Marshall v. State, 2 Okla. Cr. 136, 101 P. 139.

Opinion evidence on insanity must be shown to be based upon facts submitted as a foundation for that opinion. Mere conclusions of the witness, based upon observation, without a showing of fact from which such conclusions may logically be drawn, are insufficient. That being true, it would seem that erroneous conclusions, not warranted by the facts, may be excluded. Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L. R. A. 324.

From what has been said, we conclude that the trial court committed no error in refusing to permit the several witnesses to state their opinions as to the insanity of the defendant, based upon the facts shown, and committed no error in withdrawing from the jury the opinion expressed by other witnesses, based upon the facts shown.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

EDWARDS, J., absent and not participating.


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    J. W. RICHARDS v. STATE.
    No. A-4972.
    Opinion Filed April 2, 1925.
    (234 Pac. 645.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Sale — Evidence Sufficient. In a prosecution for selling intoxicating liquor, evidence beld to warrant a conviction.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    J. W. Richards was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.

      Pardue & Davis, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment rendered on a verdict of a jury, finding defendant, J, W. Richards, guilty of selling “one-half pint of' whisky to one Carl Holden, for the sum of $2,” and fixing his punishment at a fine of $50 and confinement in jail for 30 days. The petition in error and case-made was filed in this court December 24, 1923, but no brief in support of the assignments of error has been filed, and no appearance made on behalf of defendant in this court.

An examination of the record shows that the information is sufficient, and there is no substantial error in the instructions.

As a witness in his own behalf, the defendant admitted giving the whisky to the complaining witness. The only defense made was that he did not sell it or receive any money for. it.

Finding no error in the record, the judgment of the trial court is affirmed.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


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    WESLEY VAUGHN v. STATE.
    No. A-5117.
    Opinion Filed April 2, 1925.
    (234 Pac. 1118.)
    Appeal from County Court, Okmulgee ' County; W. A. Barnett, Judge.
    Wesley Vaughn was convicted of unlawfully pointing a pistol at another, and he appeals.
    Appeal dismissed.
    Brown & Reynolds and Francis Stewart, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.


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    STATE v. JOHN FERRELL et al.
    No. A-5306.
    Opinion Filed April 2, 1925.
    (234 Pac. 783.)
    Appeal from District Court, Kiowa County; Frank Mathews, Judge.
    The State of Oklahoma appeals from a judgment sustaining a demurrer to an information charging John Ferrell, T. E. Givens, C. A. Morris, L. T. M’cAtee, V. V. Long, and R. J. Edwards with embezzlement.
    Appeal dismissed.
    The Attorney General and Leon S. Hirsh, Asst. Atty. Gen., for the State.

      Rittenhouse & Rittenhouse, Twyford & Smith, Geo. L. Zink, Keaton, Wells & Johnston, and Tolbert, Hunter & Tolbert, for defendants in error.
   PER CURIAM.

The defendants in error were informed against in the district court of Kiowa county and therein charged with the crime of embezzlement. On the 20th day of May, 1924, the district court of Kiowa county sustained a demurrer to the information and discharged the defendants in error. From this ruling the state gave notice in open court of its intention to appeal to the Criminal Court of Appeals of the state of Oklahoma from such judgment and ruling of the district court.

The Attorney General has filed a confession of error, showing that on February 25, 1925, the defendants in error moved the dismissal of this appeal because the state failed to comply wth the provisions of the statute requiring that, if an appeal be taken by the state, notice thereof in writing must be served upon the defendant, if he can be found in the county, and, if not, by posting a notice thereof in the office of the clerk of the district court of said county for three weeks. C. O. S. 1921, § 2809.

Section 2814, Id., provides that an appeal might be perfected by case-made and summons in error, but in such event summons in error would, of course, have to be served upon the defendants in error, as required by law..

The record contains no record of written notices of appeal, served or posted, nor any showing of summons in error. Supplementing the record and attached to the motion to dismiss the appeal are several affidavits, all stating that none of the defendants were served with any notice of appeal, as required by law, nor was such notice posted in the office of the clerk of the district court of Kiowa county, nor was summons in error served upon any of the said defendants. This being true, this court is without jurisdiction to entertain this appeal.

The appeal is therefore dismissed.


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    J. M. HAU v. STATE.
    No. A-4829.
    Opinion Filed April 3, 1925.
    (234 Pac. 649.)
    (Syllabus.)
    1. Trial — Right to Instruction on Any Material Question of Law Arising on Evidence. It is the duty of the court upon a proper request, in a criminal case, to instruct the jury upon any material question of law arising on the evidence.
    2. Same — Right to Instruction on Circumstantial Evidence. Where in a criminal case, circumstantial evidence solely is relied on for a conviction, it is error for the trial court to fail and refuse to instruct on the law applicable thereto, when the defendant requests it.
    3. Appeal and Error — Prejudicial Error — Admitting Hearsay Evidence. Where hearsay evidence has been received, which reason-
    , ably contributed to a verdict of guilty, the admission of such evidence does not constitute harmless error, but will be ground for reversal.
    4. Trial — Prosecuting Attorney Declaring Law to Jury to Prejudice of Accused. A prosecuting attorney should not assume the function of the court and declare the law to the jury to the prejudice of the defendant.
    “ Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    J. M. Iiau was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Babcock & Trevathan, for plaintiff in error.

      George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment rendered on the verdict of a jury finding appellant, J. M. Hau, guilty on a charge that he did have possession of “about 20 gallons of corn whisky, for the purpose of selling, bartering, and otherwise furnishing the same,” and fixing his punishment at a fine of $500 and confinement in the county jail for a period of 6 months.

The errors relied on relate to rulings of the court in the admission of evidence, in refusing to give requested instructions, and alleged improper and prejudicial remarks by the county attorney in his argument to the jury. It appears that defendant is a farmer, owning a half section of land near the town of Okarche. The testimony shows that, when the officers visited the defendant’s farm, they found a five-gallon glass bottle partly full and two kegs full of whisky buried in a field, and a quart bottle partly full of whisky in a granary, and three or four empty kegs in a shed. They found Jim Jones, the defendant’s hired man, and another man, a tenant on the place, fixing a Ford car near the house; that the defendant came, there before the officers left.

.As a witness in his own behalf the defendant testified that he had lived in that neighborhood 28 years; that Jim Jones was working for him, and Mr. Graham was raising cotton on the shares on the place; that his other farm was 2*4 miles from the place where the officers found the whisky. He denied any knowledge of the whisky found by the officers.

Ollin Blair testified that with his neighbor, Helm, he was returning from Okarche to his. home with a load of cotton seed in the car; that it was after dark when they passed Hau’s place; there was a Ford car by the side of the road and two men near by; one had a keg on his shoulder, and started over in Hau’s field; that it was along the last of March.

S. P. Helm testified that he went with Mr. Blair to Okarche for cotton seed; that as they came hack, on the road south of Hau’s place, there was a car stopped by the side of the road, and two fellows got out, and one had a keg on his shoulder, going into Hau’s field.

A banker, a merchant, and two or three farmers qualified as character witnesses, and testified to having known the defendant for more than 20 years in that neighborhood, and that he had always borne a good reputation as to being a law-abiding citizen.

J. P. Ellison,. first witness called by the state, testified that he lived at Oklahoma City and was a federal prohibition agent; that with other officers he visited the defendant’s place in Canadian county, and they found a glass bottle and two kegs of whisky buried on .the defendant’s farm; that he met the defendant that day at his home. On his direct examination he was then asked by the county attorney: “What was the occasion of you being at his home?” Witness answered: “We had information that he was selling liquor.” Whereupon the defendant moved to strike the answer as hearsay testimony, which was overruled. Exception reserved. We are of opinion that the exception is well taken, and it was prejudicial error for the court to overrule the motion to strike.

In McRae v. State, 8 Okla. Cr. 483, 129 P. 71, it was held:

“Where the motive of an officer for making a seizure of intoxicating liquors is not an issue in a case, it is improper to allow him to state any information which he had received and upon which he acted in making such seizure.”

And further:

“Where hearsay evidence has been received which reasonably contributed to a verdict of guilty, the reception of such evidence does not constitute harmless error, but will be ground for reversal.”

And see Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A. 1917D, 491; Ellington v. State, 24 Okla. Cr. 67, 215 P. 964.

The defendant requested several instructions, all of which were refused, nor were they in any way in part included in the instructions given.

Requested instruction No. 1 was the usual approved instruction on the law of circumstantial evidence. We think that the defendant was entitled to have the jury charged on the law of circumstantial evidence. In Kirk v. State, 11 Okla. Cr. 203, 145 P. 307, it was held:

“Where the evidence relied upon by the state is entirely circumstantial, it is error for the court to refuse to give a requested instruction on the law applicable thereto.

And see Pierson v. State, 13 Okla. Cr. 382, 164 P. 1005.

The defendant also requested the following instruction :

“You are further instructed that the mere finding of whisky on defendant’s farm would not of itself authorize you to find that defendant had possession of the same, and if you should believe from the evidence that the defendant did not own the said whisky, and did not know that it was buried on his premises or if you have a reasonable doubt as to whether he owned the same or that he had knowledge it was so buried, you should find the defendant not guilty.
“Refused. W. N. Wallace. (Exception allowed.)”

On the trial of a criminal case questions of law are to be decided by the court, questions of fact are to be determined by a jury, and the court should instruct upon the law applicable to the case, which may be determined by the accusation and the evidence introduced on the trial. Whether or not the defendant had knowledge that the whisky was buried on his premises was a question for the jury to determine under proper instructions. Under the evidence in this case the requested instruction, or one similar, should have been given.

Another assignment of error is that the court permitted the county attorney in his closing argument to say:

“Mr. Babcock has said to you that there was no proof that Hau, if he had possession of this liquor, had possession of it for the purpose of selling it. The court has instructed that we don’t have to prove an intention to sell. Possession is prima facie evidence of an intention to sell, and when the state has proved to you that he had possession the burden of proof shifts to the defendant to prove to you beyond a reasonable- doubt that defendant did not have it for the purpose of bartering, selling, or otherwise furnishing. They talk to you about reasonable doubt. I wonder how they like it when it is the other way .round.”

An exception was taken by the defendant’s counsel and the court ruled as follows: “The jury will follow the instructions of the court.” The rule is well settled that it is error to permit the prosecuting attorney, against objection, in argument before the jury, to misstate the law. It is not for county attorneys to declare the law to the jury. That is the duty of the court, and the county attorney is as much bound by .the law, as declared by the court, as are the jury and the defendant. That this misstatement of the law was prejudicial to the defendant cannot be doubted.

Persons accused of crime must be fairly tried, and when so tried we shall not interfere to prevent them from being punished: but it is not only the duty of this court, but every officer of the state who has duties to perform in the prosecution of persons accused of crimes, to see that they have a fair and impartial trial. It follows, from what has been said, that the defendant has not had a fair and impartial trial.

The judgment of conviction is therefore reversed, and the case remanded.

BESSEY, P. J., concur.

EDWARDS, J., absent.


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    E. J. BARNES v. STATE.
    No. A-4973.
    Opinion Filed April 3, 1925
    (234 Pac. 648.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Sufficient. In a prosecution for illegal possession of intoxlcatng liquor, evidence held to warrant a conviction.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    E. J. Barnes was convicted of illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    Mosier, Bohannon & Mosier, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, E. J. Barnes, was convicted on a charge that he did have in his possession 42 gallons of whisky, with the intention of conveying, bartering, selling, or otherwise disposing of the same, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a term of six months and to pay a fine of $500. From the judgment he appealed, by filing in this court on December 26, 1923, a petition in error with case-made.

The petition contains 17 assignments of error, but no brief has been filed and no appearance made on behalf of the plaintiif in error in this court. The testimony of three witnesses for the state shows that the officers, in executing a search warrant, went to the defendant’s house and found between 40 and 45 gallons of corn whisky in kegs and glass jars, and 6 or 7 barrels of mash. The defendant did not testify.

An examination of the record shows that the information is sufficient. There is no prejudicial error in the rulings upon the admission of testimony, and the instructions fully state the law applicable to the case. Our conclusion is that the appeal is wholly destitute of merit. .

The judgment of the trial court is accordingly affirmed. Mandate forthwith.

BESSET, P. J., concurs.

EDWARDS, J., absent.


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    BILL MARSHALL v. STATE.
    No. A-4901.
    Opinion Filed April 4, 1925.
    (234 Pac. 1117.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Bill Marshall was convicted of the illegal sale of whisky, and appealed.
    Appeal dismissed.
    W. B. Toney, for plaintiff in error.

      The Attorney General and G. B. Fulton, Asst. Atty. , Gen., for the State.
   PER CURIAM.

Bill Marshall, plaintiff in error, was convicted of the offense of unlawfully selling whisky to Russ Artman on the 8th day of July, 1922, with his punishment assessed at a fine of $250 and 90 days’ confinement in the county jail. Upon a due showing made by the attorney for the plaintiff in error and the Attorney General, it appears that the plaintiff in error is now deceased. It is therefore ordered that the proceedings here be abated, and the appeal dismissed.


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    JOHN MACKEY v. STATE.
    No. A-4856.
    Opinion Filed April 4, 1925.
    (234 Pac. 782)
    (Syllabus.)
    Evidence — Extrajudicial Statement After Arrest, in Answer to Questions — Corroboration—Refusal of Accused to Answer Questions by Officers Inadmissible. An extrajudicial statement made by the accused while under arrest, in response to questions propounded by the officers, should be corroborated by some other evidence.
    (a) Where the accused, under such circumstances, refused to answer any of the questions propounded, evidence of the fact that he did so refuse is inadmissible.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Johny Mackey was convicted of the illegal transportation of intoxicating liquor, with his punishment fixed at a fine of $100 and a term of 60 days in the county jail, and he appeals.
    Reversed and remanded.
    M. D. Hartsell, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This conviction rests entirely upon extrajudicial statements made by the plaintiff in error, here referred to as the defendant, while under arrest in the office of the county attorney of Muskogee county, as testified to by a witness H. L. Watts, a deputy sheriff. This witness stated that after he had arrested the defendant, he took him to the office of the county attorney, where he was interrogated. Following some preliminary questions, the record discloses the following:

“By the County Attorney: Q. What whisky were we talking about, Mr. Watts? A. The whisky that was gotten at 623 South Third street.
“Q. Is that the whisky we were talking about? A. Yes, sir.
“Q. Tell the court and jury what was said at that time. A. You asked Johny Mackey (the defendant) what he knew about the whisky, and he said he got it out on the highway and hauled it to his house and left it for Sam Hendricks.
“Q. Do you remember whether Rosette Arnette said anything to Johny Mackey? A. Yes, she talked to him quite a bit; but I don’t remember the conversation, in the exact words, anyway. She told him he knew if he brought the whisky there, and if he did it wouldn’t be any use to ■ deny it.
“Q. She said that in his presence? A. Yes, sir.
“Q. Did he say anything?
“Mr. Hartsell: We object to him answering that and move the court to instruct the jury to disregard it.
“The Court: Overruled.
“Mr. H'artsell: Exceptions.
“A. He went ahead and explained about how it got there and where he got it.”

The liquor was found at the house where Rosette Arnette and three other women resided, not the home of the defendant. There was no testimony, outside of Watts’ recital of defendant’s statement made to the county attorney, to connect the defendant with the whisky or its transportation.

Defendant urges that as a matter of law the extrajudicial statement of the defendant while under arrest, as related by the witness Watts, above quoted, must be corroborated by independent testimony, and that there was no other competent testimony that could be construed as corroboration.

We are inclined to agree with the contention of defendant. The statement of the witness Watts that Rosette Arnette told the defendant that “he (the defendant) knew if he brought the whisky there, and if he did it wouldn’t be any use to deny it,” does not rise to the dignity of independent evidence in proof of the corpus delicti. The witness’ answer, “He (the defendant) went ahead and explained how it got there and where he got it,” is a part of the extrajudicial statement and not independent evidence of possession or transportation. The defendant was not bound, while under arrest and there being interrogated, to answer one way or another, and evidence of his refusal to answer was prejudicial and should not have been admitted. Ellington v. State, 40 Okla. Cr. 67, 215 P. 964; Vaughan v. State, 7 Okla. Cr. 685, 127 P. 264, 42 L. R. A. (N. S.) 889; Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A. (N. S.) 811.

The reason for requiring an extrajudicial statement made by a person under arrest to be corroborated by independent testimony is stated in 1 R. C. L. 588, thus:

“The grounds on which the rule requiring independent proof of the corpus delicti rests are the hasty and unguarded character which confessions often have, the temptation which for one reason or another a person may have to say that which he thinks it is most for his interest to1 say, whether true or false, the liability which there is to misconstrue or report inaccurately what has been said, the danger of conviction when no crime may have been committed, the difficulty of disproving what may be said, and the feeling that the rule best accords with the humanity of the criminal law and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.”

Rosette Arnette did not testify, and the statement of the witness Watts as to what she said was incompetent and prejudicial and should have been excluded, leaving the extrajudicial statement without any corroboration whatever.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE, J., concurs.

EDWARDS, J., absent and not participating.


author: BESSEY', P. J.

text:
    JACK DUNN v. STATE.
    No. A-4683.
    Opinion Filed April 4, 1925.
    (234 Pac. 784.)
    (Syllabus.)
    Evidence — Illegal Search and Conflict in Analyses of liquor Rendering Conviction Erroneous. Held that, upon the showing made by the record as a whole, the defendant was not accorded such a fair and impartial trial as is contemplated by law.
    Appeal from County Court, Caddo County; R. L. Lawrence, Judge.
    Jack Dunn was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Morgan & Osmond, for plaintiff in error.

      The Attorney General and V. P. Crowe, Asst. Atty. Gen., for the State.
   BESSEY', P. J.

The plaintiff in error, Jack Dunn, here referred to as the defendant, was charged with the illegal possession of 229 pint bottles and 40 gallons of home brew beer, with the unlawful intent to barter and sell the same. By verdict of a jury he was found guilty, and his punishment was assessed at confinement in the county jail for a period of 30 days, and to pay a fine of $500.

There were some peculiar and unusual situations developed in this case. The defendant’s home was searched by certain peace officers under authority of a search warrant, predicated upon an affidavit for a search warrant void on its face, in that the affiant stated conclusions and belief merely, without stating any facts in support thereof.

The return of the officer who executed this search warrant recited that he had destroyed the 40 gallons and 229 pint bottles of liquor seized. In conflict with the statement made in the officer’s return on the search warrant, the officers, during the course of the trial, testified that they saved 6 bottles of this home brew beer for evidence, and that these 6 bottles were placed in a locker with other liquors of various kinds, in charge of the sheriff; that subsequently the tops of two of the bottles came off; that one of the remaining 4 bottles was sent to a chemist, C. V. Nichols at Anadarko, for analyr sis.

This witness qualified as an expert on analysis by Showing that he had studied chemistry and done quantitative analysis in the University of Oklahoma, of which he was a graduate; that he had done postgraduate work in chemistry in the University of Michigan; that he was a graduate of the School of Pharmacy of the University of Oklahoma, and had taught chemistry in the College of Pharmacy at Kansas City. His report on the bottle of liquor he had analyzed showed an alcoholic content of 8 per cent. There was some controversy about the identity of this bottle, whereupon the court continued the trial and by agreement of parties two other bottles were labeled and sent for analysis to Dr. Edwin De Barr, then head of the chemistry department of the University of Oklahoma. Dr. De Barr’s analysis showed no alcoholic content whatever.

According to the record, both chemists were eminent in their profession, and from the result of their respective analyses it would appear that the six bottles reserved for evidence, or some of them (if they were so reserved), must have been inadvertently confused with other bottles in the locker; or that some of these bottles must have been purposely replaced with bottles of beer procured elsewhere; and that a fraud was perpetrated upon the court, or upon the defendant, or both.

It has been suggested by the Attorney General that, conceding that the search warrant was void, since the defendant made no objection to the search he waived his immunity from an illegal search and seizure. Without going into details, we doubt from what appears in the record that there was any such waiver.

The conflict in the evidence as to the alcoholic content of these sample bottles of the liquor here at issue, under the circumstances, did not raise a question of the credibility of the expert witnesses; both chemists were well qualified to make such analysis and there is nothing tending to impeach the analysis of either of them. There had certainly been either an intentional substitution or an inadvertent mingling of these bottles with others in the locker.

Without basing our conclusions wholly upon either of the irregularities treated, we hold that the defendant was not accorded such a fair and impartial trial as is contemplated by law. There are other irregularities appearing in the record which strengthen this conclusion.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE, J., concurs.

EDWARDS, J., absent, and not participating.


text:
    HENRY STARR v. STATE.
    No. A-4969.
    Opinion Filed April 4, 1925.
    (234 Pac. 785.)
    (Syllabus.)
    Intoxicating Liquors — Illegal Possession — Evidence Sufficient. In a prosecution for illegal possession of intoxicating liquor, evidence held to sustain a conviction.
    Appeal from County Court, Okfuskee County; William L. Seawell, Judge.
    Henry Starr was convicted of illegal possession of intoxicating liquor, and appeals.
    Affirmed.
    Huddleston & Stephenson, for plaintiff, in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Okfuskee county, on or about the 13th day of September, 1923, Henry Starr did have and keep in his possession certain intoxicating liquor, to-wit, “one and one-half pints of whisky, with the unlawful intent to sell the same.” Oh the trial the jury returned a verdict finding the defendant guilty, and fixing his punishment at a fine of $100 and confinement in the county jail for • 90 days. From the judgment entered upon the verdict the defendant appeals.

The errors assigned relate to rulings of the court-in the admission of evidence, and question the sufficiency of the evidence to sustain a conviction. No brief in support of the assignments of error has been filed, and no appearance made on behalf of the defendant in this case.

The evidence shows that the officers in executing a search warrant found three small bottles of whisky and a jug that had contained whisky; that the defendant’s place of business had the reputation of being a place where whisky was kept and sold.

As a witness in his own behalf the defendant testified that before the officers arrived he had stepped out and bought the whisky for his own use; that he had never sold any whisky; and that he did not know anything about this jug the officers found.

On cross-examination he admitted that he had entered a plea of guilty in the county court of Ok-fuskee county on a charge of illegal possession of intoxicating liquors.

While the defendant is not represented in this court, we have examined the record, and, finding no reversible error, the judgment of the lower court is affirmed.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


text:
    ELMER WILLIAMS v. STATE.
    No. A-4963.
    Opinion Filed April 6, 1925.
    (234 Pac. 781.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Proof Required that Liquor is Intoxicating. A conviction for unlawful possession of intoxicating liquor, to wit, choc beer, cannot be sustained, where there is no evidence to show that said liquor is intoxicating.
    2. Evidence — Evidence Procured in Unreasonable Search Inadmissible. Evidence procured in violation of an accused’s constitutional protection against unreasonable search and seizure, under Const, art. 2, § 30, is inadmissible against him upon his trial.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Elmer Williams was convicted of possession of intoxicating liquor, and he appeals.
    Reversed.
    R. C. Roland, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Elmer Williams, was convicted on an information charging that in Carter county, June 22, 1923, he did “unlawfully have in his possession certain intoxicating liquor, to wit: Two quarts and three pints of Choctaw beer, with the unlawful intent to sell the same,” and in accordance with the verdict he was sentenced to pay a fine of $50 and be confined in jail for 30 days. To reverse the judgment he appeals and assigns as error the admission of testimony of the officers as to their search and seizure, and that the verdict is not sustained by the testimony.

J. W. Ginn, deputy sheriff, testified that with deputy sheriff Jesse Dunn he searched the defendant’s home in Ardmore, and found two quarts and three pints of choc beer; that he understood that Mr. Dunn had a search warrant.

Jesse Dunn, deputy sheriff, testified in substance to the same facts as did the witness Ginn. He further testified, as follows:

“Q. Where is that search warrant? A. I tore it up.
“Q. Never made any return on it? A. No, sir.
“Q. Jessee, at that time did you know the reputation of his place as being a place where he handled that kind of stuff? A. We had a letter stating that— yes; the reputation was bad.”

The state rested, and the defendant moved to strike all the testimony with reference to the search and seizure, for the reason that the same is incompetent, because the officers had no authority to search the place.

This motion was denied, and during the trial the question was saved for review by timely objections and exceptions.

Evidence obtained in violation of an accused’s constitutional protection against unreasonable search and seizure under Const, art. 2, § 30, guaranteeing the security of the people and their right to be exempt in their persons, houses, papers, and effects from unreasonable search and seizure cannot be used as evidence against him upon his trial.

In Duncan v. State, 11 Okla. Cr. 217, 144 P. 629, it was held that under the statute (section 7013, C. S. 1921) no officer is authorized to search a private residence occupied as such or any portion thereof, unless it or some part of it was used as a store, shop, hotel, boarding house, or place of storage, or unless such residence is a place of public resort, and that no magistrate in this state has the power to' issue a search warrant to search a private residence occupied as such, unless it is made clearly to appear that such private residence comes within the exceptions stated in said section. And see Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Russell v. State, 25 Okla. Cr. 423, 221 P. 113.

It follows that the search and seizure shown in this case was an invasion of the constitutional rights of the defendant, and the defendant’s motion to strike should have been sustained. Assuming that the testimony was admissible, it was insufficient to show that the so-called choc beer was intoxicating liquor, or contained as much as one-half of 1 per centum of alcohol, measured by volume. Section 6999, C. S. 1921.

For the reasons stated, the judgment is reversed.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


text:
    F. M. McPHETRIDGE v. STATE.
    No. A-4964.
    Opinion Filed April 6, 1925.
    (234 Pac. 785.)
    (Syllabus.)
    1. [intoxicating Liquors — Unlawful Possession — Evidence Insufficient. In a prosecution for illegal possession of intoxicating liquor, to wit, Choc beer, evidence held insufficient to support the verdict.
    2. Evidence — Character of Accused Subject to Attack Only After Being Put in Issue by Him. The state cannot attack the character or reputation of a defendant, unless he first puts that in issue by introducing evidence of his good character.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    F. M. McPhetridge was convicted of having possession of intoxicating liquor, and he appeals.
    Reversed and remanded.

      . R. C. Roland, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant was convicted under an information charging that on June 27, 1923, he unlawfully had in his possession intoxicating liquor, “to wit, 16 gallons of Choctaw beer,” with the unlawful intent to barter, and sell the same, and in accordance with the verdict he was sentenced to pay a fine of $50 and be confined in jail for 30 days. To reverse the judgment he appeals and assigns as error rulings of the court in admitting incompetent evidence and in refusing to give requested instructions, and that the verdict is contrary to the law and the evidence.

J. W. Ginn, deputy sheriff, testified that, with Deputy Jesse Dunn and Constable Oscar Simpson, he visited the place where appellant and his daughter lived, one mile north of Lone Grove, and in executing a search warrant they searched the house and found a “16-gal-lon keg of Choc beer”; that he went for a fruit jar to get some to have it analyzed; that the defendant’s daughter, Mrs. Bill Price, was there, and when he returned the keg was turned over; that the officers took the keg “and busted it up.”

Jesse Dunn, deputy sheriff, and Oscar Simpson, constable, testified in substance to the same facts as did the witness Ginn.

The defendant moved ta strike all the testimony with reference to the search and seizure, for the reason that the same is incompetent, because the officers had no authority to search the place. The motion was supported by the testimony of D. W. Butcher, justice of the peace of Ardmore township, who testified that he could not find the affidavit upon which he issued the search warrant. The search warrant with the return thereon was introduced in evidence, showing that the same issued on the affidavit of John W. Ginn, deputy sheriff, against F. D. McPhetridge, and the business house of said F. D. McPhetridge, situated in Carter county. This motion was denied.

For the defense, Mrs. Spencer McPhetridge testified that her home was five miles east of Ardmore and the defendant’s. Her father-in-law had made his home with them for several months prior to his arrest.

Sallie McPhetridge testified that she lived with her mother and was at home when the officers searched the house; that the keg seized was one that her mother was preparing to use in putting up cucumber pickles; that her father had not lived there for several months, but came there that day before the officers; that she saw John Ginn with the keg, but did not know who emptied it.

Marildy May, wife of the defendant, testified that she was in Ardmore that day, and the keg seized by the officers was one she had soaked up to pickle cucumbers in, which she had bought from Mr. Webb and Mr. Palmer; that defendant had not lived at her house for nearly two years.

As a witness in his own behalf, the defendant testified that since he and his wife separated he made his home with his son Spencer most of the time; that he visited Bill Price, his son-in-law, who lived near his wife and daughter, and the next day the officers came to his wife’s place; that he was past 60 years and never made any Choc beer in his life, and never was convicted of selling or manufacturing intoxicating liquors.

In rebuttal, John W. Ginn testified that he intended the search warrant for this defendant. Against the defendant’s objections, he further testified as follows:

“Q. John, how long have you known the defendant? A. Known him about three years.
“Q. You know the reputation in the community in which he lives as being a man who handled intoxicating liquor? A. Yes, sir.
“Q. Reputation good or bad? A. Bad.”

The defendant renewed his motion to strike the testimony, and this motion was denied.

After a careful consideration of the record, our conclusion is that the judgment should be reversed. Viewing all the testimony in the case as competent and admissible, it is apparent that it is insufficient to support the verdict. The testimony is insufficient to show possession by the defendant of the keg in question and its contents. There is no testimony to show that the contents of the keg was intoxicating liquor, or that the liquid in question contained as much as one-half of 1 per cent, alcohol.

The rule is well settled that the state cannot attack the character or reputation of the defendant unr less he puts that in issue by introducing evidence of his good character. Smart v. State, 21 Okla. Cr. 433, 228 P. 611; Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293.

It follows that the court erred in admitting evidence of the . general reputation of the defendant as being a man who handles intoxicating liquor.

We do not deem it necessary to consider the other assignments of error.

For the errors indicated, the judgment of the lower court is reversed and the cause remanded.

BESSEY, P. J., concurs.

EDWARDS, J., absent.


text:
    Ex parte DORA BONITZ.
    No. A-5516.
    Opinion Filed April 7, 1925.
    (234 Pac. 780.)
    (Syllabus.)
    1. Habeas Corpus — Jurisdiction to Render Judgment and Sentence Proper Subject of Inquiry. The jurisdiction of a court or judge to render a particular judgment and sentence, by which a person is imprisoned is a proper subject of inquiry on habeas corpus.
    2. Same — Release of Child under 16 Years of Age Imprisoned in Pursuance of Void Judgment. Where the law did not authorize the proceedings under and by virtue of which a child under 16 years of age was imprisoned, there was a lack of jurisdiction, and the judgment void, and habeas corpus a proper remedy to obtain a release from imprisonment.
    3. Infants — Determination by Juvenile Court that Child Under 16 Knew Wrongfulness of Acts Necessary to Give Courts Jurisdiction to Try for Crime. Under the provisions of the statute establishing juvenile courts and prescribing their jurisdiction and control of delinquent children (sections 8070 to 8089, O. S. 1921), a child under 16 years of age cannot be guilty of the commission of a crime except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony.
    4. Habeas Corpus — Statutory Duty of Commissioner of Charities and Corrections to Institute Proceedings for Release of Children Wrongfully Imprisoned. The statute not only authorizes the commissioner of charities and corrections to institute proceedings in this character of cases but imposes that duty.

      Petition of Dora Bonitz, mother of Milburn Bonitz, a minor, for habeas corpus to be directed to the Warden of the State Reformatory at Granite, to secure his discharge from custody.
    Writ allowed.
    Mrs. Mabel Bassett, Com’r of Charities and Corrections, and Mrs. Jessie Moore, Asst. Com’r of Charities and Corrections, for petitioner.
    George F. Short, Atty. Gen., G. B. Fulton, Asst. Atty. Gen., and B. F. Holding, Co. Atty. of Grady Co., for respondent.
   DOYLE, J.

The petition for writ of habeas corpus based upon the following facts as shown by the petition and response to a rule to show cause why the writ should not issue.

It appears from the record in this case that petitioner, Milburn Bonitz, a minor under the age of 16 years, was upon complaint filed before H. L. Grigsby, justice of the peace of Carter county, on the 5th day of February, 1925, arrested and on the same day was brought before said justice, and without the aid of counsel waived a preliminary examination and was held to answer to the district court for the offense of second degree robbery. On the same day an information was filed in the district court of Grady county, charging the petitioner with the crime of burglary, and on the same day petitioner was arraigned before said district court, and without the benefit of counsel waived time within which to plead and entered his plea of guilty, and was thereupon sentenced to be imprisoned in the state reformatory at Granite for a term of two years.

It is averred in the petition that Milburn Bonitz at the time of entering his said plea of guilty was of the age of 15 years. It is further averred that his imprisonment in the state reformatory at Granite is unlawful and said restraint is illegal, for the reason that the district court of Grady county had no jurisdiction at the time judgment was pronounced and said sentence imposed on the said Milbum Bonitz; that no preliminary complaint against him Vas ever filed in the county court of Grady county; and that no investigation was ever had before said court or the judge thereof sitting as a juvenile court concerning the charge against him before filing the information in the district court of said county charging petitioner with said crime.

It is elementary law that in habeas corpus proceedings jurisdictional questions only are re viewable or are to be considered. The writ cannot be invoked for the purpose of reviewing the action of courts or officers where they acted within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal from the judgment of conviction. Before the writ is available as a means of releasing from confinement, it must appear that the court issuing the commitment has acted entirely without jurisdiction.

In this case the proof shows, and it is not disputed, that petitioner was and is now under the age of 16 years.

The precise question here presented was passed upon by this court in Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624. It was held that under the statute (section 8072, C. S. 1921), relating to juvenile courts and their jurisdiction and control over delinquent children, a child under 16 years of age cannot bé guilty of the commission of a crime except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his. acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony, and further that the law contemplates an investigation by the juvenile court of complaints against children under 16 years of age, with the view of determining whether or not the child committed the acts charged, and, if so, whether or not he knew the’wrongfulness thereof in a criminal sense, and, if upon such investigation, the juvenile court finds affirmatively, it is then within its discretion to hold said child to be proceeded with in the manner provided by law, in the court having competent jurisdiction of the offense, certifying to such court both findings as to probable cause, and that the child knew the wrongfulness of the acts complained of.

In the case of In re Powell, 6 Okla. Cr. 495, 120 P. 1022, it was held that the statute not only authorizes the commissioner of charities and corrections to institute proceedings in this class of cases, but imposes that duty.

In this case it is conceded that no proceedings were had before the juvenile court of Grady county.

It follows that the district court of Grady county was without jurisdiction to render the judgment and sentence under which petitioner is now held in custody.

Our conclusion, therefore, is that the judgment and sentence of the district court of Grady county in this case is illegal and void, and that the execution of said judgment and sentence deprives petitioner of his liberty without due process of law.

It is thereforé adjudged and ordered that petitioner, Milbum Bonitz, be discharged from imprisonment under said judgment and sentence, that he be returned to the custody of the sheriff of Grady county to abide the action of the juvenile court of said county, and, to that end, it is ordered that said warden in whose custody petitioner now is, do deliver him into the custody of said sheriff, who shall keep him in custody until discharged therefrom by law.

BESSEY, P. J., and EDWARDS, J., concur.