author: DOYLE, Judge,

text:
    Josh McCord v. State.
    No. A-39.
    Opinion Filed April 7, 1909.
    (101 Pac. 280.)
    1. CONSTITUTIONAL LAW — Police Power. Under the police power, every state has the right to determine what is dangerous ■and injurious to the public health, the public morals, and the public safety of its inhabitants.
    2. INTOXICATING LIQUORS — Interstate Commerce — State Jurisdiction. The traffic in intoxicating liquors is not unlawful or immoral per se, and the prohibition law of Oklahoma (chapter 69, p. 594, Sess. Laws 1908), popularly known as the “Billups Bill,’.’ is intended to regulate the traffic in said liquors, and prohibit the use of said liquors as a beverage, but provides that the state superintendent shall have the power to purchase said liquors, and bring them into the state to be sold by the state for certain purposes, and making said sales a source of revenue, thus recognizing said liquors as a lawful commodity. For this reason the jurisdiction of the state does not attach to interstate shipments of intoxicating liquors until they reach the point of destination.
    3. SAME. The prohibitory law, as enacted, is within .the constitu-s tional limits, and does not, by express language or by implication, relate to interstate commerce transactions.
    4. SAME — Right to Convey to Home. XJnder subdivision 3, sec. S, art. 1, of the Constitution of the United States, a resident of this state has a lawful right to order and receive a shipment of beer, by interstate commerce, from another state, and to convey the same, from the depot at which the shipment may arrive, in the original package to his home.
    5. COMMEiRCE — Interstate—Control by State. The right of a citizen to carry on interstate commerce is conferred by the Constitution of the United States, and its exercise depends solely upon the will of the person engaged therein, and cannot be in advance controlled or limited by the state in any department of its govment.
    6. INTOXICATING LIQUORS — Interstate Shipment — Delivery at Destination. The clause in section 1, art. 3, c. 69, .p. 60'3, of the 'Session Laws 'Of 1908, which reads, “or to have the possession of any such liquors with the intention of- violating any of the pro - visions of this act,” has no application to interstate shipments until there has been a delivery of an interstate shipment of said liquors at their destination..
    7. SAME — Right to Convey to Home. Carrying or conveying intoxicating liquors from the railroad station to the home of the consignee is a part of the interstate commerce transportation, when they were shipped from another state, and is not a violation of the provisions of the prohibitory law of this state.
    8. COMMERCE — Interstate—Regulation—Intoxicating Liquor. The states are not authorized to declare when interstate shipments of liquors shall become subject to state control. Congress has the exclusive power to fix the time when such shipments lose their interstate character and become subject to state control.
    9. CONSTITUTIONAL LAW — Construction in Favor of Constitutionality. To justify a court in 'declaring an act of the Legislature void, it is not enough that the statute goes to the verge of' constitutional power. It must appear clearly that it goes beyond the power. In case of doubt, the law must be sustained.
    10. STATUTES — Construction—Criminal Laws. The operation and scope of criminal laws should not be enlarged by implication, but should be liberally construed; and, where there is any well-founded doubt as to any act being a public offense, especially when not malum in se, it should not be declared such.
    11. INTOXICATING LIQUOR — Interstate Shipment — Right to Deliver. Where the undisputed facts are that the officer seized an interstate shipment when the same had been by a drayman taken from the depot and placed on his dray, it was an error for the court to refuse to give an instruction requested by the defendant, which is as follows: “Gentlemen of the jury, you are instructed -in this case to return a verdict of not guilty, for the reason that the barrels in question were never delivered to the defendant, and for the^ reason that the shipment in question was and is protected by the interstate commerce clause of the Constitution of the United States until the same is delivered to the consignee, and the state authorities have no jurisdiction over the same at the time it was seized.”
    (Syllabus by the Court.) ■

      Error from Grady Gouniy Court; N. M. Williams, Judge.

    Josh McCord was convicted of having in his possession intoxicating liquor with intent to sell the same in violation of the prohibition law, and he brings error.
    Reversed and remanded, with directions.
    The plaintiff in error, Josh McCord (hereinafter designated as defendant), was, at the May term, 1908, of the county court of Grady county, convicted on an information, the charging part of which reads as follows: “That at and within said county and state on the 16th day of April, 1908, Josh McCord then and there being, did then and there, wilfully, unlawfully have in his possession fermented liquors containing more than one-half of one per cent, alcohol, he, the said Josh McCord, having said fermented liquors in his possession with the intention of selling .the same in violation of the provisions of the prohibition law, iie, the said Josh McCord, not then and there being a state agent, or local agent, appointed for the purpose of dispensing liquors under such act, and he, the said 'Josh McCord, not then and there being a druggist or a pharmacist authorized by law to keep such liquors for the purpose of compounding medicines, or any other person authorized by law to keep such liquors, contrary to. the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma. B. B. Barefoot, County Attorney” — which information was duly verified and filed in said county court on the 7th day of May, 1908.
    Six witnesses testified on behalf of the prosecution, in substance, as follows: George A. Brown testified that he was deputy sheriff of Grady county; that on the 18th day of April, 1908, hi was at the depot in Chickasha, and noticed five barrels of beer there, marked to J. C. McCord; “that in a short time Mr. Edwards, drayman of the town, came down and loaded them on his dray, and after he put them on his dray, I took possession of the five barrels of beer, and took from him. the bill of- lading. I then had the drayman haul the five barrels to the courthouse and deposit them in the jail-yard.” The seizure was made without any warrant or other process, said deputy sheriff asserting his right to make said seizure under the provisions of the prohibition law. W. L. Edwards, the second witness, testified that he was a drayman; that on the 16th day of April, 1908, Deputy Sheriff Brown took from his possession five barrels, and that he did not know whether it was beer or not; that he was sent by defendant, McCord, after this shipment, and was taking it to ■the home of said defendant, when Deputy Sheriff Brown, took possession of it, and caused him to take it to the court house. George Ferman, the third witness, testified that on the 16th day of April, 1908, he was agent for the Bock. Island Bailway at Chickasha. Identified the freight bill as issued by him, as follows:

      Exhibit A.
    Freight Bill.
    Consignee, Jack McCord,
    Ghickasha Station, 4- — 14—1908.
    To Chicago, Rock Island & Pacific Railway Company, Dr.
    'For charges on articles waybilled from Fort Worth.
    Date of Waybill No. of Packages Articles and Marks. Weight
    4 — 11, 1908. 5 Casks Beer 1250 Paid.
    Consignor, National Diquor Co. '
    George Ferman, Agent.
    He said lie had had 21 years’ experience railroading, and that the purpose of the freight bill was to show the consignee; and where the goods were from, the date of entry, and the goods shipped; that the freight bill was turned over to the persion who delivers the freight, this being the bill secured by Deputy Sheriff Brown from the drayman, Edwards. M. B. Louthan testified that he was sheriff of Grady county, that he had known defendant three or four real's, and that he thought his initials were “J. C.” He further testified that there had been a state dispensary agent appointed at Chickasha, and tliat he was not Josh McCord, the defendant, and that defendant was not a pharmacist. Dr. Martin Correl and Mrs. Rogers were also called on behalf of the prosecution, but their testimony is not material to any issue in this case.
    The defendant requested the following instructions, which were refused by the court:
    “(1) Gentlemen of the jury, in this case the state has failed to introduce any testimony in thiis case to prove the crime charged in the information, and your verdict will be a verdict of not guilty. (2) Gentlemen of the jury, you are instructed in this case to return a verdict of not guilty, for the reason that the barrels im question were never delivered to the defendant, and for the reason that the shipment'in question was and is protected by the interstate commerce clause of the Constitution of the United States until the same is delivered to the consignee, and the state authorities have no jurisdiction over the same at the time it was seized.”
    To which ruling of the court in refusing to give saiid instructions, and each of them, the defendant at the time excepted.
    The jury returned a verdict of guilty,-and defendant filed his motion for a new trial, which motion was, on the 12th day of March/ 1908, by the court ovérruled, whereupon the court proceeded to pass sentence upon the defendant, and fined him $300 and 60 days in jail. The defendant excepted, and on the same day filed his notice of appeal on William Bondurant, clerk of the county court, and B. B. Barefoot, county attorney of Grady county. On November 2'0, 1908, defendant filed in the office of the clerk of the Criminal Court of Appeals his petition in error and case-made. At the March term, 1909, of this court said cause was submitted, and is now before this court for review.

      F. E. Biddle, for plaintiff in error.
    — On question of right to receive interstate shipment: 7 Cyc. 437-439; State v. Stilling, 53 N. J. L. 517; Jervey v. Carolina, 66 Fed. 1013; Bowman v. B. B. Go., 125 U. S. 465'.

      Fred S. Galdivell, for the State.
    No brief for the State reached the reporter.
   DOYLE, Judge,

(after stating the facts as above). The testimony showed that the five barrels containing beer were shipped from Ft. Worth, Tex., to the defendant at Chickasha, Old a. The transaction was therefore one of interstate commerce, and within the exclusive jurisdiction of Congress. We believe the instructions requested by the defendant and refused by the court should have been given, for the reasons set forth in the second instruction requested; the first, as a peremptory instruction, directing a verdict of acquittal, because on the undisputed facts, as a matter of law, the evidence was insufficient to show the commission of the offense charged.

This prosecution was had under that clause of section 1, art. 3, c. 69, p. 603, Sess. Laws 1908, commonly called the “Enforcement Act,” which is a part of the prohibition law, and which reads: “Or to have the possession of any such liquors with the intention of violating any of the provisions of this act.” Counsel for the state contends that the clause contemplates interstate shipments upon their arrival at the depot, and beforé the same have reached their destination at the home of the consignee, and that this provision of the prohibition law is a proper exercise of the police power of the state in regard to interstate shipments.

This leaves for our determination as to the questions involved: First. Has the state, in the exercise of its police power, the riight to enact a law which abrogates, abridges, or diminishes the constitutional right'to ship intoxicating liquors from another state into this state, and to receive the same at their destination? Second. Does the so-called “Enforcement Act” contemplate and abrogate or abridge the right to receive interstate shipments of intoxicating liquors?

Article 14 of the Constitution of the United States declares that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: 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 law.”

And subdivision 3, § 8, art. 1, declares:

“The Congress shall have power -to regulate commerce with foreign nations and among the several states and with Indian Tribes.”

The power of Congress under this commerce clause of the Constitution to regulate interstate and foreign commerce, is limited only by the other provisions of the Constitution. Under the police power, which is inherent in every state for the protection of the public safety, public health, and public morals of the community, the power to determine what is injurious to the public safety, public health, and public morals must be determined by the lawmaking power, but there are limits beyond which Legislatures cannot rightfully go.

In determining those questions it becomes necessary to inquire whether there was any conflict between the exercise by Congress of its power to regulate commerce between the states and the exercise by the state of what is termed its “police power,” in passing the law in question. It has been well said by Mr. Justice Harlan, in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, that:

“Courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed are under a solemn duty — to look at the substance of things, whenever they enter upon an inquiry whether the Legislature has transcended the limits of its authority. If, therefore, á statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

See, also, Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 576, 44 L. Ed. 729; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108; Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup Ct. 358, 49 L. Ed. 643.

Tn Cunnius v. Reading School District, 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125, the court, in speaking of the effect of the fourteenth amendment on the police power of the state, said:

“That the amendment does not deprive the states of their police power over srrbjects within their jurisdiction is elementary. The question, then, is not the wisdom of the statute, but whether it was so beyond the scope of municipal government as to amount to a want of due process of law.”

In Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323, Justice Holmes, delivering the opinion of the court, in part says:

“It is true, no doubt, that neither a state Legislature nor a state Constitution can interfere arbitrarily with private business or transactions, and that the mere fact that an enactment purports to be for the protection of public safety, health, or morals is not conclusive upon the courts. Mugler v. Kansas, supra; Lawton v. Steel, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385. But general propositions do not carry us far. While the -courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with, which they disagree. Considerable latitude must be allowed for differences of view, as well as for possible peculiar conditions which this court can know but imperfectly, if at all.”

In Rahrer's Case, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, the Chief Justice, speaking for the court, said:

“The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the.United States, and'essentially-exclusive; and this court has uniformly recognized state legislation, legitimately for police purposes, as not, in the sense of the Constitution necessarily infringing upon any right which has been confined, expressly or by implication, to the national government.”

In Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224, Mr. Justice Brown, in speaking of the police powers of the state, said:

“We have had repeated occasion to hold, where state legislation has been attacked as violative either of the power of Congress over interstate Commerce, or of the fourteenth amendment to the Constitution, that if the action of the state Legislature were as a Iona, fide exercise of its police power, and dictated by a genuine regard for the preservation of the public health or safety, such legislation would be respected, though it might interfere indirectly with interstate commerce.”

The rights of the states under the police power to regulate, restrain, forbid the use, sale, and keeping of intoxicating liquors within their own boundaries has been fully established by a long line of decisions of the Supreme Court oE the United States. Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. 8, 97, 28 L. Ed. 629; Crowley v. Christensen, 137 U. S. 91, 11 Sup. Ct. 13, 34 L. Ed. 620. The decisions of the same court have declared that sealed packages as interstate- shipments are not within the police power. In Bowman v. Chicago & N. W. Ry. Co., 125 U S. 507, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700, the Supreme Court held:

“The statute of the state of Iowa, forbidding, under penalty, common carriers, their agents, or any person, to bring liquors into the «state unless previously furnished with a certificate from the county auditor that the consignee was authorized to sell the same, was void, as a regulation of interstate commerce.”

In the case of Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547, the court said:

“But we think it may safely be said that state legislation, which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress.”

In Leisy v. Hardin, 135 U. S. 100, 124, 10 Sup. Ct. 681, 689, 34 L. Ed. 128, it was held that the right to sell the imported merchandise in the original package, free from interference by state laws, was protected by the Constitution of the United States. Summing up its conclusions, the court said:

“Plaintiffs in error are citizens of Illinois; are not pharmacists; have no permit to import into Iowa beer, which they sell in original packages, as described. Under our decision in Bowman v. Chicago & N. W. Ry., supra, they had the right to import this beer into the state; and, in the view which we have expressed, they had the right to sell, by which act alone it would become mingled in the common mass of property within the state. Up to that point of time we held that, in the absence of congressional permission to do so, the state had no power to interfere by seizure, nor any other action, in prohibition of the importation and sale by the foreign or nonresident importer.”

This decision was met by Congress promptly in passing the so-called “Wilson Act” on August 8, 1890. Act Aug. 8, 1890, c. 728, 26 Stat. 313 (U. S. Comp. St. 1901, p. 3177).

The Wilson Act reads as follows:

“An act to limit the effect of the regulations of commerce between the several states and with foreign countries in certain cases.
“That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers to the same extent and .in the same manner as though such liquors or liquids had been produced in such state qr territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” *

This law was approved as valid in the case of Wilkinson v. Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, and a provision of the Constitution of Kansas which provided that the manufacture and sale of intoxicating liquors shall be forever iiro-hibited in that state, except for medicinal, scientific, and mechanical purposes, and an act passed in enforcement thereof, making penal the manufacture, sale, or barter of any spirituous, malt, vinous, fermented, or other intoxicating liquors were held to be efficacious and that imported liquors or liquids shall, upon arrival in the state, fall within the category of domestic articles of a similar nature.

Subsequently, in the case of Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632, construing the so-called dispensary act of the state of South Carolina, Mr. Justice Shiras; who delivered the opinion of the court, in part says:

“It is important to observe that the statute before us does not purport to prohibit either the importation, the manufacture, the sale, or the use, of intoxicating liquors. The first section does, indeed, make it penal to manufacture, sell, barter, deliver, store, or keep in possession any spirituous, malt, vinous, fermented, brewed cr other liquors which contain alcohol and are used as a beverage, and declares all such liquors to be contraband, and against the morals, good health, and safety of the state, and authorizes them to be seized wherever found, without warrant, and turned over to the state commissioner, yet those enactments are not absolute, but are made subject to the subsequent provisions of the act. When those subsequent provisions are examined, we find that, so far from the importation, manufactfire, and sale of such liquors being prohibited, those operations are turned over to state functionaries, by whom alone, or under whose direction, they are to be carried on.”

After reviewing the - leading cases, the opinion concludes as follows:

“In the light of these cases the act of South Carolina of January 2, 1895, must, as to those of its provisions which affect the plaintiff in the present suits, stand condemned. It is not-an inspection law. The prohibition of the importation of wines and liquors of other states by citizens of South Carolina for their own use is made absolute, and does not depend upon the purity or impurity of the articles. Only the state functionaries are permitted to import into the state, and thus those citizens who wish to use foreign wines and liquors are deprived of th'e exercise of their -own judgment and taste in the selection of commodities. To empower a state chemist to pass upon what the law calls the ‘alcoholic purity’ of such importations by chemical analysis can scarcely come within any definition of a reasonable inspection law. It is not a law purporting to forbid the importation, manufacture, sale, and use of intoxicating liquors as articles detrimental to the welfare of the state and to the health of the inhabitants, and hence it is not within the scope and operation of the act of Congress of August, 1890. ‘That law was not intended to confer upon any state the power to discriminate injuriously against the products of other states in articles whose manufacture and use are not forbidden, and which are therefore the subject of legitimate commerce. When that law provided that ‘all fermented; distilled, or intoxicating liquors transported into any state or territory, remaining therein for use, consumption, sale, or storage therein, should upon arrival in such state or territorjq be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such‘state or territory, and should not be exempt therefrom by reason of being introduced therein in original packages or otherwise,’ evidently equality or uniformity of treatment under state laws was intended. The question whether a given state law is lawful exercise of the police power is still open, and must remain open, to this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors and be valid. Or it may provide equal regulations for the inspection and sale of all domestic and imported liquors and be valid. But the state cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to' be lawful.”

In the case of Vance v. W. A. Vandercook Co., 170 U. S. 439, 18 Sup. Ct. 674, 42 L. Ed. 1100, Mr. Justice White, delivering the opinion of the court, in part says:

“(a) Beyond dispute the respective states have plenary power to regulate the sale of intoxicating liquors within their borders, and the scope and extent of such regulations depend solely on the judgment of the lawmaking power of the states, provided always they do not transcend the limits of state authority by invading rights which are secured by the Constitution of the United States, and provided, further, that the regulations as adopted do not operate a discrimination against the rights of residents or citizens of other states of the Union.
“(b) Equally well established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a state law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. * * *
“The scope and effect of this act of Congress have been settled. Wilkinson v. Rahrer, supra; Rhodes v. State of Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088. * * *
“In the first of these cases the constitutional power of Congress to pass the enactment in question was upheld, and the purpose of Congress in adopting it was declared to have been to allow state laws to operate on liquor -shipped into - one state from another, so as to prevent the sale in the original package in violation of state laws. In the second case the same view was taken of the statute; and, although it was decided that the power of tire state did not attach to the intoxicating liquor when in course of transit, and until receipt and delivery, it was yet reiterated that the obvious and plain meaning of the act of Congress was to allow the state laws to attach to intoxicating liquors received by interstate commerce shipments before sale in the original package, and therefore at such a time as to prevent such a sale, if made unlawful by the state law. * * *
“It is argued that the foregoing considerations are inapplicable, since the state law now before us, whilst it recognizes the right of residents of other states to 'ship liquor into South Carolina for the use of residents therein, attaches to the exercise of that right such restrictions as to virtually destroy it. But the right of persons in one state to ship liquor into another state to a resident for liis own use is derived from the Constitution of the United States, and does not rest on the grant of the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do — and we shall hereafter examine this contention — then they’ are void. If they do not, then there is no lawful ground of complaint on the subject. We are thus brought to examine whether the regulations, imposed by the state law upon the right of residents of other states to ship into the state of South Carolina alcoholic liquors to the residents of that state when ordered by them for their use, are so onerous and burdensome in their nature as to substantially impair the right; that is, whether they so hamper and restrict the exercise of the right as to materially interfere with, or in effect prevent, its enjoyment. * * *
“The regulation, then, compels the resident of the state who desires to order for his own use to first communicate his purpose to the state chemist. It, moreover, deprives any nonresident of the right to ship by means 'of interstate commerce any liquor into South Carolina unless previous authority is obtained from the officers of the state of South Carolina. On the face of these regulations, it is clear that they subject the constitutional right of the nonresident to ship into the state, and of the resident in the state to receive for his own use, to conditions which are wholly incompatible with,' and repugnant to, the existence of the fight which the statute itself acknowledges. The right of the citizen of another state to avail himself of interstate commerce cannot be held to be subject to the issuing of a certificate by an officer of the state of South Carolina, without admitting the power of that officer to control the exercise of the right. But the right arises from the Constitution of the United States; it exists wholly independent of the will of either the lawmaking or executive power of the state; it takes its origin outside of the state of South Carolina, and finds its support in the Constitution of the United States. Whether or not it may be exercised depends solely upon the will of the person making the shipment, and cannot be in advance controlled or limited by the action of the state in any department of its government.”

In the case of Adams Express Co. v. Kentucky, 206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987, Mr. Justice Brewer, expressing the opinion of the court, in part says:

“But that the agent consented to hold the whisky until Saturday did not destroy the character of the transaction as one of interstate commerce is settled by the recent case of Heymand v. Southern R. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178. In that case the whisky had been forwarded to a party in Charleston, S. C., and, after its arrival at Charleston was placed in the warehouse of the railroad company bjr its agent, and there seized by constables, asserting their right so to do under the dispensary law of South Carolina. The point was made, and sustained by the Supreme Court of the state of Georgia, in which state an action' had been brought against the company for the value of the goods, that when the goods were placed in the warehouse, the carrier was thenceforward liable only as a warehouseman. In passing upon this contention we said:
“ ‘As the general principle is that goods moving in interstate commerce cease to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate' interstate commerce, since that law simply affects an incident of such commerce b}r allowing the state power to attach after delivery and before sale, we are not concerned with whether, under the law of any particular state the liability of a railroad company as carrier ceases and becomes that of a warehouseman, on the goods reaching their ultimate destination, before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier. For, whatever may be the divergent legal rules in the several states concerning the precise time when the liability of the carrier as such in respect to the carriage of the. goods ends, they cannot affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, and thereby comes under the control of the state authority. * •* * Much as we sympathize with the efforts to put a stop to the sales of intoxicating liquors in defiance of the policy of a state, we 'are not at liberty to 'recognize any rule which will nullify or tend to weaken the power vested by the Constitution in Congress over interstate commerce.’ ”

The questions arising in this case áre answered in,the opinions above quoted. Congress, in the exercise of its exclusive power, enacted the so-called “Wilson Act.” The proper construction and application of this act of Congress has been settled by the Supreme Court of the United States; and, as this is a federal ques.tion, this court is concluded -by the decisions of the Supreme Court of the United States. That court, in the cases quoted, has declared that the states are not authorized to determine when interstate shipments shall become subject to state control, and that the states cannot in any manner by legislation change the effect of the act of Congress. Congress may at any time abrogate, change, or modify the provisions of this so-called “Wilson Act.” The last Congress passed an act supplemental to it, but subsequent to the time of this alleged offense. This legislation is in the exercise of the constitutional power conferred by the commerce clause of the Constitution. Under these adjudications the time when such shipments lose their interstate commerce character has been fixed as at the time when such shipments reach their destination at the home or storeroom of the consignee. Upon that event, they then become subject to the jurisdiction of the state.

In the foregoing opinions upon the effect of the so-called “Wilson Act,” although they do not decide clearly, they imply that, if a state should prohibit the manufacture, possession, sale, and use-of intoxicating liquors, both domestic and imported, within the state, without exception, then, under those conditions, the effect of this act of Congress would permit the state to assume jurisdiction upon all imported liquors upon their arrival within the jurisdiction of the state; and the state, in the exercise of its police power, could exclude all such liquors as injurious to the public ■ health, the public morals, and the public safety of its inhabitants. In the case of Scott v. Donald, Justice Shiras said: “Such law may forbid entirely the manufacture and sale of' intoxicating liquors and be valid.” This would be within the letter and spirit of said act of Congress. The prohibition law of the state of Oklahoma does not go that far.

That the traffic in liquor is not illegal or immoral per se must be admitted. It is recognized in the prohibition requirement of the Enabling Act, and in the prohibition ordinance of • the Oklahoma Constitution conforming to said requirement. ’The prohibition law of Oklahoma (chapter 69, p. 594, Sess. Laws 1908), being an act entitled “An act to establish a state agency. ■ and local agencies for the sale of intoxicating liquors for certain purposes; and providing for referring the same to the people; prohibiting the manufacture, sale, barter, giving away' or other-_ wise furnishing of intoxicating liquors, except as herein provided; providing for the appointment of an attorney and for the enforcement of the provisions of this act; 'making an appropriation and declaring an emergency” — does prohibit the manufacture, but does not purport to prohibit'the importation, sale, or use of intoxicating liquors. Article 1 provides for a state superintendent, and local agents, and for a state agency and one local agency in each incorporated town of 2,000 population or more; and in each county having no such incorporated town. Article 2 provides the rules for conducting such agencies, .and the conditions under whidh said liquors may be sold. Article 3 makes it unlawful to make intrastate shipments, to sell, barter, give away, or 'otherwise furnish, “except as in this act provided,” and provides for the enforcement of said law.

It will be perceived by the provisions of said prohibition law, so far as the importation and sale of intoxicating liquors being prohibited, those operations are turned over to certain state officials, by whom alone, or under whose direction, they are to be carried on. Under this recognition of the right to use intoxicating liquors a resident of this state has a constitutional right to have shipped to him from another state intoxicating liquors when ordered by him for his individual use, or for use of his immediate famity, and to keep the same for such use, and the state cannot, in the exercise of its police power, enact laws that will deny, diminish, or substantially burden or hamper such constitutional right to have such shipments made, and to receive and retain the same for such use. To what purpose would the right to receive such a shipment at the railroad depot, or the express office, be without the right "to remove it to the home or storeroom of the consignee? Shall this right cease at the point when its eontinu-•an.ce is indispensable to its value, when personal use is the object of the importation? We cannot believe that it does.

The sixth article of the Constitution of the United States declares that:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every •state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

And section 1/ art. 1 of the Oklahoma Constitution properly declares that: “The Constitution of the- United States is the supreme law of the land.” The language of this article and the aforesaid section is direct and certain, and the adjudications of the United States Supreme 'Court on this question are conclusive on the state courts.

It is a fundamental rule that legislative acts shall not be declared void by the courts if by any reasonable construction thereof such result can be avoided. If by limitation upon its general terms the same can be fairly construed, and so applied as to bring the statute within the Constitution, and. thus save it from being in conflict therewith, such limitation and construction should be adopted. The evident and obvious purpose of our prohibition law was the regulation of the traffic in intoxicating liquors, and to prohibit the sale thereof in this state as a beverage. There is no apparent purpose on the part of the lawmaking power to undertake the regulation of interstate commerce. The language of the law may be broad, but it is nevertheless subject to the limitation imposed upon the police power of the state by the provisions of the federal Constitution. It cannot be said from the language used that it was the intention of the Legislature to pass an act to affect said liquors before the same came under the jurisdiction of the state. The purpose of the act is to control all intoxicating liquors wiithin the jurisdiction of the state. The act does not in express terms forbid interstate shipments, and a reference to the provisions of the act clearly shows that the right to receive interstate shipments is therein recognized.

Sections 18, 19a, and 20, art. 3, read as follows:

“Section 18. It shall be unlawful for any person to whom any liquors the sale of which is prohibited by this act, shall be consigned whether consigned to him in his own name or in a fictitious name, to give any other person an order for any of said liquors to any railroad company, express company, or other common carrier, or to any officer, agent or emplo3re of any railroad 'Compaq, express company or other common carrier, with the intent and for the purpose to enable such other person to get and receive any such liquor for himself or for any other person or persons other than the' consignee. Any person violating the provisions of this section shall be guilty of a misdemeanor.
“Sec. 19a. Any officer, agent or employe of the railroad company, express company or other common carrier, who shall knowingly carry or deliver an3r liquors, the sale of which is prohibited by this act, to or for any person to be sold, bartered, given away or otherwise furnished in violation of this act §hall be guilty of a misdemeanor. Any such officer, agent or emp^e who shall knowingly deliver any such liquors to any person other than the person to whom it is consigned - and without a written order in each instance of the consignee thereof shall be guilty of a misdemeanor.
“Sec. 20. It shall be unlawful' for any railroad or other common carrier, or agent thereof, or any other person, individual or corporate, to ship; receive, transport, carry, handle or deliver any liquors the sale of which is prohibited by this act under a false or fictitious name, or title; and any person who shall knowingly violate any provision of this section shall be deemed guilty of a misdemeanor, and all liquors shipped under any such fictitious name or title, or to a fictitious person, shall be forfeited to the state.”

The evident purpose of these, the only provisions of said act that can be said to relate to interstate shipments, is to prevent the abuse of this right. This we believe to be the proper construction and application of these provisions, and the correct conclusion is that said prohibition law, as enacted, does not contravene the Constitution of the United States.

The contention of counsel for the state that the Legislature, in effect, intended and attempted to make this law applicable to interstate shipments before the same reached theiir destination and became subject to state "jurisdiction, and that the law by implication, as no exceptions are expressed, covers interstate shipments upon their arrival at the depot of the common carrier, is without merit, and is not well taken. The error of his argument is so self-evident as to require on!}1: a passing notice. The language of the foregoing sections quoted completely answers his contention. The operation and scope of criminal laws should not be enlarged by implication, but they should be liberally construed; and, where there is well-founded doubt as to any act being a public offense, especially one not malum, in se, it should not be declared such, but should rather be construed in favor of the liberty of the citizen.

"We are constrained to hold that the jurisdiction of the state does not take effect until said shipments reach their destination at the home or place of storage of the consignee. Then, but not until then, can the state test the question of unlawful possession; and in this case the constructive possession of the defendant of the liquors in question was not a violation of any of the provisions of the prohibition law. The Supreme Court of this state has passed upon this question in the case of Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804. The syllabus reads as follows: Syllabus by the Supreme Court:

“Under subdivision 3, § 8, art. 1, of the Constitution of the United States, commonly referred to as the 'interstate commerce clause* of the Constitution, a resident of one state has the right to have shipped to him from another state alcoholic liquors, when ordered by him for his and his family’s use, and to keep the same for. such use; and the state cannot under its police power enact laws so as to substantially hamper or burden such constitutional right to have such shipments made, and to receive and retain the same for personal use.”

This court passed upon a similar question at this term in the ease of Webb High et al v. State, ante, p 161, 101 Pac. 115, and Houston Hudson v. State, ante, p. 176, 101 Pac. 275.

We have given the questions involved in this case the most careful consideration, and we have reluctantly reached the conclusion arrived at. However, this court is concluded by the construetion placed by the Supreme Court upon the provisions of the Wilson act. Holding otherwise would simply mean that the federal courts would be appealed to, for the release of persons so convicted, by writs of habeas corpus, and by damage suits against the bonded peace officers of the state, for unconstitutional seizures so made. The Supreme Court of the United States has said that the question whether a given state law is lawful exercise of the police power is still open, and must remain open, to that court. As the prohibition law of this state possesses original features, and differs in many ways from the legislation by other states on the subject, the public interest demands that the federal questions arising in connection with said law should be settled by a direct appeal to that tribunal, which is the final arbiter of all questions arising under the Constitution of the United States.

For the reasons hereinbefore stated, we are of the opinion: First, that this state in the exercise of its police power has not the right to enact a-law which abrogates, abridges, or diminishes the constitutional right of any resident of this state, who may elect to order for his own use intoxicating liquors from another state, to so order, ship, and receive the same at their destination ; second, that the so-called “Enforcement Act” article of the prohibition law does not, by express language or by implication, abrogate or abridge the right to so order and receive interstate shipments of intoxicating liquors.

For the reasons hereinbefore stated, the judgment is reversed and remanded, with directions to the county court of Grady county to dismiss the case.

FURMAN, Presiding Judge, and BAKER, Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Fred Bolman v. State.
    No. A-36.
    Opinion Filed April 7, 1909.
    (101 Pac. 135.)
    1. APPEAL — Review—Sufficiency of Evidence. Where the verdict of the jury has been approved by the trial court, the Criminal Court of Appeals will not review the record for the purpose of ascertaining or determining the weight or sufficiency of the evidence, where there is any evidence to support the verdict, or where the evidence is conflicting.
    2. SAME — Conflicting Evidence. Where there is a direct contradiction between two witnesses, it is for the jury to determine which is worthy of belief, and their determination ordinarily ought to be sustained.
    (Syllabus by the Court.)

      Error from, Grady ..County Court: N. M. Williams, Judge.

    Fred Bolman was convicted of violation of a liquor law, and brings error.
    Affirmed.
    The plaintiff in error (hereinafter .designated as defendant) was on the 4th day of March, 1908, found guilty of selling intoxicating liquors, as charged in an information filed in said county court on the 2d day of January, 1908, wherein said defendant was charged with selling intoxicating liquors to Joe Earl and Milas Beddingfield. A. H. Jones, a witness for the state, testified that he was a farmer living at.Pocaset; that on the 2d day of January, 1908, he was in a joint near the Savoy Hotel in Chickasha, Okla., with a man by the name of Beddingfield, and while there Beddingfield asked for a bottle, threw down a dollar, and defendant gave him a bottle of whisky, ‘ and they all took a drink of it; that said bottle contained whisky. Defendant testified on his own behalf. He denied that he hdd sold any whisky to Beddingfield, but admitted that he was working in said joint at said time. The jury returned a verdict of guilty, and motion for a new trial was filed on the 7th day of March, 1908. On the 7th day of March, 1908, the court overruled the motion for a new trial, and sentenced the defendant to pay a fine of $200, costs of suit, and 30 days in the county jail, to all of which defendant excepted. On November 28, 1908, defendant filed his petition in error and case-made with the clerk of the Criminal Court of Appeals. At the March, 1909, term of this court, said cause was submitted.

      F. E. Riddle, for plaintiff in error.

      'Fred S. Caldwell, for the State.
   DOYLE, Judge,

(after stating the facts as above). The petition sets forth several assignments- of error, such as error in overruling the challenge to the array of jurors, error in the introduction of testimony, error in the instructions of the court, and error in overruling motion for a new trial, all of which are argued in the brief filed on defendant’s behalf.

'We have carefully examined the record in said cause, and our conclusion is that there is no merit in the assignments of error. The defendant had a fair and impartial trial. The court fully, fairly, and correctly stated the law of the case in the instructions given to the jury. It is, .however, urged that there was not sufficient evidence to warrant the conviction of the defendant. The witness Jones testified that the defendant sold a bottle of whisky to.one Beddingfield in said joint. The defendant denies that there was any such sale made. There was a flat contradiction between the statements of these witnesses, and it was for the jury to judge of their veracity, and, having done so, and their verdict having received the approval of the trial court in overruling the motion for a new trial, this court will not review the record for the purpose of determining the sufficiency of the evidence. The jury had the witnesses before them, and could see their manner of testifying, and they, no doubt, in determining the truth, took into consideration all the attending circumstances of the ease. The defendant was interested in the event of the trial and the prosecuting witness was not, so far as the record discloses. This of itself, for aught we can know, may have fully warranted the jury in giving credence to the evidence of the prosecuting witness. For anything we can know the manner and conduct of the defendant when on the stand may have been such as to satisfy the jury that he was unworthy of belief. The questions of procedure raised are settled in the case of Howard v. State (opinion of the court by Judge Baker, decided at this term) ante, p, 200, 101 Pac. 131.

For the reasons hereinbefore stated, the judgment of the county court of Grady county is hereby affirmed, with directions to the court below to carry the sentence and judgment into execution.

FURMAN, Presiding Judge, and BAKER, Judge, concur.


text:
    C. E. Moreland v. State.
    No. 370.
    Opinion Filed April 10, 1909.
    (101 Pac. 138.)
    1. INTOXICATING LIQUORS — Interstate Commerce — Right to Convey to Home. Under subdivision 3, sec. 8, art. 1, Const. U. S., a resident of this state has a lawful right to order and receive a shipment of intoxicating liquors by interstate commerce from another state, and to convey the same from the depot at which the shipment may arrive in the original package to his home.
    2. SAME. Where the undisputed facts are that defendant ordered the liquor from Louisville, Ky„ a.nd the same was shipped to Snyder, Okla., and was being taken by a drayman from the railroad depot to the home of defendant when seized by the peace officers without warrant under the prohibitory law, the charge being that said defendant was unlawfully in the possession of said liquors, it was the duty of the court to direct a verdict of acquittal, for the reason that the evidence was insufficient to show the commission of an offense.
    (Syllabus by the Court.)

      Error from Kiowa County Court; J. TP. Mamell, Judge.

    C. E. Moreland was convicted of having intoxicating liquors in his possession for sale, and brings error.
    Reversed.

      The plaintiff in error, C. E. Moreland (hereinafter designated as defendant), was at the June term, 1908, of the county court of Kiowa county, convicted of the offense of having intoxicating liquor in his possession for an unlawful purpose. The information contained two counts, wherein the defendant and one Walter Davenport were jointly charged in the first count with having intoxicating liquor in their possession for an unlawful purpose, and in the second count with unlawfully conveying said intoxicating liquor. The case was tried to a jury and a verdict of not guilty returned as to the eodefendant Davenport. Defendant Moreland was found guilty upon the first count and acquitted of the second.
    Two witnesses testified on behalf of the prosecution, in substance, as follows: D. C. Griffin testified that he was the deputy sheriff of Kiowa county, residing at Snyder; that on the 11th day of April, 1908, he was at the Frisco freight depot in Snyder with one Frank Taylor, looking for whisky that was coming to Moreland, and found two barrels standing on the platform; that shortly afterwards he stopped the defendant about 100 yards from the depot on the road to Snyder, riding in defendant Davenport’s hack, which was loaded with three barrels of whisky; that; he took possession of said barrels and arrested the defendants; that, when opened, said barrels were found to contain about 100 pints of whisky each. The arrests and seizure was without any .warrant or other process, said officer asserting his right to do so under the provisions of the prohibition law. Frank Taylor testified that he lived at Snyder and 'was deputy constable at that time, and- that he assisted Deputy Sheriff Griffin to make the arrests and seizure, and that they then took the whisky to Mr. Griffin’s house and unloaded it. Defendant testified on his own behalf, stating that about the 10th or 15th of March he ordered said whiskey from Louisville, Ky.; that he hired his codefendant, Davenport, to haul said whisky from the depot to his house: that said whisky was for his own use, and that he thought the “Bill-ups Bill” was going into effect and he would not be able to get whisky after that, so he gave a large order; that he was at the depot, and Davenport invited him to ride to his home. Defendant Davenport testified that he lived at Snyder and was a licensed drayman; that on said day he was hired by defendant Moreland to haul some freight for him from the Frisco depot to his house; that defendant Moreland was at the depot and he invited him to ride home with him; that after they had proceeded about 100 yards from the depot towards town, they were arrested, and the barrels seized by Deputy Sheriff Griffin.
    The defendant filed his motion for a new trial, which was overruled. On the 16th day' of June, 1908, the court proceeded to pass sentence, and sentenced him to pay a fine of $50 and costs, and that he be imprisoned in the county jail of Kiowa county for a period of 30 days. To all of this defendant excepted. Defendant duly served his notice of appeal on J. W. Mansell, county judge, and H. L. Standeven, county attorney of Kiowa county. On August 27, 1908, he perfected his appeal to the Supreme Court. Dpon the organization of the Criminal Court of Appeals said cause was duly transferred, as by law provided. At the March term, 1909, said cause was submitted, and is now before this court for review.

      Thomas W. Connor, for plaintiff in error.

      Fred S. Caldwell, for the State.
   DOYLE, Judge,

(after stating the facts as above). The petition sets forth numerous assignments of error which are argued in the brief. However, on the undisputed facts, it is unnecessary to notice but the one that “the court erred in refusing to direct the jury to return a verdict of not guilty against said defendant.” The evidence conclusively shows that the whisky was ordered by defendant from Louisville, Ky., and from there shipped to him at Snyder, Oída. The question presented is identical with that in Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804, Houston Hudson v. State, ante, p. 176, 101 Pac. 275, and Josh McCord v. State, ante. p. 209, 101 Pac. 135. In the opinion rendered in the Hudson Case this court held that the jurisdiction of the state does not attach to an interstate shipment of intoxicating liquors until said shipment is received at its destination, and that the prohibition law of Oklahoma does not' by express language or by implication abrogate or abridge the right to order and receive interstate shipments of intoxicating liquors, and that the language of said law precludes any other construction.

For the reasons therein stated, this cause must be reversed, and it is so ordered, and remanded with directions to the comity court of Kiowa county to dismiss the case.

FUR-MAN, Presiding Judge, and BAKER, Judge, concur.


author: BAKER, Judge,

text:
    John Hendrix v. United States.
    No. 845.
    Ind. T.
    Opinion Filed April 10, 1909.
    (101 Pac. 125.)
    1. APPEAL — ‘Review—Discretion of Lower Court — New Trial. This court will not grant a new trial for insufficiency of the evidence, or where the evidence is conflicting. These questions being- within the discretion of the trial court, its decisions will not be disturbed unless it appears from the record that the trial court abused its discretion in overruling the motion for a new trial.
    2. PUNISHMENT — Cruel and Unusual. When a statute prescribes a punishment of from one to five years’ imprisonment in the penitentiary at hard labor for stealing cattle, it is not cruel and unusual punishment, upon conviction of such crime, to sentence the accused to imprisonment in the penitentiary at hard labor for a period of two years.
    3. LAIRiCENY — Instructions. Section 965, Ind. T. Ann. St. 1899, defines -‘larceny” as follows: “Larceny is the felonious stealing, taking and carrying, riding or driving away the personal prop-ert3>- of another.” It was not error for the trial court to give the juiw the following definition of “larceny,” to-wit: “Larceny is the felonious stealing, taking, earning, riding or driving away the property of another. It is felonious taking; that is, a wrongful and corrupt taking” — said definition not being prejudicial to the rights of the accused.

      4. INSTRUCTIONS — Circumstantiial Evidence. In a case where the prosecution does not rely .upon circumstantial evidence alone for a conviction, the accused is not, as a matter of right, entitled to have the-jury instructed fully upon the law of circumstantial evidence.
    5. APPEAL — Review—Harmless Error. The statutes of this state provide that, on an appeal in a criminal case, the appellate court must give judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the accused. In the opinion of this court, to reverse this case upon the technical errors and defects contained in the record would ‘be a violation of both the letter and the spirit of the statute.
    (Syllabus by the Court.)

      Error from the United States Court for the Central District of the Indian Territory; Thomas G. Humphrey, Judge.

    John Hendrix was convicted of larceny and brought error to the United States Court of Appeals, whence the cause was transferred to the Supreme Court of the State of Oklahoma and by that court to the Criminal Court of Appeals.
    Affirmed.
    John Hendrix, who will hereafter be referred to as the accused, was indicted in the United States Court for the Central District of Indian Territory, sitting at Atoka, on the 3d day of October, 1906, charged with having on the 19th day of August, 1906, committed the crime of larceny, by stealing one head of cattle, of the value of $10, from D. N. Eobb. On the 21st day of January, 1907, the accused was tried before a jury, which trial resulted in a verdict of guil'ty being returned. On February 1, 1907, being the same term of said court in which the verdict was rendered, the accused filed his motion for a new trial, which was, by the court on said date, overruled, to which the accused excepted. Whereupon he was sentenced to imprisonment for a period of two years. From said sentence and judgment he prosecuted error to the United States Court of Appeals, in which court this case was pending at the time of the creation of the state of Oklahoma, when the same was transferred to the Supreme Court of this state, and by the Supreme Court, upon the creation of this court, duly transferred to this court.

      Balls Bros, and J. M. Humphreys, for plaintiff in error —
    On question of limiting time for argument: Dille v. Stale, 34 Ohio St. 61; Williams v. State (Ga.) 27 Am. Rep. 412'; Meredeth v. People, 84 111. 480; Hunt v. State, 15 Am. Rep. 677.

      Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for the United States.
   BAKER, Judge,

(after stating the facts as above). The accused alleges in his assignment of errors:

(1) That the court erred in overruling his motion for a new trial; there not being sufficient evidence in this action to warrant a conviction. >

(2) The court erred in refusing to instruct the jury as follows:

“No. 1. In this case the prosecution seeks the conviction of the defendant by what is known in law as' ‘circumstantial evidence5, and you are instructed that, before you would- be warranted in convicting the defendant, you must find beyond a reasonable doubt the facts upon which the prosecution relies to constitute .the chain of circumstantial evidence. The true test by which to determine the value of circumstantial evidence in respect to its sufficiency to warrant a conviction in this case is not whether the proof establishes circumstances which are consistent or which coincide with the hypothesis of guilt of the accused, but whether the circumstances satisfactorily established are of so conclusive a character and point so unerringly to the guilt of the accused as to exclude every reasonable hypothesis of his innocence.55

(3) The court erred in refusing to give instruction No. 2, which reads as follows:

“No. 2. ' The court instructs you that the force of circumstantial evidence being exclusive in its character the mere coincidence of a given number of circumstances which the hypothesis of guilt or that they would account for or concur with or render probable the guilt of the accused is not a reliable or admissible test, unless the circumstances are of such a degree of cogency and force as in the order of natural causes and effect to exclude to a moral certainty every other hypothesis except the single one of guilt. The proof must not only. coincide with the hypothesis of guilt, but it must 'be inconsistent with every other rational conclusion.”

(4) The court erred in refusing to give instruction No. 3j as follows:

“No. 3. When a conviction is sought alone upon circumstantial evidence, the circumstances taken together must be such as to be incapable of explanation upon any other rational hypothesis but that of the defendant’s guilt.” ■

(5) The court erred in refusing to give instruction No. 4, as follows:

“No. 4. The court instructs you that in a case like this, where a conviction is sought upon circumstantial evidence, the circumstances must be proved 'to your entire satisfaction, and when the circumstances are established they must point conclusively to the person charged and must be inconsistent with any other reasonable hypothesis.”

(6) The court erred in refusing to give instruction No. 5, as follows:

“No. 5. If there is a reasonable doubt in your minds as to whether the animal killed at defendant’s, which the government witness says he saw, then you will acquit the defendant.”

(7) The court erred in instructing the'jury as follows:

“Larceny is the felonious stealing, taking, carrying, riding, or driving away the property of another. It is the féloni.ous taking; that is, a wrongful and corrupt taking.”

(8) The court erred in the following instruction:

“The defendant’s plea in this case is that he is not guilty.' He goes into the trial of this case presumed to be innocent. He is clothed with this presumption, and it. remains with him until you find by the proof beyond a reasonable doubt that he is guilty.”

(9) The court erred in instructing the jury as follows:

“The defendant has gone on the witness stand, and he is a witness in his own behalf, and you weigh his testimony by the same rules whether his statements are reasonable and whether lie is interested in the result of the trial.”

(10) The court erred in the following instruction:

“The government must make out its case of the guilt of the accused beyond a reasonable doubt. That does not mean any doubt, and it does not mean some doubt. The government is not required to prove it to a mathematical certainty that the defendant is guilt}*, but must prove to a moral certainty, so after you consider and weigh the testimony in this ease, if you a.re morally certain the defendant is- guilty from that testimony, then you have no reasonable doubt, and you should convict the defendant.”

(11) The court erred in instructing the jury as follows:

“You take each circumstance and each item of testimony' that the witness has detailed upon the witness stand and each and all of the witnesses, and consider and compare all of it together, and after hearing all of the testimony and weighing.it, if you are morally certain the defendant is guilty, you should render a verdict of guilty against him, and if you are not morally certain you should acquit him.”

(12) The court erred in refusing to instruct the jury, as requested by defendant, as follows:

“The presumption of innocence remains with the defendant throughout the trial of the case, but may be overcome by evidence that satisfies the jury beyond a reasonable doubt of the guilt of the defendant.”

(13) The court erred in refusing- to charge the law of circumstantial evidence, as requested by the defendant.

(14) The court erred in limiting the time of the defendant’s counsel to argue the case to the jury to 35 minutes.

(15) The court erred in requiring the attorney for tho defendant, while he was arguing the case to the jury, to desist from further argument, on account of having consumed 35 minutes in argument.

(16) The court erred in assessing punishment of the defendant at a period of two years; said punishment being excessive, cruel, and unwarranted in this case.

The first error contended for by the accused is that the- court erred in overruling his motion for a new trial, for the reason that the evidence is insufficient to sustain the verdict of guilty. We have carefully read all the evidence, which we find to be, in substance, as follows: The animal alleged to have been stolen was a steer belonging to D. N. Robb, as charged in the indictment. and had for some time ranged from 21/% to 6 miles south and east of Atoka on Boggy creek, near the farm of accused. Mr. Robb’s brand was three v’s with a bar under them. In addition to the brands, he had two marks, consisting of a single bob under each ear; the ears being split in and dropped down on each side. A hide branded with Mr. Robb’s brand, as above described, minus a part of the head portion, and the mark on one ear cut off, was sold by “a red headed man” named Jule Atherton, to Julius Haas, a dealer in hides at Atoka, on Saturday, August 18, 1906. Mr. Robb positively identified this hide as being from his animal. This hide was, by Mr. Robb, found at the hidehouse of Mr. Haas, and is the same hide testified to by the witnesses Haas and Fletcher. Witnesses for the government testified to seeing meat from an animal which had just been killed at the house of the accused on a Saturday morning in August, 1906, with parts of the head portion of the hide missing, and to seeing the meat and hide placed by Atherton, in the presence of the accused, into a wagon, and the accused having seen Atherton drive away from the house of the accused with the meat and hide. The accused, testifying in his own behalf, said: He had, himself, shot and killed, the animal with a 38 Winchester rifle, and that he and Ather-ton had worked until nightfall in dressing and skinning it, but on account of darkness overtaking them they could not finish the work that night. The next morning they went to finish it, and found the head had been fly-blown, and for that reason cut off the head and threw it away. That he had, for wages, hired Ather-ton to help him slaughter the animal and sell the meat by peddling it out, and that Atherton received $3.15 for the hide and ■that Atherton had sold part of the meat, realizing therefor $12 or $13. That he let Atherton keep the balance of the meat. That Atherton was going to sell the hide in Atoka if he could cross Boggy creek, and that he knew Atherton had but one hide in the wagon when he left his house that morning. The accused also testified that the animal he slaughtered was a red heifer that had been, brought to his corral by one of the government witnesses named Ben Pelph, and that it had been brought to his corral on the same day it was killed, at 4 or 5 o'clock in the evening, and that said animal was branded with a half-circle cross. The witness Ben Pelph testified that the accused called on hittn at the home of Tom Bobertson at Peck, about 10 o’clock at night, after .the accused was arrested in this case, and urged him to give testimony favorable to accused, in this case; and, upon being asked by Pelph why he had not burnt the hide, the accused replied that he had told Atherton to throw it into the creek, but that Ather-on was so saving- that he wanted to sell it and save $2. The witness Charley Harris testified that the accused tried to persuade him to give testimony favorable to him, and to the effect that he (Harris) had seen the animal killed, at the place of the accused, and that it was a deep red heifer, coming thr§e years old branded with his brand, a Boman cross, when, in fact Harris knew nothing about the killing of the animal in question.

When the record shows that there is evidence which reasonably supports the verdict, and such a verdict is sustained by the court in refusing to grant a new trial, this court will not reverse the case on question of fact. The evidence in this case is sufficient to sustain the verdict and the judgment rendered thereon. It must therefore follow that the first ground of error relied on by the accused in his motion for a new trial must fail, as the court below committed no error in overruling the motion for a new trial on this ground.

The second, third, fourth, fifth, eleventh, and thirteenth assignments of error insisted on by the accused relate only to instructions requested by the accused upon the question of circumstantial evidence, and were refused by the court below. All of these requested instructions were asked for by the distinguished counsel for the accused upon the theory that the prosecution relied upon circumstantial evidence for a conviction. It therefore becomes important to examine the record as to the relative character and extent of the evidence. From a careful examination of the' facts, .this court is of opinion that the prosecution did not wholly rely on circumstantial evidence for a conviction in this ease. Much of the testimony is of a direct character. For instance, tlie accused took the witness stand in his own behalf and swore, in substance: That he himself killed a beef animal at his place on Friday evening about the 17th of August, 1906, using a 38-caliber Winchester rifle, shooting it in the head; that he helped Atherton skin and dress it until dark on said evening, and, not completing the work, finished it on Saturday morning, and to seeing the beef and hide placed in the wagon by Atheftou, and seeing him start.away with it, and to having received from Atherton $3.15, proceeds of the sale of the hide, and $12 or $13 from the sale of the beef; that he had given Atherton the balance. The accused swears that the animal he killed on the Friday referred to was his, that it was a red heifer, coming three years old, and was branded with a half-circle cross. He also testified that the animal he killed was the same one that Ben Pelph had brought to his house that same evening. Pelph testified: That, while he did take a heifer to the home oE the accused, he did so a week or ten days prior to the time the accused swore he killed the animal which Atherton assisted him in skinning and dressing; that the accused solicited him to swear in his behalf, telling him.he had been pulled for killing one of Robb’s steers; that in a conversation which took place at the home of Tom Robertson, near Calowav, witness told him that a man as old as the accused should have burned the hide, or thrown it in the creek, to which the accused replied that he had told “that fellow to .throw it in the Boggy.” This testimony is not circumstantial, but direct, and shows that the accused knew about the hide which Atherton sold to Haas, and which was identified by Robb and others and is very strong evidence against the accused. The accused also told Pelph that Atherton was too saving to throw the hide in the Boggy, that he Avanted the money. The testimony of witness Charles Harris is direct and not circumstantial, because he swears to statements made by the accused to him of a very damaging character, against the accused. He Avanted Harris to help him out of his trouble, bjr having him swear and testify that he (Harris) was present when an animal was killed on the Friday in August testified to, and. about the killing of which there is no controversy, and that the animal then killed was a red heifer, having the brand of the accused upon it, when, as a matter of fact, Harris was not there at the time the animal was killed, and the accused knew it.

It is true that some of the testimony is of a circumstantial character*, but the prosecution by no means relied wholly on circumstantial evidence. Therefore, if the contention of the accused that the/ government relied wholly on circumstantial evidence for a conviction is not sustained by the record, then the second, third, fourth, fifth, eleventh, and thirteenth assignments of error are not well taken, and the instructions asked for by the accused and refused by the court were therefore properly refused. We have carefully examined all the authorities cited by the accused, and we find that in a majority of the cases the courts held: Where the inculpatory proof is wholly circumstantial, the judge should charge the law applicable to circumstantial evidence. Therefore, for the reasons stated, the authorities cited by plaintiff have no application to the ease at bar, as the testimony relied on by the government is not wholly circumstantial in its character. From the proof in this case, as is disclosed by the record, the charge of the court with reference to circumstantial evidence while imperfect, was, in the opinion of this court, sufficient, when the court charged the jury as follows:

“You take each circumstance and each item of testimony that the .witness has detailed upon the witness stand and each and all of the witnesses, and consider and compare all of it together, and after hearing all the testimony on it, if you are morally certain the défendant is guilty, you should render a verdict against him, and, if not, you should acquit him.”

We agree with counsel for the accused that, if the government in the case at bar wholly relied upon circumstantial evidence for a conviction, the court should then have charged the jury more fully upon the subject of circumstantial evidence.

The next error insisted upon by the accused is that the court’s instruction on the presumption of innocence was not correct. It is as follows:

“The defendant’s plea in this case is -that he is not guilty. He goes into the trial of this case presumed to be innocent. He is clothed with this presumption, and it remains with him until you find by the proof beyond a reasonable doubt that he is guilty.”

The accused contends that the instruction on the presumption of innocence is faulty, because the court dlid not instruct the jury that the presumption of innocence remains with the accused throughout the trial, and goes with him to the jury room. It is true the court in this case did not sajr, in its instructions in so many words, that the presumption of innocence remains with the accused and goes with him to the jury room, but, in fact, did not limit the application of the rule to any particular time of the trial, only that such presumption of innocence remained with the accused until the jury found by the proof beyond a reasonable doubt that he is guilty. The jury could not have misunderstood this instruction. The instruction clearly said to the jury that the presumption of innocence would abide with the accused until it was overcome by proof beyond a reasonable doubt of his guilt. Nothing more could within reason be asked by the accused on this subject. We cannot see how the jury could have been misled or mistaken by this instruction. On the contrary, we think it was abundantly correct, and properly and fairly protected the rights of the accused.

The sixth assignment of error grows out of the refusal of the court to give the following instruction, requested by the accused:

’“If there is a reasonable doubt in your mind as to whether the animal killed at defendant’s, which the government witness says he saw, then you will acquit the defendant.”

We do not think the accused was entitled to this instruction. It was the court’s duty to instruct the jury generally upon the question of reasonable doubt. This the court did. It was therefore not error to refuse'to give a special instruction applicable to a particular fact, or state of facts proved in the case.

In the case of Brown v. State, 23 Tex. 195, the court say:

“The only rule which can be regarded as a practical demonstration of the law is that the legal test is a sufficiency of the evidence to satisfy the understanding and conscience of the jury, and to produce in their minds a moral certainty of the guilt of the prisoner to the exclusion of every reasonable doubt. When the jury is substantially informed of this requisite, as was done in this case, the law is satisfied.”

In Robert Barr, Jr., v. State, 10 Tex. App. 507, in the third syllabus, the court say:

“The doctrine of reasonable doubt applies to the general issue of guilty or not guilty., and it was not error to refuse a special instruction which attempted to appty it to each and every fact in proof.”

The seventh assignment of error is directly to the definition of “larceny,” as given by the court to the jury in this case, which is:

“ ‘Larcenjr’ is the felonious stealing, taking, carrying, riding, or driving away the property qf another. It is the felonious taking; that is, a wrongful corrupt taking.”

The only reason for the contention that this definition is not correct is that it leaves out material requirements, and that larceny is:

“The fraudulent taking and carrying away the personal property of another without his consent, with the intent to convert it to his own use, or to deprive the owner of the use of it.”

At the time this case was tried in the court below, the laws of the state of Arkansas were in force in the Indian Territory. .Section 965, Ind. T. Ann. St. 1899, reads as follows:

“Larceny is the felonious stealing, taking and carrying, riding or driving away the personal property of another.”

The definition complained of in this ease was in the exact words of the statute, except the court added: “It is a felonious taking; that is, a wrongful and corrupt taking.” The addition of the words just quoted do not add much, modify, or destroy ■the definition of larceny as given, nor did the added words in any way prejudice the rights of the accused.

The eighth assignment of error complained of refers to the action of the court in refusing to give the following instruction:

“The presumption of innocence remains with the defendant throughout the trial of the case, but may be overcome by evidence that satisfies the jury beyond a reasonable doubt of the guilt of the defendant.”

The court having, in its general charge, instructed the jury that the accused went into the trial of this case clothed with the presumption of innocence in his favor, and that that presumption remained with him until the finding by piroof beyond a reasonable doubt that he was guilty, is a proper charge and sufficiently protected the rights of the accused, and therefore did not commit error in refusing said instruction.

* The ninth assignment of error is urged aaainst the following instruction given by the court:

“The defendant has gone on the witness stand, and he is a witness in his 'own behalf, and you weigh his testimony by the same rales whether his statements are reasonable and whether he is interested in the result of the trial.”

While this is not clear and concise, still we cannot, in the light of the whole charge, see how the substantial interests of the accused were prejudiced by this instruction and we do not agree with the interpretation placed upon it by the able counsel for the accused to the effect that said instruction might be considered the jury to mean that more weight was to be attached to the fact that the defendant was charged with the crime. The jury, 'as a matter of law, had the right to take into consideration the fact that the defendant was interested in the result of the case, and that his testimony should be weighed in the light of his interest, and we do not believe the instruction complained of was prejudicial to the rights of the accused.

In assignments of error Nos. 10 and 12, it is insisted that the court erred in its instruction to the jury, as follows:

“The government must make out its case of the guilt of the accused, beyond a reasonable doubt. That does not mean any 'doubt, and it does not mean some doubt. The government is not required to prove it to a mathematical certainty that the defendant is guilty, but must prove it to a moral certainty, so, after you consider and weigh the testimony in this case, if you are morally certain the defendant is guilty from that testimony, ithen you have no reasonable doubt, and you should convict the defendant.”

It is extremely dangerous for trial courts in instructions to juries to undertake to define a reasonable doubt, and we agree with the learned judge who charged] the jury in the case of Lenert v. State (Tex. Cr. App.) 63 S. W. 563, when he said:

“That the words ‘reasonable doubt’ were words in common use, and the jury could understand them as easily as the court, and that the court had a reasonable doubt as to whether or not he could, under the law, charge them as to their meaning.”

It is to be regretted that trial courts do not adopt the wise ■course pursued by the judge in the case just cited. This court believes that, at this enlightened age, jurors generally will understand the meaning of the words “reasonable doubt.” Therefore trial courts, in the opinion of this court, would save themselves and the appellate courts much trouble by instructing the juries upon reasonable doubt as defined by the statute, and that any attempt at leaving this shore of safety means their getting into deep water, from which it is often difficult to extricate the definitions of “reasonable doubt” as given by them.

The learned counsel for the accused urges that the definition of “reasonable doubt” just quoted was weakened, but does not give this court the benefit of his reasons therefor, except he says that, (the jury might very well conclude from said instruction that it was not necessary for them to find beyond such reasonable doubt as they might ordinarily possess, but that, if they were morally certain after eliminating doubts that might arise, they could convict the defendant. Again we are obliged to disagree with counsel for the accused that the definition of “reasonable doubt,” as given by the court in this case, is prejudicial to the substantial rights of the accused. We do not think that counsel for the ac-eused will insist that the words “morally certain,” as used in the definition given by the court, would in any way weaken the same, for the reason that courts have many times used the words “reasonable doubt” and “morally certain” interchangeably.

The writers of legal dictionaries define “moral certainty” to mean that degree of certainty which will justify a jury in grounding on it their verdict. Bouvier’s dictionary defines “moral cer-tanty” to mean:

“A certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. A certainty beyond a reasonable doubt.”

Black’s Law Dictionary defines “moral certainty” as follows:

“In the law of criminal evidence * * * that degree of assurance which induces a man of sound mind to act without doubt upon the conclusion to which it leads.”

Burrill, Gire. Ev. § 189, reads:

“A high degree of impression of the truth and fact falling short of an absolute certainty, but sufficient to justify a verdict of guilty, even in a capital case.”

Chief Justice Shaw, in the case of Commonwealth v, Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, speaking of reasonable doubt, says:

“What is “reasonable doubt’? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt, because everything related to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. Jt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves -the minds of jurors in that condition that they cannot say they feel an abiding-conviction, to a moral certaint]', of the truth of the charge.” '

■ Many cases could be cited in which the words ““moral certainty” words ““that it does not mean any doubt and it does not mean words ““that its does not mean anv doubt and it does not mean some doubt” to supply the weakening- effect of the definition, if in fact the instruction in which connection said words are used is in fact thereby weakened, and the substantial rights of the accused thereby prejudiced and abridged. To determine whether or not ¡the words complained of have the effect claimed by the accused, it is both proper and necessary that we take into consideration the whole charge as given in this case. The part- of the charge referring to “reasonable doubt,” omitting instruction No. 10, reads as follows:

“The defendant’s plea in this case is that he its not guilty. He goes into the trial of this case presumed to be innocent. He is clothed with this presumption, and it remains with him until you find by the proof beyond a reasonable doubt that he is guilty.” “You take each circumstance and each item of testimony that'the witness has detailed upon the witness stand and each and all of the witnesses, and consider and compare all of it together, and. after hearing all of the- testimony and weighing it. if you are morally certain the defendant is- guilty, you should render a verdict of guilty against him and if you are not morally certain you should acquit him.”

These instructions being given both befare and after the words which are alleged by counsel for the accused to have weakened -the charge upon reasonable doubt, we think the contention of counsel is not supported, and the charge as given was not weakened by instruction No. 10 complained of, and that the rights of the accused were in no way prejudiced thereby. In fact, it might well be contended that the words complained of rather enlarge than prejudice the rights of the accused.

Assignment of error No. 14 complains of the court below, and says that the substantial rights of the accused were disregarded by the court, by limiting counsel for the accused to 35 minutes in the argument of the case. Section 1606, Ind. T. Ann. St. 1899, which was in force in the jurisdiction at the time this case was tried in the court below, provides-for the right of argument by counsel in criminal cases; but we are unable to find a statute authorizing the trial court to limit the time of such argument. Therefore it was within the sound- discretion of the presiding judge to reasonably limit the length o-f time for argument by counsel for- the accused, and unless the record’shows an abuse of this discretion the cause will not be reversed by this court. We approached the consideration of this assignment of error with a distinct aversion to tlie limiting of time of argument in- criminal cases, and for that reason gave this branch of the case careful consideration. We have examined many well considered and ably written opinions upon this subject, a few of which we will refér to herein.

.‘Chief Justice Gilmore, in Dille v. State, 34 Ohio St. 617, 32 Am. Rep. 395, says:

“The constitutional right of any person accused.of felony to appear and defend in person and with counsel cannot be denied, or its exercise unreasonably abridged, but' the court may limit the argument of the accused or his counsel, provided that the accused is not thereby deprived of a fair trial. The only question that will be introduced in this case is: Di.d the court err in limiting .the two counsel of defendant to 30 minutes for the argument of the case to the jury ? The question is an important' one. The three most important constitutional rights of a person accused of felony are: (1) A trial by jury; (2) compulsory process for obtaining ■witnesses in his favor, and (3) the assistance of counsel’on his trial. These are secured to him in proper cases not onljr in federal but also in the state court, by constitutional provisions. * * *”

In Meredeth v. People, 84 Ill. 479, the court says:

“The argument of the cause is as much a part of the trial as is the evidence, and the party is entitled to the hearing of the evidence. * * * ”

In Williams v. State, 60 Ga. 367, 27 Am. Rep. 412, it is held:

“In the trial of a felony, whether the prisoner is heard through one counsel or two, the length of argument is not a matter for predetermination by the court. As argument progresses the court may confine the range of it to the facts and law of the. case, but so long as counsel speaks to the point, proceeds in goqd faith, and wastes no time, the court should forbear to interfere, but leave the limits of the speech to the discretion of the speaker until it is manifest that the discussion is complete or the subject exhausted.”

In State v. Collins, 70 N. C. 251, 16 Am. Rep. 771, it was held that the judge presiding had the right to regulate the arguments by reasonable rules and limitations, and that restricting counsel upon the trial of an indictment for a capital felony to one hour and a half was not so unreasonable as to justify granting a new trial.

In section 923, Thompson on Trials, the author says:

“The rule, both in civil and in criminal cases, is that the courts have power, in the exercise of a sound discretion, to impose reasonable limitations upon the time to be allowed to parties for argument by counsel, which discretion will not be revised on error or appeal except in cases of mánifest abuse. On the one Hand, a reasonable exercise of this power is upheld as being absolutely necessary to enable the courts to dispatch the public business; on the other hand, a plain abuse of it, whieh has resulted in denying to an accused person the constitutional right of defense by counsel, or of unreasonably abridging this right, will afford ground for setting aside the judgment in a criminal case and granting a new trial. * * * ”

In Missouri it is held, in a criminal prosecution for cutting timber upon school lands, no abuse of discretion appeared in an order of the trial court limiting the time of argument allowed the counsel for the defendant to 15 minutes. The court in deciding this case, without referring to the source of its information, states the fact that, Cicero having been allowed but half an hour to defend Caius Rabirius before the tribune of the people on a charge of murder, a quarter of an hour allowed to a modern orator in a petty case of cutting down timber on school lands was sufficient.

The trial court in this case, knowing full well the oratorical power and convincing logic of the distinguished counsel for the defense, concluded that he could do full and ample justice to the cause of the accused within the time limited, and, taking into consideration the entire record, it fails to disclose that the limit placed upon argument in this case was an abusg of discretion. We are therefore, in the light of the great weight of authorities, obliged to hold that no prejudicial ■ error resulted to the accused from such limitation. We cannot, however, refrain from expressing the opinion that it is extremely dangerous to limit counsel in advance of the argument, and we believe that trial courts should exercise discretionary power in this regard with great care and caution, and no unreasonable limitation of time should be attempted, and that this discretion should be exercised with due regard for all the circumstances of the ease. This court will not hesitate to reverse the judgment of the trial court if the record discloses an abuse of .this discretion. All steps in the trial of a criminal case should be so taken as to safeguard all the substantial rights and interests of the accused, to the end that the accused will be accorded in all respects a fair and impartial trial.

It is urged in the remaining assignment of error that the court erred in fixing the punishment in this.case; in other words, that the punishment is excessive, cruel, and unwarranted. The law gives the trial court the right to fix the punishment within the limitations fixed by statute when the jury failed so to do in the verdict. In grand larceny cases the punishment prescribed is from one to five years, giving the trial court discretionary power to fix the punishment within such limits. The trial court heard the testimony, had the means of taking into consideration all the facts and circumstances, and is therefore better enabled to determine the punishment than this court. We are unable to conclude from the record that the court abused its discretionary power in assessing the punishment at two years. In the case of Clampitt v. United States, 6 Ind. T. 92, 89 S. W.666, an Indian Territory case, the accused was prosecuted under section 971 of the Indian Territory Annotated Statutes of 1899, which provides:

“Every person who shall steal any kind of cattle shall be guilty of a felony, and upon conviction thereof be imprisoned at hard labor in the penitentiary for any time not less than one year or more than five years.”

The court held that the punishment, named in the sentence conforms to the statute and is not cruel and unusual punishment.

This court finding no harmful or prejudicial error, it follows that the judgment of the court below should be, and the same is, affirmed, at the cost of the accused, and the sheriff of Atoka county is hereby ordered to execute the judgment of the court below without delay.

EURMAN, Presiding Judge, and DOYLE, Judge, concur.