author: DOYLE, J. FURMAN, P. J.

text:
      Ex parte LEE F. WILSON.
    No. A-1793.
    Opinion Filed July 29, 1912.
    (125 Pac. 739.)
    1. ELECTIONS — Nominations — Primaries. Party nominations by primary elections is a fundamental principle of popular government, and is a permanent rule of public policy in this state, as declared by article 3, sec. 5, Const. (47, Williams’): “The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for state, district, county, and municipal officers, for all political parties, including United States Senators: Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate. ’ ’
    2. SAME — Constitutional Provisions. Under this positive constitutional direction, it is the right and duty of the Legislature to prescribe reasonable regulations for the holding of mandatory primary elections; but such regulations must not contravene other constitutional provisions relating to elections.
    3. SAME — Political Parties. This provision of the Constitution recognizes political parties for the purpose of nominating candidates for elective offices, and contemplates that only electors who are members of political parties shall participate in primary elections for the selection of candidates for the respective parties, and then vote only the ballot of the party of which they are members.
    4. SAME. The mandatory primary provision of the Constitution and the provision of article 3, sec. 4, Const. (45, Williams’) providing that “the Legislature shall enact laws creating an election board, not more than a majority of whose members shall be selected from the same political party,” are a constitutional recognition of political party' organization.
    5. ELECTIONS — Nominations — “Primary Election.”- Article 3, sees. 1, 4a, and 7, Const. (42, 46, and 49, Williams’) prescribing the qualifications of electors and guaranteeing their right to vote, applies to the election of public officers, and not to the selection of party nominees at a primary election. A “primary election” is one for the nomination of candidates of the respective political parties by the members thereof.
    6. SAME — Qualifications of Voters. The qualifications of electors entitled to vote at a primary election are the same as the qualifications of electors entitled to vote at the general election within the election precinct where the primary is held, except that, in addition thereto, the elector participating in a primary election must be a member of a party recognized by the official ballots of said primary.
    7. ELECTIONS — Right of Suffrage — Organization of Political Parties. The right of suffrage includes the right to form political parties, and the right of each party to promulgate rules, not reasonably prohibited by law, for making its organization effective, to promote its principles and policies by electing officers in harmony therewith to legislate and execute the law to that end.
    8. SAME — “Political Parties.’’ .“Political parties” are voluntary associations of electors, having an organization and committee, and having distinctive opinions on some or all of the leading political questions of controversy in the state, and attempting through their organization to elect officers of their own party faith and make their political principles the policy of the government. They are governed by their own usages and establish their own rules.
    9. SAME — Powers. Self-preservation is the right of political parties, as well as individuals. It is for the party to nominate; for the people to elect.
    10. ELECTIONS — Primary Elections — Statutory Provisions. The provisions of the primary election law, which are designed only to prevent any but voters affiliated with a particular party from voting at primary elections, are reasonable and proper, in view of the object to be obtained by a mandatory p-lmary election law, and do not infringe upon any constitutional rights of electors, since said law provides a method by which nonpartisan and independent nominations may be made by petition in accordance with the proviso of article 3, sec. 5, Const. (47, Williams’).
    11. ELECTIONS — Primary Elections — Qualifications of Voters — Determination. Whether a person offering to vote at a primary election has the requisite qualification as to being a member, in good faith, of the party whose ballot he asserts the right to vote must, on challenge for want of such qualification, be inquired into and determined by the inspector of election in the manner provided for proving qualification under the general election law.
    12. SAME. When an elector demands a party ballot, if the election inspector, judge, or party watcher, knows, or has reason to believe, that the elector offering to vote is a nonpartisan, or not a member of the party whose ballot he is attempting to vote, it is the duty of such election officers to challenge the right of such elector to vote; and any challenger for any candidate may challenge the right of such elector to vote the ballot of the party making the challenge. If the challenge be on the ground that the elector is not, in good faith, a member of the party whose ticket he is attempting to vote, the duty of the inspector is the same as upon challenge as to any other qualification; and proper proof should be required in the manner required-by the general election law for proving qualification before such elector shall be permitted to vote.

      13. SAME. An elector cannot prescribe his own method of proving his qualification in respect to his party membership, so as to preclude the election inspector from disputing or rejecting his proof.
    14. SAME. An elector offering to vote at a primary election shalJ prove his qualifications in the same manner in which electors are required by law to prove their qualifications at the general election. Such elector shall have the right to receive the ballot of the party of his affiliation, and no other.
    15. SAME. The mere fact that an elector ' has registered and -then and there stated his political party affiliation does not preclude the right to interpose a challenge on the ground that he is not in good faith a member of the party stated in his registration certificate, and whose ballot he requests to vote.
    16. ELECTIONS — Constitutional Guaranties — “Free and Equal Election.” The guaranty of a “free and equal election” signifies that elections shall not only be open and untrammeled to persons endowed with the elective franchise, but shall be closed to all not enjoying such privilege under the Constitution.
    17. ELECTION'S — Offenses Against Election Laws — Duties of Election Officers. An information charging an election inspector with the offense of refusing the request of the elector named therein, who has all of the constitutional qualifications of an elector at a general election, and who had duly registered as an elector in said precinct, but not as a Democrat, and who demanded and was refused a Democratic ballot, which information fails to allege that said elector was then and at that time a member of the Democratic party, or had at the last preceding general election voted the Democratic ticket, or that said elector then and there, on oath or affirmation, stated that he intended to support the nominees of the Democratic party at the general election for which nominees of the respective political parties were then and there being selected by a primary election, held that, the information failing to allege these facts, the facts stated do not constitute a public offense, and, as a matter of law, the facts stated constitute a legal justification for the action of the petitioner, as such election inspector, in refusing to deliver a Democratic ballot. Held, further, that to have delivered a Democratic ballot, and to have permitted the elector named to vote the same, under the facts stated in the information, would have been a violation of the petitioner’s duty as such election inspector. Therefore the petitioner is entitled to be discharged.
    (Syllabus by the Court.)
    In the matter of the application of Lee F. Wilson for writ of habeas corpus.

    Writ granted, and petitioner discharged.
    The petitioner, Lee F. Wilson, on July 24, 1912, filed in this court a petition, which, omitting the title and verification, is as follows:

      “Comes your petitioner, Lee F. Wilson, and respectfully shows to the court:
    “(1) That he is imprisoned and restrained of his liberty in the county jail of Oklahoma county, Oklahoma, by Jack Spain, sheriff of said county.
    “(2) That, according to the best of the knowledge and information of your petitioner, he is so imprisoned and restrained ■of his liberty by the said sheriff under and by virtue of a warrant of arrest issued by the' county judge of Oklahoma county, and based on an'information filed in the county court of said county by Sam Hooker, county attorney, charging, in substance, that your petitioner, on the 2d day of August, A. D. 1910, in Oklahoma county, Oklahoma, being then and there election inspector of precinct A of the Third ward, of Oklahoma City, •and then and there acting as such at the primary election, then and there held according to law, did deprive one W. P. Cloonan. a duly qualified elector, of his vote in said primary election by then and there refusing to deliver to the said W. P. Cloonan a Democratic primary ticket, although the said W. P. Cloonan had then and there designated the Democratic primary ticket as the ticket he then and there desired to'vote, and had then and there requested of the said Lee F. Wilson, election inspector, as aforesaid, that he, the said Lee F. Wilson, deliver to the said W. P. Cloonan the said Democratic primary'ticket. A full, true, and correct copy of said information is attached hereto, marked ■'Exhibit A,’ and made a part hereof.
    “(3) That the aforesaid restraint and imprisonment of your petitioner is illegal and without authority of law, in that the said information fails to charge a public offense, ’ because the same contains no allegation (1) that the said W. P. Cloonan was, on the 2d day of August, 1910, a member of the Democratic party, or (2) that the said W. P. Cloonan had at the last general election, prior to said 2d day of August, 1910, voted the Democratic ticket, or (3) that the said W. P. Cloonan then and there intended to support the nominees of the Democratic primary at the general election, for which the nominees of the several parties were then and there being named.
    “Wherefore petitioner prays that the writ of habeas corpus may issue out of this honorable court, directed to the said Jack 'Spain, sheriff as aforesaid, commanding him to have the body ■of your petitioner, together with the time and cause of his detention, before the court at a time to be by the court fixed: that pending said sheriff’s return to said writ, and the final determination of this cause, your petitioner may be admitted to bail in a reasonable sum to be fixed by the court; that upon such final hearing he may be discharged from the custody of said sheriff; and for all other proper relief.”
    And on said day the petition was presented to his honor, Presiding Judge Furman, who issued a writ, returnable July 25th, and ordered that, pending the determination of said application, the petitioner be admitted to bail in the sum of $500. On said return day, respondent filed his return thereto. The case was thereupon argued and submitted.

      B. J. Giddings, Jennings & Levy, B. G. McAdams, B. L~ Kistler, W. A. Ledbetter, and .Norman R. Haskell, for petitioner..

      Sam Hooker, Co. Atty., and Selwyn Douglas, Asst. Co. A tty., for respondent.
   DOYLE, J.

(after stating the facts as above). The petition herein and the return to the writ issued thereon show that on July 24, 1912, Sam Hooker, county attorney of Oklahoma county, filed in the county court of said county an information: against the petitioner, Lee F. Wilson, purporting to charge him with a violation of the primary election law, as follows:

“That on said 2d day of August, 1910, a primary election was held in and for precinct A of the Third ward of Oklahoma City, in the county and state aforesaid, for the nomination of candidates of the several political parties for the general election to be held according to law in the month of November, 1910,. and the said Lee F. Wilson was then and there the duly qualified and acting election inspector at and for the precinct aforesaid;, and one W. P. Cloonan, who was then and there a duly qualified elector of the election precinct, city, county and state, aforesaid then and there designated to the said Lee F. Wilson the Democratic primary ticket as the ticket he desired to vote at said primaiy election and did then and there request of the said Lee F. Wilson, as such election inspector, that he, the said Lee F. Wilson, deliver to the said W. P. Cloonan a Democratic primary ticket; and the said Lee F. Wilson, then and there well knowing the said W. P. Cloonan to be a duly qualified elector, as aforesaid, did then and there willfully, knowingly, and unlawfully deny the request of the said W. P. Cloonan for such Democratic-primary ticket, and did then and there willfully, knowingly, and unlawfully fail and refuse to deliver such Democratic primary ticket to the said W. P. Cloonan, upon the unlawful pretext that he, the said W. P. Cloonan, was not then and there entitled to cast his vote in the Democratic primary, for the reason that Tie, the said W. P. Cloonan, had theretofore not registered as a Democratic voter with said Lee F. Wilson as such inspector and at said primary did not then and there exhibit to the said Lee F. Wilson his registration certificate as required by law, ■contrary to,” etc.

Upon the information the judge of said county court issued •a warrant, which was duly executed by arresting the petitioner.

It is averred in the petition, and the learned counsel for petitioner contend, that the restraint and imprisonment of petitioner is illegal and without authority of law, in that said information fails to charge a public offense, and therefore does not authorize his detention to answer thereto.

On behalf of the respondent, it is claimed that an elector possessing the qualifications prescribed by the Constitution is invested with the constitutional right to vote at any election in this state; and therefore the information charges a public offense.

The question presented is, Does the information charge a public offense? The answei to it depends-upon the construction now to be given to the primary election laws. Party nomination by primary elections is a fundamental principle of popular government, and is a permanent rule of public policy, ■as declared by provisions of our state Constitution: Article 3, sec. 5, Const. (47, Williams’) :

“The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination -of all candidates in all elections for state, district, county, and municipal officers, for all political parties, including United States Senators: Provided, however, this provision shall not ■exclude the right of the people to place on the ballot by petition ■any nonpartisan candidate.”

And Const, art. 3, sec. 6 (48, Williams’) :

“In all elections by the people the vote shall be by ballot and the Legislature shall provide the kind of ticket or ballot to be used and make all such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot.”

In pursuance of the constitutional direction, the first Legislature enacted a mandatory primary election law. Article 2, c. 31, of the Session Laws of 1907-08. Subsequently this act was amended. Article 4, c. 16, of the Session Laws of 1909.

The act in question cannot be set out in full without extending this opinion to an unreasonable length, however desirable it would be to do so; we therefore must be content to-set out a few of the principle provisions, as follows:

Section 3266, Comp. Laws 1909: “Political parties in this-state shall select or nominate their respective candidates for the various state, district, county, township and precinct officers by a primary election as herein provided for, and no candidate’s-name shall be printed upon the official ballot for any general or special election at which all or any of the state, district, county, township or precinct officers are to be -elected, unless such candidate shall have been nominated as herein specified: Provided, that this provision shall not exclude the right of nonpartisan candidates to have their names printed upon such official ballots as hereinafter provided for. (Session Laws 1909, S. B. 5. Took effect June 11, 1909.)”

Section 3267: “The first Tuesday in the month of August of each and every even numbered year, beginning with the year nineteen hundred eight, shall be the biennial primary election day at which time each and every political party entitled and intending to make nominations for the next general election shall nominate their candidates for all elective offices and positions enumerated in section 3266 of this act to be filled at such general election, and including United States Senators: Provided, that nominations for any special election, held for the, purpose of filling a vacancy in any office or offices, caused by death, resignation, or removal, may be made by delegate convention, if, in the judgment of the state election board, the time is too short in which to hold a primary election, or the cost, of holding same would be excessive or unnecessarily burdensome : Provided, that if special primary elections are held to fill vacancies in the Legislature, they shall be. held on a day fixed by the Governor by proclamation, which proclamation shall be issued fifteen days before the day of such special -primary election. (Sess. Laws 1907-08, p. 359.)”

Section 3368: “The voting place in each precinct or ward •and the inspector, judges and clerks shall be designated ana selected and advertised in tl\e same manner as provided by law for general elections, and all provisions of the general election laws, not inconsistent with this act, shall govern such primary election. (Sess. Laws 1907-08, p. 359.)”

Section 3375: “Each ward and voting precinct shall be provided with ballot boxes, ballots, poll books, tally sheets, blanks for returns, oaths and all necessary election supplies by the same officers and in the same way, and all expenses of such primary election borne and paid in the same manner as is now or may hereafter be provided by law for general elections. (Sess. Laws 1907-08, p. 361.)"

Section 3.377: “Each political party shall have the right to place one of its members at the polls as watcher during the whole time of receiving and counting the ballots, who shall be selected by the committeeman of such party in such ward or voting precinct. (Sess. Laws 1907-08, p. 361.)”

Section 3386: “No ballot shall be given an elector for the purpose of voting until the name of the elector has been entered upon the poll book and the method of voting shall be the same as in other elections. .Returns of primary elections shall be made in the manner provided by the general election laws. (Sess. Laws 1909, S. B. 5. Took effect June 11, 1909.)”

Section 3390: “Every act declared to be an offense by the general election law shall be such under this act, and any person found guilty of any such offense shall be subject to the penalties prescribed by such election law. (Sess. Laws 1909( S. B. 5. Took effect June 11, 1909.)”

Const, art. 3, sec. 6 (48, Williams’), provides:

“The Legislature may, when necessary, provide by law for 'the registration of electors throughout the state or in any incorporated city or town thereof, and, when it is so provided, no person shall vote .at any election unless he shall have registered ■according to law.”

Article 1, subart. 8, c. 31, of the Session Laws of 1907-08, ■provides a system of registration for cities of the first class. This act requires, as a prerequisite to the exercise of the constitutional right to vote at any election, the previous registration of all electors in cities of the first class. It is provided .therein that the elector shall state his political party affiliation, if any, and that his registration certificate shall set forth this fact.

It is claimed on behalf of respondent that by opinion of the Attorney General section 9 of article 3-, c. 31, of the Session Laws of 1907-08 (section 3376, Comp. Laws 1909), which provides :

“The names of candidates of the several political parties shall be printed upon separate sheets of paper of different colon under the party device and each voter shall designate which ticket' he desires to vote, and upon request of the election inspector shall deliver to the voter the ticket called for. When the voter has made out his ballot he shall fold the same and hand it back to the inspector and in the presence of the voter the inspector shall deposit the ballot in the ballot box. The ballots of the several political parties shall be deposited in the same box. The number of ballots provided for each party, in' each precinct, shall be equal to a number which is twenty per cent in excess of the vote cast for the party candidate for Secretary of State in such precinct, at the last preceding general election (Sess. Laws 1907-08, p. 361)”

—has not been repealed, and that the provision therein that “each voter shall designate which ticket he desires to vote, and upon request of the election inspector shall deliver to the voter the ticket called for,” gives to any elector desiring to vote at a primary election the right and privilege to demand and vote any ticket, regardless of his party affiliations.

As we view the law, this section was repealed by substitution, upon the enactment of section 4, art. 4, c. 16, Sess. Laws 1909 (section 3373, Comp. Laws 1909), which provides:

“The names of candidates of the several political parties shall be printed upon separate ballots and of different color. No party emblem or device shall appear thereon and no elector shall he permitted to vote for the nomination of candidates of more than one party in any primary election. The ballots for primary elections shall be printed by the county election boards as nearly in conformity with the provisions of the general election law as may be. (Sess. Laws 1909, S. B. 5. Took effect June 11, 1909.)”

The rule of construction of statutes is that, where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions plainly showing that it was intended as a substitute of the first act, it will act as a repeal of the first, especially where the subsequent act contains a general repealing clause, as in this case. Petitti v. State, infra, 121 Pac. 278.

It is also claimed that by opinion of the Attorney General, the clause in this section, that “no elector shall be permitted to vote for the nomination of candidates of more than one party •in any primary election,” gives to the voter the right to vote ■one official party ballot of any party he may designate. In our view this clause does not need construction at all. The plain purpose is to prevent a voter at a primary election from voting different party ballots for congressional, state, and county candidates.

It is alleged that the elector named in the information was .a'duly qualified and registered elector of the precinct named, but did not register as a Democrat. The petitioner is charged with having refused to deliver to him a Democratic ballot.

The propositions presented are, first, whether or not a qualified elector, who is not a-member of any political party having official ballots at a general primary election, is entitled ■to vote at such primary election. Second, whether or not an ■elector may vote the ballot of any party he chooses to select, whether he is a member of that party or not.

Upon careful consideration, we are of opinion that the constitutional provisions contemplate that only electors who are members of political parties shall participate in the primary election for the selection of candidates for the respective parties, and then vote only the ballot of the party of which they are a member, and that nonpartisan electors having no party affiliations are relegated to their right to paticipate in the nomination ■of candidates for elective office by petition in the manner provided for by the primary election law. A few plain and unquestionable propositions will sufficiently present the views ■of this court in support of this position.

The mandatory primary election provision of the Constitution and the provision of article 3, sec. 4, Const, (section 45, Williams’), “The Legislature shall enact laws creating an election' board, not more than a majority of whose members shall be selected from the same political party,” are a constitutional recognition of political party organization.

“Political parties” are voluntary associations of electors, having an organization and committee, and having distinctive opinions on some or all of the leading political questions of ccjntroversy in the state, and attempting through their organization to elect officers of their own party faith and make their political principles the policy of the government. They are governed by their own usages and establish their own rules. ’ ;

No one with any knowledge of the history of our country will contend for a moment that political parties have not played an important part in shaping the destinies of' our government,-: nor that they were not a powerful and necessary force in a successful administration of the affairs of the national and state governments. So potent have they become in determining the measures and in administering the affairs of government, that they are now regarded as inseparable from, if not essential to a republican form of government.

“In his The American Commonwealth, Mr. Bryce says: ‘In America the great moving forces are. the parties. * * * The spirit and force of party has in America been as essential to the action of the machinery of government as steam is to a locomotive engine; or, to vary the simile, party association and organization are to the organs of government almost what the motor nerves are to the muscles, sinews, and bones of the human body. They transmit the motive power; they determine the directions in which the organs act. A description of them is therefore a necessary complement to an account of the Constitution and government ;■ for it is into the hands of the parties that the working of the government has fallen. Their ingenuity, stimulated by incessant rivalry, has turned many provisions of the Constitution to unforeseen uses, and given to the legal institutions of the country no small part of their present color.’ Sir Henry Sumner Maine says: ‘It is not to be expected that all the hopes of the founders of the American Constitution would be fulfilled. They do not seem to have been prepared for the rapid development of party, chiefly under the influence of Thomas Jefferson, nor for the thorough organization with which the American parties before long provided themselves.’ And again he says: ‘The truth is that the inherent difficulties of democratic government are so manifold and so enormous that in large and complex modern society it could neither last nor work if it were not aided by certain forces which are not exclusively associated with it, but of which it greatly stimulates the energy. Of these forces, the one to which it owes most is unquestionably Party.’ The elector’s choice of- persons for office, to be effective, must be from party candidates, and so the nomination of candidates becomes as much a matter of public concern as the election of officers.” (State v. Felton, 77 Ohio St. 569, 84 N. E. 87.)

From, the provisions of the primary election law enacted in accordance with the constitutional direction, the intent of the Legislature would appear to be manifest. Its plain purpose is to provide for and regulate the nomination of candidates by political parties, and thereby preserve the purity of elections, upon which must depend the safety and security of republican forms of government.

A mandatory primary election law, to be valid, must sustain the constitutional rights of electors, who, as members of a political party, participate in such primary elections; and it will not be presumed that the Legislature intended to deny the political parties or members thereof participating in the primary elections proper protection under the law.

The election provisions of the Constitution and the mandatory primary election law were intended for the protection of the party, and of the citizen in his rights as a member of a political party, and guarantee to him the right to express, through his ballot at a primary election, his wish as to the conduct of the affairs of his own party, and his preference in the selection of the candidates for office within his party. If this was not so, an elector participating in a primary election would be powerless, and without any methqd or means of protecting this right conferred upon him by the Constitution and law.

In the case of People v. Board of Election Commissioners of Chicago, 221 Ill. 9, 77 N. E. 321, 5 Ann. Cas. 562, Cartwright, C. J., delivering the opinion of the court, said:

“The right to choose candidates for public offices, whose names will be placed on the official ballot, is as valuable as the right to vote for them after they are chosen, and is of precisely the same nature. There is scarcely a possibility that any person will or can be elected to office under this system, unless he shall be chosen at a primary election; and this statute, which provides the methods by which that shall be done, and prescribes and limits the rights of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law. It is undoubtedly true, as urged by counsel for defendants, that’it has become not only proper, but necessary, to provide additional safeguards and protection to the voters at primary elections, to the end that their will may be fully expressed and faithfully and honestly carried out, and any law having that object in view would naturally commend itself to the lawmaking power. The legitimate purpose of such a law, however, must be to sustain and enforce the provisions of the Constitution and the rights of voters, and not to curtail or subvert them, or. injuriously restrict such rights.”

In the case of Britton v. Election Commissioners, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115, it was held that a primary election law permitting a voter, without regard to party affiliations, to vote at a primary election for delegates to the political convention of any party that he chooses to select, whether he is a member of that party or not, or ever intends to become such, gives an opportunity for disruption and destruction of political parties by its opponents, and is therefore void as a violation of the reserved rights of the people, which the Constitution declares shall not be impaired.

In the case of Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121, Planey, P. J., delivering the opinion of the courr, says:

“Regarding legislative control of party nominations, this court has said: Tt is for the party to nominate; for the people to elect. The question is not who shall be chosen to any particular office. That is for the voters of ail political parties to determine at the polls. It is simply who shall represent the organization as its nominees, and certainly the determination of that question should be controlled by the action of the party itself; otherwise party nominations are impossible. To what extent, if at all, the rights of organized political parties should be recognized and regulated by law is a matter of public policy, to be determined by the legislative department — a matter which does not concern this court. Its duties are done when it gives effect to the legislative will as expressed in statutes which do not conflict with any provision of the federal or state Constitution. State v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. R. A. 331. Undoubtedly the qualifications of an elector, as defined by the Cónstitution, for the purposes contemplated by its provisions relating to the elective franchise, are exclusive and conclusive. Undoubtedly no valid law can be enacted on any subject or for any purpose which deprives the elector of substantial rights under such provisions. Undoubtedly, by reason of the Australian ballot system, which limits the elector’s choice of candidates to those whose names appear on the official ballot, a relation exists between primary elections and general elections which must not be disregarded. Nevertheless, in the application of constitutional provisions relating to such elections as were contemplated by that instrument to such elections as are provided by this act, the substantial distinction between the choice of a candidate by an organized party and the choice of an officer by the entire electorate must be observed; otherwise the existence of organized political parties, under legislative control, is impossible. Regulation necessaril}'- contemplates and sanctions the continued existence of what is regulated. No law can regulate what it destroys. Whether it would be wise or constitutional for the Legislature to abolish all organized political parties are questions foreign to the present inquiry. The legislation under discussion was not designed to accomplish that purpose. It was the evident intent of the lawmaking power to regulate, not to destroy; and, in order to accomplish its purpose, it was absolutely necessary that each party organization be permitted to establish its own rules regarding the qualifications of its members, or that a rule applicable to all be prescribed. .This is conceded by the plaintiff and supported by abundant authority. Ladd v. Holmes, 40 Or. 167, 66 Pac. 714, 91 Am. St. Rep. 457; Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109; State v. Drexel [74 Neb. 776, 105 N. W. 174], supra. Indeed, it has been held that a law permitting electors, who are not members of a party, to participate in the nomination of its candidates is unconstitutional. Britton v. Board, 129 Cal. 339, 61 Pac. 1115, 51 L. R. A. 115.”

In the case of Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109, the Supreme Court of Illinois says:

“The object of holding a primary election by a political party is to select party candidates, and it is too plain for argument that no voter should be permitted to vote at the primary election of a political party, unless he is a member of such party; and, unless provision is made to prevent persons voting at a primary election for the candidates of a party who are not affiliated with such party, the whole scheme of nominating party candidates by primary election would fail, because of being incapable of execution.”

Recurring to the opinions of the Attorney General which the respondent refers to, wherein the primary law is construed as allowing indiscriminate voting, regardless of party affiliation, we are of the opinion that, if such an interpretation could be sustained, then the provisions of the sections referred to would, we think, be clearly unconstitutional, as being in violation of sections 4 and 5, art. 3, of the Constitution, and as being in contravention of that part of section 6, art. 3, which provides that “the Legislature shall make all such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot,” and section 7, art. 3, which provides:

“The election shall be free and equal; no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage.”

A primary election is one for the nomination of candidates for office of the respective political parties by the members thereof. If Republicans vote the Democratic party ballot, and Democrats vote the Republican party ballot, and Socialists vote any ballot but their own, then nominations so made cannot be .said to be party nominations.

It needs no argument for the position that to permit electors participating in a primary election to vote indiscriminately any party pallot they might choose to select, regardless of their party affiliations, would be simply putting a premium upon deceit, dishonesty, and fraud, and would make it possible for the worst elements of the several political parties participating to direct and control their nominations. Obviously all of the provisions of the primary election law were enacted by the Legislature to prevent electors from voting any ballot except that of their respective parties, and thereby prevent fraud and preserve the purity of the ballot. The constitutional provision and the primary election law provide only for party elections. The right and privilege of the individual voter at the general election to cast'his vote untrammeled for the candidate of his choice is no more sacred than the right of the individual member of a political party to express his choice for party candidates at a primary election; and such right cannot be taken from him without - abridging his constitutional right to participate in a free and equal election.

To be free means that' the elector shall be left in the untrammeled exercise, whether by civil or military authority, of his right or privilege. That is to say, no impediment or restraint of any character shall be imposed upon him, either directly or indirectly, whereby he shall be hindered or prevented from participation at the polls. De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814.

The word “equal” has a different signification. Every elector has the right to have his vote count for all it is worth, in proportion to the whole number of qualified electors desiring to exercise that privilege. Now, if persons, not legitimately entitled to vote, are permitted to do so, the legal voter is denied his adequate, proportionate share of influence, and the result is that the election as to him is unequal; that is, he is denied the equal influence to which he is entitled with all other qualified electors. Ballot Reform, Its Constitutionality, John H. Wigmore, 23 Am. Law. Rev. 719; Edmonds v. Banbury, 28 Iowa, 267, 271, 4 Am. Rep. 177; Davis v. School Dist., 44 N. H. 398, 404; Commonwealth v. McClelland, 83 Ky. 686. So that the terms “free” and “equal,” used, as they are, correlatively, signify that elections shall not only be open and untrammeled to all persons endowed with the elective franchise, but shall be closed to all not in the enjoyment of such privilege under the Constitution. Ladd v. Holmes, 40 Or. 167, 66 Pac. 714, 91 Am. St. Rep. 457.

In Commonwealth v. McClelland, 83 Ky. 685, 693, the court says:

“What are free and equal elections in the meaning of the Constitution? They certainly are not such as may be secured by the indiscriminate exercise of the right of suffrage, without regard to qualifications or regulations necessary to test' and determine the right of those who offer to vote. * * * Elections are free and equal only when all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, and when the polls are in each county and in each precinct alike freed from the interference or contamination of fraudulent voters.”

The members of the several political parties have the constitutional right to select their candidates for office with the same freedom as the)' have the right to vote for them after they are nominated, or the primary election at which they vote for candidates is a delusion and a fraud upon the individual voter. If the independent voter, or the voter affiliating with an opposition party, can vote at the primary election the ballot of a party with which he has no political affiliation, and thereby control the nominations of a party to which he is opposed, the constitutional guaranty that “the election shall be free and equal” would be destroyed.

Where primary elections for the nomination of party candidates are field, as authorized and required by law, under the supervision and inspection of election officials, including a party watcher present, as provided by section 3277, supra, it is not a violation of the Constitution that all electors are not permitted to vote at such primary election. As was said by the Supreme Court of Oregon, in the case of Ladd v. Holmes, supra:

“Electors of one party have no desire, unless prompted by sinister or evil motives, nor have they any inherent right within or-without the Constitution, to vote at some other party primary or election; hence no right or privilege of which they can complain has been intrenched upon or violated. We see no objection to the Legislature providing for party elections and limiting the electoral privilege to party members. The exclusion of other party members from participating in such elections is not an infringement or denial of a constitutional right or privilege.”

A citizen’s only right to vote depends upon his qualifications under the Constitution and the law, and this right is subject to limitations of age, ancestry, residence, and sex, and other matters mentioned herein. The qualifications of electors entitled to vote at a primary election are the same as the qualifications of electors entitled to vote at the general election within the election precinct where the primary is held, except that, in addition thereto, the elector participating in a primary election must be a member of some party recognized by the official ballots of such primary.

Each elector shall prove his qualifications in the same manner in which electors in the election precinct in which he offers to vote are required by law to prove their qualifications at the general election; and each elector shall have the right to receive the ballot of the party of his affiliation, and no other.

The only statutory provisions in relation to challenges of electors and the duty of inspectors of election when an elector shall be challenged as unqualified are contained in the general election• laws. Section 3285, Comp. Laws 1909, provides that:

“Such primary election shall in all respects conform to the laws governing elections except as herein otherwise provided, and all provisions of law governing general elections not in conflict with this act are hereby made applicable and put in force herewith.”

No specific provision is made by the primary law for testing the qualification of an elector as to his party affiliation. The inquiry is, by the general election law, confined to the qualifications enumerated, in which this is not included. Under the foregoing provision, when an elector demands a party ballot, if the election inspector, judge, or party watcher knows, or has reason to believe that the elector offering to vote is a nonpartisan, or not a member of the party whose ballot he is attempting to vote, it is the duty of such election officer to challenge the right of such elector to vote; and any challenger for any candidate may challenge the right of such elector to vote the ballot of the party making the challenge. If the challenge be on the ground that the elector is not, in good faith, a member of the party whose ticket he is attempting to vote, the duty of the inspector is the same as upon a challenge as to any other qualification. An elector who resists the challenge and makes oath that he possesses the qualification contemplated by the Constitution should bear in mind that the usual test is, Did the elector vote the party ticket at the last preceding general election ? Another rule of party membership is: An elector who affiliates with the party and stands by his party organization, and as such member yields obedience to party rules and usages, and accepts and supports the regular party nominations.

By the primary law of Nebraska, the right of an elector to vote at a primary is made to depend upon his political affiliation with the party for whose candidates he desires to cast a ballot. It is therein provided that no person shall “be entitled to vote at such primary election until he shall have first stated to the judges of said primary election what political party he affiliates with, and whose candidates he supported at the last election and whose candidates he intends to support at the next election,” and when challenged he must make oath to the truth of the statements, above required, as to party affiliation and his support of the candidates of the party with whom he is offering to vote. Here, in the absence of a statutory test of the party qualifications of electors at a primary election, the rules and usages of the respective political parties having official ballots to be voted at such primary election must control.

The elector cannot prescribe his own method of proving his qualification in respect to his party membership, so as to preclude the election inspector from disputing or rejecting his proof, but may require him to make proof of his qualification in the manner and mode prescribed by the general election laws improving qualifications.

The mere fact that an elector has registered, and at that time stated his political party affiliation, does not preclude the right to interpose a challenge, on the ground that he is not a member of the party named in his registration certificate, and whose ballot he requests to vote.

“While a person’s name on the registry list is prima facie evidence of his right to vote, yet the officers may strike off his name and reject his vote, if they can show that he is not entitled.” (Brightly’s Leading Cases on Elections, p. 695; Paine on Elections, p. 296.)

The information charges that the elector named therein! had all the qualifications of an elector, as required by article 3,. secs. 1 and 4a, Const, (sections 42 and 46, Williams’), and that he had duly registered as an elector in said precinct, but fails to state that said elector was then and at that time a member of the Democratic party, or had at the last preceding general' election voted the Democratic ticket, or that said elector them and there, on oath or affirmation, stated that he intended tor support the nominees of the Democratic party at the general election for which nominees of the several political parties were then and there being named. The information failing to allege those facts, the facts stated do not constitute a public offense, and, as a matter of law, the facts stated constitute a legal justification for the action of petitioner as such election inspector. For petitioner to have delivered a Democratic ballot, and permitted the elector named to vote the same, upon the facts, stated in the information, would have been a palpable violation of his duty as such election inspector.

For the reasons hereinbefore stated, we are of opinion that said petitioner is entitled to be discharged; and it is so ordered by the court.

ARMSTRONG, J., concurs.

FURMAN, P. J.

(concurring). It is a settled rule of law that a statute should be construed with reference to its spirit and reason. To arrive at the spirit and reason of the law, courts must take into consideration what was the law before the statute-was passed, and the mischief which it was enacted to correct. In construing a statute, an interpretation must never be adopted which will defeat the very purpose of the law, or which will enable persons to elude its provisions or defeat the objects for which it was enacted, if this can be avoided. When two different constructions may be placed upon an act, one of which will accomplish the purpose of the Legislature and the other render the act nugatory, the former should always be adopted. It must always be presumed that the legislative body intended to favor and foster, rather than to contravene, public policy, which is based upon principles of natural justice, good morals, and the settled wisdom of the law as applied to the ordinary affairs of life. Therefore courts should not place a construction upon a statute which is contrary to natural justice and right, or which is against public policy and good morals, if they can reasonably avoid doing so. These rules of construction are so manifestly just, and are so well established and universally recognized, that it is not necessary to take time in citing authorities in their support.

To arrive at the spirit and reason of our primary election law, we must consider conditions existing before it was enacted. We will then be in a position to understand the evils at which it was aimed. Where the people are possessed of but little wealth, the territory limited, the population is small, and public questions are few and simple, there is little or no inducement in a republic for persons to organize to plunder the public treasury, or enrich themselves at the expense of the people. It is therefore possible to conduct the business affairs of such a republic without the organization of political parties; but where republics cover a vast extent of country, where the population is dense, the wealth is great, and public questions are many and complicated, experience demonstrates that special interests and personal ambition and selfishness will cause men to combine and organize for the purpose of perverting the government from its rightful purpose and objects, and use it as a means to advance their own personal, selfish interests and fortunes, without regard to the rights and liberties of the people, but for the sole use and benefit of such persons. These organizations are always private and secret, and, unless they are met by counter organizations, it is impossible to defeat their objects. It is through such combinations and organizations as these that the stream of wealth now produced by the honest, hard-working people of the United States has been diverted from its rightful channels and poured into the already overflowing and undeserving coffers of the few, who revel in immense and stolen wealth, while the people who bear the burdens of the government and do the work which makes this world worth living in find the struggles for existence daily becoming harder and harder, and that the chains which are binding them in the bonds-of industrial slavery are daily becoming stronger and stronger and tighter and tighter. These wicked machinations cannot be defeated by individual efforts. Individual efforts will neutralize themselves, while those who are organized, and who act in concert with each other, will be sure of success. If the people would maintain the substance, as well as the form and shadow, of liberty, and if labor would eat the bread which it has earned and enjoy the wealth which it has created, the people must organize in political parties. These political parties must be organized upon the principles of government which they advocate.

The organization of political parties should not stop with simply advocating what are conceived to be correct principles of government; for principles do not enforce themselves. A political party organization will be vain, idle, and amount to nothing, unless it secures the election to office of men who are in sympathy with, and who will enforce, the principles which it advocates; for in this way only can these principles be made effective. It is therefore seen that the nomination of candidates for office is one of the most important functions of a political party. No political organization can be effective or command public confidence and respect where the integrity of its nominations can be called in question. A party nomination for office which does not represent the will of the majority of the persons composing such party has no- rightful claim whatever to the support of the voters of such party. Neither will the principles, advocated by such party have any binding force upon such nominee, because he would owe his nomination to persons who did not believe in such principles, and who are antagonistic to such political party. In fact, such a hybrid nomination would not be, in any sense of the word, a party nomination, but would be an independent nomination, independent of the party principles and everything else. To whom would he owe allegiance? Whose creature would he be ? Which master would he serve ? Who can answer these questions? Such a nominee placed in the office would be at perfect liberty to consult his own pleasure about whatever he might do. It is therefore clear that a party nomination represents the life of the party. '

To protect the right of all political parties to select their own nominees for office, our present primary election law was enacted. It was passed to assist, and not to destroy, party nominations. Under the old convention system, by means of secret organization, a few members of a party could control the convention and make nominations against the will of the majority of the voters of such party. The law was passed to give to each member of all political parties a fair and equal voice in the selection of the nominee of his party. To allow persons who are not members of a political party, and who do not believe in its principles, but who are antagonistic to them, to participate in the primary election of the party, for the purpose of nominating its candidates, would be to inflict a greater injury upon political parties than would be possible under the old convention system, which the primary system abolished; for under the old system, while the will of the majority of the members of the party might be defeated, yet those who made the selection were at least members of the party making the nomination, while under the system now proposed men can participate in a party nomination, and possibly control its action, who are antagonistic to the principles of the party, and who would vote against the nominees of the party on the day of the election. The statement of this proposition is enough to show that it is absolutely unsound in principle. . Suppose that the old system of making party nominations for office were still in existence, who would be bold enough to say that members of another political party, or persons without party affiliations, without being invited' so to do, could force themselves into a political party nominating convention and participate in such nomination? Any such attempt would be universally denounced as a disgraceful outrage and result in a riot. What would be thought of an attempt on the part of members of a religious denomination, or of others who. were independent of all religious denominations, attempting to interfere with and control the church affairs of a denomination of which they were not members, or of which they were entirely independent? Any such attempt would be resisted, even to death, by all persons who believe in religious liberty, and, if persisted in, would result in baptizing the country in fire and in blood. What legislative body would have the power to force a church to allow persons, who were not members thereof, to share in its privileges and rights and partake of its sacraments?

If the policy upon which this prosecution is based was adopted by the court, it would be death to all political organizations, and would convert our primary election into a mockery, a snare, and a delusion. Such a construction of the statute would make our primary election law revolutionary, unconstitutional, null and void, and of no effect. It would involve us in political anarchy. What is decided in this case is applicable solely and exclusively to primary or nominating elections, for the obvious reason that such elections are held for the sole and exclusive purpose of allowing political parties to nominate their respective candidates. Independent voters are not deprived of their rights by virtue of a primary election; for they have the constitutional right to bring out any candidates they favor by petition. When it comes' to the election of officers, each voter has the unquestioned right to vote a party ticket, a mixed ticket, or an independent ticket, as he sees fit, because each voter'has an equal right and interest in the men who are elected to office.

For these reasons, in addition to those so well expressed by Judge DOYLE, I heartily concur in the conclusions which he has reached.


source: Caselaw Access Project

author: PER CURIAM. FURMAN, P. J.

license: Public Domain

text:
    JOHN A. TUCKER v. STATE.
    No. A-1470.
    Opinion Filed July 12, 1912.
    Rehearing Opinion Filed August 21, 1912.
    1. COURTS — Appeal—Written Opinions — Misdemeanors. By an express provision of the statutes of Oklahoma, this court is not required to prepare written opinions in misdemeanor eases pending before it, but is permitted to render written opinions in misdemeanor cases when in its judgment the public interests may be subserved thereby.

      2 INTOXICATING LIQUORS — Unlawful Sale — Husband and Wife —Evidence. On a trial where an information charges the illegal sale of intoxicating liquor, and the evidence shows that the sale charged in the information was made by the wife of the defendant at his home, it is competent to introduce testimony of other sales of intoxicating liquor made by the wife at his home, and that large quantities of liquor were kept at the home of the defendant, for the purpose of enabling the jury to determine whether or not the wife was acting for defendant, and that defendant was concerned in the particular sale for which he was being prosecuted, and that such sale constituted a part of a plan or system of the defendant for the sale of liquor.
    3. SAME — Witnesses—-Failure to Testify — Presumption — Appeal. Where a defendant is being prosecuted for the sale of intoxicating liquor and the state’s witnesses testify that such sale was made by his wife at his home, she is a competent witness in his behalf; and if he does not place her upon the witness stand, or account for his failure to do so, such failure will be strongly corroborative of the truhtfulness of the state’s testimony; and if there is other testimony in the record connecting the defendant with such sale, a verdict of conviction will not be disturbed on appeal.
    (Syllabus by the Court.)

      Appeal from, Superior Court, Grady County; Will Linn, Judge.

    John A. Tucker was convicted of violating the prohibitory-law, and appeals.
    Affirmed.

      Bond & Melton and Barefoot & Carmichael, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

The plaintiff in error was tried and con- . victed at the September, 1911, term of the superior ■ court of Grady county on a charge of selling intoxicating liquor, and his punishment fixed at imprisonment in the county jail for a term of thirty days and a fine of fifty dollars. Upon a careful examination of the record we find no material error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is, therefore, affirmed.

On Motion eor Rehearing.

FURMAN, P. J.

When this case was first submitted we carefully examined the record and brief of counsel for appellant and came to the conclusion that there was no prejudicial error in the case and filed a memorandum opinion to that effect. Counsel for appellant question the right of the court to render such an opinion. If they will examine the Session Laws of 1910, c. 13, sec. 1, p. 18, they will find the following statute:

“The court of criminal appeals shall render a written opinion in all felony cases within six months after said cases shall have been submitted for decision. * * * Provided, the court may. when in its judgment public interest may be subserved, in like manner render written opinions in misdemeanor cases pending in its court.”

This court was so flooded with frivolous appeals, especially in misdemeanor cases, that it was found necessary by the Legislature to check this evil. Some members of the Legislature were in favor of denying appeals in such cases; others were willing to allow appeals in misdemeanor cases, but desired to-limit them as far as possible. This statute was passed to relieve this court of the necessity of writing opinions in misdemeanor cases, unless we were of the opinion that the questions raised were of sufficient importance to the public interest to require that this should be done. At the time this statute was passed the court was constantly getting further and further behind with its. business, and it would have been impossible to ever catch up without some relief, so the Legislature passed this statute to relieve the court of the increasing congestion of its docket. Many, cases were being appeáled simply for delay, and if we had been compelled to write opinions in each, our docket would have constantly becom,e more crowded. The effect of this statute has been most salutary. The number of appeals simply for delay is constantly decreasing, because the court can expeditiously dispose of appeals which are without merit.

In their motion for a rehearing, counsel for appellant strenuously insist that the conviction in this case should be set aside upon the authority of Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204. We examined this question when the memorandum opinion was written and we did not think then, and we do not think now, that this case comes within the rule laid down in the Smith case. In Smith’s case, Judge Armstrong, speaking for the court, said:

“Where the state charges and relies upon a particular sale, the general rule is that proof of other sales, for the purpose of establishing the particular sale charged, is not admissible. The, issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. par. 104; 1 Bish. Crim. Proc. par. 1120; State v. Hughes, 3 Kan. App. 95, 45 Pac. 94; King v. State, 66 Miss. 502, 6 South. 188; Stone v. State, 7 South. (Miss.) 500; McClure v. State, 148 Ala. 625, 42 South. 813.”

For the purpose of showing that the rule laid down in Smith’s case does not apply to this case, we will now discuss the question fully, although this must not be taken as a precedent that full opinions will be written on motions for a rehearing whenever counsel may be dissatisfied with a memorandum opinion. We would like to write full opinions in all cases, but if we did, it would render the statute useless, and we would soon be completely overwhelmed with the volume of business on our docket, and the enforcement of the criminal laws of the state would be practically paralyzed.

It will be observed that Smith’s case only states a general rule, and like all general rules it has its exceptions. In Smith’s case the state claimed that the defendant himself made the sale charged in the information. In the case at bar an entirely different state of facts is presented. It was not claimed that appellant sold the whisky in person, or that he was present when the sale was made, or had any personal knowledge of this particular sale. On the contrary, it was shown that the sale was made by his wife during his absence from home. The state was permitted to prove that the defendant and his wife resided in the country, about three miles from the city of Chickasha; that he kept for sale some groceries at the house where he resided; that there was also a great deal of whisky and beer kept at this house, and that his wife made frequent sales of whisky, not only to the party charged in the information, but also to other persons; that sales of whisky had been made to different persons by the wife of appellant; that appellent himself had been seen to deliver whisky to parties, and- had been present when other sales had been made by his wife. We think this testimony was admissible for the purpose of showing the system of appellant .with reference to selling whisky at his house, and that the sale- in question was made in accordance with such system, and that he was concerned therein.

In Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, this court, held in a case of embezzlement, where other similar offenses had been testified to which constituted part of a plan or system of embezzlement, that the jury might consider the testimony of such similar offenses for the purpose of determining not only the intent of the defendant, but also as to whether or not the defendant did take the money he was charged with having embezzled. An examination of the authorities cited in Carter’s case will show that this is not a new principle of law. That it is applicable to cases of selling whisky by some person other than the defendant is shown by the following authorities:

In Cumberledge v. State, ante, 122 Pac. 266, a negro porter in a drug store sold whisky to the prosecuting witness; defendant paid the rent on the building and hired the porter. He denied that he had ever sold whisky or was concerned in its sale, but the judgment of conviction was confirmed, and in the syllabus the court holds:

“Where the evidence shows that a defendant upon trial was concerned in the sale of intoxicating liquors, it is immaterial as to whether or not the sale was made by the defendant or by another person who was acting with defendant.”

In Cook v. State, 4 Okla. Cr. 519, this court said:

“It is immaterial as to whether the defendant was present when the beer was sold or not. He owned the premises and controlled the business. The negro was simply his servant, and a sale by the negro was a sale by the defendant, and the defendant is responsible for any violation of the prohibitory law committed by the negro porter in his place of business, under the circumstances proven by the testimony in this case.”

In Lancaster et at. v. State, 2 Okla. Cr. 681, 103 Pac. 1065, this court said:

“The counsel for the defendant insist that the evidence against the defendant Lancaster is not sufficient to sustain the verdict. It is true that no witness swore that Lancaster sold the whisky to Sherwopd, or was present when it was sold to him. It was proven that the whisky was sold in the place of business of Luke Jenkins and Ollie Lancaster, and that this place of business was what is called a joint. It was proven that soon after the sale for which these defendants were convicted was made, this joint was raided, and fifty-two bottles of beer were found in the refrigerator behind the bar, and that beer and whisky were found in the warehouse behind the main building. It was proven that the place of-business of defendants was fitted up with a bar and fixtures usually found in such resorts. It was proven that Lancaster paid draymen for hauling cases of liquor from the depot to the place of business conducted by the defendants. In the light of the record, we are of the opinion that the evidence not only sustains, but that it required, the verdict rendered by the jury.”

And this statement is the basis of the third paragraph of the syllabus, as follows:

“Where the evidence shows that two or more persons are acting together in the commission of an offense, they are both guilty, although one of them may not be present when the offense is committed.”

In Roach v. State (Tex.), 84 S. W. 586, the court said:

“Appellant objected to the introduction of evidence of other offenses, claiming the same were in nowise connected with the offense on trial, but related to violations of the local option law on other and different occasions. It will be seen that the other transactions were introduced in order to show appellant’s system in the sale of liquor. The testimony here shows that appellant lived in the country, and that prosecutor (who was a neighbor) called at his house on the occasion of the alleged offense, and asked him if he had anything around, or anything about, to which the appellant replied, 'Maybe so; look and see’; that he then went around the house to appellant’s smokehouse, which was east of his residence, and separate therefrom some ten or twelve feet (appellant in the meantime having gone into his residence) ; that he found the smokehouse door closed, but not locked. He opened it, and there found a barrel of whisky, and a rubber hose with which to draw the same lying across the barrel, and a jug; that he drew a half gallon of whisky, and left $1.50 on the floor, near the wall on the lefthand side of the door; that appellant was not present at the transaction, and he did not know whether he got the money or not. On the trial appellant’s contest appears to be that he did not make any sale, that he did not receive any money for said whisky, and that the evidence failed to connect him with the transaction as a seller. The other transactions objected to were conducted in a similar manner; and we hold, in accordance with the authorities, that this character of testimony was admissible. Efird v. State, 71 S. W. 957, 6 Tex. Ct. Rep. 637; Holler v. State, 73 S. W. 961, 7 Tex. Ct. Rep. 552.”

It is claimed that the evidence here does not sustain a charge that defendant sold the liquor; that it shows only that his wife made the sale. In State v. Coulter (Kan), 19 Pac. 368, the court in the syllabus said:

“Where on the trial of a charge for the violation of the prohibitory law it is claimed that the liquor alleged to have been sold was not intoxicating, it is then competent to show sales other than those upon which the state elects to try the defendant, for the purpose of showing the purposes for which said liquor was sold and purchased; and it will make no difference if such sales were included in a complaint, upon the counts of which defendant had been acquitted.”

See, also, State v. Elliott (Kan.), 26 Pac. 55.

In State v. Welch (N. H.), 15 Atl. 146, the court said:

“On trial of an indictment for the illegal safe of intoxicating liquors, evidence of sale to other persons, within the year next preceding the first day of the term on which the indictment was found, is admissible to show that defendant was engaged in the business of liquor-selling.”

In State v. Peterson (Minn.), 108 N. W. 6, the court held:

“The admission of evidence, on the trial of an indictment for selling liquor without a license,' of sales by defendant to persons other than the one named in the indictment, held, in view of the facts disclosed by the record, not error, though it tended to prove the commission of other offenses. Such other sales were a part of the general scheme and plan devised by defendant to continue in the business of selling intoxicating liquor without a license, and were so related to the sale charged as to render the same proper corroborative evidence.”

In Pitner v. State (Tex), 39 S. W. 662, the court held:

“In a prosecution for illegal sales of liquor, evidence of other sales than that charged in the indictment is admissible to show the system of defendant with reference to selling liquor, and that the sale charged was in accordance with such system.”

In Bennett v. State (Tex.), 50 S. W. 947, it was held:

“In a prosecution for an illegal sale of liquor,- evidence of other sales than that charged is admissible to show the system of defendant with reference to selling liquors, and that the sale charged was in accordance therewith.”

See, also, Hollar v. State (Tex.), 73 S. W. 961; Skipworth v. State (Tex.), 68 S. W. 278; Efird v. State (Tex.), 71 S. W. 956; Holland v. State (Tex.), 101 S. W. 1005.

In State v. Roberts, 55 N. H. 483, the court in the syllabus held:

/‘Upon the trial of an indictment for unlawfully selling spirituous liquors, evidence having been introduced by the state of a sale by the respondent’s wife, — held, that it was competent for the state to prove sales by the respondent himself other than those specified in the indictment, at the same place, and about the same time, because such sales by him tend to show that the illegal traffic, was his business, and that the sale of' liquor by his wife was an act clone by her as his agent and by his authority.”

And in the opinion it is said:

“The prosecution introduced evidence tending to show a sale by the wife of the respondent to Gotchell. Such proof would sustain the indictment; but in order that the respondent should be held liable for a sale made by the hand of his wife, the state would be compelled to show, further, that the wife was acting as his servant or agent in the transaction. Without such evidence the proof of a sale by his wife would go for nothing. It was therefore competent to show sales made by the respondent himself, at the same place, other than the sale charged in the indictment, because such sales by him tended to show that the traffic in liquors there was his business, and therefore that the act of his wife was his act. State v. Bonney, 39 N. H. 208; State v. Colby, 55 N. H. 72.”

In Commonwealth v. Coughlin, 14 Gray (Mass.) 389, the facts stated were these:

“Four witnesses were introduced by the government, who proved a number of sales of strong beer, all of which were made by the wife of the defendant in the dwellinghouse occupied by herself and the defendant. The circumstances of the sales were that the witnesses went into the house, called for a quart of beer of the wife; she took their vessels; went, as they supposed, down cellar; brought the vessels back with the beer called for. and received from them the pay therefor. There was no evidence that the defendant ever sold or interfered with the sales in any way, except the fact that at two' of the sales he happened to be present in the house. * * * Upon these facts the defendant requested the court to rule that there was no greater presumption that the wife, in these sales, was acting for the defendant as his agent, than that she was acting therein for herself. The judges declined so to instruct the jury, but did instruct them that it was evidence that the wife was acting in \said sales as the agent of the husband. The jury found the defendant guilty, and he fil^s this exceptions.”

The court, through Chief Justice Shaw, in the opinion said:

“The direction was right. The facts that the husband and wife lived together, and that the house was his, there being no evidence that she carried on a separate trade, were competent evidence to go to the jury to prove that she acted as his agent. Commonwealth v. Murphy, 2 Gray, 513; Commonwealth v. Fitzgerald, ante, 14. Exceptions overruled.”

In Commonwealth v. Hyland, 155 Mass. 7, the court, through Mr. Justice Holmes, held:

On a complaint under the Pub. Sts., c. 101, secs. 6. 7, for keeping and maintaining a common nuisance, there was evidence of illegal sales of intoxicating liquors by the wife of the defendant in his tenement, in which they lived together. The defendant testified that he was out of the state at the time of such sales, and that they were made without his knowledge or consent. Held, that the case was properly left to the jury, who might disbelieve the defendant and infer that the wife was acting as his agent.”

—And said in the opinion:

“The jury may have disbelieved the defendant’s testimony. In that case the fact that he and his wife lived together in his tenement was competent evidence to prove that she acted as his agent.”

In Commonwealth v. Lafayette, 148 Mass. 130, the syllabus reads:

“At the trial of a complaint for an unlawful sale of intoxicating liquors, the alleged purchaser testified, on direct examination, that, upon going to the defendant’s house, he found in the kitchen the defendant and a woman that he supposed to be his wife; that he poured rum out of a bottle on the table and drank it; and that he thereupon threw down some money and left the house. On cross-examination he testified that he did not see the defendant, but that the woman, at his request, brought him the glass of rum, and said, T will call my husband, if you wish to see him; he is in the next room.’ The judge instructed the jury, if they should find that the wife sold the'rum as the agent of her husband, the defendant, they could find him guilty. Held, that the purchaser’s direct testimony, if believed, was sufficient to warrant a conviction; and that the instruction as to the woman’s agency wag proper, in view of his testimony on cross-examination.”

In Guarreno v. State, 148 Ala. 637, 32 South. 833, it was ' held:

“Where, on a trial for an illegal sale of intoxicating liquors, the evidence showed that the sale of liquors was made by the wife of accused at his store, it was necessary to connect accused with the sale, and frequency of such sales by the wife at the store might authorize the inference that the liquor was kept by accused, and that in making the sales the wife was the agent.”

In Trometer v. District of Columbia, 24 App. D. C. 247, the court said:

“3. Under the third assignment of error, which is based upon the refusal of the trial judge to direct a verdict in favor of the defendant on the whole testimony, the proposition sought to be established is that the defendant is not liable in a criminal action for the act of his wife, done without his knowledge, consent, authority, or procurement. But this proposition in the present case assumes that as proof which has not been proved, and which remains as a matter of controversy, namely, the authority of the wife to act for her husband in the matter of the sale of liquor. Substantially the same question was considered by this court in the case of Lehman v. District of Columbia, 19 App. D. C. 233, and determined adversely to the contention of the appellant, and it is unnecessary to repeat the argument of that case here.

“In the case of Com. v. Hyland, 155 Mass. 7, 28 N. E. 1055. the rule was laid down by the Supreme Coitrt of Judicature of Massachusetts through Mr. Justice Holmes, now in the Supreme Court of the United States, that, in prosecution for maintaining a liquor nuisance, where the evidence showed that all sales of liquor had been made by the defendant’s wife at his house or tenement, and the defendant testified that if any sales were made by his wife it was without his knowledge or consent, while he was out of the state,' the fact that he and his wife lived together in such' a tenement was competent evidence that she acted as his agent, and might overcome his own positive testimony to the contrary, if the jury disbelieved the testimony.

“Now, in the present case it is perfectly plain that the jury in the court below, or the police judge acting in the place of a jury upon the situation, as it was disclosed by the testimony of the two policemen, was fully warranted, if he believed that testimony, in inferring an agency in the wife from the husband to do precisely what she did do. A presumption of agency arose from the circumstances and conduct of the parties, as it may aris in all other cases where the sale of the liquor is not made directly by the proprietor of the place who is sought to be held for it. Lehman v. District of Columbia, 19 App. D. C. 233, In the absence of contravening testimony such presumption takes the place of direct and positive proof. Here there was such contravening testimony; and the question of agency became a vital and.essential element of controversy in the case.”

In Commonwealth v. Newhard, 3 Pa. Super. Ct. 215, the court held:

“Where sales are made by defendant’s wife to minors, well known both to defendant and his wife to be such, and where there is evidence that the minors had frequented the saloon and bagatelle room and had been furnished with liquor in his presence, and the case is submitted to the jury, and a verdict of guilty rendered upon proper instructions as to the bona fides of defendant’s orders forbidding sales to minors, the judgment will not be disturbed.”

See, also, Commonwealth v. Fitzgerald, 14 Gray (Mass.) 14; State v. Colby, 55 N. H. 72.

If the sales were not made by the wife of appellant, as testified to on behalf of the state, she was a competent witness in his behalf. Plis failure to place her upon the stand, or to account for his failure to do so, was a-tacit admission of the truthfulness of the state’s testimony. Like Adam of old, his only defense was that the woman did it. This plea did not save Adam, and it should not be permitted to save appellant. In such a case as this a husband should not be permitted to hide behind his wife’s skirts. It is true that she might be prosecuted also, but we think-that the jury had a right to conclude from the evidence that the appellant was concerned in, and responsible for, this attempt to convert his home into a bootlegging joint. We do not see how the jury could have done otherwise than convict appellant. The instructions of the court were in harmony with the views herein expressed, and it would be a waste- of time to discuss them.

The motion for a rehearing is therefore denied.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
      Ex parte FLOYD WOODS.
    No. A-1589.
    Opinion Filed August 10, 1912.
    (125 Pac. 440.)
    1. HABEAS CORPUS — Grounds—Jurisdiction of Trial Court. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged; and, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors.
    :2. SAME — Defect in Indictment or Information. A discharge from imprisonment under .a criminal conviction cannot be granted on habeas corpus, because the indictment or information was defective.
    .3. SAME — Irregularities. Habeas corpus does not lie to correct mere irregularity of procedure where there is jurisdiction. When the trial court has jurisdiction, errors in its proceeding can only be reviewed on appeal.
    (Syllabus by the Court.)
    Application by Floyd Woods for writ of habeas corpus-.

    Denied.

      G. T. Ralls, for petitioner.
   DOYLE, J.

This is a petition for a writ of habeas corpus. The petition is filed for the purpose of setting at liberty Floyd Woods. It is alleged in the petition that Floyd Woods is illegally restrained of his liberty, and is unlawfully imprisoned in the penitentiary at McAlester, by virtue of an unlawful and illegal judgment and sentence of conviction in the district court of Coal county.

It appears from the petition that Floyd Woods was, on April 30, 1910, indicted by the grand jury of Coal county for the crime of grand larceny. A plea of not guilty was entered, and Woods was, on the 16th day of March, 1911, placed upon .trial upon this indictment in said district court. On the same day the jury returned their verdict, as follows:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant, Floyd Woods, guilty as charged in the indictment herein, but cannot agree upon, the punishment.”

And on the same day petitioner was sentenced to serve a term of eighteen months in the penitentiary.

The indictment, a copy of which was attached to the petition, charged that:

“One Floyd Woods and Oran Wright, did commit the crime of grand larceny in the manner and form as follows, to wit: That they, the said Floyd Woods and Oran Wright, did then and there unlawfully, willfully, fraudulently, and feloniously take, steal, and carry away, by stealth and by fraud and by force* from and out of the possession of one Jeff Wood, and without his-consent, one .certain red heifer yearling calf, unbranded and unmarked, said calf being then and there the property of him, the said Jeff Wood, with the unlawful and felonious intent on the part of them, the said Floyd Woods and Oran Wright, then and there to deprive him, the said Jeff Wood, of said property, and! to appropriate and convert the same to the use and benefit of them, the said Floyd Woods and Oran Wright.”

The judgment, a copy of which was attached to the petition,, is that the defendant is guilty of grand larceny; and the record shows that a commitment issued on the judgment, directing the sheriff of Coal county to take and deliven said Woods fe> the warden of the penitentiary at McAIester. He was so delivered on December 12, 1911. The petition also contains a certificate of the clerk of said district court “that the 16th day of March, 1911, the same being the day on which Woods was convicted and sentenced to the penitentiary, was not the last day of the term of court.”

It is further alleged that said district court was without jurisdiction in the premises: First. Because “said indictment charges your petitioner with the crime of grand larceny, but does not allege any value of the property alleged to have been stolen.” Second. That “your petitioner was convicted of the crime of gránd larceny under said indictment, and was on the same day sentenced to the penitentiary for the term of eighteen months, and that no waiver of time for sentence was made by your petitioner.”

Argument upon the petition for said writ was had, and the writ was refused.

Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the law is well settled that the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person •of the defendant and of the crime charged. And if the trial •court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors. Ex parte Wilkins, infra, 115 Pac. 1118.

“The'writ of habeas corpus is not designed for the correction of errors or mere irregularities, and cannot be substituted for an appeal or writ of error. And where a petitioner is imprisoned under a judgment of conviction for crime, unless the ■court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial, or in the proceedings preliminary thereto.” {In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. [N. S.] 805, and cases therein cited.)

It is contended on behalf of petitioner that the facts, if true, which are alleged in the indictment do not constitute a felony under our Criminal Code. This contention is destitute of merit. Larceny is definded by our statutes as follows: Section 2591, Comp. Laws 1909, provides:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Section 2593 provides:

“Larceny is divided into two degrees; the first of which is termed grand larceny, the second, petit larceny.”

Section 2594 provides:

“Grand larceny is larceny committed in either of the following cases: 1. When the property taken is of value exceeding twenty dollars. 2. When such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in other cases is petit larceny.”

Section 2595 provides:

“Grand larceny is punishable by imprisonment in the state prison not exceeding five years.”

Section 2606 provides:

“That if any person shall steal any stallion, mare, colt, gelding, ridgeling, or any ass, genet, or mule, or any bull, cow, calf, steer, or stag, he shall be guilty of a felony and on conviction, thereof, shall be punished by confinement in the state penitentiary for a term of not less than one nor more than ten years.”

The only difference between the crime of stealing a domestic animal under section 2606, supra, and larceny under the general statute is that this provision abolishes the degrees of the crime- and makes the stealing of any of the domestic animals therein, named a felony, without regard to the amount of their value.

In the case of Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883, this court said:

' “When a prosecution is predicated upon section ,2606, to-support a conviction, the ownership of the animals stolen must be alleged and proved; and it is necessary to allege and prove a. felonious intent on the part of the taker to deprive the ow'ner thereof, and to convert the same to his (the taker’s) own use, which specific proof is not necessary to support a conviction under the general larceny statute. That was done in this case. The-allegation of value in the information is not material, and may be rejected as mere surplusage, which does no harm. * * * The words ‘grand larceny,’ mistakenly used in entering judgment,, could not in any way have misled or injured the defendant.”

A discharge from imprisonment under a criminal conviction cannot be granted on habeas corpus because the -indictment or information was defective.

In the case of In re Eckart, Petitioner, 166 U. S. 481, 17 Sup. Ct. 638, 41 L. Ed. 1085, Mr. Justice White, delivering the-opinion of the court, says:

“In its decision refusing the writ applied for by Eckart, the Supreme Court of Wisconsin held that, while the conviction under the sentence in question was erroneous, the error in passing-sentence was not a jurisdictional defect, and the judgment was, therefore, not void. In this view we concur. The court had jurisdiction of the offense charged, and of -the person of the accused. The verdict clearly did not acquit him of the crime with which he was charged, but found that he had committed an offense ■embraced within the accusation upon which he was tried. It was within the jurisdiction of the trial judge to pass upon the sufficiency of the verdict and to construe its legal meaning; and if in so doing he erred, and held the verdict to be sufficiently certain to authorize the imposition of punishment for the highest grade of the offense charged, it was an error committed in the exercise of jurisdiction, and one which does not present a jurisdictional •defect, remediable by the writ of habeas corpus

Under article 7 of the Constitution, which article treats of the judicial department, the district courts of the state have 116 jurisdiction in misdemeanor cases; and when an indictment for •a misdemeanor is 'returned therein the district court must order the indictment transferred to the court having jurisdiction to try and determine the same.

The indictment here correctly charged a felonious larceny ■of live stock, except for the erroneous use of the term “grand larceny”; and, if the trial court erred in the same manner in its judgment, such error can only be reviewed upon appeal in this court, and not by habeas corpus. As the district court of- Coal county had jurisdiction to pronounce the judgment of conviction against the petitioner, it follows that the judgment is not void.

The question whether or not the court appointed a time for pronouncing judgment, as prescribed by sections 6901 and 6903 (Comp. Taws of 1909) of the Code of Criminal Procedure, can •only be reviewed upon appeal in this court. Habeas corpus does ■not lie to correct mere irregularity of procedure -where there is jurisdiction.

For the reasons' stated, the writ of habeas corpus was and is refused.

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