author: ARMSTRONG, J.

text:
    BEN MAY v. STATE.
    No. A-2371.
    Opinion Filed November 3, 1915.
    (152 Pac. 338.)
    X. APPEAL — Presentation—Requisites. Errors of law occurring at the trial of a criminal case must be preserved by proper exceptions at the time they occur, and the attention of the trial court called to the same by motion for a new trial, and in addition, the proper assignments of error must be based thereon when the appeal is taken to this court.
    2. OBJECTION TO INSTRUCTION — Appeal. An objection to an v instruction comes too late when raised for the first time in the appellate court, unless the error is fundamental and clearly prejudicial to the substantial rights of the accused. When proper exception has not been taken, and the trial court’s attention has not been called, by motion for a new trial, to the error complained of in this court, the record will be diligently scrutinized with'a view of upholding the judgment, if such can be done without violence to the established and accepted rules of law.
    3. APPEAL — 'Presentation—■ Scope of Review. Only fundamental errors, which deprive an accused of material rights, and which amount practically to a denial of justice, are entitled to consideration in the appellate court when no assignments have been made in the motion for a new trial nor petition in error.
    (Syllabus by the Court.)

      Appeal from Superior Court, Muskogee County; H. C. Thurman, Judge.

    Ben May was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Owen & Stone and Stunner J. Lipscomb, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Ben May, was convicted at the September, 1914, term of the Superior Court of Muskogee county on a charge of unlawfully conveying intoxicating liquor from one place in Muskogee county to another place therein, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days.

It appears from the testimony that upon the date the offense is charged Ben May was a negro constable of Agency township in Muskogee county; in the early part of August, 1913, he was visiting (according to his testimony) near Braggs, Oklahoma, and found several sacks of whisky on the right-of-way of the St. Louis, Iron Mountain & Southern Railway, at a deep cut near the town of Braggs. The testimony indicates that the whisky was dropped from a slowly moving freight train and picked up by the plaintiff in error and his brother. They loaded it into a buggy. The plaintiff in error then drove away towards Muskogee, his brother having stopped at the town of Braggs. A deputy sheriff and white constable living at Braggs and certain citizens followed plaintiff in error for some distance. He made an effort to escape them by driving a circuitous route and at a rapid gait, but was finally overtaken. When accosted by the deputy sheriff, constable and posse, the plaintiff in error told them that he was an officer; that he had captured the whisky and was taking it to Muskogee to deliver it to the high sheriff; that as an officer he had a right so to do. The state prosecuted upon the theory that plaintiff in error and his brother were the owners of the whisky, and found it by prearrangement, and that plaintiff in error’s claim of seizure as an officer was only a subterfuge. The facts disclosed by the record, viewed from the standpoint of an unbiased observer, conclusively point to this deduction. The defense offered was of course entitled to fair consideration by the jury, and we are satisfied it received all it was entitled at their hands. The record indicates that the court below endeavored to accord the plaintiff in error a fair and impartial trial. There were no exceptions saved to any rulings of the court, nor to any instructions given. The only error urged by counsel for plaintiff in error in the brief which is founded in merit was that saved for review here. It is based upon the following instruction:

“You are instructed that it is not necessary for the state to prove that the defendant owned the liquor charged in the information, but it is sufficient if he transported it as charged, whether he owned the liquor or not, provided, however, that a constable in the performance of his duty may lawfully transport liquor from a place where the same is captured by him to the county seat for the purpose of delivery to the sheriff and if you find that the defendant was so doing at the time of his arrest you must acquit him.”

This instruction fairly states the law as applied to the facts in the, record before us, with one exception: — this, to-wit: The court says . . . “if you find that the defendant was so doing at the time of his arrest you must acquit him.” The jury did not have to find that the defendant was so doing; if they had a reasonable doubt as to whether or not he was so doing, he was entitled to an acquital. No exception was taken to this instruction, however, at the trial; no complaint was made in the motion for a new trial and no assignment based thereon. It is evident that the inaccuracy was an oversight and resulted in no prejudice. Although the instruction is erroneous in this particular, the error is not such that this court would be warranted in reversing the conviction. In Williams v. The State, decided at the present term of court, in which case the plaintiff in error was charged with a felony, we said: “Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done, that we are required to reverse a conviction, whether or not an exception has been taken in the trial court.”

An objection to an instruction given by the trial court comes too late when raised for the first time in this court, unless fundamental error appears or a substantial right has been denied, to the prejudice of the complainant. The rights of the planitiff in error must be preserved in the trial court, and be presented first to that court for consideration by motion for a new trial or by proper exception — and ordinarily both. In fairness to coungel upon the brief, we should say that this case was tried by other counsel, and they were not participants in the trial in the court below. If counsel at the trial had been as zealous in protecting the rights of plaintiff in error in the court below as his counsel has been diligent here, he would probably have had no occasion to appeal.

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

DOYLE, P. J., concurs; FURMAN, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J-

license: Public Domain

text:
    TOM LINN v. STATE.
    No. A-2251.
    Opinion Filed November 2, 1915.
    (152 Pac. 338.)
    LARCENY — Ground for Reversal — Evidence, Evidence in a prosecution for the theft of hogs considered and held sufficient to support a conviction, and that no reversible error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    Tom Linn, convicted of theft, appeals.
    Affirmed.

      W. S. Moore, Curtis & Pitchford and Crump & Crump, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J-

The plaintiff in error, Tom Linn and Frank Gossett were jointly informed against for the theft of four hogs, the property of Sam McMCoy. A severance was demanded and upon his separate trial, plaintiff in error was found .guilty and his punishment fixed at imprisonment in the penitentiary for the term of one year. From the judgment which followed he appeals.

' The evidence tends to show the following facts:

That Sam McCoy, an Indian, living eight miles north of Vian had about twenty-five hogs stolen during the summer of 1913, and he found four of the stolen hogs at Webbers Falls in the possession of P. C. Satterwhite, who purchased them from the defendants in this case. These four hogs were positively identified by several witnesses as the property of Sam McCoy. That Satterwhite had purchased seventy or eighty hogs from the defendants that summer; that plaintiff in error had lived four or five miles north of Vian about one year, at that time, and did not have any hogs when he moved into that community. ;

Plaintiff in error as a witness in his own behalf testified that he raised the hogs that he sold to Satterwhite.

On cross-examination he stated that his brother-in-law, Frank Gossett, was with him when he delivered the hogs to Satterwhite; that he also sold a number of hogs at Muskogee.

Several other witnesses testified that he raised the hogs that he sold to Satterwhite.

The first contention made is that the verdict of the jury was contrary to the evidence. Where the testimony is conflicting, the credibility of the witnesses and the weight, to be given their testimony is a matter for the jury to determine. There was competent evidence tending to support every material averment in the information and in our judgment the evidence amply sustains the verdict.

The next contention is that the court erred in its rulings in admitting evidence.

C. F. Ritter testified that he owned some hogs that ran with those of Sam McCoy, and went with McCoy to Webbers Falls looking for the stolen hogs, and identified the four hogs found there as belonging to McCoy. That he went to Webbers Falls-because he had lost twenty-six head of hogs himself; and he went there to see if he could find his hogs. Counsel urged that the admission of this evidence was in effect permitting the state to introduce evidence which tended to show that plaintiff in error had been guilty of offenses other than the one for which he was being tried. We think this contention is without merit.

It is also contended that the conduct of the prosecuting attorney in his argument to the jury was highly prejudicial to plaintiff in error.

We have carefully examined this assignment of error, and while it appears that the prosecuting attorney made one or two statements in his argument which might be deemed improper, they were not of a character that would justify a reversal of the judgment.

It is our duty to affirm a judgment of conviction, “unless, in -the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Procedure Criminal, Sec. 6005, Rev. Laws.

'On the whole case we are compelled to say that the record does not disclose any substantial ground upon which this court would be justified in interfering with the judgment, and it must,, therefore, be affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    A. J. BEMIS v. STATE.
    No. A-1469.
    Opinion Filed October 9, 1915.
    (152 P. 456.)
    1. CONSTITUTIONAL. LAW — .Due Process of Law — Employment Contract — Stipulation —- Termination of Employment. Whatever either employer or employee has the right,'under the due process of law clause of U. S. Const., 14th Amendment, to treat as sufficient ground for terminating the employment, where there is no stipulation on the subject, he has the right to provide against by insisting that a stipulation respecting it shall be a sine qua non of the inception of the employment or of its continuance, if it be terminable at will.
    .2. CONSTITUTIONAL LAW — Validity of Statute — Police Regulation. A statutory provision whieh is not a legitimate police regulation cannot be made such by being placed in the same act with a police regulation, or by being enacted under a title that declares a purpose which would be .a proper object for the exercise of that power.
    3. MASTER AND SERVANT — .Statutes—Validity—Terms of Employment. To punish an employer or his agent for simply proposing certain terms of employment under circumstances devoid of coercion, duress, or undue influence, has no reasonable relation to a declared purpose, in a statute, of repressing coercion, duress, or undue influence. »

    4. CONSTITUTIONAL LAW — 'Statutes — Validity — Restriction of Rights — Police Power. The several states are debarred by U. S. Const., 14th Amendment, from striking down personal liberty or property rights, or materially restricting their normal exercise, excepting so far as may be incidentally necessary for the accomplishment of some other and paramount object, and one that concerns the public welfare. The mere restriction of liberty or of property rights cannot, of itself, be denominated public welfare, and treated as a legitimate object of the police power.
    5. CONSTITUTIONAL LAW — Due Process — Employment Contract. The rights of jiersonal liberty and property are infiúnged without due process of law, contrary to the United States Constitution, 14th Amendment, by section 4041, Comp. Laws 1909, which, as construed and applied by the trial court in the case at bar, an employer or his agent may be criminally punished for having prescribed as a condition upon which one may secure employment under, or remain in the service of, such employer (the employment being terminable at the will of either party) that the employee shall enter into an agreement not to become or remain a member of any labor organization while so employed; the femployee being subject to no incapacity or disability, but, on the contrary, free to exercise a voluntary choice between the employment offered and membership in the union of which he may be a member. Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59. L. Ed. 441; L. K. A. 1915 C., 960.

      Appeal from County Court., Oklahoma County; ■ John W. Hayson, Judge.

    A. J. Bemis was convicted of unlawfully coercing laborers, and appeals.
    Reversed.

      Shartel, Keaton & Wells and Snyder, Owen & Lybrand, for the plaintiff in error.
    N T. Bledsoe and R. A. Kleinschmidt, amicus curiae.

      Chas. West, Atty.’ Gen., and R. R. Gish, of counsel,' for the defendant in error.
   ARMSTRONG, J.

The plaintiff in error, A. J. Bemis, was convicted at the July, 1911, term of the County Court of Oklahoma county on a charge of unlawfully coercing laborers, and his punishment fixed at a fine of $200.00. To secure a reversal of this judgment, he brings thid appeal in proper form and in due time as provided by law. The information upon which the prosecution and conviction is based, is as follows:

“In the name and by the authority of the state of Oklahoma, comes now Sam Hooker, the duly qualified and acting county attorney, in and for Oklahoma county, and state of Oklahoma, and on his official oath gives the County Court in and for said Oklahoma county and state of Oklahoma to know and be informed that the above named A. J. Bemis, defendant, did in Oklahoma county, and in the state of Oklahoma, on the 23rd day of February, in the year of our Lord A. D. 1911, commit the crime of willfully, maliciously, designedly and unlawfully restraining certain employes of the Oklahoma Railway Company, a corporation, from membership in a labor union in manner and form as follows: For that he did then and there, as the general manager and agent of and on behalf of the Oklahoma Railway Company, a corporation, owning, operating and controlling a line of street railways into and through Oklahoma City, said county and state, cause and compel certain and divers persons whose names are unknown to this affiant, to enter into a verbal agreement not to join and be members of a labor organization in Oklahoma City, said county and state, known as the Amalgamated Association of Street Railway Employees of America, as a condition of such persons continuing in the employment of the' said Oklahoma Railway Company, a corporation, as aforesaid.
“Contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

Upon arraignment, the plaintiff in error filed a demurrer as follows:

“Comes now A. J. Bemis, defendant in the above entitled action, and hereby demurs to the information filed against him in said court on February 24, 1911, upon the following grounds, to-wit:
“1st. For that said information fails to state facts sufficient to constitute a public offense.
“2nd. For that the statute, to-wit, section 4041, Compiled Laws of Oklahoma, (1909), upon which said information is based, is null and void for the reason that the provisions of the same are .in conflict with section 7, article 2 of the Constitution of the state of Oklahoma, providing that ‘no person shall be deprived of life, liberty or property without due process of lawand said statutory provisions are also null and void as being in conflict with section 2 of said article 2 of the Constitution of the state of Oklahoma, providing that ‘all persons have the inherent right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry.’•
“3rd. For that the provisions of said section 4041 of the Compiled Laws of Oklahoma (1909), upon which said information is grounded, are null and void for the reason that they are in conflict with the following provisions of article 14 of the Amendments to the Constitution of the United States, to-wit:
“ ‘Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ ”

A number of questions were briefed and argued when this case was assigned for submission. The determination of the question raising the validity of the statute is the only assignment which we shall undertake to discuss. The statute complained of and which is the basis of the prosecution will be found in section 4041, Compiled Laws of 1909, and is as follows:

“Any person or corporation within the state, or agent, or officer on behalf of such person or corporation, who shall hereafter cause or compel any person to enter into an agreement either written or verbal, not to join or be a member of any labor organization as a condition of such person securing employment or continuing in the employment of any such person or corporation, shall be guilty of a misdemeanor, and upon conviction shall be fined a sum not less than two hundred dollars nor more than one thousand dollars, or imprisonment in the county jail not less than ninety days nor more than twelve months, or both such fine and imprisonment.”

The question here to be considered was determined by the Supreme Court of the United States in Coppage v. Kansas, 236 U. S. 1; 59 L. Ed., 240. The statute construed in the Coppage case was as follows:

“That it shall be unlawful for any individual or member of any firm, or an agent, officer, or employee of any company or corporation, to coerce, require, demand, or influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association, as a condition of such person or persons securing employment, or continuing in the employment of such individual, firm, or corporation.
“Any individual or member of any firm, or any agent, officer, or employee of any company or corporation violating the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $50.00, or imprisoned in the county-jail not less than thirty days.”

A conviction of Coppage resulted in the trial court, and was affirmed by the Supreme Court o.f'Kansas, 87 Kansas, 752; 125 Pac., 8. An appeal was prosecuted by Coppage to the Supreme Court of the United States, and the cause determined by that court as stated, supra. We quote from the opinion reversing the Kansas Supreme Court at length, on account of the fact that the discussion of the principle involved in the statute here in question is elaborate, and the doctrine enunciated is conclusive upon this court. The court after stating the issue, said:

“We have to deal, therefore, with a statute that, as construed and applied, makes it a criminal offense, punishable with fine or imprisonment, for an employer or his agent to merely prescribe, as a condition upon which one may secure certain employment or remain in such employment (the employment being terminable at will), that the employee shall enter into an agreement not to become or remain a member of any labor organization while so employed; the employee being subject to ho incapacity or disability, but, on the contrary, free to exercise a voluntary choice.
“In Adair v. United States, 208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764, this court had to deal with a question not distinguishable in principle from the one now presented. Congress, in article 10 of an act of June 1, 1898, entitled, ‘An Act Concerning Carriers Engaged in Interstate Commerce and Their Employees’ (30 Stat. at L. 424, 428, chap. 370), had enacted ‘that any employer subject to the provisions of this act, and any officer, agent, or receiver of such employer, who shall require any etaployee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization ... is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof . . . shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars.’ Adair was convicted upon an indictment charging that he, as agent of a common carrier subject to the provisions of the act, unjustly discriminated against a certain employee by discharging him from the employ of the carrier because of his membership in a labor organization. The court held that portion of the act upon which the conviction rested to be an invasion of the personal liberty as well as of. the right of property guaranteed by the 5th Amendment, which declares that no person shall be deprived of liberty or property without due process of law. Speaking by Mr. Justice Harlan, the court said (p. 174): ‘While, as already suggested, the right of liberty and property guaranteed by the Constitution against deprivation without due process of law is subject to such reasonable restraints as the common good or the general welfare may r'equire, it is not within the functions of government — at least, in the absence of contract between the parties — to compel any person in the course of his business and against his will to accept or retain the personal services of another; or to compel any person, against his will, to perform personal services for another. The right of a person to1 sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So' the right of the employee to quit the service of the employer, for whatever reason, is the same as the' right of the employer, for whatever reason, to dispense with the services of such employee. It was the legal right of the defendant Adair — however unwise such a course might have been — to discharge Coppage (the employee in that case) because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so, — however unwise such a course on his part might have been, — to quit the service in which he was engaged, because the defendant employed some persons who were not members of a labor organization. In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land.’ ”

Unless it is to be overruled, this decision is controlling upon the present controversy; for if Congress is prevented from arbitrary interference with the liberty of contract because of the “due process” provision of the 5th Amendment, it is too clear for argument that the states are prevented from the like interference by virtue of the corresponding clause of the 14th Amendment; and hence, if it be unconstitutional for Congress to deprive an employer of liberty or property for threatening an employee with loss of employment, or discriminating against him because of his membership in a labor organization, it is unconstitutional for a state to similarly punish an employer for requiring his employee, as a condition of securing or retaining employment, to agree not to become or remain a member of such an organization while so employed. 1

It is true that, while the statute that was dealt with in the Adair case contained a clause substantially identical with the Kansas act now under consideration, — a clause making it a misdemeanor for an employer to require an employee or applicant for employment, as a condition of such employment, to agree not to become or remain a member of a labor organization,- — the conviction was based upon another clause, which related to discharging an employee because of his membership in such an organization; and the decision, naturally, was confined to the case actually presented for decision. In the present case, the Kansas Supreme Court sought to distinguish the Adair decision upon this-ground. The distinction, if any there be, has not previously been recognized as substantial, so far as we have been able to find. The opinion in the Adair case, while carefully restricting the decision to the precise matter involved, cited (208 U. S. on page 175), as the first in order of a number of decisions supporting the conclusion of the court, a case (Pelple v. Marcus, 185 N. Y. 257, 7 L. R. A. (N. S.) 282, 113 Am. St. Rep. 902, 77 N. E. 1073, 7 Ann. Cas. 188) in which the statute denounced as unconstitutional was in substance the counterpart of the one with which we are now dealing.

But, irrespective of whether it has received judicial recognition, is there any real distinction? The constitutional right of the employer to discharge an employee because of his membership in a labor union being granted, can the employer be compelled to resort to this extreme measure? May he not offer to the employee an option, such as was< offered in the instant case, to remain in the employment if he will retire from the union; to sever the former relationship only if he prefers the latter? Granted the equal freedom of both parties to the contract of employment, has not each party the right to stipulate upon what terms only he will consent to the inception, or to the continuance of that relationship? And may he not insist upon an express agreement, instead of leaving the terms of the employment to be implied? Can the legislature in effect require either party at the beginning to act covertly; concealing essential terms of the employment — terms to which, perhaps, the other would not willingly consent — and revealing them only when it is proposed to insist upon them as a ground for terminating the relationship? Supposing an employer is unwilling to have in his employ one holding membership in a labor union, and has reason to suppose that the man may prefer membership in the union to the given employment without it — we ask, can the legislature oblige the employer in such case to refrain from dealing frankly at the outset? And is not the employer entitled to insist upon equal frankness in return? Approaching the matter from a somewhat different standpoint, is the employee’s right to be free to join a labor union any more sacred, or more securely founded upon the Constitution, than his right to work for whom he will, or to be idle if he will? And does not the ordinary contract of employment include an insistence by the employer that the employee shall agree, as a condition of the employment, that he will not be idle and will not work for whom he pleases, but will serve his present employer, and him only, so long as the relation between them shall continue? Can the right of making contracts be enjoyed at all, except by parties coming together in an agreement that requires each party to forego, during the time and for the purpose covered by the agreement, any inconsistent exercise of his constitutional rights?

These queries answer themselves. The answers, as we think, lead to a single conclusion: Under constitutional freedom of contract, whatever either party has the right to treat as sufficient ground for terminating the employment, where there is no stipulation on the subject, he has the right to provide against by insisting that a stipulation respecting it shall be a sine qua non of the inception of the employment, or of its continuance if it be terminable at will. It follows that this case cannot be distinguished from Adair v. United States.

The decision in that case was reached as the result of elaborate argument and full consideration. The opinion states (208 U. S. 171) : “This question is admittedly one of importance, and has been examined with care and deliberation. And the court has reached a conclusion which, in its judgment, is consistent with both the words and spirit of the Constitution, and is sustained as well by sound reason.” We are now asked, in effect, to overrule it; and in view of the importance of the issue we have re-examined the question from the standpoint of both reason and authority. As a result, we are constrained to reaffirm the doctrine there applied. Neither the doctrine nor this application of it is novel; we will endeavor to restate some of the grounds upon which it rests. The principle is fundamental and vital. Included in the right of personal liberty and the right of private property — partaking of the nature “of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services, are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money.

An interference with this liberty so serious as that now under consideration, and so disturbing of equality of right, must be deemed to be arbitrary, unless it be supportable as a reasonable exercise of the police power. But, notwithstanding the strong general presumption in favor of the validity of state laws, we do not think the statute in question, as construed and applied in this case, can be sustained as a legitimate exercise of that power. To avoid possible misunderstanding, we should here emphasize, what had been said before, that so far as its title or enacting clause expresses a purpose to deal with coercion, compulsion, duress, or other undue influence, we have no present concern with it, because nothing of that sort is involved in this case. As has been many times stated, this court deals not with moot cases or abstract questions, but with the concrete case before it. California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876; Richardson v. McChesney, 218 U. S. 487, 492, 54 L. ed. 1121, 1122, 31 Sup. Ct. Rep. 43; Missouri, K. & T. R. Co. v. Cade, 233 U. S. 542, 648, 58 L. ed. 1135, 1137, 34 Sup. Ct. Rep. 678. We do not mean to say, therefore, that a state may not properly exert its police power to prevent coercion on the .part of employers towards employees, or vice versa. But, in this case, the Kansas court of last resort has heid that Coppage, the plaintiff in error, is a criminal, punishable with fine or imprisonment under this statute, simply and merely because, while acting as the representative of the railroad company, and dealing with Hedges, an employee at will and a man of full age and understanding, subject to no restraint or disability, Coppage insisted that Hedges should freely choose whether he would leave the employ of the company or would agree to refrain from association with the union while so employed. This construction is, for all purposes of our jurisdiction, conclusive evidence that the state of Kansas intends by this legislation to punish conduct such as that of Coppage, although entirely devoid of any element of coercion, compulsion, duress, or undue influence, just as certainly as it intends to punish coercion and the like. But, when a party appeals to this court for the protection of rights secured to him by the Federal Constitution, the decision is not to depend upon the form of the state law, nor even upon its declared purpose, but rather upon its operation and effect as applied and enforced by the state; and upon these matters this court cannot, in the proper performance of its duty, yield its judgment to that of the state court. St. Louis South Western R. Co. v. Arkansas, 235 U. S. 350, 362, ante, 99, 35 Sup. Ct. Rep. 99, and cases cited. Now, it seems to us clear that a statutory provision which is not a legitimate police regulation cannot be made such by being placed in the same act with a police regulation, or by being enacted under a title that declares a purpose which would be a proper object for the exercise of that power. “Its true character cannot be changed by its collocation,” as Mr. Justice Grier said in the Passenger Cases, 7 How. 458, 12 L. ed. 775. It is equally clear, we think, that to punish an employer or his agent for simply proposing certain terms of employment, under circumstances devoid of coercion^ duress, or undue influence, has no reasonable relation to a declared purpose of repressing coercion, duress, and undue influence. Nor can a state, by designating as “coercion” conduct which is not such in truth, render criminal any normal and essentially innocent exercise of personal liberty or of property rights; for to permit this would deprive the 14th Amendment of its effective force in this regard. We, of course, do not intend to attribute to the legislature or the courts of Kansas any improper purpose or any want of candor; but only to emphasize the distinction between the form of the statute and its effect as applied to the present case.

Raying aside, therefore, as immaterial for present purposes, so much of the statute as indicates a purpose to repress coercive practices, what possible relation has the residue of the act to the public health, safety, morals, or general welfare? None is suggested, and we are unable to conceive of any. The act, as the construction given to it by the state court shows, is intended to deprive employers of a part of their liberty of contract, to the corresponding advantage of the employed and the upbuilding of the labor organizations. But no attempt is made, or could reasonably be made, to sustain the purpose to strengthen these voluntary organizations, any more than other voluntary associations of persons, as legitimate object for the exercise of the police power. They aré not public institutions, charged by law with public or governmental duties, such as would render the maintenance of their membership a matter of direct concern to the general welfare.' If they were, a different question would be presented.

As to the interest of the employed, it is said by the Kansas Supreme Court (87 Kans. 759, 125 Pac. 10) to be a matter of common knowledge that “employees, as a rule, are not financially able to be as independent in making contracts for the sale of their labor as are employers in making a contract of purchase thereof.” No doubt, wherever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts, and not merely to that between employer and employee. Indeed, a little reflection will show that wherever the right of private property and the right of free contract coexist, each party when contracting is inevitably more or less influenced by the question whether he has much property, or little, or none; for the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange. And,’ since it is self-evident that, unless all things are held in common, some persons must have more property than others, it is from the nature of things impossible to- uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights. But the 14th Amendment, in declaring that a state shall not “deprive any person of life, liberty, or property without due process of law,” gives to each of these an equal sanction; it recognizes “liberty’* and “property” as coexistent human rights, and debars the states from! any unwarranted interference with either.

And since a state may not strike them down directly, it is clear that it may not do so indirectly, as by declaring in effect that the public good requires the removal of those inequalities that are but the normal and inevitable result of their exercise, and then invoking the police power in order to remove the inequalities, without other object in view. The police power is broad, and not easily defined, but it cannot be given the wide scope that is here asserted for it, without in effect nullifying the constitutional guaranty.

We need not refer to the numerous and familiar cases in which this court has held that the power may properly be exercised for preserving the public health, safety, morals, or general welfare, and that such police regulations may reasonably limit the enjoyment of personal liberty, including the right of making contracts. They are reviewed in Holden v. Hardy, 169 U. S. 366, 391, 42 L. ed. 780, 790, 18 Sup. Ct. Rep., 383; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 566, 55 L. ed. 328, 338, 31 Sup. Ct. Rep. 259; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 34 Sup. Ct. Rep. 761; 51 L. R. A. N. S.) 1097; and other recent decisions. An evident and controlling distinction is this: that in those cases it has been held permissible for the states to adopt regulations fairly deemed necessary to secure some object directly affecting the public welfare, even though the enjoyment of private rights of liberty and property be thereby incidentally-hampered; while in that portion of the Kansas statute which 'is now' under consideration — that is to say, aside from coercion, etc. — there is no object or purpose, expressed or implied, that is claimed to have reference to health, safety, morals, or public welfare, beyond the supposed desirability of leveling inequalities of fortune by depriving one who has property of some part of what is characterized as his “financial independence.” In short, an interference with the normal exercise of personal liberty and property rights is the primary object of the statute, and not an incident to the advancement of the general welfare. But, in our opinion, the 14th Amendment debars the states from striking down personal liberty or property rights, or materially restricting their normal exercise, excepting so far as may be incidentally necessary for the accomplishment of some other and paramount object, and one that concerns the public welfare. The mere restriction of liberty or of property rights cannot of itself be denominated “public welfare,” and treated as a legitimate object of the police power; for' such restriction is the very thing that is inhibited by the Amendment.

It is said in the opinion of the state court that membership in a labor organization does not necessarily affect a man’s duty to his employer; that the employer has no right, by virtue of the relation, “to dominate the life nor to interfere with the liberty of the employee in matters that do not lessen or deteriorate the service;” and that “the statute implies that labor unions are lawful and not inimical to the rights of employers.” The same view is presented in the brief of counsel for the state where it is said that membership in a labor organization is the “personal and private affair” of the employee. To this'line of argument it is sufficient to say that it cannot be judicially declared that membership in such an organization has no relation to a member’s duty to his employer; and therefore, if freedom of contract is to be preserved, the employer must be left at liberty to decide for himself whether such membership by his employee is consistent with the satisfactory performance of the„ duties of the employment.

Of course, we do not intend to say, nor to intimate, anything inconsistent with the right of individuals to join labor unions, nor do we question the legitimacy of such organisations so long as they conform to the laws of the land as others are required to do. Conceding the full right of the individual to join the union, he has no inherent right to do this and still remain in the employ of one who is unwilling to employ a union man, any more than the same individual has a right to join the union without the consent of that organization. Can it be doubted that a labor organization — a voluntary association of working men— has the inherent and constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with non-union men ? Or that a union man has the constitutional right to decline proffered employment unless the employer will agree not to employ any non-union man? (In all cases we refer, of course, to agreements made voluntarily, and without cocercion or duress as between the parties. And we have no reference to questions of monopoly, or interference with the rights of third parties or the general public. These involve other considerations, respecting which we intend to intimate no opinion. See Curran v. Galen, 153 N. Y. 33, 37 L. R. A. 802, 57 Am. St. Rep. 496, 46 N. E. 297; Jacobs v. Cohen, 183 N. Y. 207, 213, 214, 2 L. R. A. (N. S.) 292, 111 Am. St. Rep. 730, 76 N. E. 5, 5 Ann. Cas. 280; Plant v. Woods, 176 Mass. 492, 51 L. R. A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; Berry v. Donovan, 188 Mass. 353, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 Ann. Cas. 738; Brennan v. United Hatters, 73 N. J. L. 729, 738, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 65 Atl. 165, 169, 9 Ann. Cas. 698, 702). And can there be one rule of liberty for the labpr organization and its members, and a different and more restrictive rule for employers? We think not; and since the relation of employer and employee is a voluntary relation, as clearly as is that between the members of a labor organization, the employer has the same inherent right to prescribe the terms upon which he will consent to the relationship, and to have them fairly understood and expressed in advance.

When a man is called upon to agree not to become or remain a member of the union while working for a particular employer, he is in effect only asked to deal openly and frankly with his employer, so as not to retain the employment upon terms to which the latter is not willing to agree. And the liberty of making contracts does not include a liberty to procure employment from an unwilling employer, or without a fair understanding. Nor may the employer be foreclosed by legislation from exercising the same freedom of choice that is the right of the employee.

To ask a man to agree, in advance, to refrain from affiliation with the union while retaining, a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for “it takes two to make a bargain.” Having accepted employment on those terms, the man is still free to join the union when the period of employment expires; or, if employed at will, then at any time upon simply quitting the employment. And, if bound by his own agreement to refrain from joining during a stated period of employment, he is in no different situation from that which is necessarily incident to term contracts in general. For constitutional freedom of contract does not mean that a party is to be as free after making a contract as before; he is not free to break it without accountability. Freedom of contract, from the very nature of the thing, can be enjoyed only by being exercised; and each particular exercise of it involves making an engagement which, if fulfilled, prevents for the time any inconsistent course of conduct.

So much for the reason of the matter; let us turn again to the adjudicated cases.

The decision in the Adair case is in accord with the almost unbroken current of. authorities in the state courts. In many states enactments not distinguishable in principle from the one now in question have been passed, but, except in two instances, (one, the decision of an inferior court in Ohio, since repudiated; the other, the decision now under review), we are unable to find that they have been judicially enforced. It is not too much to say that such laws have by common consent been treated as unconstitutional, for while many state courts of last resort have adjudged' them void, we have found no decision by such a court sustaining legislation of this character, excepting that which is now under review. The single previous instance in which any court has upheld such a statute is Davis v. State (1893) 30 Ohio L. J. 342, 11 Ohio Dec. Reprint, 894, where the court of common pleas of Hamilton county sustained an act of April 14, 1892, (89 Ohio Laws, 269), which declared that any person who coerced or attempted to coerce employees by discharging or threatening to discharge them because of their connection with any lawful labor organization should be guilty of a misdemeanor, and upon conviction fined or imprisoned. We are unable to find that this decision was ever directly reviewed; but in State v. Bateman (1900) 10 Ohio S. & C. P. Dec. 68, 7 Ohio N. P. 487, its authority was «repudiated upon the ground that it had been in effect overruled by subsequent decisions of the state Supreme Court, and the same statute was held unconstitutional.

The right that plaintiff in error is now seeking to maintain was held by. the Supreme Court of Kansas, in an earlier case, to be within the protection of the 14th Amendment, and therefore beyond legislative interference. In Coffeyville Vitrified Brick & Tile Co. v. Perry, 69 Kan. 297, 66 L. R. A. 185, 76 Pac. 848, 1 Ann. Cas. 936, the court had under consideration chapter 120 of the Laws of 1897 (Gen. Stat. 1901, Secs. 2425, 2426), which declared it unlawful for any person, company, or corporation, or agent, officer, etc., to prevent employees, from joining and belonging to any labor organization, and enacted that any such person, company, or corporation, etc., that coerced'or attempted to coerce employees by discharging or threatening to discharge them because of their connection with duch lábor organization should be deemed guilty of a misdemeanor, and upon conviction subjected to a fine, and should also be liable to the person injured in punitive damages. It-was attacked as violative of the 14th Amendment, and also of the Bill of Rights of the state Constitution. The court held it unconstitutional, saying: “The right to follow any lawful vocation and to make contracts is as completely within the protection of the Constitution as the right to hold property free from unwarranted seizure, or the liberty to go when and where one will. One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the legislature without violating the letter and spirit of the Constitution. Every citizen is protected in his right to work where and for whom he will. He may select not only his employer, but also his associates. He is at liberty to refuse to continue to serve one. who has in his employ a person, or an ■ association of persons, objectionable to him. In this respect the rights of the employer and employee are equal. Any act of the legislature that would undertake to impose on an employer the obligation of keeping in his service one whom, for any reason, he should not desire, would be a denial of his constitutional right to make and terminate contracts and to acquire and hold property. Equally so would be an act the provisions of which should be intended to require one to remain in the service of one whom he should not desire to serve. . . . The business conducted by the defendant was its property, and in the exercise of his ownership it is protected by the Constitution. It could abandon or discontinue its operation at pleasure. It had the right, beyond the possibility of legislative interference, to make any contract with reference thereto not in violation of law. In the operation of its property it may employ such persons as are desirable, and discharge, without reason, those who are undesirable. It is at liberty to contract for the services of persons in any manner that is satisfactory to both. No legislative restrictions can be imposed upon the lawful exercise of these rights.”

In Atchison, T. & S. F. R. Co. v. Brown, 80 Kan. 312, 23 L. R. A. (N. S.) 247, 133 Am. St. Rep. 213, 102 Pac. 459; 18 Ann. Cas. 346, the same court passed upon chapter 144 of the Laws of 1897 (Gen. Stat. 1901, Secs. 2421-2424), which required the employer, upon the request of a discharged employee, to furnish in writing the true cause or reason for such discharge. The railway company did not meet this requirement, its '‘service letter,” as it was called, stating only that Brown was discharged “for cause,” which the court naturally held was not a statement of the cause. The law was held unconstitutional, upon the ground (80 Kan. 315), supra, that an employer may discharge his employee for-any reason, or for no reason, just as an employee may quit the employment for any reason, or for no reason; that such action on the part of employer or employee, where no obligation is violated, is an essential element of liberty in action; and that one cannot be compelled to give a reason or cause for an action for which he may have no specific reason or cause, except, perhaps, a mere whim or prejudice.

In the present case the court did not repudiate or overrule these previous decisions, but, on the contrary, cited them as establishing the right of the employer to discharge his employee at any time, for any reason, or for no reason, being responsile in damages for violating a contract as to the time of employment, and as establishing, conversely, the right of the employee to quit the employment at any time, for any reason, or without any reason, being likewise responsible in damages for a violation of his contract with the employer. The court held the act of 1903 (Laws 1903, sec. 222) that is now in question to be distinguishable from'the act of 1897; upon grounds sufficiently indicated and answered by what we have already said.

In five other states the courts of last resort have had similar acts under consideration, and in each instance have held them unconstitutional. In State v. Julow (1895) 129 Mo. 163, 29 L. R. A. 257, 50 Am. St. Rep. 443, 31 S. W. 781, the Supreme Court of Missouri dealt with an act (Missouri Laws 1893, p. 187) that forbade employers, on pain of fine or imprisonment, to enter into any agreement with an employee requiring him to withdraw from & labor union or other lawful organization, or to refrain from joining such an organization, or to “by any means attempt to compel or coerce any employee into withdrawal from any lawful organization or society.” In Gillespie v. People (1900) 188 Ill. 176, 52 L. R. A. 283, 80 Am. St. Rep. 176, 58 N. E. 1007, the Supreme Court of Illinois held unconstitutional an act (Hurd’s Stat. 1899, p. 844) declaring it criminal for any individual or member of any. firm, etc., to prevent or attempt to prevent employees from forming, joining, and belonging to'any lawful labor organization, and that any such person ‘'that coerces or attempts to coerce employees by discharging or threatening to discharge them because of their connection with such lawful labor organization” should be guilty of a misdemeanor. In State ex rel. Zillmer v. Kreutzberg (1902) 114 Wis. 530, 58 L. R. A. 748, 91 Am. St. Rep. 934, 90 N. W. 1098, the court had under consideration a statute (Wisconsin Raws 1899, chap. 332) which, like the Kansas act now in question, prohibited the employer or his agent from coercing the employee to enter into an agreement not to become a member of a labor organization, as a condition of securing employment or continuing in the employment, and also rendered it unlawful to discharge an employee because of his being a member of any labor organization. The decision related to the latter prohibition,- but this was denounced upon able and learned reasoning that has a much wider reach. In People v. Marcus (1906) 185 N. Y. 257, 7 L. R. A. (N. S.) 282, 113 Am. St. Rep. 902, 77 N. E. 1073, 7 Ann. Cas. 118, the statute dealt with (N. Y. Raws 1887, chap. 688), as we have already said, was in substance identical with the Kansas act. These decisions antedated Adair v. United States. They proceed upon broad and fundamental reasoning, the same in substance that was adopted by this court in the Adair case, and they are cited with approval in the opinion (208 U. S. 175). A like result was reached in State ex rel. Smith v. Daniels (1912) 118 Minn. 155, 136 N. W. 584, with respect to an act that, like the Kansas statute forbade an employer to require an employee or person seeking- employment, as a condition of such employment, to make an agreement that the employee would not become or remain a member of a labor organization. This was held invalid-upon the authority of the Adair case. And see Goldfield Consol. Mines Co. v. Goldfield Miners’ Union, 159 Fed. 500, 513.

Upon both principle and authority, therefore, we are constrained to hold that the Kansas act of March 13, 1903 (Laws 1903, sec. 332), as construed and applied so as to punish with fine or imprisonment an employer or his agent for merely prescribing, as a condition upon which one may secure employment under or remain in the service of such employer, that the employee shall enter into an agreement not to become or remain a member of any labor organization while so employed, is repugnant to the “due process” clause of the 14th Amendment, and therefore void.”

The foregoing discussion and conclusion therein reached by the highest of courts leaves little to be said by us. It is our plain duty — in fact we have no alternative, except to follow the doctrine declared therein. It follows, therefore, that the statute in question is repugnant to the “due process” clause of the 14th Amendment to the Constitution of the United States, and' is therefore -void.

The judgment is reversed and the cause remanded with direction to dismiss.

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


text:
    CLAUD FRAZEE AND WILLIAM FRAZEE v. STATE.
    No. A-2356.
    Opinion Filed November 11, 1915.
    (152 Pac. 462.)
    1. SEVERANCE — Right. When two or more persons are placed upon trial charged jointly with an allray, and any of them asks a severance in due time and according to law, the diversity of interests, hostility between the parties and common fairness are sufficient warrant for a fair'and impartial trial judge to award separate trjals to the belligerents. Only when the piublic welfare demands, should a joint trial be required.
    2. WITNESS — -Impeachment of Co-defendant — Right. A co-defendant who is hostile to another co-defendant, who does not call him as a witness, has the same right to impeach such co-defendant, if he becomes a witness and gives adverse testimony, as he would any other witness testifying in the case.

      Appeal from County Court, Pawnee County; Geo. E. Merritt, Judge.

    Claud Frazee and William Frazee were convicted of an affray, and appeal.
    Reversed.

      Pruiett & Sniggs, for plaintiffs in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiffs in error, Claud Frazee and William Frazee, were convicted at the August, 1914, term of the County Court of Pawnee county on a charge of participating in an affray upon the streets of Terlton, in said county. The punishment of William Frazee was fixed at a fine of five .dollars and costs. Claud Frazee was sentenced to pay a fine of ten dollars and costs. It appears that the Frazees and Moores engaged in a town fight upon the thoroughfares of the town of Terlton, and that an information was filed charging the Frazees and Moores jointly with an affray. When the case was called for trial, the Moores asked a severance; the Frazees joined in the request. The court denied the severance and placed the parties on trial jointly. All were convicted; the Frazees, only, appeal.

The first assignment of error argued is based upon the proposition that the court erred in denying the severance as requested. Without going into a discussion of the merits of the particular question in this case, it may be observed that ordinarily persons who are jointly charged with an affray should be tried separately: that is, when two or three persons on a side are jointly charged, and have asked for a severance in due time, the diversity of interest and hostility between them should prompt an impartial judge to exercise the judicial discretion vested in him in favor of a separate trial to opposing factions; only when the public welfare demands should a joint trial be required in such cases. The only material error urged in this case will disclose more effectively the reason why this should be the practice.

The only assignment of error we find it necessary to discuss at length is based upon the proposition that the court erred in refusing to permit plaintiffs in error to show by testimony the general reputation of P. C. Moore for truthfulness or the lack of truthfulness in the community in which he resided. P. C. Moore was jointly charged with this offense, and was on trial before the same jury. He took the stand and testified against the Frazees. When the Frazees put on their testimony, they offered evidence to impeach Moore for truthfulness in the community in which he lived. The county attorney objected upon the ground that Moore being a joint defendant, could not be attacked or impeached by co-defendants until he had put his character in issue himself. The Moores through their counsel also objected for the reason that they were co-defendants, and for the further reason that they had not placed their reputation or character in issue. The court sustained the objection upon this ground. It appears that the county attorney, counsel for the Moores and the court fell into the' error of assuming the law to be that a co-defendant had no right to impeach another co-defendant who assumed to take the witness stand and testify against'him, applying thereto the doctrine which universally protects persops charged with crime in this jurisdiction from being forced to give' testimony against themselves, and which also prohibits the state from attacking the character of any defendant until the same is placed in issue by him. That question doesn’t arise in this connection. If a person charged with crime takes the stand voluntarily, and becomes a witness either for himself or against a co-defendant, he becomes a witness, and in so far as his reputation for truthfulness may affect the general issue, he may be impeached just as any other witness may be impeached for like cause. In other words, when a person charged with crime becomes a voluntary witness, he is subject to the rules of law that govern witnesses, regardless of whether they are charged with the offense on trial or not.' As is said by one of the.law writers on evidence: “Where a co-party is called against his co-party, for the opponent, it seems clear that the co-party against whom he testifies, may impeach him.”

And again, “Where a co-defendant in a criminal prosecution testifies for himself, the other co-defendant may impeach him, because their interest, as between each other, are distinct, and because the witness has been called by himself and not by the impeacher; and the same consequence follows for witness called by one co-defendant.” In Goff v. The State, 117 N. Carolina, 755, 23 S. E., 355, the Supreme Court of North Carolina had under consideration the identical proposition here at issue. Among other things in the discussion, is the following:

“This was an indictment for an affray, in which the theory of the state was that the defendants, John Goff and the two Kearneys, were guilty combatants on the one side, and the defendant, Gerganus, who was acquitted by the jury, was a willing participant on the other side. After offering two witnesses on behalf of the state, the solicitor, following the usual practice, rested, and gave the parties the opportunity each .to offer testimony criminating his antagonist or antagonists in order to .exculpate himself. In such contest the witnesses for the side stand, as to the parties on the other, in tlfe relation of prosecuting witnesses and defendants; and hence it is the universal practice to compel them to submit to cross-examination with all the rights which are incident thereto, when they are examined in chief on behalf of the átate. The appellants had introduced their testimony, and when Gerganus was upon the stand, as a witness in his own behalf, the other defendants had the same right to impeach him on cross-examination as though he had been a witness of the state, instead of a co-defendant. The state might have impeached him and the same privilege should have been allowed to his co-defendants. If the questions propounded by the counsel tended to elicit testimony showing the temper and bad blood of Gerganus toward his co-defendants, and was offered, not alone as substantive testimony against him as a defendant, but also in order to impeach him as a witness, it was unquestionably competent to examine the witnesses whose names had been mentioned in connection with the time and place of making the declaration to contradict his denial that he made them.”

The same principle is discussed in McGruder, et al v. The State, 71 Ga. 864, wherein the Supreme Court of Georgia had under consideration a similar question arising out of a burglary charge. In that case, among other things, the court says:

“Where two defendants agreed to be tried jointly, with the right in each to testify on behalf of the other, as if tried separately, each could be impeached as a witness for the other. Therefore an indictment for larceny; with the plea of guilty thereon by one of them, was admissible to impeach him, as if he had been testifying on a separate trial of his co-defendant, though not admissible to show guilt in the present case.”

In State v. Hardin, et al., 46 Ia. 623, 26 Am. Rep. 174, the Iowa Supreme Court said: “One of two indicted persons, testifying on behalf of his co-defendant, is subject to impeachment like ayn other witness.” See also State v. Pfofferle, 36 Kans. 90, 12 Pac. 406, in which the court said:

“A co-defendant who voluntarily became a witness, and has not appealed, was asked by the state, on cross-examination, if he had not been recently tried and convicted several times for the unlawful sale of intoxicating liquors, and over objection gave an affirmative answer. Held to be no error.
“Where a defendant in a criminal case takes the witness stand in his own behalf he assumes the character of a witness, and is entitled to the same privileges, and is subject to the same treatment, and to be contradicted, discredited or impeached/the same as any other witness.”

From the foregoing authorities, and upon sound principle, the court was in error in his ruling that plaintiffs in error in the case at bar were not entitled to the privilege of introducing competent proof tending to impeach Moore for truthfulness in the community in which he lived, as they would have been any other witness in the case. Of course it would have become the duty of the court,, when such condition arose, to caution the jury that the purpose of the testimony was limited to impeaching Moore in the interests of the Frazees. This is a burden that the court undertook to relieve the state from, which is one of the reasons why care should be exercised in denying a severance in cases of this character. , *

For the error indicated, the judgment is reversed and the cause remanded with direction to grant a new trial.

DOYLE, P. J., concurs; FURMAN, J., absent.


author: DOYLE, P. J.

text:
    B. H. HUFF v. STATE.
    No. A-2375.
    Opinion Filed November 4, 1915.
    (152 Pac. 464.)
    1. PROSECUTIONS — Instruction—Evidence. Under section 6, Cb. 26, Sess. Laws 1913, providing that: “the keeping in excess of one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation thereof, or substitute therefor * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” it is error to charge: “If you find from the evidence in this ease beyond a reasonable doubt that the defendant had in his possession more than one gallon of spirituous liquors then and in that event the state has introduced that amount of evidence which would be sufficient to counterbalance the general presumption - of innocence and warrant a Conviction, in the absence of other proof raising a reasonable doubt as to the unlawful intent of the defendant,” because the language used invades the province of the jury and deprives the defendant of the presumption of innocence and is a comment on the weight of the evidence.

      2. INTOXICATING- LIQUORS — Prosecution — “Prima Facie Evidence” — Question for Jury. The term “prima facie evidence” as used in the statute, is such evidence as in the judgment of the law, is sufficient -to establish the fact, if it be credited by the jury, and unless rebutted, or the contrary proved remains sufficient for that purpose. Whether or not such evidence is sufficient to overcome the presumption of ipnoeenee of a defendant and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumption, are considered, is for the determination of the jury.

      Appeal from County Court, Bryan County; J. L. Rappolee, Judge.

    B. H. Huff, was convicted of violating the .prohibitory law and appeals.
    Reversed.

      Charles A. Phillips and Victor C. Phillips, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction on an information charging that B. H. Huff, “did unlawfully have in his possession certain spirituous liquors, to-wit: Eight pints of whisky and one quart of alcohol with ¿he unlawful and willful intent to barter, give away and otherwise furnish the .same contrary to, etc.”

The judgment was rendered in accordance with the verdict of the jury on the 23rd day of October, 1914, and the defendant was sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars.

The evidence shows that the defendant lived with his family at Caddo; that P. A. Terry, a deputy sheriff and Bob Bell, city marshal of Caddo in executing a search warrant found seven pints of whisky and one pint of alcohol at the defendant’s home.

For the defense Mrs. B. H. Huff testified that her mother lived with her and was sfick and that Oscar Smith brought the liquor there and her husband bought it from him because his mother-in-law needed-it in her sickness.

It also appears from the record that the defendant was prosecuted in the Federal Court for having possession of said liquors.

The questions presented arise upon the sufficiency of the evidence to sustain the conviction and upon an exception taken to an instruction in the charge of the court as follows: “You are further instructed that the law provides that the keeping in excess of one gallon of spirituous liquors shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided that such law shall not be construed in any way to legalize the keeping of such liquors for unlawful purposes, it matters not what the quantity might be, you are therefore instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant had in his possession more than one gallon of spirituous liquors then and in that event the state has introduced that amount of evidence which would be sufficient to counterbalance the general presumption of innocence and warrant a conviction, in the absence of other proof raising a reasonable doubt as to the unlawful intent of the defendant as defined in these instructions.”

Counsel’ contend that the instruction excepted to invades the province of the jury and deprives the defendant of the presumption of innocence and is a comment on the weight of the evidence.

The attorney general very properly concedes that the exception to the instruction was well taken. The instruction attempts to give effect to that part of section 6, ch. 26, Session Raws of 1913, which in part provides:

'“the keeping in excess of one gallon of spirituous, or one gallon of vinous, or more than one cask of malt liquors, or any imitation; thereof, or substitute therefor.shall be prima facie .evidence of an intention to convey, sell, or otherwise dispose of such liquors; provided, further, that this section shall not be construed in any way to legalize the keeping of such liquors for unlawful purposes.”

The term "prima facie evidence,” as used in the statute is such evidence as, in the judgment of the law, is sufficient to establish the unlawful intent, and if it be credited by the jury, it is sufficient for that purpose, unless rebutted or the contrary proved.

Caffee v. The State, 11 Okla. Cr. 485, 148 Pac. 680.

Evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant.guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt.

In Wilson v. The State, 11 Okla. Cr. 510, 148 Pac. 823, it is said:

“Prima facie evidence, in the absence of evidence to the contrary, is sufficient to establish and prove any fact beyond a reasonable doubt, only when it satisfies the jury beyond a reasonable doubt and not otherwise.”

And see Sellers v. The State, 11 Okla. Cr. 588, 149 Pac. 1071.

We think the language used invades the province of the jury and the following words:

“Then and in that event the state has introduced that amount of evidence which would be sufficient to counterbalance the gen-, eral presumption of innocence and warrant a conviction in the absence of other proof, raising a reasonable doubt as to the unlawful intent of the defendant,” and was in effect instructing the jury that the burden of proof was on the defendant to show his innocence.

It follows the judgment should be and the same is hereby reversed and a new trial awarded.

FURMAN and ARMSTRONG, JJ., concur.


text:
    W. A. COOPER v. STATE.
    No. A-2381.
    Opinion Filed November 18, 1915.
    (152 Pac. 608.)
    APPEAL — Harmless Error — Instructions. The letter and spirit of the law isthat if the defendant has had a fair trial, and if this court is satisfied that the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed. In this case the erroneous instruction was harmless for the reason that the evidence did not leave the guilt of the defendant in doubt. No defense was made and no prejudice could have resulted.

      Appeal from County Court, Bryan County; J. L. Rappolee, Judge.

    W. A. Cooper, was convicted of a violation of the prohibitory law and appeals.
    Affirmed.

      Charles A. Phillips and Victor' C. Phillips, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information filed in the County Court of Bryan county, charging that on the 3rd day of August, 1914, he did unlawfully have the possession of five gallons of alcohol and eighteen pints of alcohol with the unlawful intent then and there to barter, sell, give away and otherwise furnish the same in violation of the prohibitory laws of Oklahoma, the plaintiff in error, W. A. Cooper, was tried and convicted and his punishment fixed at confinement in the county jail for thirty days and a fine of one hundred dollars. From the judgment following the verdict, he appealed by filing in this court on December 16, 1914, a petition in error with case-made.

The evidence for the state shows that two officers were at the M., K. & T. Ry. depot in Durant when the midnight passenger train went north, and they saw the defendant leaving the train with a suit-case which he carried to a cab. They followed and told the driver of the cab to wait while they examined the suit-case. They found five gallons of alcohol and fifteen or sixteen half pints of alcohol and some corks in the suit-case. Both officers testified that they were well acquainted with the defendant, and that when they seized the suit-case he ran away.

The facts which the evidence for the state tended to prove are undisputed. There was no evidence offered on the part of the defense. In addition to the usual assignments of error that the verdict was contrary to law and to the evidence, error is assigned on exceptions taken to seven of the eleven instructions constituting the charge of the court. The only exception argued was taken to an instruction similar to the one condemned by this court in the case of. Huff v. The State, 152 Pac. 464, this day decided.

Upon a consideration of the record we are of the opinion that on the uncontradicted facts of this case, the defendant could not be prejudiced by the instruction complained of, for the reason that the evidence did not leave the guilt of the defendant in doubt. This court has often held where a case is clearly made out against the defendant, and the jury has* so found, the judgment will not be reversed for errors which do not effect the substantial merits of the case.

Every citizen, when charged with crime, is entitled to a fair trial according to the due and orderly course of the law, but he cannot be heard to complain if an error is committed that cannot operate to his prejudice.

We are of opinion that the defendant .had a fair trial and was properly convicted. The judgment of the County Court of Bryan county herein will therefore he affirmed.

FURMAN and ARMSTRONG, JJ., concur.