author: DOYRE, J.

text:
    G. W. COOK v. STATE.
    No. A-897.
    Opinion Filed December 26, 1911.
    1. INDICTMENT AND INFORMATION — Validity — Indorsing Names of Witnesses. Tbe act of Criminal Procedure requires that (see. 6691 Snyder’s Stat.): “When an indictment is found, the names of the witnesses examined before the grand jury must be indorsed thereon before the same is presented to the court, but'a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment, if the county attorney or prosecuting officer will, within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment.” Sec. 6738 provides: “An' indictment must be set aside by the court in which the defendant is arraigned, and upon his motion in either of the following eases: ***** 2. When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment as provided in section 6691.” Held, that the purpose of the aforesaid requirements of law is to inform the defendant of the names of the witnesses upon whose testimony th.e indictment is based, and the names of the witnesses that will be called to prove the allegations of the indictment, and the refusal of the court to require the prosecuting attorney to endorse the names of such witnesses upon the indictment before proceeding to trial constitutes reversible error.
    2. INTOXICATING LIQUORS — Evidence—Freight Receipts. Freight delivery receipts filed in the office of a railway station are not admissible in evidence on a trial for having possession of intoxicating liquors with the intention of violating provisions of the prohibition law, to show delivery to a drayman who signed the same, without calling as a witness the person who wrote the same, or the person who signed the same, to testify to their correctness; and the admission in evidence of such receipts without a proper foundation laid was in violation of the constitutional provision (sec. 20, Bill of Rights), that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him.
    3. EVIDENCE — Documentary — Confrontation of Witnesses. The provision of the Bill of Rights that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him, does not apply to proof of facts in their nature essentially documentary, and which can only be proved by the original or by a copy properly certified.
    (Syllabus by the Court.)

      Appeal from Kay County Court; Claude Duval, Judge.

    G. W. Cook was convicted of a violation of the prohibition law, and appeals.
    Reversed.

      Herman S. Gurley, for plaintiff in error.
   DOYRE, J.

The plaintiff in error, G. W. Cook, was convicted upon an indictment returned in the district court and duly transferred to the county court of Kay county, which charged that he did have in his possession intoxicating liquor with the intention of violating provisions of the prohibition law by selling, bartering, giving away, and otherwise furnishing the same, and by transporting and otherwise conveying the same from one place within said Kay county to another place therein.

June 13, 1910, he was sentenced to serve a term of ninety days in the county jail, and to pay a fine of $500.

The first assignment of error is that the court erred in overruling the defendant’s motion to set aside the indictment for the reason that the same was not found, indorsed, presented or filed as prescribed by law, in this to wit: That said defendant’s name is G. W. and not G. M. Cook; that said indictment has not thereon indorsed the names of any witnesses examined before the grand jury.

The statute provides (sec. 6691, Snyder’s Stat.) :

“When an indictment is found, the names of the witnesses examined before the grand jury must be indorsed thereon before the same is presented to the court, but a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment if the county attorney or prosecuting officer will, within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment. The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be indorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.”

When the case was called for trial the defendant interposed an objection to proceeding to trial for the reason that the indictment was not indorsed as prescribed by the statutes.

The names of witnesses examined before' the grand jury, if any, had not y^t been indorsed upon the indictment, and the record shows the indictment is -without any such indorsement. For this reason the objection was well taken and should have been sustained. A defendant is entitled to know the names of the witnesses that will be called to prove the allegations of an indictment against him.

The state introduced but one witness, A. C. Mitchell, agent of the Santa Fe Railway Company at Ponca City, who testified that he had with him' the freight delivery receipts of the Santa Fe station at Ponca City for February 2, 1910, and produced an instrument which was marked plaintiff’s exhibit “1”, part “A”, which reads as follows:

“Freight Delivery Receipt. Ponca City, Okla., 2-2-10.
“Consignee S-O Nfy. G. W. Cook. Freight Bill No. 91.
“Received from the Atchison, Topeka & Santa Fe Railway Company.
“Way Bill Car From Consignor.
Date Number Initials Number
1-29 27041 A. T. 40929 Kan. City. G. B. B. Co.
“5 cs: Liquor, Wgt. 280, Rate 78, Freight 2.16.
“Received in good order K. S- Van Voorhees.”

Also an instrument that was marked exhibit “1”, part “B”, ’ which reads:

“Pls. deliver to Van Voorhees Tfr. Co. 5 cs. liquor there consigned to me. G. W. Cook.”

Witness then stated that the signature to part one was that of K. S. Van Voorhees, drayman, and the signature to part two was that of the defendant, G. W. Cook.

Another freight delivery receipt signed by the drayman, and order signed by the defendant, G. W. Cook, was also introduced in evidence and read to the jury.

Witness then testified that he did not have charge of the delivery of the shipments, that the cashier at the station attended to the delivery of the shipments and that he had no independent recollection of the transaction; that from the instruments introduced in evidence he would say that the shipments were delivered, in pursuance to the orders, that he had no personal knowledge what was in these shipments, and he did not make out the freight delivery receipts.

The court then permitted the state to introduce in evidence and.read to the jury these exhibits over the defendant’s objection:’ That the exhibits were not the best evidence; that they were secondary, hearsay and incompetent.

The freight delivery receipts and the orders to deliver to the drayman were the only documentary evidence introduced. The bills of lading of the shipments, way bills, or other station records were not introduced.

This was all the testimony introduced tending to.show the defendant’s possession of intoxicating liquors; the drayman was not called as a witness.

The defendant demurred to the evidence on the ground that said evidence is insufficient to establish the commission of any public offense, and requested the court to advise the jury to acquit the defendant.

The demurrer was overruled and the motion denied. Thereupon the defendant announced that he declined to offer any evidence, and requested a peremptory instruction as follows:

“The court instructs the jury to return a verdict in this case finding the defendant not guilty of the offense charged. Refused, and excepted to by the defendant. Claude Duval, Judge.”

The general question presented is: Was the evidence sufficient to authorize a submission of the case to the jury? In order to sustain the charge of having possession of intoxicating liquors with the intention of violating provisions of the prohibition law, the state is bound to prove the defendant’s possession of such liquors.

The only evidence of possession was the exhibits introduced, and we think that the freight delivery receipts were mere hearsay, and incompetent; that under any rule of admissibility no proper foundation had been laid sufficient to make these exhibits competent evidence. How far papers, not evidence per se, but proven to have been true statements of facts at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of judicial inquiry, and the question has been given widely different answers by the courts. We think that if the witness for the state had made out the freight delivery receipts at the time the delivery was made, and testified that he knew their contents, and that they were correct when made, his testimony and the exhibits would both be competent evidence, even though the witness could not testify to the facts as a matter of independent recollection, after refreshing his memory by an examination of the exhibits. State v. Shinborn, 46 N. H. 497, 88 Am. Dec. 224. However, as the witness does not claim that he wrote the freight delivery receipts, or that they were written under his supervision; and as he stated that he had no independent recollection or personal knowledge of the shipments mentioned therein, it must be- co'nceded that these exhibits are mere ex parte statements made, or caused to be made, by some person other than the witness who produced them, and who could only identify the signatures thereto. It is important to note the fact that the drayman was not called as a witness. On the admitted facts, the admission of the freight delivery receipts was in violation of the constitutional provision (sec. 30, Bill of Rights), that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him. And while we have held that this provision of the Bill of Rights does not apply to the proof of facts in their nature essentially documentary, and which can only be proved by the original, or by a copy properly certified, that is not this case. Undoubtedly the court erred in admitting in evidence the freight delivery receipts signed by the drayman, Van Voorhees.

In allowing the freight delivery receipts so signed to b'e read in evidence, the defendant was deprived of his constitutional right to be confronted with the witnesses against him. There being no competent evidence tending to prove the defendant’s possession of intoxicating liquors, the court erred in refusing to direct a verdict of acquittal. The judgment must therefore be reversed.

FURMAN, P. J., and ARMSTRONOx, R, concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JACK McCARTHY v. STATE.
    No. A-893.
    Opinion Filed December 30, 1911.
    (119 Pac. 1020.)
    1. INTOXICATING LIQUORS — Possession With Intent to Sell— Evidence. In a prosecution for having possession of intoxicating liquors, with intent to sell, barter, give away, or otherwise furnish, the evidence, to be sufficient to convict, where there is no proof of the payment by the defendant of the special tax required of liquor dealers by the United States, must show, in addition to possession, such acts or conduct of the defendant as tend to prove unlawful intention. In the absence of such evidence, it is the duty of the trial court to adyise the jury to acquit the defendant.
    2. TRIAL — Instructions—Errors—Cure by Other Instructions. Error in instructing that “it is not -necessary or incumbent on the state to show a sale, an attempt to sell, or that the liquors were exposed or offered for sale, or that the liquors were owned by the defendant, ’ ’ where there is no proof of payment by the defendant of the special tax required of liquor dealers by the United States, was not cured by the statement following that: “The unlawful purpose or intention is the essence of the offense, and should be clearly made out to the satisfaction of the jury, beyond a reasonable doubt.”
    (Syllabus by the Court.)

      Appeal from Kay County Court; Claude Duval, Judge.

    Jack McCarthy was convicted of violation of the prohibitory law, and he appeals.
    Reversed.

      Herman S. Gurley, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Andrew Wood, of counsél), for the State.
   DOYLE, J.

The plaintiff in error was convicted in the county court of Kay county on an information which charged: ' ’

“Did unlawfully have and keep in his possession spirituous liquor, to wit, whisky, with the unlawful intent then and there to sell,, furnish, and barter said whisky to various persons.”

May 21, 1910, he was sentenced to serve a term of 90 days .in the county jail, and pay a fine of $250. To reverse this judgment,- an appeal was taken. - - - •

It is contended that the testimony is wholly insufficient to support a conviction, and that defendant’s motion to direct a verdict of not guilty should have been sustained. After a careful examination of the evidence, we must conclude that this assignment is well taken. The only evidence in relation to the offense charged is the testimony of the officer who made the arrest. He testified that the defendant had seven pints of whisky in his possession when arrested. There was no evidence, either positive or presumptive, of the defendant’s intent to violate any of the provisions of the prohibition law, except the quantity of liquor in his possession. The mere naked presumption, founded on the fact of possession, standing alone, is insufficient to support a conviction. The rule declared by justice and reason requires that the fact of criminal intent be proved and not presumed. Another rule which is approved by all thinking and just men requires that guilt should flow naturally and easily from the facts proved, and he consistent with all the facts.

The evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon meré supposition, surmise, or conjecture, the court should'advise the jury to acquit the defendant. •

The court gave to the jury the following instruction:

“No. 5. You are instructed that to prove an unlawful keeping of possession of liquors, with the intent to sell or barter the same, it is not necessary or incumbent on the state to show a sale, an attempt to sell, or that the liquors were exposed or offered for sale, or that the liquors were owned by the defendant; but the unlawful purpose or intention is the essence of the offense, and should be clearly made out to the satisfaction of the jury beyond a reasonable doubt. (Excepted to by defendant. Exception allowed.) Claude Duval, Judge.”

There was no evidence in this case tending to prove the payment of the special tax required of liquor dealers by the United States, the payment of which, under the’provisions of the prohibition law (section 4181, Snyder), shall constitute prima facie evidence of the intention to violate the provisions of the act. For this reason, this instruction in effect informed the jury that it would be sufficient to show intent to sell, furnish, or barter by proof on the part of the prosecution showing possession alone, and that the burden was on the defendant to explain his possession of such liquors. Without a doubt, this -instruction was prejudicial to the substantial rights of the defendant.

The criminal intent involved in the commission of the offense •charged is the intent to sell, furnish, or barter, and in order to convict, where there is no proof of payment by the defendant of the special tax required of liquor dealers of the United States, there must be evidence, either positive or presumptive, amounting to proof of such unlawful intent.

For the reason stated, the judgment is reversed.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    JODIE VANDERBURG v. STATE.
    No. A-923.
    Opinion Filed January 3, 1912.
    (120 Pac. 301.)
    TRIAL — Verdict—Impeachment. A verdict cannot be impeached by the affidavit or testimony of a juror that he did not agree to the finding, or that a verdict of guilty was found to save the state from paying costs.
    ' (Syllabus by the Court.)

      Appeal from Jefferson County Court; G. M. Bond, Judge.

    Jodie Vanderburg was -convicted of violating the prohibitory law, and appeals.
    Affirmed.

      C. A. McBrian, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted in the county court of Jefferson county on an information which charged that he did have in his possession intoxicating liquor with the intention of selling or otherwise furnishing the same, contrary to the provisions of the prohibition law.- August 27, 1910, in accordance with the verdict of the jury, he was sentenced to serve a term of 30 days in the county jail, and to pay a fine of $100. From this judgment he appeals. -

It is contended that the verdict is contrary to the evidence and contrary to the law. The. evidence tended to show that the defendant conducted a restaurant and pool hall in the town of Terral; that in a room partitioned off from the pool hall at least two dozen bottles of whisky were found, concealed beneath a trapdoor under, the floor. In the same room gambling devices, cards, chips, and empty whisky bottles were found. These predisposing facts and circumstances are clearly sufficient to prove the unlawful intent.

In support of a motion for a new trial the testimony of one of the jurors was taken, wherein he testified in substance that the verdict of the jury was not unanimous, and that he did not vote for a conviction. Two other jurors were permitted to testify that the question of taxes was discussed, and that the costs would be thrown on the state, if they did not stick the defendant. It will be sufficient to say on this question that jurors will not be allowed to impeach their verdict by their affidavits or testimony after, they have been discharged. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224.

Finding no error prejudicial to the substantial rights of the defendant, the judgment is affirmed.

'FURMAN, P. J„ and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    CLARENCE MAYNES v. STATE.
    No. A-593.
    Opinion Filed January 3, 1912.
    (119 Pac. 644.)
    1. INTOXICATING LIQUORS — Unlawfully Conveying Whisky — Indictment. It is not necessary for an information or indictment; charging the unlawful conveyance of whisky from one place to another in this state, to contain an allegation that the whisky is being conveyed for an unlawful purpose, nor for the proof to so show.
    2. INTOXICATING LIQUORS — Unlawful Purchase — Conveyance. Whisky purchased at an illegal sale cannot be conveyed from the the place of purchase to any other place for any purpose.
    3. INTOXICATING LIQUORS — Lawful Purchase. A lawful purchase of whisky, as contemplated by our statute at the time this offense is alleged to have been committed, is to be had only by interstate shipment, or from an authorized state dispensary.
    4. INTOXICATING LIQUORS — Lawful Purchase — Conveyance Within the State, (a) Under the statute, a lawful purchase of whisky cannot be conveyed from one place to another, when such whisky is intended for an unlawful purpose.
    (b) A lawful purchase of such liquor, intended for lawful purpose, to wit, a person's own use, may be transported or conveyed from one' place to another in this state as may become necessary, so long as no other provision pf the prohibitory act is violated.
    5. TRIAL — Instructions—Harmless Error. When the testimony of an accused on trial clearly shows his guilt, an erroneous instruction given by the court limiting the application of the law is not sufficient to justify a reversal of the judgment.
    6. INTOXICATING LIQUORS — Illegal Conveyance — Evidence. In prosecutions for unlawfully conveying intoxicating liquor, the state is only required to show by the evidence beyond a reasonable doubt that the intoxicating liquor charged to have been conveyed, or some portion of it, was conveyed as alleged.
    (Syllabus by the Court.)

      Appeal from Kingfisher County Court; John M. Graham, Judge.

    Clarence Maynes was convicted of violating the prohibitory law, and brings error.
    Affirmed.

      D. K. Cunningham, for plaintiff in error.
   ARMSTRONG, J.

The accused was prosecuted by information in the county court of Kingfisher county on a charge of unlawfully conveying three half pints of whisky and four pints of beer from one place in Kingfisher county to another place therein, to wit, from one D. S. Gregg’s place of business to about 50 feet north of said Gregg’s place of business,-and that said conveyance of such intoxicating liquors, as aforesaid, was not then and there the conveyance of a lawful purchase, but was a conveyance of intoxicating liquors purchased from one D. S. Gregg. He was convicted and sentenced to pay a fine of $100 and costs, and to be confined in the county jail for a period of 30 days.

It appears that the accused lived on a farm near the town of Kingfisher, in Kingfisher county, Olda. On the evening of the 29th of July he drove into town in a buggy, hitched his team a short distance from D. S. Gregg’s place of business, took a light laprobe from the buggy, and went into this place. Sheriff Tate was standing near and saw accused as he went in, and testified that he thought he had an empty gunny sack under his arm at that time; that he came out of the house with something concealed in what he took to be the sack, went to the buggy, and was in the act of placing the package in the buggy when he walked up and found a small block of ice and a few bottles of beer in the lap-robe, and two or three bottles of whisky in accused’s pockets. The information charges the conveyance of three half pints of whisky and four pints of beer. The accused denied having carried the beer from Gregg’s place of business, but admitted on his own examination that he did carry the whisky. This is sufficient to justify the conviction.

Counsel’s first contention is that the information does not charge an offense, and argues that the offense charged, if it be one, is for carrying three half pints of whisky and four pints of beer from one place in the city of Kingfisher to another place therein, and does not charge ■ that it was being carried for the purpose of selling it or any other illegal purpose. His contention is that the conveying clause of the statute was intended to cut off conveying intoxicating liquors from one town to another, or across the country, for the purpose of selling or giving it away, and was not intended to prevent a person from carrying whisky for his own use, whether the purchase be at a lawful sale or not.

We cannot agree that this contention is correct. A person cannot purchase whisky at an illegal sale, and convey it anywhere. The law clearly forbids tbe conveyance from one place to another of. intoxicating liquor for any purpose, except such liquor as is purchased at a lawful sale.

This includes a purchase at an authorized state dispensary, or by means of interstate shipments. Any person who purchases whisky from what is commonly termed a “bootlegger,” and carries it any distance, however short, is subject to the same penalty for so doing as the bootlegger is for making the sale.

The law, in our opinion, also forbids the conveyance of a lawful purchase of intoxicating liquor from one place to another, when such purchase is intended for an unlawful purpose. A lawful purchase intended for a lawful purpose, to wit, a person’s own use, may be transported or conveyed from one place to another as may become necessary, so long as no other provision of the prohibitory act is violated. The accused in this case is guilty of unlawfully conveying intoxicating liquor under his own testimony.

Counsel contends that, the county attorney having elected to allege the whisky was purchased from D. S. Gregg, it was necessary for the proof to so show. The writer is of the opinion that this is the. better rule, but this court has held that the portion of the information, alleging from whom the purchase was made is surplusage and need not be proved, and a majority of the present judges reaffirm this doctrine.

Counsel next complains of the following instruction of the court:

“Under the laws of Oklahoma, it is a crime for a person to ship or in any way convey any malt, spirituous, vinous, or fermented liquor from one place within the state to another place therein, except that it is lawful to convey liquor lawfully purchased. By a lawful purchase is meant liquor purchased from a lawfully constituted agency or dispensary, duly authorized to dispense liquor by the state of Oklahoma.”

The instruction should have gone further and included a purchase by interstate shipment.

This instruction, however, was not prejudicial to any substantial light of the accused, because, as heretofore indicated, his own testimony was in effect a plea of guilty under the holdings of this court. The accused did not contend that the liquor was a lawful purchase.

All the state is required to do in cases of this kind is to show by the evidence beyond a reasonable doubt that the intoxicating liquor or some portion of it was conveyed from one place to 'another place named in the information.

Finding no substantial error in the record, the judgment is affirmed with directions to the trial court to enforce it.

FURMAN, P. J., and DOYLE, J., concur.


author: FURMAN, P. J.

text:
    PERRY JOHNSON v. STATE.
    No. A-1177.
    Opinion Filed January 6, 1912.
    (119 Pac. 1019.)
    INTOXICATING LIQUORS — Illegal Sale — Evidence. In tbe absence of a statute making tbe possession of more than a given quantity of intoxicating liquors presumptive evidence of tbe intent of tbe person having possession of tbe same, to illegally dispose of tbe same, a conviction for having possession of intoxicating liquors for tbe purpose of violating tbe prohibition law will not be sustained merely upon tbe ground of tbe quantity which a defendant may have in his possession.
    (Syllabus by tbe Court.)

      Appeal from Ottawa County Court; W. Y. Quigley, Judge.

    Perry Johnson was convicted of violation of the prohibition law, and he brings error.
    Reversed and remanded.

      O. F. Mason, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

In the case at bar it was proved by the state, and not denied by appellant, that appellant had in his possession at his home something like three gallons of whisky. We have no doubt of the right and power of the Legislature to enact a statute making the possession of more than a given amount of intoxicating liquors presumptive evidence of the intent of such person to illegally dispose of the same in violation of the prohibitory liquor law of the state, and thus throw upon the defendant the burden of proving that this possession was not for illegal purposes, yet in the absence of such a statute this court is without power to establish such a rule merely upon proof of the amount of intoxicating liquor found in the possession of a defendant. We are of the opinion that the amount of intoxicating liquor found in possession of a defendant is a proper circumstance to be considered by the jury in connection with the other facts and circumstances of a case in determining as to whether or not it was the intent of the person having possession of the liquor to illegally dispose of the same in violation of the prohibitory liquor law of the state, but this circumstance alone cannot support a conviction. If it had been proven that the appellant was in possession of the liquor in this case, and had it in some place to which persons generally resorted, or if it had been proven that the home of appellant had the general reputation of being a place where intoxicating liquors could be illegally obtained, then the case would be entirely different. But this case rests alone upon the fact that the appellant was found in possession of about three gallons -of whisky at his home, without any showing of facts which would cause a jury to reasonably believe that it was the purpose of appellant to illegally dispose of the same. The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

ARMSTRONG and DOYLE, JJ>, concur.


text:
    SCOOT SCOTT v. STATE.
    No. A-1026.
    Opinion Filed January 6, 1912.
    (119 Pac. 1023.)
    INTOXICATING- LIQUORS — Criminal Prosecutions — Indictment and. Information. An information or indictment which charges an accused with the crime of “furnishing” intoxicating.liquor, should set out the specific acts necessary to constitute an offense; the term “furnishing” being too indefinite.
    (Syllabus by the Court.)

      Appeal from Cherokee .County Court; J. T. Parks, Judge.

    Scoot Scott was convicted of violating the prohibitory law, and appeals.
    Reversed and remanded.

      Bruce L. Keenan, for plaintiff in error.

      Smith C. Matson and B. G. Spitman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The prosecution- in this case was instituted in the county court of Cherokee county on an information charging-plaintiff in error with selling intoxicating liquor. The information was in the usual form for that purpose. During the progress of the trial, the county attorney was permitted to amend the information, so as to charge the defendant with furnishing such liquor. The state elected to stand on the information as amended, leaving it in a very indefinite and unsatisfactory condition.

In the light of the record before us, it appears that the charging part of the information upon which plaintiff in error was finally tried reads as follows:

“ * * * Did, in Cherokee county, and in the state of Oklahoma, on or about the 29th day of November, 1910, and anterior to the presentment hereof, commit the crime of selling liquor, in the manner and form as follows, to wit, did unlawfully furnish one pint of spirituous liquor, to wit, one pint of whisky, to C. J. L. Beasley, George Myers, Cleve Presley, and Bill Anderson, for one dollar, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”

This is entirely too indefinite. 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. This question has been determined by a number of courts. We think the Supreme Court of Georgia, in Southern Express Co. v. State, 107 Ga. 670, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146, lays down the correct rule. The statute in that state is very similar to ours. The principle is identical. We quote from the opinion the following:

“Liquors are always furnished when there is a delivery, but a person may be furnished by other means than a sale, and the General Assembly, by the use of the word, intended to impose further restrictions than those embraced in the prohibition of the sale.”

The facts disclosed by this record clearly establish a sale under the holdings of this court since the opinion in the case of Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, overruling Reed v. State, 3 Okla. Cr. 16, 103 Pac. 107, 24 L. R. A. (N. S.) 268. But the court eliminates this feature by permitting the amendment, striking out that portion of the information charging the sale, and allowing the county attorney to stand on the general term of “furnishing.” The writer is of the opinion that the doctrine in the Reed case is the correct rule of law, but the doctrine announced in Buchanan v. State, supra, has now become the rule of this court.

The judgment is reversed, and the cause remanded, with directions to the trial court to cause the county attorney to file a new information, properly charging the offense of unlawfully furnishing intoxicating liquor, if the accused is to be retried therefor.

FURMAN, P. J., and DOYLE, J., concur.


text:
    CHARLES STUEDLE v. STATE.
    No. A-1031.
    Opinion Filed January 6, 1912.
    (119 Pac. 1022.)
    1. NEW TRIAL — Grounds. When the testimony introduced on behalf of the state is conflicting, and no testimony is introduced on behalf of the accused, and the record discloses errors on the part of the trial court reasonably calculated to mislead the jury, a new trial should be awarded.
    2.' TRIAL — Conduct in General. The courts are not partisans of the state nor of the accused. It is their duty to preserve and protect the rights of each in a fair and impartial manner.
    (Syllabus by the Court.)

      Appeal from Custer County Court; J. C. McKnight, Judge.

    Charles Stuedle was convicted of selling intoxicating liquor, and appeals.
    Reversed and remanded for new trial.

      Phillips & Mills and Chas. D. Peck, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   ARMSTRONG, J.

The • plaintiff in error was convicted in the county court of Custer county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $100, and imprisonment in the county jail for a period of 30 days.

The testimony on behalf of the state was from three witnesses, two of whom, in a measure, corroborate each other on some material points. The third witness directly contradicts the principal testimony given by the other witnesses. During the cross-examination of the prosecuting witness, it developed that he was acting in the capacity of a private detective, and that he had secured the services of one or two other persons.

At the close of the state's testimony, counsel for plaintiff in error requested the court to advise the jury to return a verdict for the accused. In response to this motion, the court used the following language: “Which motion the court promptly overrules. You have no right to make such a motion.” Counsel excepted to the remark. The trial court is entirely mistaken as to the rights of counsel, and should not have indulged in the remarks. Courts should be fair and impartial in all their rulings. The trial court is no'more the partisan of the state than he is of the accused. It is his duty to see that all rights are preserved, those of the accused as well as those of the state.

Under the circumstances disclosed by this record, we are not able to say that this plaintiff in error had a fair and impartial trial, especially in view of the fact that the state’s own witnesses disagreed. The principal prosecuting witness admitted that he was employed to secure testimony against plaintiff in error, and was to receive $10 in case of conviction.

The judgment is reversed, and the cause remanded, with directions to grant a new trial in accordance with law. ■

FURMAN, R J„ and DOYLE, J., concur.


author: ARMSTRONG, j.

text:
      In re JOHN POWELL.
    No. A-1533.
    Opinion Filed January 11, 1912.
    (120 Pac. 1022.)
    1. STATUTES — Sufficiency of Title, (a) It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient,, if the title contains a reasonable intimation of the matters under legislative consideration, to state the subject of the bill in general terms, and with fewest words, in accordance with the general custom, to which the framers of the Constitution intended the Legislature to conform.
    (b) When there are numerous provisions having one general object, the title is sufficient if it fairly indicates the general purpose of the act. The details providing for the accomplishment of such purpose are to be regarded as necessary incidents.
    (e) All the provisions of this act are for one object only — . the care of delinquent and dependent children, as expressed in the title.
    2. INFANTS — Capacity to Commit Crime — Juvenile Courts, (a) Under the provisions of this act, a child under sixteen years of age cannot be guilty of the commission of a crime, except in cases wherein it is shown that such child knew the wrongfulness of his acts at the time they were committed.

      (b) The acts or omissions of a child, which in an adult would be a crime, under this law, constitute juvenile delinquency only, except in cases wherein the juvenile court finds that the child, at the time the acts complained of were committed, knew the wrongfulness thereof, and holds such child for trial before a court of competent jurisdiction.
    (c) This law contemplates an investigation by the juvenile court of the complaints against a child with the view of determining whether or not the child committed such acts, 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 such 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 his finding as to probable cause, and that the child knew the wrongfulness of the acts complained of.
    (d) The finding of the juvenile court that the child knew the wrongfulness of his acts, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving upon the trial that the child knew the wrongfulness thereof, as"provided in subdivision 2, section 2034, Snyder ’a Stat. The only effect the act in question has on said subdivision is to change the word “fourteen” to “sixteen,” subsequent to the action of the juvenile court.
    3. INFANTS — Statutes — Juvenile Court. The object of this statute is not punishment, but reform and moral training. It creates a new offense, but creates no new court, and takes away no jurisdiction heretofore conferred upon any of the courts to try offenses against the penal laws of the state. It simply places additional duties on the county courts, and provides a different method of bringing children before the courts to be dealt with.
    4. SAME — Punishments. It is no' light matter to compel a boy or girl to spend his or her childhood days in restraint, and there should be clear proof of the- necessity of such a course before a child is committed under the provisions of this act. The law contemplates a system of probation wherein the state places itself in loco parenti. The treatment of a child contemplated by this law is, as near as may be, that which should be given by his parents. This act should be liberally construed in favor of the welfare of the child, and only for grave offenses, such as affect the general welfare of the public, should a child be proceeded against in accordance with the laws that may be in force governing the commission of crime. The rights of the child whose welfare is at stake, as well as the rights of his parents, must be duly regarded and protected by the court.
    5. SAME — Protection, (a) The law under consideration rests on the fundamental doctrine that a child, the moment he is born, owes allegiance to the government of the country of his birth, and is entitled to the protection of that government for his person as well as his property.
    (b) The Legislature not only has the power to enact such

      provisions, but it is the duty of the state in its 'character as parens patriae to do so.
    6. SAME — Power of Commissioner of Charities and Corrections. The Act of the Legislature approved February 24, 1911, not only authorizes the Commissioner of Charities and Corrections to institute proceedings in this character of cases, but imposes that duty.
    7. INFANTS — Juvenile Courts — Jurisdiction. Under the provisions of this act, the juvenile courts are the only courts having- jurisdiction to commit children to the Training School for Boys, and are the only courts having jurisdiction to hear and determine complaints against children under sixteen years of age for the infraction of any penal statute whatever, until after such juvenile court shall have held the child to be tried in the manner herein-before set out. This act repeals sections 8539 and 8543 of Snyder's Statutes, and provides complete proceedings for the disposition of cases arising thereunder.
    (Syllabus by the Court.)
    Application for writ of habeas corpus.

    Writ issued, and prisoner discharged.

      Dr. J. H. Stolper, for petitioner.

      Robert Wimbish, Co. Atty., for respondent.
   ARMSTRONG, j.

This is an application for a writ of habeas corpus brought by Miss Kate Barnard, State Commissioner of Charities and Corrections, on behalf of John Powell, a boy fourteen years of age, seeking his discharge from a judgment of conviction rendered by the district court of Pontotoc county, imposing a sentence, of .two years in the State Training School at Pauls Valley.

Petitioner was arrested on the 8th day of September, 1911, upon a warrant issued by H. J. Brown, justice of the peace in said county, charging him with the crime of burglary. An examining trial was had before the said justice, and petitioner held to await the action of the district court. On September 16th, the county attorney of Pontotoc county filed an information against petitioner, and on the 4th day of December thereafter a plea of guilty was entered, and the aforesaid judgment and sentence rendered by the court.

The petition is based upon the provisions of the act of the Legislature, approved March 24, 1909 (Laws 1909, c. 14, art. 8), commonly known as the “Juvenile Court Law.” The title to the act is as follows: “An act to Define Dependent, Neglected and Delinquent Children, and to Regulate the Treatment, Control, and Custody thereof by County Courts.”

The obection was raised and argued that the Commissioner of Charities and Corrections of the state of Oklahoma has not the authority to bring a suit of this nature. We are of the opinion that this objection is not well taken, for the reason that the right of the Commissioner of Charities and Corrections to institute proceedings of this character is conferred, and the duty to do so. imposed by the act of February 24, 1911. See Sess. Laws 1911, p. 46.

It is contended on the part of the state that the law is invalid because of defect in title, that it creates a juvenile court and a probation officer which are not mentioned in the title, and because it embraces more than one subject.

Section 57, article 5, of the Constitution provides:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title.”

In order that a complete understanding may be had of the various questions considered in this opinion, we quote the statute involved in full, which is all the law on this subject enacted up to this time by the Legislature of Oklahoma:

“Section 1. This act- shall apply to any child Under the age of sixteen years not now or hereafter an inmate of a state institution incorporated under the laws of this state. For the purpose of this act the words ‘dependent child’ and ‘neglected child’ -'■hall mean any child under the age of sixteen years who for any reason is destitute, homeless or abandoned; or dependent upon the public for support; or has not the proper parental care or guardianship; or who habitually begs or receives alms; or who is found living in any house of illfame, or within a vicious or disreputable place; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardians or any other person in whose care it may be, is an unfit place for such a child; and any child under the age of eight years who is found begging, singing, or playing any musical instrument upon the street, or giving any public entertainment, or who accompanies or is used in aid of any person so doing.
“The words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of the United States, or of this state, or any city or village ordinance; or who is incorrigible, either at home or in school, or who knowingly associates with thieves, vicious or immoral persons, or who, without just cause and without the consent of its parents or custodian, absents itself from home or its place of abode, or who is growing up in idleness or crime; or who knowingly frequents a house of illrepute; or who knowingly frequents any policy shop, or place where any gaming device is operated; or who patronizes or visits any public pool rooms or bucket shop; or who wanders about the street in the night time without being on any lawful business or occupation, or who habitually wanders about any railroad yards or tracks, or who habitually uses vile, obscene, vulgar, profane or indecent language; or who is guilty of immoral conduct in any public place or about any schoolhouse; or who is addicted to the use of intoxicating liquor or any injurious drugs, or who is the user of cigarettes.
“Any child committing any of the acts herein mentioned shall be deemed a delinquent child and shall be proceeded against as such in the manner herein provided. A disposition of any child under this act or any evidence given in such cause, shall not in any civil, criminal or other cause or proceedings whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this act. The word ‘child’ or -‘children’ may be held to mean one or more children, and the word ‘parent’ or ‘parents’ may be held to mean one or both parents, when consistent with the intent of this act. The word ‘association’ shall include any corporation which includes in its purposes the care or disposition coming within the meaning of this act.
“Sec. 2-, The county courts of the several counties in this state shall have jurisdiction in all cases coming within the terms and. provisions of this act. In trials, under this act, the child informed against, or any person interested in such child, shall have the right to demand a trial by jury, which shall be granted as in other cases unless waived, or the judge of his own motion may call a jury to try any such case. In all counties a special record book or books shall be kept by the court for all cases coming within the provisions of this act, to be known as the ‘Juvenile Record,’ and the docket or calendar of the court upon which shall appear the case or cases under, the provisions of this act, shall be known as the ‘Juvenile Docket,’ and, for convenience, the court in the trial and disposition of such cases, shall be called the ‘Juvenile Court.’ Between the first and thirtieth days of October of each year, the clerk or judge who acts as such clerk of the county courts shall submit to the Commissioner of Charities and Corrections a report in writing, upon,blanks to be furnished by said Commissioner, showing the number and disposition of delinquent children brought before such court, together with such other useful information regarding such cases and the parentage of such children as may reasonably be obtained at the trials thereof, provided that the name or identity of any such child or parents shall not be disclosed in such report.
“Sec. 3. Any reputable person being a resident of the county, having knowledge of a child in his county who appears to be either neglected, dependent or delinquent, may file with the clerk of court having jurisdiction in the matter, a petition in writing, setting forth facts verified by affidavits. The petition shall set forth the name and residence of the legal guardian, if known, or if not known, then the name and residence of near relative, if there be one and his residence known. It shall be sufficient that the affidavit is upon information and belief.
“Sec. 4. Upon the filing of the petition, a summons shall be issued, requiring the person having custody or control of the child, or with whom the child may be, to appear with the child at a place and time stated in this summons, which time and place shall not be less than twenty-four hours after service. The parents of the child, if living and the residence is known to the petitioner, or its legal guardian, if there be one, and his residence is known to the petitioner; or, if there is neither parent nor guardian, or if his or her residence be not known, then some near relative, if his residence be known to the petitioner, shall be notified of the proceedings and in any case the judge may appoint some suitable person to act in behalf of the child; summons and notice may be served by the sheriff or by any duly appointed probation officer, either by reading the same to the person or persons, or by leaving a copy thereof at his usual place of abode, or with some person of his family of the age of ten years or upwards, and informing such person of the contents thereof. The return of such summons'and notice with indorsement of service by the sheriff or probation officer in accordance herewith shall be sufficient proof thereof. If the person summoned as herein provided shall fail without reasonable cause to appear and abide the order of the court or bring the child, he may be proceeded against as in case of contempt of court. In case summons cannot be served, or the party fails to obey the summons, and in any case when it shall be made to appear to the court that such summons will be ineffectual a warrant may be issued on the order of the court, either against the parent or guardian or the person having the custody of the child or with whom the child may be, or against the child itself.
“On return of the summons, or other process, or on the appearance of the child; with or without summons, or other process, in person, before the court and on the return of the service of notice, if there be any person notified, or as soon thereafter as may be, the court shall proceed to hear and dispose of the case in a summary manner. Pending the final disposition of the case the court may order the child to be retained in the possession of the person having charge of the same, or any other person, or to be kept in some suitable place provided by the city, county or state authorities.
“Sec. 5. The court shall have authority to appoint or designate, by, and with the consent of the county commissioners, one discreet person of good character to serve as probation officer during the pleasure of the court; said probation officers to receive compensation of fifty dollars per month from county fund, to be paid by county commissioners. In case the probation officer shall be appointed by any court, it shall be the duty of the clerk of the court, if practicable, to notify the said probation officer in advance, when any child is to be brought before the court; it shall be the duty of said probation officer to make such investigation as may be required by the court; to be present in court in order to represent the interests of the child when the case is heard; to furnish to the court such information and assistance, as the judge may require; to take such charge, of any child before and after trial, as may be directed by the court.
“Sec. 6. When any child, under the age of 16 years, shall be found to be dependent or neglected, within the meaning of this act, the court may- make an order committing the child to the care of a suitable state institution or to the care of some reputable citizen of good moral character, or to the care of some training school or industrial school, as provided by law, or to the care of some association willing to receive it, embracing in its objects the purpose of caring for or obtaining homes for neglected or dependent children, which association shall have been accredited as hereinafter provided. The. court may, when health or c.ondition of the child may require it, cause the child to be placed in a public hospital, or institution for treatment or special care, or in a private hospital or institution which will receive it for like purpose without charge.
“Sec. 7. In any case where the court shall award a child to the care of any association or individual in accordance with the provisions of this act, the child shall, unless otherwise ordered, become a ward, and be subject to the guardianship of the association or individual to whose care it is committed. Such association or individual, shall have authority to place such child in a family home with or without indenture, and may be made party to any proceeding for the legal adoption of a child and may by its, or his attorney or agent, appear in any court where such proceedings are pending and assent to such adoption. And such assent shall be sufficient to authorize the court to enter the proper order or decrees of adoption. Such guardianship shall not include the guardianship of the estate of the child.
“Sec. 8. In the case of a delinquent child, the court -may continue the hearing from time to time and commit the child to the care or custody of a probation officer, or any other person, or may allow such child to remain in its home, subject to the visitation of the probation officer, such child to report to the probation officer as often as may be required; or the court may cause the child to be placed in a suitable family home, subject to the friendly supervision of a probation officer, and the further order of the court; or it may authorize the child to be boarded out in some suitable family home, in case provision is made by voluntary contribution or otherwise for the payment of the board of such child until a suitable provision may be made for the child in a home without such payment; or the court may commit the child, if a boy, to the training school for boys, or, if a girl, to an industrial school for girls; or the court may commit the child to any institution in the county incorporated under the laws of this state that may care for delinquent children or that may be provided by a city or county, suitable for the care of such children or to any state institution which may be established for the care of delinquent children; or the court may commit the child to the care and custody of some association that will receive it, embracing in its objects the care of neglected or dependent children, and that has been duly accredited as hereinafter provided. In no case shall a child beyond the age of sixteen years be committed to such an institution. A child committed to such an institution shall be subject to the control of the superintendent thereof, and the said superintendent shall have power to parole such children under such conditions as he may prescribe.
“Every child who shall have been adjudged delinquent, whether allowed to remain at home, or placed in a home, or committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of court, or shall have reached the age of twenty-one years, and such court may during the period of wardship cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution; Provided, however, that notice of all applications to the court for such parole or release shall be given to the superintendent of such institution at least ten days before the time set for the hearing thereof, or the consent, in writing, of such superintendent to such parole or release shall be filed. The court may, ■ however, in its discretion cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime.
“Sec. 9. No court or magistrate shall commit a child under twelve years of age to a jail or police station, but if such child is unable to give bail it may be committed to the care of the sheriff, police officer, or probation officer, who shall keep such child in some suitable place which shall be provided by the city or county outside of the enclosure of the jail or-police station. When any child shall be sentenced to confinement in any institution to which adult convicts are sentenced, it shall be unlawful to confine such child in the same building with such adult convicts, or to confine such child in the same yard or enclosure with such adult convicts, or to bring such child into any yard or building in which adult convicts may be present.
“Sec. 10. This act shall be liberally construed, to the end that its purpose may be carried out, to wit:. That the care and custody and discipline of the child shall approximate, as nearly as may be, that which should be given by its parents, and that, as far as practicable, any delinquent child shall be treated, not as a criminal, but as misdirected and misguided, and needing aid, encouragement, help and assistance.
“Sec. 11. All acts and parts of acts in conflict herewith are hereby repealed.”

A similar law to this was passed by the Legislature of Pennsylvania in 1903 (P. L. 274). Among the objections raised to such act in the Supreme Court of -that state was the following: “That the act contained more subjects than one, some of which are not expressed in the-title.” The Supreme Court of Pennsylvania in Commonwealth v. Fisher, 213 Pa. St. 51, 62 Atl. 199, in discussing this proposition says: „

“No new court is created by the act under consideration. In its title, it is called ‘An act to define the powers of an already existing and ancient court.’ In caring for the neglected or unfortunate children of the commonwealth, and in defining the powers to be exercised by that court in connection with, these children, recognized by the state as its wards requiring its care and protection, jurisdiction is conferred upon that court as the appropriate one, and not upon a new court.”

And again:

“It is a mere convenient designation of the court of quarter sessions to call it, when caring for children, ‘a juvenile court,’ but no such court as an independent tribunal is created. It is still the court of quarter sessions before which the proceedings are conducted.”

Pennsylvania has a constitutional provision similar to ours, relative to the title of legislative enactments; and, indeed, most, if not all, of the other states have such provision.

The question of the sufficiency of the title of legislative enactments has been frequently before the courts. The Supreme Court of California in Ex parte Liddell, 93 Cal. 633, 29 Pac. 251, holds that:

“It is not necessary for the title of an act to embrace an abstract of its contents, but, if it contains a reasonable intimation of the matters under legislative consideration, it is sufficient to state the subject of the bill in general terms-and with the fewest words, in accordance with general custom, to which the framers of the Constitution intended the Legislature to conform. Numerous provision having one general object fairly indicated by the title may be united, and when the general purpose of the act is declared, the details provided for the accomplishment of that purpose will be regarded as necessary incidents.”

See, also, Montclair v. Ramsdell, 107 U. S. 147; Commonwealth v. Fisher, supra.

While we think the title to the act in question could have been more complete, without subjecting it to other criticism, yet it was sufficient for the purpose intended. All the provisions of this act are for one object only — the care of delinquent and dependent children as expressed in the title.

It is next objected that the law is invalid, because it takes away the exclusive jurisdiction of the district court to try felony cases.

Section 10, art. 1, of the Constitution, confers on the district courts original, but not exclusive, jurisdiction, and even this jurisdiction is conferred, subject to the limitations of section 9, art. 7, which section confers original jurisdiction only until otherwise provided by law. This question has been thoroughly considered by this court in Ex parte Whitehouse, 3 Okla. Cr. 91, 104 Pac. 374; but no powers of the district court to try felony cases is taken away by the act in question. The juvenile court, as such, cannot try felony cases; nor does the act in question confer, or intend to confer, any such powers upon the county courts sitting in their capacity as juvenile courts. The Legislature in its wisdom by this law says that a child under sixteen years of age cannot be guilty of the commission of a crime, except in cases where it is shown that such child knew the wrongfulness of his acts at the time they were committed. The acts committed by such child, which in an adult would be a crime, under this statute, constitute juvenile delinquency only, except in cases of a serious character, when the juvenile court is authorized by the act, supra, in its discretion, to cause such child to be proceeded against in accordance with the law that may be in force governing the commission of crime.

Prior to the enactment of the law in question, the statutes provided:

“All persons are capable of committing crimes, except those belonging to the following classes: 1. Children under the age of seven years. 2. Children of the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.” (Sec. 2034, Snyder’s Stat.)

The juvenile court law under consideration, in effect, provides that children tinder the age of sixteen are incapable of committing crime. But, in order that no great wrong should be done to society, the Legislature took the precaution to provide that a child brought before the juvenile court on a charge of delinquency, such court might, in its discretion, cause such child to be proceeded against in accordance with the law governing the commission of crime. See section 3, par. 2, act, supra.. This provision contemplates an investigation by the juvenile court of the acts complained of with the view of determining whether or not the child committed them, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And should the court find affirmatively, it is then within its discretion, under the law, to hold such child to be proceeded with in the manner provided by law in a court having competent jurisdiction of the offense committed, certifying to such court both its finding as to probable cause, and that the child knew the wrongfulness thereof. The finding 'of the juvenile court, or the county judge sitting as such, that the child knew the wrongfulness of his act, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving that the child knew the wrongfulness of his act at the time of the commission thereof, upon the trial before a jury in a court of competent jurisdiction, as provided in subdivision 2, section 2034, Snyder’s Statutes. The effect the juvenile court law under consideration has on said subdivision is simply to change the word “fourteen” to “sixteen,” subsequent to the foregoing proceedings.

It is next urged that the Legislature had no right, under the Constitution, to enact the law in question.

We are of the opinion that the Legislature did have the right to enact the law. It is a fact, well known to all members of the legal profession, and a great number of our citizenship, that all laws relating to the commitment of minors to various institutions, whether for care and guardianship, or for purposes of restraint and reform, are entirely statutory, and have been uniformly upheld. Such provisions found no lodgement in the common law, as is the case with most of our criminal statutes. But the legal principle involved in the construction and application of these statutes authorizing such commitments are founded on the common-law doctrine generally.

Commitments of children to juvenile institutions can be distinguished into three essential classes: Commitments as a punishment for crime; commitments where the proceedings are quasi criminal; and commitments for care and guardianship.

Statutes authorizing the commitment of juvenile offenders to houses of refuge and juvenile reformatories, instead of imprisonment, obtain in most states. In this class of cases, is it generally held that the statutes must receive the same construction as other penal statutes. Such a provision is also contained in the United States Statutes. (U. S. Rev. Stat. pars. 5544 and 5550.)

The proceedings in another class of cases, referred to supra, have been designated “quasi criminal.” Statutory provisions-are found in a number of the Codes of various states, authorizing the commitment of minors to reformatory institutions, upon application or complaint of parents, guardians, or other responsible persons, made before civil magistrates, alleging that the minor is incorrigible and beyond domestic control. Legislation of this kind is not unconstitutional. The object of the detention in these cases is not punishment, but reform and moral training, as is the purpose of the statute before us, and proceedings under statutes authorizing such commitment have been held to be valid, on the ground that the parens patriae, or sovereign right to care for the education of its members, belongs of strict right to the state, under whose sanction the custody or charge of the minor is thus transferred from the guardian, who declares his inability to fulfill the purposes of guardianship. See Roth v. House of Refuge, 31 Md. 320; Ex parte Crouse, 4 Whart. (Pa.) 9.

It is no light matter to compel a boy or girl to spend his or her childhood days in restraint; and there should be clear proof of the necessity of such a course before a child is committed under the provisions of this act. Sections 5, 6, 7, and 8 of this law provide for a system of probation, the object of which is to help the child through a correctional method, by the state placing itself in loco parenti. The treatment of a child contemplated by this law is, as near as may be, that which should be given by its parents. The juvenile courts should, therefore, first exercise the authority conferred by the law, and place the child, where possible, on probation, either with the child’s parents, when suitable, or where there are no such parents, with any other fit person of good moral character, to be supervised by the probation officer, who is required to make frequent reports to the court. This act should be liberally construed in favor of the welfare and best interest of the child; and only for grave offenses, such as affect the general welfare of the public, should a child be proceeded against in accordance with the laws that may be in force governing the commission of crime. The rights of the child whose welfare is at stake, as well as the rights of his parents, must be duly regarded and protected by the court.

The last class of cases referred to supra, for which children may be committed to juvenile institutions, includes all those cases in which the state intervenes-in its capacity of parens patriae, and through its officers assumes the care and education of children who are either without a guardian or place of abode, commonly designated as “vagrant and destitute minors,” and in some jurisdictions those who are neglected, illtreated, and not properly cared for by their guardians, appointed or natural. In this state, this class are cared for in the Orphans’ Home at Pryor Creek.

Interference or intervention by process of law in matters affecting the care and guardianship of minors is carried on to an extent in the United States that is unknown to many legal systems of other portions of the civilized world. For this reason, it is interesting and instructive to inquire into the precise ground upon which such action rests, and the direction and extent it may properly assume. The fundamental doctrine upon which governmental intervention in all such cases is based is that the moment a child is born he owes allegiance to the government of the country of his birth, and is entitled to the protection of that government for his person, as well as his property. In order to discharge this duty of protection, the government, by way of safeguard and for the benefit of the infant, places him under guardianship; but it is only that there may be best secured to him the assistance and protection of law, and that he may acquire that education which will enable him afterwards to discharge the duty which he owes to his country, as well as to himself. The authority of all guardians is derived from the state, such guardians being appointed when the occasion for thém arises, or is expected to arise. The nature of a guardianship is that of a trust, the execution of which is at all times superintended by the state.

It has been held by the highest courts of Massachusetts, Ohio, Wisconsin, New York, and others, that the Legislature not only has the power to enact such provisions as those under consideration, but that it is the duty of the state, in its character of parens patriae, to do so. The performance of such duty is justly regarded as one of the most important governmental functions, and a constitutional limitation must be so understood as not to interfere with its proper and legitimate exercise. See Roth v. House of Refuge, supra; Prescott v. State, 19 Ohio St. 184; Ex parte Nichol, 110 Cal. 653. The cases cited do not all discuss the identical question under consideration, but the reasoning applies with full force.

It is evident that this law. was enacted by the Legislature in the interest of the highest principles of humanity, and for the greatest and best interests of the childhood of the state, especially that type of children who need the help and guardianship of the highest power of the state. It is but natural that the jurisdiction, in this class of cases should be conferred on the county courts. The statutes already existing at the time of the passage of this law conferred upon the county courts the duty of looking after the property rights of children. In fact, the county court is properly the children’s court, and the selection of the judges of these courts is usually had with this in view.

Again, it is objected that this statute attempts to punish violations of the federal laws. This point was not extensively argued. We have already determined that this is not a punitive statute, but a reformative one. It is not the purpose or intention of this statute to punish for the violation of any specific provision of any Code, but merely to provide that a child who, without knowing the wrongfulness of his acts, commits such acts, is guilty not of an infraction of' those provisions of either nation, state, or municipality, but is to be adjudged and considered a juvenile offender; in other words, a delinquent child as defined in the act itself. No provision of the statute under consideration prescribes a penalty for the violation of any statute, nor is a child committed for that'purpose, but'for the purpose of reformation, education, and development.

There is one other proposition raised by this petition that we deem it well to dispose of. That is the question of the jurisdiction of the district, or other courts than the juvenile, courts to commit juvenile offenders to the Training School for Boys. Section 8539, Snyder’s Statutes, is as follows:

“When complaint, the facts of which are established by due proof, shall be made to a magistrate or justice, as aforesaid, that any boy between the ages of seven and sixteen years is a proper subject for the guardianship of the State Training School, in consequence of vagrancy, or incorrigibly vicious conduct, and that from the moral depravity or other insuperable obstacle on the part of the parent, guardian, or next friend, in whose custody such boy may' be, such parent, guardian, or next friend, is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious boy, such magistrate or justice, as the case may be, shall commit such boy to the State 'Training School for such term as he shall ’ deem proper, within the limits prescribed'in'a previous section of this act.”

Section 8543, Snyder’s Statutes, is as follows:

“All boys committed under this act shall be committed until they arrive at the -age of twenty-one,. unless sooner reformed. Boys not over sixteen nor under ten years of age may be committed to said school by any judge of the police court, county judge, or district judge, or the judge of any court of record having jurisdiction in criminal cases which may be created by law, or any conviction of any offense against the laws of the state and any such boy convicted of any crime or offense, the punishment of which is in whole or in part confinement in the jail or penitentiary may, at the discretion of the -court giving sen-fence, in lieu 'of being sent to the jail or penitentiary, be committed to the State Training School.” 0

These provisions apparently confer this jurisdiction, but these sections were enacted prior to the enactment of the law in question, and are directly in conflict with the fundamental purpose of many of its provisions.

This act, in addition to providing for the jurisdiction of the county court sitting as a juvenile court, has many other mandatory provisions, such as requiring the keeping of separate dockets, journals, and reports to the Commissioner of Charities and' Corrections, the appointment of probation officers, and the procedure in general to be had in 'dealing with children, such as are not provided for nor contemplated in any other court* of the state.

Section 11 of the act before us provides that: “All acts and parts of acts in conflict herewith are hereby repealed.” The general provisions of Snyder’s Statutes, supra, were sufficient to confer this right upon district and other courts, but the provision last quoted clearly repeals, them. Should the general provisions of sections 8539 and 8543 stand, the very purpose of the law under consideration would be destroyed. It was evidently the intention of the Legislature to give this right- to commit children to the State Training School for the purposes of reform, education, and development, into the exclusive' control of the juvenile courts, and we are impelled to the conclusion that this is the effect of the law as it stands. It is also provided that a child committed under the provisions of- this act shall be committed until he is twenty-one years of age, unless sooner reformed. A commitment to the State Training School for Boys for a definite period is not warranted by this statute. Commitment should follow statutory provisions. In the case before us the child was committed for two years.

The. issues raised by the petition were orally argued and have been exhaustively briefed by counsel, on behalf of petitioner, and extensively argued by counsel, on behalf of the state.

The questions here discussed were not raised before the district court of Pontotoc county, and the attention of that court was not called to any of the provisions of this act. Piad that been done, it is probable that this cause would not be here on habeas corpus.

From the views expressed upon the questions raised by the petition in this case, we conclude that the statute is constitutional and valid in every respect. See Commonwealth v. Fisher, supra; Ex parte Nichol, supra; State v. Reed, 123 La. 411, 49 South. 3; Blanchard v. Raines, 20 Fla. 467; Baldwin v. Bennett, 6 Rob. (La.) 309.

Let the writ issue, and petitioner be discharged from the custody of the sheriff of Pontotoc county. Said sheriff is ordered to deliver the prisoner into the custody of the juvenile court of said county, to. be proceeded with according to law.

FURMAN, P. J., and DOYLE, J., concur.


text:
    JINKS McGILL v. STATE.
    No. A-860.
    Opinion Filed January 11, 1912.
    (120 Pac. 297.)
    1. RECEIVING- STOLEN GOODS — Information. To charge the crime of receiving stolen property, knowing it to be stolen, the information need not allege the facts going to constitute larceny against the original takers from whom it has been received.
    2. EVIDENCE — Corroboration of Accomplice — Weight. If there is evidence which corroborates an accomplice and conduces to connect the defendant with the commission of the crime, its sufficiency is for the jury to determine.
    (Syllabus by the Court.)

      Appeal from District Court,, Logan County; A. H. Huston, Judge.

    Jinks McGill was convicted of receiving stolen property, and appeals.
    Affirmed.

      McGuire & Smith, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson and B. G. Spitman, Asst. Attys. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted in the district court of Logan county on an information which charged:

“The said Jinks McGill did then and there unlawfully wilfully, knowingly, and feloniously buy and receive' from Charlie French, Willie Guess, and John McGrue, for a valuable consideration, to wit, for the sum of $4.50, of the value of $4.50 in good and lawful money of the United States, certain personal property, to wit, 18 gallons of paint of the value of $27 in good and lawful money of the United States, which said 18 gallons of paint, they, the said Charlie French, Willie Guess, and John McGrue had stolen from the Arkansas Lumber Company, a corporation organized and existing under the laws of the state of Oklahoma, as he, the said Jinks McGill, at the time he bought and received said 18 gallons of paint as aforesaid from them, the said Charlie French, Willie Guess, and John McGrue, then and there well knew, contrary to,” etc.

The jury returned a verdict of guilty. On February 16, 1910, the court sentenced the defendant to be imprisoned for a term of two years and six months in the penitentiary.

The information was drawn and the conviction had under section 2603, Snyder’s Stat. 1909, which declares:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the state penitentiary not exceeding five years,” etc.

The testimony in the case conduces to show that 60 gallons of paint in cases of 6 gallons each were stolen on the night of January 2, 1910, from the warehouse, in Guthrie, of the Arkansas Lumber Company, a corporation. About a week afterwards 18 gallons of this paint was found concealed in the defendant’s house. John McGrue and Charlie French testified that they stole three of the cases from the warehouse of the Arkansas Valley Lumber Company, and, assisted by Willie Guess, carried them to the defendant’s home about 11 o’clock that night; that they talked with him before they stole it, and 'when they delivered it that he paid John McGrue $1.50 for the three cases. There was no testimony offered on the part of the defendant.

But two of the various errors assigned are relied upon in plaintiff’s brief: First. That. the information is insufficient.

Second. That the. evidence is insufficient to sustain the verdict and judgment.

In support of the first assignment, it is contended by the defendant’s counsel that the information is fatally defective, for the reason that it does not allege the ownership of the property stolen. We are inclined to believe that the ownership of the property stolen is sufficiently stated. Substantially the language of the statute is used in'charging the offense. To charge the crime of receiving stolen property, knowing it to be stolen, the information need not allege the facts going to constitute larceny against the original takers, from whom it has been received. The demurrer' was properly overruled.

The second assignment is based upon the theory that the evidence shows that the only testimony relative to a guilty knowledge on the part of the defendant came from the witnesses John McGrue and Charlie French, who were shown to be accomplices of the defendant. Unquestionably the testimony' of these accomplices, if uncorroborated, would be insufficient to support the verdict and judgment of conviction; but that is not this case. The stolen property was found taken from the cases and secreted and concealed in the defendant’s home. It is further shown that this property was bought by the defendant for a mere trifle of its value; that it was bought and received by him from these witnesses at the unseemly hour of 11 o’clock at night. There is other evidence tending to show the defendant’s guilty knowledge.

Mr. Wharton says:

“Whether the defendant knew that the goods were stolen is to be determined by 'all the facts of the case. It is not necessary that, he should have heard the facts from eyewitnesses. He is required to use the circumspection usual with persons taking goods by private purchase; and this is eminently the case with dealers buying at greatly depreciated rates. That which a man in the defendant’s position ought to have suspected, he must he regarded as having suspected, as far as was necessary to put him on his guard and on his inquiries. But it has been said that, to justify a conviction in the case of goods found, it is not sufficient to show that the prisoner had a general knowledge of the circumstances under which the goods were taken, unless the jury is also satisfied that he knew that the circumstances were such as constituted a larceny. The proof in any case is to be inferential; and among the inferences prominent are inadequacy of price, irresponsibility of vendor or depositor, and secrecy of transaction.” (Wharton’s Criminal Law, par. 984.)

The testimony given by McGrue and French is to be considered in the light of the corroborating evidence and all the testimony in the case, which in itself is sufficient to fully justify the inference that the defendant knew at the time he received this property that it was stolen. If there is evidence which corroborates an accomplice, and conduces to connect the defendant with the commission of the crime, its sufficiency is for the jury to determine.

Our conclusion is that the appeal in this case is without merit.

The judgment is therefore affirmed. Mandate to issue forthwith.

FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    C. H. JENKINS v. STATE.
    No. A-780.
    Opinion Filed January 11, 1912.
    (120 Pac. 298.)
    ARRAIGNMENT AND PLEAS — Withdrawal of Plea of Guilty — Discretion of Court — Right to Trial by Jury. A motion in a misdemeanor case to withdraw a plea of guilty and to substitute therefor a plea of not guilty is addressed to the sound discretion of the court. ' Consequently its decision will not be disturbed, unless an abuse of discretion appears. In a felony case, and especially in a capital case, if the defendant pleads guilty without the benefit of counsel, or was influenced to enter such plea either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty.
    (Syllabus by the Court.)

      Appeal from Craig County Court; Theo. D. B. Brear, Judge.

    C. H. Jenkins was convicted of a violation of the prohibition law, and appeals.
    Affirmed.

      James S. Davenport, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Andrew Wood, of counsel), for the State.
   DOYLE, J.

The plaintiff in error was convicted upon an information filed in the county court of Craig county March 10, 1909, which charged the unlawful sale of a quart of whisky to one A. J. Brady. May 24-, 1909, upon arraignment, he entered a plea of guilty as charged, and the court appointed May 29th as the time for pronouncing judgment and sentence, at which time the case was continued for sentence, and was so continued from term to term until March 31, 1910, at which time the defendant appeared in open court, in person and by his attorney, and filed a motion to withdraw his plea of guilty heretofore entered, and to substitute therefor and enter a plea of not guilty, which motion was by the court overruled, and thereupon the court sentenced the defendant to serve a term of 30 days in the' county jail, and to pay a fine of $250. To reverse this judgment an appeal on a transcript, with a petition in error, was perfected.

The defendant’s counsel contends that under the statute providing :

“The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.” (Section 6759, Snyder’s.) —he is given the right to withdraw his plea of guilty at any time before judgment and to substitute therefor a plea of not guilty; that the language used, though permissive in form, is in fact peremptory; that under the Constitution of Oklahoma the refusal of the court'to permit him so to do deprived him of his constitutional guaranty of a fair and impartial trial by a jury of his peers; and that on any other construction the statute would conflict with the Constitution. The provisions of the Bill of Rights relied on are as follows:
“The right of trial by jury shall be and remain inviolate.” (Section 19.) “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” (Section 20.)

In section 20, art. 7, of our Constitution, it is provided that:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by a jury; in which case the finding of the judge upon the facts shall have the force and effect of a verdict by jury.”

The provisions of the Bill of Rights in no way abrogate the ancient and well-established rule of the common law, and the provisions of our statute, that a conviction may be had upon a plea of guilty, which under the law can in no case be put in except by the defendant himself in open court. The defendant had a constitutional right of trial by jury, or, the state consenting, a trial by the court. He was not deprived of this right, but voluntarily relinquished it by entering a plea of guilty. The right of trial by jury is purely a personal right and privilege that may be waived by the defendant. The provisions of the Bill of Rights quoted are restrictions on the legislative power, and place the right beyond the power of the Legislature to abridge it. As we construe the statute quoted, it was clearfy within the sound judicial discretion of the trial court to allow or disallow the motion to withdraw the plea of guilty and substitute therefor a plea of not guilty, especially in a misdemeanor case, and under this construction the statute in no wise conflicts with the constitutional provisions. From the record before us we cannot say that this discretion was abused. Without speculating on what ground the case was continued for sentence on a plea of guilty for almost a year, it is enough to say that we surmise that the defendant absconded.

In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, if the defendant had entered a plea of guilty without the benefit of counsel, or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of ■the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be considered an abuse of judicial discretion. From the record before us there appears no reason why we should interfere with the ruling made in virtue of the discretion with which the trial court was vested.

The judgment of the lower court is therefore affirmed, and the cause remanded thereto, with direction to enforce its judgment therein.

'FURMAN, P. J., and ARMSTRONG, J., concur.


text:
    CHARLEY FORD et al. v. STATE.
    No. A-934.
    Opinion Filed January 11, 1912.
    (120 Pac. 300.)
    APPEAL AND EREOB. — Failure to File Briefs — Affirmance. When an appeal is taken to this court, and no brief is filed and no appearance made for oral argument, such appeal will be treated as abandoned, and on motion of the Attorney General will be affirmed.
    (Syllabus by the Court.)

      Appeal from District Court, Wagoner County; John H. King,' Judge.

    Charley Ford and Will Ward were convicted of assault with a dangerous weapon, and appeal.
    Affirmed.

      M. W. Guy, for plaintiffs in ¿rror.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

Plaintiffs in error were tried at the April, 1910, term of the district court of Wagoner county on a charge of assault with a dangerous weapon with intent to do bodily harm, and were convicted on the 23d day of April, 1910. Thereafter, on the 30th day of said month, they were sentenced to imprisonment in the state penitentiary for a term of 2% years.

The appeal was filed in this court on the 25th day of October, 1910. No petition in error and no brief have been filed on behalf of plaintiffs in error. This cause was assigned for oral argument on the 6th day of anuary, 1912. On that date no appearance was made on behalf of plaintiffs in error for oral argument, and the Assistant Attorney General on behalf of the state, moved to affirm for want of prosecution.

The motion is well taken. When an appeal is taken from a judgment of a trial court, and no petition in error is filed and no brief filed on behalf of appellant, and no appearance made for oral argument, such appeal is considered as abandoned, and will be affirmed, on motion of the Attorney General or his proper representative. See Mingle v. State, 5 Okla. Cr. 535, 115 Pac. 616; Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061; Henson v. State, 5 Okla. Cr. 6, 113 Pac. 224; and many others.

The record has been carefully examined, and we are of opinion that the judgment should be affirmed. It is so ordered. The clerk will issue mandate forthwith.

FURMAN, P. J., and DOYLE, J., concur.


text:
    R. F. RICHARDSON v. STATE.
    No. A-877.
    Opinion Filed January 15, 1912.

      (119 Pac. 1125.)
    HOMICIDE — Evidence—Felonious Assault.. The evidence upon a trial for assault with intent to kill examined, and held sufficient to-support a verdict convicting the defendant of a felonious assault.
    (Syllabus by the Court.)

      Appeal from District Court, Jefferson County; Frank M. Bailey, Judge.

    R. F. Richardson was convicted of assault with intent to kill, and.appeals.
    Affirmed.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was informed against for the crime of assault with intent to kill, and was convicted of a felonious assault, and sentenced to be imprisoned in the penitentiary for a term of. one year and one day. The judgment and sentence was entered on March 3, 1910. No briefs have been filed, and when the case was called on the regular assignment of this term no appearance was made on behalf of the plaintiff in error,, and the Attorney General moved to affirm for failure to prosecute the appeal.

While we do not consider it the duty of this court to examine the evidence, yet, owing to the fact that the conviction was for a felony, we have carefully examined the record and the evidence, and we have discovered no error. The evidence abundantly sustains the verdict. No exception was taken on the admission of the evidence or to the instructions of the court. The defendant had the benefit of able counsel, and had a fair trial. It appears that the appeal is wholly without merit.

The judgment of the district court of Jefferson county is therefore affirmed, and the cause remanded thereto, with direction to enforce its judgment therein.

FURMAN, P. J., and ARMSTRONG, J., concur.