author: FULTON, Spegial Judge,

text:
    C. A. Marshall v. Territory.
    No. 2219,
    Okla. T.
    Opinion Filed March 29, 1909.
    (101 Pac. 139.)
    1. INSANITY — Insanity After Indictment — Proceedings to Determine. After a person is indicted, present sanity of such defendant is presumed to exist until it is called in question from a reputable source, on a sufficient and specific declaration to the contrary, or from observation by the court the defendant’s present condition is such as to call in question his sanity whereupon it becomes the duty of the court to impanel a jury to pass on the sanity of the defendant; and the jury, and not the court, should determine this question.
    2. SAME. The inquiry to be submitted to a jury, in a proceeding under section 5661, Wilson’s Rev. & Ann. St. Okla. 1903, is; Whether the accused is mentally competent to make a rational defense, and it is not whether he is a-ble to distinguish between right and wrong.
    3. SAME. It is immaterial how or in what manner the question of present sanity is presented to the court pending trial of a defendant under indictment, whether it is by application for a continuance, motion for new trial, motion in arrest of judgment, by-ex parte affidavit, or declaration of bystanders, or the court of its own motion. All that is required is that the court shall make a record that a doubt arises as to 'the sanity of the defendant, whereupon an order for impaneling a jury to determine the issue is imperative.
    4. SAME — Doubt as to Sanity — When Exists. If there exists in the mind of the court a doubt as to the sanity' of the defendant, as expressed in the statute, means if the court has been advised from a reputable source — that is, if a statement is made to the court by credible person, or persons, under oath that the defendant is insane — a doubt is raised. While there is a judicial discretion left to the court to determine whether there exists in the mind of the court a doubt, nevertheless such discretion should not be arbitrarily exercised, and its positive declaration and statement, as above indicated, that the defendant is insane necessarily presents a condition calling' for investigation. The court may look to the source of information, the motive, opportunity, etc., of the party making it, but if the court denies the inquiry by a jury, it must do so under circumstances excluding all doubt of the truthfulness of the declaration that the defendant is insane.
    5. RAPE — Presumptions and Burden of Proof — “Chaste Female”— “Virtuous Female.” Where a defendant is upon trial on the charge of having sexual intercourse with a female, not the wife of the defendant, who is over the age of 16 and under the age of 18, and of previous chaste and virtuous character, the burden is upon the prosecution to prove: First, that the act of sexual intercourse was accomplished by the defendant either witli or without the consent of the female; second, that the female was over the age of 16 years and under the age of 18 at the time the act of such sexual intercourse was accomplished; third, that the female was of previous chaste and virtuous character. A “chaste female” is one that has never had sexual intercourse — who yet retains her virginity. This condition should exist. A “virtuous female” is one who has not committed an act of sexual intercourse unlawfully — out of wedlock, and voluntarily.
    6. SAME — “Chaste Character” — Definition. The “character” of the female mentioned in the statute is that condition actually existing, contradistinguished from a character by reputation. Was the female in fact chaste and virtuous? There is no presumption in law that she was so chaste and virtuous arising in favor of the state, because in the plain language of the statute, unless she is of such previous chaste and virtuous character, the offense has not been committed, therefore the indictment must allege, and the prosecution must prove, such character beyond a reasonable doubt; it being a necessary element of the offense.
    7 SAME. The character of the female that is put in issue is not that character that she holds by reason of general reputation. The female’s actual chaste and virtuous state or condition is her shield and protection, and this should, be so because she may be falsely accused, as many men and women are in this day. That a false accusation should license the libertine to take advantage of a chaste and virtuous female would be revolting. Such a law would fall short of being- righteous and just, and put womankind at the mercy of the scandal mongers and character assassins.
    8. SAME — Instructions—Necessity. In a trial of .rape such as is under consideration in this case, the court should instruct the jury directly and specifically what, under the law, constitutes a previous chaste and virtuous character o£ the female under consideration, and thereupon submit the facts for the determination of the jury as to whether the actual character required did exist previous to and at the time of the act complained of.
    9. SA.M.E — Circumstantial Evidence. The issue being the chastity and virtuous character of the pi-osecutrix at the time of the commission of the alleged offense, such issue may be supported by circumstantial evidence, as in any other case of a similar nature. The defendant also has the right to attack this character by any facts or circumstances which would indicate a want of chastity or virtue upon the part of the prosecutrix.
    (Syllabus by the Court.)

      Appeal from District Court, Noble County.

    C. A. Marshall was convicted of rape of a female under 18 and over 16, of previous chaste and virtuous character, and he appeals.
    Reversed and remanded.
    March 7, 1906, plaintiff in error was indicted by a grand jury of Noble county in the then territory of Oklahoma, for the crime of rape by having sexual intercourse with Miss Leota Barnard, she being at the time a female under the age of 18 years and over the age of 16 years, and of previous chaste and virtuous character. The act complained of is alleged to have been committed November 10, 1904, in Noble county. On January 2', 1907. upon a trial'before a jury, defendant was convicted of the charge of rape, and sentenced to serve a term of 7 years in .the penitentiary. The defendant duly excepted, and appealed the case, and the same is now before us for review. Associate Judge of this court, Hon. Thos. H. Doyle, having been of counsel in this case-, and being thereby disqualified as one of the judges of this court to hear and determine same, this fact having been duly certified to Governor Haskell, he thereupon appointed Hon. Marshall Fulton special judge of the Criminal Court of Appeals for the trial and determination of this canse. Mr. Fulton having duly qualified as special judge, the ease was submitted to this court upon the briefs of both parties.

      Doyle é Cress, for appellant.

      Charles West, Atty. fi-en., for appellee.
    No briefs reached the reporter.
   FULTON, Spegial Judge,

(after stating the facts as above). The statute under which this prosecution is had is as follows:

“Kape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: First, where the female is under the age of sixteen years. 'Second, where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste ana virtuous character.”

There are fourteen assignments of error. The twelfth, thirteenth, and fourteenth of the errors assigned are to the effect and in substance: ‘‘Errors of law by the trial court in refusing to impanel a jury to determine the mental condition of plaintiff in error.”

The statutes applicable to the points raised are St. Okla. 1893, p. 997, c. 68, art. 19, §§ 1-3 (Wilson’s Eev. & Ann. St. 1903, §§ 5660, 5661, and 5662) :

“Section 1. An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried or adjudged to punishment, or punished for a public offense, while he is insane.”
“Section. 2. When an indictment is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arises as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned, and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”
“Sec. 3. The trial of the indictment or the pronouncing the judgment, as the ease may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

The remaining part of this article provides for the method of procedure on the issues raised on the question of the insanity of the accused. The proceedings that were had on the subject were:

In the motion by defendant to arrest the judgment, being the fifth paragraph of that motion, wherein it is alleged “that the der fendant at the time was an insane person; was such at and prior to his trial” — in support of this motion, is an affidavit by P. W. (Cress, who appears to be one of the attorneys representing the defendant, a member of the bar of Noble county, and of the court where the case was tried, wherein it is set forth that, in the opinion of the affiant, the defendant was an insane person, setting out in detail several matters of fact upon which the affiant bases his opinion or belief that defendant was then insane. Thereupon, on the same day, and at the same time, the court made an order overruling motion for new trial, and also motion in arrest of (judgment. Whereupon the court made inquiry, apparently directed to counsel for defendant, whether they had anything to say why judgment should not be pronounced against defendant. Counsel for defendant answered, “Yes,” and stated they objected to the passing of'sentence on defendant on the gropnd that “We believe he is an insane person,” and offered in support affidavits already filed, and asked the court to fix a time for a further hearing, and taking of evidence as to the mental condition of the defendant. Whereupon the court set the hearing of the application as to wheth; er or not the defendant was insane for Thursday morning following, and withheld sentence. Counsel for defendant suggested they wanted to offer evidence to the court; and, if the court deemed it not sufficient to put him upon trial, they thought they would be satisfied with the adjudication by the court upon the matter, whereupon the court' announced he would hear the matter, and for both parties to have their witnesses on Thursday morning. Whereupon the court ordered that the matter of the motion for new trial and motion to arrest judgment stand, and that the order overruling them would not be made at this time.

Afterwards, on the day set apart for the presentation of testimony on the question of insanity of the defendant, Dr. Pañi E. Brown, a witness for defendant, was produced, who, among other things, testified as follows: That he was a physician; resided at Tulsa; graduated at the University of Maryland, and had taken a post graduate course at Cornell, N. Y.; had been acquainted with the defendant for two years and more; had had occasion to observe his conduct, speech, and actions as to his mental condition; had examined the defendant specialty, and upon question direct to the point witness states that “the man [the defendant] in my opinion is insane”; says that he noticed the defendant was not right more than a year ago, and gave instances that he recalled of the acts and conduct of defendant, showing sjnnptoms of acts indicating mental aberration.

Dr. T. F. Dailey, witness introduced by defendant, testified .that he was a physician; resided at Tulsa; practiced about 8 years; was acquainted with the defendant for about one year; had known him at Tulsa; had made an examination of him on the day before he testified, and from his knowledge from former acquaintance, and his examination here, he stated that the man was not right in his mind at all, and had been in that condition ever since witness knew him; -that he was suffering from delusions and hallucinations, supposing the existence of facts -that in fact did not exist and were out of reason. This witness also' gave detailed statements of incidents and facts upon which he bases, in part, his opinion.

Lawrence L. Cowley, introduced as a witness for the defendant, lives at Periy, Oída.; was acquainted with the defendant; met him several times; had been acquainted with him for some time. This witness testified that from certain acts and conduct related by defendant witness is of opinion that the defendant is a little bit off.

Harry Knowles, witness introduced by defendant, states he was an inmate of the jail with the defendant at the time of the examination; was there when he was first placed in jail. This witness goes on in detail, gives acts and conduct, etc., and, when he was asked how he acted, stated he did not know how he acted exactly; he was just crazy was all he could say, and told of defendant tearing off his shirt, whooping and hollowing; stated that defendant went to bed singing, got up singing, and sang during the night, sometimes appeared rational, and insane at times.

J. E. Dolezal, county clerk of Noble county, a witness called for defendant, states: Was acquainted with defendant, knew him about four or five j^ears; have had occasion to observe his mental condition, and he stated that he always considered defendant was unbalanced; he did not appear insane, but he was not right. At times in conversation he would fly off at anything we were talking about; says that the condition of defendant is such that he does not believe him able to distinguish right from wrong. Witness goes on and details acts and conduct.

Thomas H. Doyle, one of the witnesses, and counsel for defendant, states that he has known defendant for four or five years, five or six, maybe; knew him at Perry and Tulsa. Witness details a great many occurrences, such as writing letters containing 100 and 200 pages at a time, and giving many detailed instances of queer and unusual conduct on the part of defendant, uncalled for, and identification and introduction of letters written by defendant in November, 1906, the contents of which are incoherent, wandering, and flighty.

Dr. W. C. Marshall, witness for defendant, states he is a brother of the defendant; lives at Chelsea, Ind. T. He gave a short history, of defendant; that he was a graduate of 'Chicago School, of Dental Surgery; put in about two years at Rush Medical College at Chicago; set out that the defendant was well educated, and was quite a musician; when the defendant came out of school, there was something wrong; he was flighty; he suffered as a child from violent headaches and earaches, and gives from his personal knowledge and profession opinion that the defendant was not right in his mind.

Dr. J. A. Webber, witness for the territory, states he is a phy-sieian; resides at Perry; was acquainted with the defendant; made examination of defendant, and when asked as to his condition as to whether he was a man of sound or unsound mind, stated, “Well, I thought he was peculiar”; said that he thought he was able to distinguish right from wrong, but would not state upon inquiry as to his opinion of his mental condition on this point. Witness said: “I would not be able to form any conclusion, I have seen so little of him.” On examination by the court the witness stated, “While I knew him, I always thought he was a little wrong.”

Dr. Keeler, witness for the territory, states he is a practicing physician at Perry; was acquainted with defendant for about two years. Witness states that the defendant was talkative; had an exalted opinion of his attainments, and liked to talk about them. His conduct, however, appeared perfectly rational. Witness states of the defendant:

“I did not observe anything that would lead me to believe that he had been any more sane than he was at that time, the time 1 examined him, but I just concluded in my own mind — 1 never mentioned it — but I just supposed that he was rather of a — that his mind was on a comparatively low intellectual plane.”

Thereupon this proceeding came to an end, by order of the court. The court speaks: “The motion in arrest of judgment, and the motion for new trial, and each of them, are overruled, and the objection to pronouncing judgment and sentence at this time are overruled,” to which ruling of the court defendant excepts. Thereupon the court pronounces sentence. Record, page 220. It is to be observed that there was no jury called to pass on the question of the insanity or mental condition of the defendant after verdict; that in fact the mental condition was not suggested to the court until after verdict.

The statute above'referred to (section 2) expressly provides:

“Where an indictment is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled,” etc.

In the case at bar the court evidently fortified itself with the proposition that there was no doubt arising as to the sanity of the defendant. The character of the insanity that -was inquired into was as to the ability of the defendant at the time to distinguish right from wrong; that he had a mind sufficient to comprehend the nature and consequence of his act, in both of which propositions the court was in error.

First. There was sufficient testimony to authorize and require a hearing on the question of insanity by a jury. A person is presumed to be sane in ordinary affairs. After indictment the presumption of sanity continues until it is called in question from a reputable source and a sufficient specific declaration to the contrary. This was abundantly done under the testimony in this case. Whereupon it became the duty of the court under the law to impanel a jury to pass upon the sanity of the defendant. The jury, and not the court, should determine the question.

Second. The court in its examination was seeking to ascertain the defendant’s condition of mind relative to his ability to distinguish between right and wrong, and his ability to comprehend the nature and consequence of his act. This is. not the question that is presented under a proceeding of this character. The proper question is whether the accused is mentally competent to make a rational defense, and it is not whether he is able to distinguish between right and wrong. This rule has been enunciated in the following cases:

“When an affidavit is made by a respectable person that a defendant charged with crime has become insane, a jury should be impaneled to try the issue of insanity before proceeding with the case, and this, though the party making the affidavit is unknown to those in attendance on court. * * * The question to be determined on the plea of present insanity is, Is the accused mentally competent to make a rational defense?” (Guagando v. State, 41 Tex. 626.)

Under the California Code, practically the same as our own, the Supreme Court of the state has held:

“No plea of present insanity is required. If at any time during the proceedings in a criminal trial a doubt arises as to the sanity of the defendant, it is the duty of the court of its own motion to suspend further proceedings in the case until the -question of sanity has been determined. * * * Counsel for defendant cannot waive an inquiry as to the question of the sanity of a defendant.” (People v. Ah Ying, 42 Cal. 18.)
“Under the Penal Code, though a person adjudged to punishment cannot be punished for a public offense while insane, his conviction of an offense does not exclude him from the asylum.” (People v. Schmidt, 106 Cal. 48, 39 Pac. 204.)
“If there exists in the mind of the court a doubt as to the sanity of the defendant, and this doubt arises at any time during the trial, it is the duty of the court to stop the trial, and have determined the sanity of the defendant before further proceeding.” (People v. Lee Fook, 85 Cal. 301, 24 Pac. 654.)

In this case, in determining the question to be inquired into, the court -says:

“The question, however, is not whether he has become sane in every sense of the word, but whether he has become sane in the sense of the statute which requires the suspending of the proceedings in a criminal case whenever it is found that the defendant is presently insane.”

.In other words, if there is a difference between the medical view of insanity and the view upon which the statute is founded, the question of sanity or insanity is to be determined with reference to the latter as contradistinguished to the former view. The case further holds:

’’That all books, treaties, and decisions on the subject show that the true and only reason why an insane person should not be tried is that he is disabled by the act of God to make a just defense if he has one. ■* * * If, therefore, a person arraigned for a crime is capable of understanding the nature and object of the proceeding against him, if he rightfully comprehends his own conduct in reference to such proceeding, and can conduct his defense in a rational manner, he is, for all purposes of being tried, to be deemed sane, although on some other subjects his mind may be deranged or unsound.”

On the same subject, and to the same effect, is the case of Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216. And also the case of Youtsey v. United States, 97 Fed. 937, 38 C. C. A. 562, holds as follows:

“The question whether a defendant charged with a criminal offense is in a fit'condition mentally to be placed on trial may be raised at any time and in any appropriate manner, and the fact that the objection was taken in an application for continuance, which is also based on other grounds, does not relieve the court of the duty to give the question of his mental soundness due consideration. and try it in some appropriate form or proceeding; * * * that if it appear after arraignment, and before trial, that the prisoner is probably not capable of- making a rational defense, the proceedings should stop until the sanity of the prisoner is determined or restored.”

Again, in the same case, the court holds:

“Assuming, as we shall, that no duty rested upon the court to impanel a jury (court must impanel a jury in this state) to inquire whether the accused was in truth incapable of understanding the proceedings, and intelligently advising with his counsel as to his defense, and that it was 'optional with the court to call a jury, or resort to-any other- special mode of aiding his judgment, it was nevertheless his duty to consider and determine the matter judicially.”

Under opr law, if a doubt arises as to the sanity of the defendant, the' court must order a jury, and if the facts presented to the court are such as to raise a doubt as to the sanity — that is, if there are statements under oath of a credible person, or persons, that .the defendant is insane — a doubt is raised, because if the statements are true, the man is insane, and a jury must inquire into the facts as to the truthfulness of the alleged fact of insanity. It is to be observed that it is not a discretion on the part of the court, under our statute, to direct the calling of a jury. The only contingency is, Does a doubt arise? This means, has information come to the court through a proper channel, from a proper source or party — that is, during trial — and from a credible and trustworthy source information is brought to the court that the defendant is insane, or if'from personal inspection or observation of the court such probable'condition of th'e defendant is ma’de known to the court, then the law requires that a jury should be impaneled, who shall inquire into the mental condition of the defendant. In this case there is small doubt, if any, that if the facts as presented in this record were presented to a jury, such jury would have found the defendant insane. To say the least, the testimony established that the defendant was not in such condition mentally as to be competent to make a rational defense.

There is another proposition, raised in .the assignment of errors in the proceeding of the trial of this case, which relates to the question of the burden of proof, whether in the case at bar the territory was required to put proof before the jury that the female was of previous chaste and virtuous character. The law, upon' the one hand, presumes the defendant innocent until guilt is established by evidence to that degree of certainty reaching beyond a reasonable doubt. On the other hand, the law presumes that every female is chaste and virtuous until the contrary is established, or there is evidence sufficient to create a reasonable doubt upon-this issue. There are cases and authorities holding, on éacli side of the proposition, that in such cases the presumption of chastity prevails over the presumption'of innocence. From an examination of the cases the true rule will be found to be the cases where the law presumes the female is of chaste and virtuous character are those that refer to general reputation and general repute of such female; how she is held in the community where she resides. In such cases the chastity of the female is not an element of the crime investigated. Wherever character is an element of the crime —that is, where the statutory definition of the crime involves chastity, wherein the act constituting the offense must have been concerning a female having previous chaste and virtuous, character — the law will not presume such character to exist. The burden is upon the state to establish, beyond a reasonable doubt, each material allegation in the indictment, and each material element of the crime charged, one of which .is that the female was of previous chaste and virtuous character. To hold otherwise would be to hold that the defendant should prove his innocence.

A chaste female is one that has never had sexual intercourse — ■ who yet retains her virginity. A virtuous female is one who has not ■had sexual intercourse unlawfully — out of wedlock, knowingly and voluntarily. First. Take the rule applicable to insanity. One indicted for crime is presumed to be sane, in the absence of testimony to the contrary. But if evidence is presented which proves, or tends to prove, that the defendant was insane, then the burden is upon the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of .thé commission of the offense. Where the question of the insanitjr of the defendant, at the time of the commission of the act, is raised in a case, the rule announced in the case of Davis v. United States, 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 499, is as follows:

“The presumption of law that every one is sane merely authorizes the jury to assume at the outset .that the accused is criminally responsible for his act, and the defendant is entitled to acquittal if upon all the evidence there is reasonable doubt that he was capable in law of committing the crime.”

The trial court fell short 'of giving the defendant in this case the full benefit of the above rule, even if chastity of the female was not an element of the crime charged. The rule announced in the Davis Case above set out is in our judgment the proper rule of law to be adopted in cases applicable, not only for the reasons and purposes announced in the case, but because it more nearly coincides and catches onto the human heart and human conscience; gets nearer the right of the matter.

On the question of previous chaste and virtuous character, in one sense “character” is what a person really is; it is that real condition that constitutes character. In another sense “character,” such as is capable of being measured and determined from reputation, is that which a person is supposed or is estimated to be. 5th Am. & Eng. Enc. of Law (2d. Ed.) p. 852, and cases cited. In eases of seduction, the previous chaste character of the woman seduced is one of the essential elements of the offense. Under statutes like our own, it has been held, to require the injured female should be actually chaste, and not merely have a good reputation in that respect. This should be so because it is a protection and shield to the pure and virtuous woman. She may be falsely accused, as many men and women are in this day. That a false accusation should license the libertine to take advantage of a chaste female would be revolting; such law ‘would fall short of being righteous and just. The law does not uphold the work of the scandal monger, or character assassin. • The following eases uphold this conclusion:

“One of the essential elements of the crime in this class is that the female assaulted must have been of previous chaste and virtuous character. This law is for the protection of the girl of tender age and immature judgment who is pure, chaste, and virtuous. A male person who indulges in sexual intercourse with such female not his wife is classed by the law alongside of one who forcibly ravishes the female over 16 years of age. Elements of force, violence, or resistance do not enter into this particular class of rape.” (Young v. Territory, 8 Okla. 525, 58 Pac. 724.)
“The statute provides that in the prosecution of the seduction of an unmarried woman like the present no conviction can be had if on the trial it is proved that such woman was at the time of the alleged offense unchaste. This means actually unchaste. * * * The female must not only be unmarried, but chaste in fact when seduced.” (Hussey v. State, 86 Ala. 34, 5 South, 484; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177.)

Bishop. Statutory Crimes (2d Ed.) § 639, reads:

“The seventh and ninth charges requested by defendant were, under this principle, properly refused. The word ‘character5 used in this charge is ambiguous in meaning, and may be construed to refer to the reputation of the prosecutrix. It is therefore misleading inasmuch as evidence of bad reputation for chastity was inadmissible to prove a want of actual virtue.55 (Bishop, Statutory Crimes [2d Ed.] § 639.)

In the case of Lyons v. State, 52 Ind. 426, which was a prosecution for abduction of a female for the purpose of prostitution, under statutes making it an offense to so abduct a female of previous chaste character, the court said:

“On the trial the defendant proposed to prove acts of illicit sexual intercourse on the part of the prosecuting witness prior to the alleged abduction. The court rejected the evidence. We think ¿his was error. In such a case the female must be of previous chaste character. This has been held to mean that she shall possess actual personal virtue in distinction from a good reputation. A single act of illicit connection may therefore be shown on behalf of the defendant.” “

In the case of Smith v. Commonwealth, 32 S. W. 137, 17 Ky. Law Rep. 541, the defendant was indicted and convicted of the crime of seduction under promise of marriage; the seduction being founded on the fact of the previous cha'ste character of the female. The court said:

“■Without an extensive discussion of the testimony it is apparent that some instruction should have been given with reference to the character of the woman whose virtue is said, to have been lost by the act of the defendant. If at the time of his promise of marriage she was a lewd woman, and shortly prior she had had sexual intercourse with others, this verdict should.not stand, and instruction to that effect should have been given.”

Under a statute providing for the punishment of the seduction of an unmarried woman of previous chaste character, the court held:

“That character referred to moral qualities, and not to reputation, an.d evidence of reputation was not admissible upon the issue of character, but only to impeach or corroborate testimony in regard to -particular acts of unchastity.” (State v. Pizer, 49 Iowa, 531 31 Am. Rep. 155.)

Under another statute, which ■ provides “that any man who under promise of marriage seduces any unmarried female of previous chaste character, shall be guilty of a misdemeanor,” it was said that:

“By the terms fchaste character’ the Legislature could only have meant personal qualities that make up the real character, and not public reputation, which is the estimate of character formed .by the public. It could not have been intended to substitute reputation for character in this its primary and true sense.” (Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177.)

In the case of Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708, the court held as follows:

“Character in seduction statutes prescribing that the woman be of previous cliaste character, such statute is for the protection of the pure-minded, for the innocent in heart, who. may have been lead astray, seduced from the paths of rectitude; and the jury are the sole judges in a case which comes within this description. * * * Character signifies that which a person really is, in distinction from that which she may be reputed to be.”

In State v. Southerland, 30 Iowa, 571, it was said:

"In order to determine the character of the female for chastity it is proper to extend the inquiry, not only to the fact whether she has had previous sexual intercourse, but whether she is pure and chaste in character in her acts and habits of life.”

From the foregoing authorities it is apparent that it is not the general reputation of the female that she is chaste and virtuous that is taken as the standard character. On the contrary, it is a condition actually existing that she is in fact chaste and virtuous. If the law presumes that the female is chaste and virtuous, this presumption merely authorizes the jury to assume at the outset that she was of such character. That the female was of a previous chaste and virtuous character is an issuable fact; and any evidence tending to overthrow the presumption of chastity is admissible, not evidence of general reputation, but any evidence that tends to establish a condition, such as above' described, that amounts to character. A situation, inclination, and opportunity to engage in illicit intercourse is pertinent and admissible. The state should be required to establish the required chaste and virtuous character. This may be done by satisfactorily explaining, in harmony with virtue and chastity, all apparent compromising circumstances or facts throwing suspicion on her actual character, as well in addition showing her general good reputation.

The defendant in this ease put in evidence certain circumstances and facts showing, and tending to show, the visits, of the female to the sleeping room of a young man of her acquaintance with whom she was keeping company. These visits were frequent, and about nine months previous to the time of the birth of the child. Defendant also put in evidence that the female lost some of her clothing or-wearing apparel during a buggy ride at night with a young man, and proposed the introduction of other facts in this line, all of which was, as we see it under the law, pertinent and relevant, and was sufficient to require the territory to produce proof explanatory of such circumstances and facts to such an extent as to satisfy the jury beyond a reasonable doubt that the female was of this previous chaste and virtuous character at the time of her intercourse with the defendant.

The Attorney General has conscientiously confessed the error of the court relative to the proceedings on the question of insanity. The court adds a little to his • suggestion. On the question as to the condition of proof as to the chastity and virtuous character of the defendant we are of the opinion that under the testimony the jury should have been directly and specifically instructed what, under the law, constitutes a previous chaste and virtuous character of a female applicable to this case, and thereupon submit the facts for the determination of the jury as to whether the actual character required did exist previous to the act complained of. This the court failed to do.

In the case of Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. Rep. 540, which was a prosecution for rape under the statute of Nebraska providing that, if a male person of the age of 18 years or upwards shall carnally know or abuse any female child under the age of 18 with her consent, unless such female child is over 15 years of age, and previously unchaste, he shall be. deemed guilty of rape, .the court held:

“The indictment may include all acts of unlawful sexual intercourse between the accused and the prosecutrix in the state after she became 15 years of age, which were not barred by the statute of limitations. * * * To sustain a conviction, it is not only necessary for the prosecution to show that the accused has violated •the spirit of the statute, but it must also show beyond a reasonable doubt that he has offended against the letter of the law. * * * If any male person of the age of 18 years or upwards carnally knows any female child under the age of 18 with her consent, unless such female child is over 15 years of age and previously unchaste, he shall be deemed guilty of rape, but an accused person cannot be convicted under evidence showing that the female, after she was 15 years of age, and previously to the act charged, had had illicit sexual intercourse for the first time with the accused in another state, * * * and such accused person cannot be convicted if the evidence shows an act of illicit sexual intercourse within the state, but barred by the statute of limitations.”

The first and second assignments of error relate to the sufficiency of the indictment. We are of opinion .that the indictment in the case is sufficient. It is as follows:

“In the District Court of Noble County, Oklahoma Territory. Territory of Oklahoma, Plaintiff, v. C. A. Marshall, Defendant. Indictment for rape. We, the grand jurors of the grand jury, duly and legally impaneled, sworn, and charged in the district court in and for the county of Noble and territory of Oklahoma, at the February term, 1906, do upon our oath present and find: That at and in the county of Noble and territory of Oklahoma, on the tenth (10th) day of November, 1904, C. A. Marshall, a person then and there being, did then and there knowingly, willfully, unlawfully, intentionally, and feloniously accomplish the act of sexual intercourse with and carnally know one Leota Barnard, she, the said Leota Barnard, being then and there a female under the age of 18 years, to wit, of the age of 16 years, and she, the said Leota Barnard, being then and there a female of previous chaste and virtuous character and she, the said Leota Barnard, not being then and there the wife of him, the said C. A. Marshall, the perpetrator thereof. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma. Chas. R. Bostick, County Attorney of Noble County, Oída. T.”

The eighth and ninth assignments of error call in question the sufficiency of the evidence to sustain the verdict. In view of the fact that.tbis case must be reversed upon other questions, wc shall content ourselves with saying that the testimony of the prosecution is far from satisfactory. The record shows ■ that during March, 1905, a complaint was filed against the defendant, charging him with the commission of this offense, that the prosecuting witness testified, upon the preliminary trial, that the defendant had sexual intercourse with her on or about the last of September, or the first of October, 1904, and that this was the only time that she ever had sexual intercourse with any person. This matter was particularly inquired into, and the witness was positive upon that point. On the 13th of August, 1905, the prosecuting witness gave birth to a child. This was nearly 11 months after the date which the prosecuting witness positively testified to as the date of her sexual intercourse with defendant, and the only sexual intercourse she ever had with any other person: At the December term of the court, 1906, the defendant was placed on trial for the offense charged. The prosecuting witness then testified that she had sexual intercourse with the defendant in November, 1904. This change in her testimony as to dates is strongly suggestive of the idea that it was for the purpose of making the date of the intercourse harmonize with the date of the birth of the child. This inference is strengthened by the fact that the prosecuting witness admitted that she had threatened a prosecution for bastardy against a young man named ICehress.' It is true that she stated that she only did this in fun. It is also a significant fact that the prosecuting witness admitted on cross-examination that on the 12th or 13th of November,1904,- just nine, months before the birth of her child, she lost part of her clothing in Perry, while returning home from attending the opera house with a young man named Shep Wooley. It also appears from the record that during November, 1904, the prosecuting witness, in the day time, visited the sleeping apartments of one Lon Kehress, a-young man who worked in a restaurant at nights, and slept in his room during the day. Being thus self-contradicted and self-impeached, we do not believe that a verdict should be allowed to stand upon her testimony, unless it is corroborated by other evidence coming from a trustworthy source. While rape is a most atrocious and revolting crime, and when clearly proven by credible evidence it cannot be too severely punished, yet it must also be remembered that it is a charge easy to be made and difficult to defend against, even though the accused may be innocent. Nothing is more highly calculated to excite the sympathies and arouse the passions pi a jury than a charge of this character. It is therefore the plain duty of the jury and the courts to guard against such consequences.

For these reasons we suggest to the county attorney of Noble county that, unless he can secure corroborating evidence of a credible character as to the material facts in this ease, it will be a useless expense and waste of time to place the defendant again upon trial for this alleged offense. For the reasons hereinbefore given the case is reversed and remanded.

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


source: Caselaw Access Project

author: FURMAN, PRESIDING Judge,

license: Public Domain

text:
    Dan Askew v. United States.
    No. 772.
    Opinion Filed March 29, 1909.
    (101 Pac. 121.)
    1. LARCENY — Possession of Stolen Property — Inference of Fact. The inculpatory inference to be drawn from the possession of property recently stolen is not a presumption of law, but is a deduction of fact to be drawn by the jury alone, unforestalled by any instructions from the court upon the weight of the evidence,
    2. SAME — Evidence—Instructions. It is error in a larceny case for the court to instruct the jury as follows: “The- unexplained possession, if there should be such unexplained possession, of recently stolen property, is prima facie, but not conclusive, evi-. dence of his'guilt.”
    (Syllabus by the Court.)

      Appeal from the. United States Court for the Southern District of the Indian Territory; J. T. Dickerson, Judge.

    Dan Askew was convicted of larceny, and appeals.
    Reversed.
    On the 11th day of January, 1903, Dan Askew (hereinafter called defendant) ivas indicted by the grand jury of the United States Court for the Southern District of the Indián Territory, sitting at Ardmore, for the offense of the larceny of three horses, the property of Hogan Keel, and one horse, the property of Tip Graham, who was not then and there a member of any Indian tribe or nation. On the 20th day of December, 1903, the case was transferred upon motion of the defendant to the United States Court sitting at Ada. Defendant was tried and found guilty of the offense charged, and has prosecuted an appeal which is now before this court 'for determination.

      Crawford & Bolin, Bohert E. Lee, and Stilwell II. Bussell, lor appellant.

      Charles West, Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for the United States.
   FURMAN, PRESIDING Judge,

(after stating the facts as above.) It is not deemed necessary to consider more than one of defendant’s assignments of error, and to this one the Attorney General has filed the following confession of error:

“The fifth assignment of error presented by appellant is that The court erred in its instructions to the jury in the following: “The unexplained possession, if there should be such unexplained possession, of recently stolen property, is prima facie, but not conclusive, evidence of his guilt.” ’
“Exception was taken to this charge of the court at the time'it was given, and in view of the holding of this court in the case Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, in which the opinion was rendered by Chief Justice Furman, it is not considered necessary in presenting this case to do more than call the attention of the court to that case, which held: ‘It is error to instruct a jury that the possession of property recently stolen raises a presumption against the party having such possession, which requires an explanation from him; this being a charge upon the weight of the evidence.’
“The case under consideration here is even stronger than that of Slater v. United States, for in the case at bar the court instructed the jury that the possession of recently stolen property is prima facie evidence of his guilt, whereas, in the Slater Case, the trial court in its instructions went no farther than to state that the possession of recently stolen property is a presumption against the party having possession. The court held in the latter case that: ‘The effect of this instruction is to inform the jury that the possession of property recently stolen raises a legal presumption of guilt against the party having it in his possession, and that the law requires an explanation from him of such possession. We do not so understand the law. In the case of Oxier v. United States, 1 Ind. T. 91, 38 S. W. 332, Judge Lewis says: “The later and the sounder and the better yule is believed to be that which makes the presumption, arising from the possession of recently stolen property, not a presumption of law, but of fact; in other words, an inference to be drawn or not, as the jury may determine in the light of all the evidence.’ ”
“This court cites with approval in this • connection the case of Blair v. Territory, 15 Okla. 550, 82 Pac. 653, and holds: ‘The instruction complained of was upon the weight of. the evidence, which is for the determination of the jury, and was therefore error.’
“It follows, therefore, if the court adheres to the rule laid down in Slater v. United States, and the rule therein enunciated by the court seems to be both forceful and logical, that fatal error was committed b}^ the trial court in giving the jury the instruction complained of under the head o.f fifth assignment of error, and that this ease should be reversed and remanded.”

In addition to the authorities cited in the case of Slater v. United States, 1 Okla. Cr. 275, 98 Pac. 110, we find the same principle clearly stated by the Supreme Court of Arkansas as follows":

“Evidence was adduced at the trial tending to prove .that the defendant denied having in his possession any of the stolen goods, and that, immediately after this denial, and soon after the larceny was committed, a part of them was found in his possession. Defendant introduced testimony to show that a part of the goods so found had been purchased by him, and that those which had not been purchased were given to him, and that at the time when the offense charged in the indictment was committed he was not at the place where the goods were stolen. Upon this evidence instructions were given to the jury over the objection of the defendant.
“The circuit court undertook to say to the jury what weight they might attach to the denial of .the defendant as to the possession of the stolen goods, and the fact that a part of them was found in his possession immediately after the denial was made, and soon after they were stolen, and his failure to explain such possession. It, in effect, instructed them that proof of the stealing of the goods and of these facts was sufficient to convict. This was error. It is within the exclusive province of the jury to determine, under the instructions of the court as to the law of the case, when the evidence is sufficient to convict. The court had no right to point out what inference may or should be drawn from particular facts in proof. Section 23 of article 7 of the Constitution expressly declares that judges shall not charge juries with regard to matters of fact. All the court -had a right.to say to the jury in regard to the facts mentioned was they might consider the evidence adducéd to prove them, in connection with the other evidence introduced, and if, upon such consideration, they 'believed that the defendant was guilty beyond a reasonable doubt they should convict. Haley v. State, 49 Ark. 148, 4 S. W. 746; Shinn v. Tucker, 37 Ark. 581; Fitzpatrick v. State, 37 Ark. 239; Keith v. State, 49 Ark. 439, 5 S. W. 880.” (Blakenship v. State, 55 Ark. 244, 18 S. W. 55.)

The Supreme Court of Indiana, in considering the question here presented, said:

“By instruction known as No. 7/ the court further said to the jury: ‘If you should believe it to be true that the goods mentioned, or some portion of them, were stolen from Theophilus Wright about the time charged in the indictment, and that, shortly after that time, they, or some portion of them, were found in the exclusive possession of the defendant, such possession imposes upon the defendant the duty and burden of explaining his possession; and if he has failed to satisfactorily account as to how .he came by the stolen property, or has given false account of how he came into possession of such stolen property, the law presumes that the defendant stole such - property, and this presumption may be strong enough to justify you in finding the defendant guilty of larceny/ , ' .
“Although the appellant was convicted of the burglary, and not of the larceny, charged in the indictment, yet the course of the trial, including the instructions given by the court, made the question, as to whether the defendant had been guilty of larceny in connection with the burglary, a material one.
“The appellant has devoted the greater portion of his brief to an argument to show that the court erred in giving instruction No. 7, as above quoted.
“While the doctrine of this instruction may seem to be in substantial accord with some of the authorities which have- fallen un-tier our observation, we are of the opinion that it laid down a harsher rule than can be supported by the weight of modern authority.
“In 3 Greenleaf, Evidence, § 31, it is said: We have heretofore adverted to the possession of the instruments or of the fruits of a crime as affording ground to presume the guilt of the possessor; but on this subject no certain rule can be laid down of universal application; the presumption being not conclusive but disputable, and therefore to be dealt with by the jury alone, as a mere inference of fact. Its force and value will depend on several considerations. In the first place, if the fact of possession standa alone, wholly unconnected with any other circumstances, its value or persuasive power is very slight; for the real criminal may have artfully placed the article in the possession or upon the premises of, an innocent person, the better to conceal his own guilt. * * * It will be necessary, therefore, for the prosecutor .to add llie proof of other circumstances indicative of guilt, in order to render the naked possession of the thing available towards a conviction/ 2 Buss. Crimes, p%337; Curtis v. State, 6 Cold. (Tenn.) 9; State v. Brady, 27 Iowa, 126; State v. Creson, 38 Mo. 372; State v. Merrick, 19 Me. 398; State v. Floyd, 15 Mo. 349; Smathers v. State, 46 Ind. 447; Tuberville v. State, 42 Ind. 490.
“In a prosecution for larceny, the fact that the stolen property is found upon the person of the defendant can always be given in evidence against him ; but the strengih of the presumption which it raises against the accused depends upon all the circumstances surrounding the case. Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494.
“In the case of State v. Hodge, 50 N. H. 510, a leading and well-considered case, the Supreme Court of New Hampshire decided that the presumption thus raised was one of fact, and not of law; that there is no legal rule on the subject; that much depends on the nature of the property stolen, and the circumstances of each particular case; that: ‘It is a presumption established by no legal rule, ascertained by no legal test, defined by no legal terms, measured by no legal standard, bounded by no legal limits. It has none of the characteristics of law. Whether it be found by the judge or the jury, the judge and the jury must be equally unconscious of the finding in it any semblance of a legal principle, however much good sense may appear in the result arrived at. Being a presumption of fact, it should, according to our practice, be drawn by the jury, and not by the court/
“We regard this case as well supported by authority, and we feel it our duty to ajiply the doctrine enunciated by it to the case at bar. We think .the court erred in saying to the jury, as it did in substance, that, in the absence of a satisfactory explanation of the possession of the stolen property, the law presumes that the defendant had stolen it: such a presumption being an inference of fact merely, and not amounting to' a rule of law.
“Evidence in explanation of such possession may fall short of a satisfactory explanation, and yet be sufficient to acquit. If it creates a reasonable doubt, it practically rebuts the presumption of guilt. Clacker v State, 33 Ind. 412; Way v. State, 35 Ind. 409.” (Smith v. State, 58 Ind. 343.)

The Supreme Court of Alabama holds as follows:

“The recent actual, unexplained possession of stolen goods is a fact from which the jury may infer the complicity of .the defendant in the larceny. Whether it is sufficient evidence of guilt is a question for their determination. There may be cases in which it would stand alone, unconnected with any other criminat-ing fact, and from it the jury would not probably infer guilt. Whether the inference is just and reasonable, whether the fact satisfies the minds of the jury as reasonable men, beyond all reasonable doubt, of the guilt of the accused, the court cannot determine.” (Underwood v. State, 72 Ala. 220.)

The law as to the presumption arising from the possession of recently stolen property is clearly and correctly stated by the Texas Court of Appeals as follows:

“As a general rule, if a person in whose exclusive possession goods recently stolen are found fails to give a reasonable account of his possession when it is incumbent upon him to do so, the inference of guilt arising from the possession and the recent theft is sufficient to sustain his conviction for the theft. Nevertheless, this inculpatory inference is not a presumption of law. but is a deduction of fact to be drawn by the jury alone, unfmestalled by any instructions from the court upon the weight of the evidence. But when this inculpatory possession constitutes the only evidence criminative of the accused, the case is one of circumstantial evidence alone, and the legal principles which control that species of proof should be given in charge to the jury.” (Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298.)

Adhering to our decision in the Slater Case, and in conformity with the other authorities above cited, the judgment against the 'defendant is reversed and remand°d for a new trial.

BAKEB and DOYLE, Judges, concur-.


author: DOYLE, - Judge,

text:
    Webb High et al. v. State.
    No. 316.
    Opinion Filed March 29, 1909.
    (101 Pac. 115.)
    1. EVIDENCE — Presumption of Innocence — Sufficiency of Evidence. The presumption of innocence of one on trial for a crime is one of fact and of law, and no person can be convicted,' even under a joint information, without proof of his individual guilt.
    2. TIRilAL — Presumptions and Burden of Proof — Directing Verdict. Where a defendant pleads not guilty and admits nothing against himself, the burden of proof is on the state to make a case against him which will entitle it to go to a jury; and, where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to warrant a conviction, and the court should direct a verdict of acquittal, when requested by defendant.
    3. INTOXICATING LI'QUOIRiS — Interstate Commerce — Conveyance to Home. Under subdivision 3 oü section 8, 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 whisky 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.
    4. SAME — The clause in the prohibition ordinance of the Constitution of the state of Oklahoma (section 4á9, Bunn’s Ed.), while prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, has no application to interstate shipments until there has been a delivery of an interstate shipment of said liquors.
    5. SAME. 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 constitutional clause making the conveyance of such liquors from one place within this state to another place therein • an offense.

      6. SAME. The constitutional clause prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, in the absence of prohibitory legislation by the state, is not within the scope and operation of the act of Congress of August 8, 1890, c. 728, 26 Stat. 313 (IT. S. Comp. St. 1901, p. 3177), commonly 'known as the “Wilson Act.”
    (Syllabus by the Court.)

      Error from Eiowci County Court; J. W. Mansell, Judge.

    Webb High and others were convicted of unlawfully conveying intoxicating liquor from one point within the state to another, and -they brought error to the Supreme Court of the state of Oklahoma, whence the cause was transferred to the Criminal 'Court oí Appeals.
    ^Reversed and remanded with direction.
    The plaintiffs in error (hereinafter designated as defendants) were, on 'March 31, 1908, convicted in the county court of Kiowa county on an information, the charging part of which reads as follows :
    “That on the 18th day of March, A. D. 1908, at and within the said county and within the jurisdiction of said court, Webb High, Curley Bradley, Harry Whittemore, and G-eorge Broughton, then and there being, did, then and there unlawfully convey intoxicating liquors to wit, one hundred pints of whisky from one place within the state of Oklahom'a to another place within the state of Oklahoma, to wit, from the Bock Island Depot at Mountain View, said county and state, to a point near the Chickasha Mill and Elevator Company’s Elevator at Mountain View, said county and state. Said conveyance of intoxicating liquor as aforesaid not being then and there the conveyance of a lawful purchase of intoxicating liquor as provided by law.”
    The information was filed before the enactment of the prohibitory law, and was based upon that clause of the Constitution (section 499, Bunn’s Ed.) which provides:
    “Or who shall ship or in any way convey such liquors from one place within this state to another place therein except the conveyance of a lawful purchase as hereinafter authorized, shall be punished on conviction thereof, by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.”

      Three witnesses testified on behalf of the prosecntion. Bob Allen, a deputy sheriff, testified that he arrested the defendants and made the seizure on the evening of March 18, 1908, on the public road, about 150 feet from the Rock Island Depot, at Mountain View, without any warrant or other process, asserting his right to do so by virtue of the foregoing clause of the Constitution, at which time all of said defendants were riding on a delivery wagon from the depot towards the town; that in said delivery wagon was a barrel which looked like a sugar barrel; that he had seen said barrel at the depot and examined it, and it smelled like whisky; that said barrel, when opened was found to contain 100 pints of whisky. The testimony of F. W. Fanson, railroad and express agent of Mountain View, shows that .the defendant Whittemore, on March 14, 1908, purchased an express money order for the sum of $36, payable to Casey & Swasey, of Ft. Worth, Tex.; that on the 18th day of March, 1908, he received said barrel as railroad agent, the same having been shipped from Ft. Worth, Tex., to the name of W. M. Silvers, and was received by the defendant Whittemore, he signing the name of W. M. Silvers to the express receipt and 'paying express charges of $3.40; that the defendant Broughton (drayman) was standing by when he delivered the barrel to said defendant Whittemore. The testimony of D. George Jones is not material to any issue in this case.
    The defendants testified in their own behalf, in substance, as follows: The defendant Harry Whittemore testified that he purchased an express money order for the sum of $36, payable to Casey & Swasey, of Ft. Worth, Tex., from the agent of the Rock Island Railroad and Express Company at Mountain View, Okla., on the 14th day of March, 1908; that said money order was by said defendant forwarded to the payee at Ft. Worth, Tex., together with an order for 48 quarts of Whisky; that said whisky was shipped from Ft. Worth to Mountain View packed in a barrel, and was there received on the 18th day of March, 1908; that he paid /the express charges thereon, and hired the defendant Broughton (a drayman) to haul it to his home; and that he purchased said whisky for his own use, and no other person had any interest in it. The defendant Broughton testified that he was running a delivery wagon at Mountain View, and was hired by the defendant Whitte-more to haul said barrel from the depot to his home, and that he 'did not know at that time what said barrel contained. The defendants Webb High and Curley Bradley testified that they were at the depot and caught a ride to town in the delivery wagon; that Deputy Sheriff Allen, about 150 feet from the depot, stopped .the wagon, arrested the defendants, and seized a. barrel that was in the wagon; that they in no way assisted to load.or convey the barrel, ■and that they knew nothing about the barrel or its contents.
    The testimony shows that there was nothing to indicate -the contents of the barrel, and that it resembled a sugar barrel. The defendants were placed in jail, and the next day were taken to Hobart, and .the information in this ease was filed. Defendants were arraigned, and entered pleas' of not guilty. The petition in error and case-made was filed in the Supreme Court July 30, 1908, and said 'cause was, upon the organization of the Criminal Court of Appeals, duly transferred by the Supreme Court, as by law provided, and is now before the court for review.

      Thos. W. Connor and O. J. Logan, for plaintiffs in error.

      Fred 8. Caldwell, for the State.
   DOYLE, - Judge,

(after stating the facts as above). It is contended by counsel for defendants “that the' verdict and judgment of guilty in said case is not sustained by the evidence, and is ■contrary to law.” ■

At the close of -talcing of the testimony, defendants, and each of them, requested the court to direct a verdict of acquittal as to ■each of said defendants, on the'ground .that the evidence was insufficient to support a conviction. The court.refused to so direct the jury, and allowed exceptions. Under the facts which the evidence in this case proved, or tended to prove, we believe the court should have directed an-'acquittal as requested. The record clearly shows that the defendants Webb High and Curley Bradley were only riding on the wagon in which the whisky was being conveyed; that they had no interest or ownership in the whisky, no knowledge, that it was whisky, and that they took no part in the conveyance. It further shows that the defendant George Broughton (a dray-man) was conveying the barrel that contained, the whisky as he would any other article for hire. His testimony that he did not know its contents is undisputed.

As to the defendant Harry Whittemore, the record presents a question involving the construction of that clause of the Constitution (section 499, Bunn’s Ed.) which is set forth in- the statement of facts, as affecting interstate commerce in shipments of intoxicating liquor. The question is, was the defendant Whittemore. in the removal of the whisky from the depot to his home, engaged in conveying it within the purport and meaning of said clause, of our Constitution?

In construing the language of said- clause, it is well to remember that it was framed to meet .the requirements of the prohibition paragraph of the Enabling-Act (Bunn’s Ed. p. 144, § 507). Reference to said paragraph shows lhat the only language therein regarding the conveyance of intoxicating liquors is as follows:

“507. Second;, that the manufacture, sale, barter, giving away, or otherwise furnishing except as hereinafter provided, of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian Beservation and within any. parts of said state which existed as Indian Reservations, on the first da^ of January, nineteen hundred and six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union, and thereafter until the people of said state shall otherwise provide by amendment of said Constitution and proper state legislation. Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind including beer, ale, and wine, contrary to the provisions of this section, or who shall, within the above described portions of said state, advertise for sale or solicit the purchase of any such liquors, or who shall ship or in any way convey such liquors from other parts of said state into the portions' hereinbefore described, shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.”

Thus we see the prohibition requirement of .the Enabling Act entirely omitted the question of interstate conveyance, and was drawn so as not to be repugnant to the interstate commerce clause of the federal Constitution.

Tn view of the fact that at the time of the alleged 'offense there had been no prohibitory legislation enacted, we do not deem it necessary to the decision of this case that we should enter upon the ■discussion of the existence and extent of the police power residing in the several states of the Union. It is quite as unnecessary to argue that the power of Congress to regulate commerce between the citizens of the different states was not intended, to abridge the lawful exercise of the police power by the state governments. However, if judicial decisions can be said to settle a question, the question decisive of this case has been clearly and properly settled by the highest court of our country.

In 1886 the Legislature of the state of Iowa passed an act (Act 21st Gen. Assem. p. 81, c. 66) forbidding any common carrier from bringing into that state any intoxicating liquors from any other state or territory of the United States without first having been furnished with a certificate, under the seal of the county auditor of the county to which said liquor is to be transported or is consigned for transportation, certifying that the consignee or person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell intoxicating liquor in said counry. This statute was declared invalid by the Supreme Court of the United States in the case of Bowman v. Chicago & N. W. R. R. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700. The opinion of the court was delivered by Mr. Justice Mathews, who, in part, says:

“The statute of Iowa under consideration falls within this prohibition. It is not an inspection law; it is not a quarantine or sanitary law. It is essentially a regulation of commerce among the states within any definition heretofore given to that term, or which can be given; and, although its motive and purpose are to perfect the policy of the' state of Iowa in protecting its citizens against the evils of intemperance, it is none the less on that account a regulation of commerce. If it had extended its provisions so as to prohibit the introduction into the state from foreign countries of all importations of intoxicating liquors produced abroad, no one would doubt the nature of the provision as a regulation of foreign commerce. Its nature is not changed by its application to commerce among the states. And here is the limit between the sovereign power of the state and the federal power. That is to say, that which does not belong to commerce is within the jurisdiction of the police power of the state, and that which does belong to commerce is within the jurisdiction of the United States. * * * The same process of legislation and reasoning adopted by the state and its courts would bring within the police power any article of consumption that a state might wish to exclude, whether it belonged to that which was drank or to food and clothing.
“In Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, it was recognized that ardent spirits, distilled liquors, ale, and beer are subjects to exchange, barter, and traffic like any other commodity in which a right of traffic exists and that, being thus articles of commerce, a state cannot, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister state, nor, when imported prohibit their sale by the importer; and, accordingly, it was held that a statute of the state of Iowa prohibiting the sale of intoxicating liquors, except for pharmaceutical, medical, chemical, or sacramental purposes, and under a license from a county court of the state, was, as applied to a sale by the importer and in the original packages or kegs, unbroken and unopened, of such liquors manufactured and brought from another state, unconstitutional and void, as repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several states.”

Following closely upon this decision, and probably in consequence of it, Congress, upon August 8th of the same year, enacted what is commonly known as the “Wilson Bill,” which provides :

“That all fermented, distilled, or other intoxicating liquors, or liquors transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such state or territorjg 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 shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

This so-called “Wilson Bill” has been construed by several decisions of the Supreme Court of the United States. In the case of Scott v. Donald, 165 U. S. 66, 17 Sup. Ct. 269, 41 L. Ed. 632—this being a case wherein the plaintiff sought to recover damages caused by the action of the defendants, who were state constables of the state of South Carolina, in seizing and carrying away several packages .of wines and liquors belonging to plaintiffs and at the time of the seizure in the possession of the railroad company, which, as common carriérs, had brought the packages within the-state — Mr. Justice Shiras, who delivered the opinion of the court, in part says:

“The evils attending the vice of intemperance in the use of spirituous liquors are so great that a natural reluctance is felt in appearing to interfere, even on constitutional grounds, with any law whose avowed purpose is to restrict or revent the mischief. So long, however, as state legislation continues to recognize wines, beer, and spirituous liquors as articles of lawful consumption and commerce, so long must continue the duty of the federal courts to afford to such use and commerce the same measure of protection, under the Constitution and laws of the United States, as is given to other articles.
“We cheerfully concede that the law in question was passed in the Iona fide exercise of the police power. We disclaim any imputation to the law makers of South Carolina, of a design, under the guise of a domestic regulation, to interfere with the rights and privileges of either her own citizens or those of her sister states, which are secured to them by the Constitution and laws of the United States. But, as we have had mbre than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the state from the evils of unrestricted importation, manufacture, and sale of ardent spirits cannot control the final determination whether the statute, in some of its provisions, is not repugnant to the Constitution of the United. States. As we said in Mugler v. Kansas, 123 U. S. 661, 8 Sup. Ct. 273, 31 L. Ed. 210: Uf a 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.’ ”

After reviewing numerous decisions, the court, at page 98 of 165 U. S., page 272 of 17 Sup. Ct. (41 L. Ed. 632), 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 'the wines and liquors of other states by citizens of South Carolina for their own use is made absolute, and does not depend..on 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 the 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 ¡mrity’ 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 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 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 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 a 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 Rhodes v. State of Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1096, the court in part says:

“Interpreting the statute by the light of all its provisions, it was hot intended to and did not cause the power of the state to attach to an interstate commerce shipment whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and delivery there to the consignee.”

And as a result of this ascertainment of the meaning of the Wilson Act it was held that, as the act of moving the goods preceded the 2ieriod affixed by the Wilson Act at which the state power could attach, the conviction was erroneous.

In Vance v. W. A. Vandercook Co., 170 U. S. 439, 18 Sup. Ct. 676, 42 L. Ed. 1102, Mr. Justice White, in delivering the Opinion of the court, in part says:

“In the inception it is necessary to bear in mind a few elementary propositions which are so entirely concluded by the previous adjudications of this court that they need only to be briefly recapitulated.
“(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 law-making power of the states; provided always they do not transcend the limits of state authority in 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.
“(e) It is also certain that the settled doctrine is that the power to ship merchandise from one state into another carries with it, as an incident, the right in the receiver of the goods to sell them in the original packages, any state regulation to the contrary notwithstanding; that is to say, that the goods received by interstate commerce remain under the shelter of the interstate commerce clause of the 'Constitution, until by a sale in the original package they have been commingled with the general mass of property in the state.
“This last proposition, however, whilst generally true, is no longer applicable to intoxicating liquors, since Congress, in the exercise of its lawful authority, has recognized the power of the several states to control the incidental right of sale in the original packages of intoxicating liquors shipped into one state from another so as to enable the states to prevent the exercise by the receiver of the accessory right of selling intoxicating liquors in the original packages except in- conformity to lawful state regulations. In other words, by virtue of the act of Congress the receiver of intoxicating liquors in one state, sent from another, can no longer assert a right to sell in defiance of the state law in the original packages, because Congress has recognized to the contrary. The act of Congress referred to was approved August 8, 1890, c. 728, 26 Stat. 313 (U. S. Comp. St. 1901, p, 3177), and is entitled. ‘An act to limit the effect of the regulations of commerce between the several states and with foreign countries in certain cases/ ”

The scope and effect of this act of Congress have been settled. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Rhodes v. State of Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088; Scott v. Donald, supra.

Further on, the court says:

“But the right of persons in one state to ship liquor into another state to a resident for his 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 on the right of the residents'of other states to ship into the state of South Carolina alcoholic liquor 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.”

In the case of Heyman v. Southern Railway Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, Mr. Justice White, delivering the opinion of the court, in part says:

“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 by 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 a carrier, as such, in respect to the carriage of 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.
“Of course, we are not called upon in this case, and do not decide, if goods of the character referred to in the Wilson Act, moving in interstate commerce, arrive at the point of destination, and, after notice and full opportunity to receive them, are designedly left in the hands of the carrier for an unreasonable time, that such conduct on the part of the consignee might not justify, if affirmatively alleged and proven, the holding that goods so dealt with have come under the operation of the Wilson Act because constructively delivered. We say we are not called upon -to consider this question for the reason that no facts are shown by the record justifying the passing on such a proposition. And as in this case we deal only with the power of the state to enforce its police regulations against goods of the character of those enumerated in the Wilson Act, the subject 'of interstate commerce, before delivery, we must not be understood as in any way limiting or restricting the ruling made in Vance v. W. A. Vmdercooh Go., supra, upholding the right of a citizen of one state to bring from another state into the state of his residence, and keep therein, for his personal use, the merchandise referred to in the Wilson Act. lü' other words, as in the case at bar, delivery had not taken place when the seizures were made, and the control of the state over the goods had not attached. We are not called upon to consider whether, if the power of the state had attached by delivery, the state might not have levied upon the goods on the charge that they had not been bona fide brought into the state, and were not held by the consignees for their own use. and. therefore, were not within the ruling in Vance v. W. A. Vandercook Co., supra."

See. also: American Express Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. 182, 49 L. Ed. 417; Adams Express Co. v. Iowa, 196 U. S. 147, 25 Sup. Ct. 185, 49 L. Ed. 424; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 25 Sup. Ct. 552, 42 L. Ed. 925; Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724; Foppiano v. Speed, 199 U. S. 501, 26 Sup. Ct. 138, 50 L. Ed. 288.

Tn the foregoing cases quoted and cited the’various liquor laws of the respective states were considered and construed, and said laws were held repugnant to subdivision 3 of section 8, art. 1, of the Constitution of the United States, which provides that, “The Congress shall have power to regulate commerce with foreign nations and among the several states and with Indian Tribes”— commonly called the “interstate commerce' clause” of the federal Constitution.

These repeated and deliberate declarations of the Supreme Court of the United States establish two propositions: First, that the act of Congress commonly known as the “Wilson Bill” permits the states, in the exercise of their police power, to enact laws prohibiting the sale, and making interstate shipments of intoxicating liquors upon their arrival in the state subject to the operation of the police powers of the state. However, the State Legislatures are not authorized to declare when such importations shall become subject to state control, nor can the state in any manner change or affect the enactment made by Congress upon the subject. Under the Constitution Congress has exclusive power. Second, that the right to ship intoxicating liquors from one state into another and the shipment of the same is interstate commerce, and any citizen has a right to ship intoxicating liquors from one state into another, and a state law, organic or legislative, which denies or diminishes this right, or substantially abridges, interferes, or hampers the same, is in conflict with the Constitution of the United States, and this court is concluded by the decisions of the Supreme Court of the United States on this question.

The seizure of the shipment in this case before it reached its destination denied to the consignee his constitutional right to receive the shipment.

Before the enactment of the law making the Criminal Court of Appeals the court of exclusive appellate jurisdiction in all criminal cases, this question was before this court, and, under the first act requiring constitutional questions to be certified to the Supreme Court, the question was certified to said court for its final decision, and a decision was by said court rendered in said cause, Schwedes v. State, 1 Okla. Cr. 245, 99 Pac. 804. The syllabus reads as follows:

“Under subdivision 3 of section 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 shipment made, and to receive and retain the same, for personal use.”

The foregoing authorities settle the question that conveying an unbroken original package containing intoxicating liquors from the railroad depot to the home of the consignee is a part of the interstate commerce transportation; and in this case the interstate shipment was not completed until the same was delivered at ¡the home of the defendant Whittemore. In this case we are not called upon to decide, and we do not attempt to construe, the prohibitory law enacted subsequent to the filing of the information. We have only construed the clause of the prohibitory ordinance of the Constitution, upon which this prosecution is predicated.

We are of the opinion that the arrest and seizure by the deputy sheriff was unwarranted and without authority of law, as no offense had been committed: First, because said clause of the prohibitory ordinance of the Constitution of the state of Oklahoma does not purport to abrogate the right to receive an interstate commerce shipment of intoxicating liquors; second, because said constitutional clause could not abrogate or in any manner diminish the protection conferred by the interstate commerce clause of the federal Constitution.

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

FURMAN, PRESIDING Judge, and BAKER, Judge, concur.