author: ARMSTRONG, J.

text:
    FRED BLEVINS v. STATE.
    No. A-1954.
    Opinion Filed June 19, 1915.
    1. ASSAULT — Indictment and Information — Form and Sufficiency. Ordinarily, on a state of facts which tend to establish that a person committed an assault with a knife or other sharp or dangerous instrument, an infornnition should not be predicated on section 2336, but should be based upon section 2344, Eev. Laws 1910.
    2. SAME — Instructions—Grade of Offense. Upon the trial of a person charged with assault with intent to kill, under section 2336, Eev. Laws 1910, when the testimony indicates that the assault was committed with a sharp or dangerous weapon, the trial court should submit to the jury the proposition of whether or not the accused was guilty under section 2344, and it is reversible error to refuse to do so.
    (Syllabus by the Court.)

      Appeal from District Court, Garvin County; R. McMillan, Judge.

    Fred Blevins was convicted of assault with intent to kill, and appeals.
    Reversed.

      Blanton & Andrews, for plaintiff in error.

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

The plaintiff in error, Fred Blevins, was convicted at the September, 1912, term of the district court of Garvin county on a charge of assault with intent to kill, and his punishment fixed at imprisonment in the state penitentiary for a period of one year. The information charges that:

“* * * On or about the 13th day of January, 1911, in Gar-vin county, state of Oklahoma, Fred Blevins, late of said county and within the jurisdiction of this court, did then and there unlawfully, willfully, maliciously, feloniously, intentionally, and wrongfully commit an assault and battery upon Tom White by the means of a certain deadly weapon, to wit, a knife, and did then and there assault, stab, cut, and wound the said Tom White, with intent then and there on the part of him, the said Fred Blevins, to kill the said Tom White. *

This information is intended to charge an offense under the provisions of section 2336, Rev. Laws 1910, which is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun, or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

The facts introduced at the trial on behalf of the state tended to sho'w that the accused stabbed the prosecuting witness with a pocket knife, the blade of which was about four inches long, and that the difficulty was begun in a fistic encounter; that the parties were separated and the accused returned to the fray and after being struck a blow by the prosecuting witness, stabbed him in the back, inflicting a dangerous wound from which the prosecuting witness became unconscious and was confined to his room for two or three weeks.

The accused testified that in the affray he was first knocked down and later cut on the hand by the prosecuting witness, after which he did the stabbing'.

The instructions of the court submitted only section 2336, supra, to the jury. Counsel made an oral request of the court to instruct the jury, in addition to the instructions he gave, that they might find the accused guilty under section 2344-, Rev. Laws 1910, which is as follows:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause, commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five j^ears, or by imprisonment in a county jail not exceeding one year.”

This the court failed to do. Counsel argue that this action of the court entitles them to a reversal of the judgment in this case, contending that under the proof the jury would have been justified in finding the accused guilty under the later statute and inflicting a jail sentence as the punishment, instead of a term in the state penitentiary. Section 6857, Rev. Laws 1910, provides:

“In charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdict.”

Section 6875, Rev. Laws 1910, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.”’

Without entering into a discussion of these sections, we are of opinion that this contention is well founded under the doctrine laid down in Clemens v. State, 8 Okla. Cr. 452, 128 Pac. 739, and Russell v. State, 9 Okla. Cr. 692, 133 Pac. 475. See, also, Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375.

Cases of this character should .ordinarily be prosecuted under section 2344, Rev. Laws 1910, supra. When the county attorneys elect to prosecute under section 2336, they should plead facts sufficient to show that the weapon used was a dangerous or deadly weapon and that it was used in a manner calculated to produce death, except possibly when the accused is resisting execution of legal process. See Russell v. State, supra.

The judgment is reversed and the cause remanded for a new trial.

DOYLE, P. J-, concurs. FURMAN, J., not participating.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    TOM CHEADLE v. STATE.
    (No. A-1937.
    Opinion Filed May 1, 1915.)
    1. HOMICIDE — Alcoholic Insanity — Defense. In a prosecution for murder, alcoholic insanity, or mental incapacity produced by voluntary intoxication existing only temporarily at the time of the homicide is no justification or excuse therefor. To constitute insanity, caused by intoxication, a defense in a trial for murder, it must be insanity caused by chronic alcoholism and not a mere temporary mental condition.
    2. INSANITY — Delirium Tremens — Responsibility for Act. Insanity though superinduced by excessive and long continued indulgence in alcoholic liquors and known as ‘ ‘ delirium t/r.emens, ’ ’ or “mainia a potu,” renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. ■ A person, not previously laboring under such a disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.
    3. HOMICIDE' — Defense Intoxication — Premeditation- Intoxication, either voluntary or involuntary, is to be considered by the jury in a imosecuti'on for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because in connection with other facts, an absence of malice or premeditation may appear.
    4. SAME — Murder or Manslaughter — Intoxication. Under our penal code, section 2313, Rev. Laws 1910, homicide is murder “When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being,” and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree, must be of such character and-extent as to render the defendant incapable of entertaining or forming a design to effect death. And the question is for the jury to determine.
    5. SAME — Premeditation. A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.

      6. TRIAL — Instructions—Degree of Crime. In a prosecution for murder, the court should submit the ease to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and if the evidence tends to prove different degrees, the law of each degree which the evidence tends to prove should be submitted to the jury, and where there was evidence of the intoxication of the defendant to the extent of being deprived of the mental capacity to deliberate or premeditate at the time of the homicide, it was prejudicial error to refuse to submit to the jury an instruction in reference to manslaughter in the first degree.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; Robert M. Rainey, Judge.

    Tom Creadle, convicted of murder, appeals.
    Reversed.

      Cornelius Hardy, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted of the murder of Tandy Harrell. The information charged the homicide to have been committed by shooting the deceased with a pistol. The court rendered judgment and the defendant was duly sentenced in accordance with the verdict to imprisonment for life at hard labor.

To reverse the judgment the defendant appealed by filing in this court on March 14, 1913, a petition in error with case-made.

The evidence shows that the defendant and the deceased, Tandy Harrell, were cousins and were, before the night of the tragedy, good friends. It appears that the defendant’s father was drunk in the town of Milburn, and his wife asked' Jim Helms to take him home; Tandy Harrell went with them. On the way they stopped at Harrell’s home and got a bottle of whisky and a quart of alcohol. The old folks went early to bed. Tandy Harrell and Jim Helms were playing pitch and they were all drinking whisky. During the night the defendant and Harrell went outside, and the defendant fired two or three shots with his pistol; they came back into the house and finished drinking another bottle; Helms threw the empty bottle into the fireplace and the defendant pulled his pistol and shot the bottle.

The only person present when Tandy Harrell was shot, that was called as a witness for the state, was Jim Helms. He testified that when they were eating in the kitchen, the defendant picked up a table knife and a cup and threw them at his sister Lorena; that he also picked up some of the dishes and threw them against the wall. Later he heard the defendant ask Harrell if he could shoot through the door and Harrell said, “Yes,” and he fired a shot. That a little later the defendant fell across the foot of the be„d. That he jumped up and Harrell grabbed him by the wrists and they were scuffling and fell over on the floor, with Harrell on top, and when they let him up he stood there cursing. Harrell said, “Tom, I don’t want you to be mad at me, and I hope you will not be; I taken hold of you to keep you from doing the way you were doing.” The defendant said, “That is the second time you have done me that way and you won’t do it again, God damn you,” and fired his gun. Harrell opened the door and the defendant shot again as he was going out of the door.

A. Allen testified that he saw Tandy Harrell after he was shot and the defendant was there and said, “Tandy, do you think I had anything to do with it,” and Tandy said, “Yes, you shot me, but whisky was the cause of it,” and the defendant said, “I never shot you, Tandy."’

Dr. Guy Clark testified that he was a practicing physician at Milburn, and the defendant called him in the early morning and said that “Tandy Harrell had shot himself at their home, and that he had laid out in an outhouse.” That when he reached the Cheadle place “he there found the deceased unconscious with a gun shot wound on the index finger of his right hand and a wound in the arm. Another wound was between the fourth and the fifth rib, about an inch and a half of the sternum and ranged down and came out near the spine.”

For the defense Lorena Cheadle testified that she was a sister of the defendant and was sixteen years old; that after supper that night they were all playing cards; that Jim Helms and cousin Tandy tried to get her brother to drink and he said, “No, cousin Tandy, I have quit.” That about twelve o’clock her brother commenced drinking. The men drank whisky a while and then alcohol; they kept playing and drinking until about two o’clock in the morning. That when the shooting occurred she and her father and her brother, cousin Tandy and Jim Helms were in the room, and her father was asleep; that she did not see the shot fired and did not know who fired it; that the lamp went out. That Jim Helms took her brother’s pistol from him about a half an hour before the shooting occurred, and she did not see him give it back; that after the shooting Jim Helms grabbed her and they went to Jim Helm’s house.

Mrs. M. V. Cheadle testified that she was the mother of the defendant; “That before she went to bed, Tandy Harrell and Jim Helms had both been trying to get him to drink and he would say, “No, thank you cousin Tandy, I have sworn off,” and Jim Helms would say, “He thinks he is too stuck up.1” That she noticed the defendant take one drink.

As a witness in his own behalf the defendant testified in part as follows:

“Q. What time did you commence drinking? A. Some time between ten and eleven o’clock. Q. What were you drinking at that time? A. We were drinking whisky and alcohol. Q. What size bottle of whisky were you drinking from? A. It was a quart bottle. Q. Now, did you drink from that time on every time the others drank? A. Yes, from the first drink I did. Q. About how many drinks did you take if you know? A. I don’t know. Q. You don’t know? A. No, I don’t know. Q. Who was the first person to induce you to take a drink there that night? A. Jim Helms was the first to ask me to drink. Q. Did you drink with him? A. No, I thanked him and told him that I did not want to drink, that I was trying to quit. Q. Then what occurred? A. They went on and the time come around for me and they wanted me to take a drink again and I thanked them and refused and Tandy said, ‘Net him alone, Jim, he thinks he is too good to drink.’ Q. Then what? A. I refused that time. Q. Then did you get to drinking? A. Yes, I finally did. They kept on insisting on me to drink and to keep them from thinking I was too good to drink, I drank with them. Q. Did you drink from any other bottle other than the quart bottle of whisky and alcohol. A. Yes, I drank out of a half pint bottle. Q. Where did you get that? A. Jim Helms had it. Q. Did Jim Helms drink from it the same time you did? A. I think he did the first time. Q. Well, did you get drunk that night? A. I did.. Q. Well do you know what occurred there after you got drunk? A. No sir, I do not. Not from eleven o’clock until the next morning, I don’t remember. Q. Why do you not remember what occurred? A. I was drunk. Q. Do you remember of having any trouble with Tandy Harrell'in the kitchen? A. No sir. Q. Do you remember of having any trouble with Tandy Harrell in the east room? Q. No, I don’t remember of having any trouble with anybody. Q. Did you know anything about the shooting that occurred there that night. A. I don’t remember anything about any shooting at all. Q. Do you remember whether or not you had a gun there that night? A,. No sir. Q. Up to the time you lost your reason? A. No sir. Q. Do you remember anything about shooting any bottles in the fireplace? A. No sir. Q. What was the first time that you knew Tandy Harrell had been shot? A. It was the next morning. Q. How did you find it out the next morning? A. My father woke me up and told me Tandy was shot and wanted me to go help get him in the house. Q. What effect did it have on you when you heard that Tandy Harrell was shot? A. I was shocked. Q. You were shocked? A. Yes. Q. What did you.do? A. I got up from the bed and went out to where Tandy was and a little bit after that Mr. Cantrel and Allen came in and we carried him into the house and put him on the bed. Q. Then did you have a conversation there? A. Yes, I asked him if he thought I did have anything to do with it and he said 'No.’ Q. Why did you ask him what he thought you had anything to do with it for? A. Well, I was drunk that night and I did not want him to think I had anything to do with it. Q. Had you and Tandy Harrell always been good friends? A. We have been the best of friends. Q. After you got Tandy in the house what did you do? A. I went to Tandy’s house and told his folks and then went for the doctor. Q. Who did you tell at Tandy’s house when you got there? A. I told Mrs. Harrell, his wife. Q. Then what did you do ? A. I went on to town for the doctor. Q. What doctor did you get? A. I went for Doctor Guy Clark. Q. Did you tell him Tandy Harrell had shot himself? A. I told him Tandy was shot and he asked how he got shot and I told him he must have shot himself for all I knew.”

We deem it .unnecessary to detail further the facts disclosed by the record.

The errors assigned are based on exceptions taken to the overruling of a motion to quash and set aside the information and a motion to dismiss, and on exceptions to rulings in receiving and rejecting evidence, and on the refusal of the court to give requested instructions. A careful examination of the record leads to the conclusion that the only error assigned which we cannot disregard as merely technical and without substantial merit is the one that the court erred in refusing to submit to the jury the issue of manslaughter in the first degree.

The defense was based on two theories. One that Jim Helms, the state’s chief witness, did the shooting; and the other that the defendant was temporarily insane if in fact he fired the fatal shot, and the homicide was excusable by reason of his insanity. In the instructions given, the court submitted the issue of murder and the defense of insanity. We are of the opinion that on the undisputed facts, the issue of insanity was not raised by the evidence. Alcoholic insanity, or mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the commission of the homicide, is no excuse or defense in a prosecution therefor. Drunkenness is one thing, and the disease of the mind to which drunkenness leads is a different thing. Temporary insanity, occasioned immediately by drunkenness does not destroy responsibility for crime, where the defendant, when sane and responsible, voluntarily makes himself drunk. To constitute insanity, caused by intoxication, a defense to an indictment or information for murder, it must be insanity caused by chronic alcoholism, and not a mere temporary mental condition. The distinction between a fit of drunken frenzy or madness, commonly called “delirium tremens,’" and temporary delusional insanity, a disease caused by excessive and long continued indulgence in alcoholic liquors, technically called “delirium tremens,” or “mania a potu," is well defined by the authorities and text writers.

See State v. Kidwell, 59 S. E. 494, 13 L. R. A. (N. S.) 1024. Wharton and Stille’s Medical Jurisprudence, sec. 940.

The principle is everywhere recognized that voluntary intoxication is no justification or excuse for crime, and is no excuse for homicide, though -carried to the extent of producing incapacity to control the mind and will, while intoxication does not excuse homicide it may produce a state of mind in which one is incapable of forming a design to take life, and evidence of intoxication is admissible only as bearing upon the existence or nonexistence of malice.

Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813.

Under our penal code, first subdivision, sec. 2313, Rev. Laws 1910, homicide is murder “when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being,” and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine.

In Wharton on Homicide (3rd Ed.) it is said (pp. 809 and 811) :

“Homicide committed when the accused was so intoxicated that no intent to commit the crime of murder could have existed, however, not being murder in the first degree, is either manslaughter or murder in the second degree. Intoxication can not operate as an entire exemption from criminal responsibility, and it is not conclusive against the existence of a criminal intent. At the utmost it only extenuates the crime from murder to manslaughter, and it does not do this, as matter of law. Whether the accused was so intoxicated as to render him incapable of entertaining the specific • intent necessary to constitute the crime is a question of fact for the jury. And it will be presumed, in the absence of proof to the contrary, that the accused, though intoxicated, intended the actual consequences of bis acts. And the burden rests with the accused to show that he was so intoxicated as to be incapable of forming any intent. * * * Intoxication, though involuntary, is to be considered by the jury in a prosecution for murder in the first degree, in which a premeditated design to effect death is essential, witli reference to its effect upon the ability of the accused at the time to form and entertain such a design; not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear. Drunkenness as evidence of want of premeditation or deliberation is not within the rule which excludes it as an excuse for crime. And a person who commits a crime while so drunk as to be incapable of forming a deliberate and premeditated design to kill is not guilty of murder in the first degree.”

The precise question involved here was decided in the case of Assman v. State, 123 Ind. 347, 8 L. R. A. 33, Mitchell, C. J., delivering the opinion of the court, said:

“It is sufficient to say that, in order that there may be such premeditated malice as will make a homicide murder in the first degree, the thought of taking life must have been consciously conceived in the mind, the conception must have been meditated upon and a deliberate determination formed to do the act. Where a homicide has been preceded by a concurrence of will, with an intention to kill, and these are followed by a deliberate thought or premeditation, although they follow as instantaneously as successive thoughts can follow each other, the premeditator may be guilty of murder in the first degree. But as it is of the very essence of the crime that there should have been time and opportunity for deliberation or premeditation, after the mind has consciously formed the design to take life, it follows, as a necessary corollary, that there must have been the mental capacity to think deliberately upon and determine rationally in respect to the nature and consequences of the act which follows. It would be a legal as well as a logical incongruity to hold that the crime of murder in the first degree could only be committed after deliberate thought or premeditated malice, and yet that it might be committed by one who was without mental capacity to think deliberately or determine rationally. As a matter of course, the rule is universal that voluntary intoxication is no excuse for crime, nor does it in any degree mitigate or palliate an offense actually committed. To hold otherwise would unbridle crime and subvert public order. On the contrary, where there is reason to believe that one has conceived the design to commit a crime, and while harboring the unlawful purpose, voluntarily becomes intoxicated in order to blunt his moral sensibilities and nerve himself up to the execution of his preconceived design, the offense is thereby greatly aggravated. State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799.
“Where, however, the essence of a crime depends upon the intent with which an act was done, or where an essential ingredient of the crime consists in the doing of an unlawful act with a deliberate and premeditated purpose, the mental condition of the accused, whether the condition is occasioned by voluntary intoxication or otherwise, is an important factor to be considered. Smith v. Com., 1 Duvall, 227; State v. Garvey, 11 Minn. 163.
“This in Cline v. State, 43 Ohio St. 332, 1 West. Rep. 81, the learned judge, delivering the judgment of the court, said: ‘Where a person having a desire to do another an unlawful injury drinks intoxicating liquors to nerve himself to the commission of the crime, intoxication is held, and properly, to aggravate the offense; but at present the rule that intoxication aggravates crime is confined to cases of that class. But in many cases, evidence of intoxication is admissible with a view to the question whether a crime has been committed; or where a crime consisting of degrees has been committed, such evidence may be important in determining the degree." Pigman v. State, 14 Ohio, 555; Lytle v. State, 31 Ohio St. 196; Davis v. State, 25 Ohio St. 369; Roberts v. People, 19 Mich. 401; State v. Welch, 21 Minn. 22.
“In the application of this principle, the Supreme Court of the United States reversed a judgment of conviction of murder in the first degree in Hopt v. Utah, 104 U. S. 63 (26 L. Ed. 873). The court below instructed the jury to the effect that "a man who voluntarily puts himself in a condition to have no control of his actions must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerving a person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime.’
“The accused requested the court to give an instruction similar to that requested and refused in the present case. After asserting the general rule of the common law, that voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influence, Mr. Justice Gray, delivering the judgment of the court, said: ‘But when a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury.’ Com. v. Dorsey, 103 Mass. 412; Pirtle v. State, 9 Humph. (Tenn.) 663; Haile v. State, 11 Humph. 154; Jones v. Com., 75 Pac. 403; Keenan v. Com., 44 Pa. 55; People v. Belencia, 21 Cal. 544; State v. Johnson, 40 Conn. 136; Maxwell, Crim. Prac. pp. 227-299.
“So in Buckhannon v. Com., 86 Ky. 110, the court said: ‘A deliberate intent to take life is an essential element of murder. Drunkenness as a fact may therefore be proven as bearing upon its existence or nonexistence. It is not admissible upon the ground that in and of itself it excuses or mitigates the crime, because one offense cannot justify or palliate another, but because under the circumstances of the case it may tend to show that the less and not the greater offense was committed.’ See, also, State v. Sopher, 70 Iowa, 494.
“In State v. Johnson, supra, the Supreme Court of Connecticut, in reversing a judgment of conviction of murder in the first degree, the court below having given and refused instructions similar to those involved in the present case, used the following language: 'A deliberate intent to take life is an essential element of the offense. The existence of such an intent must be shown as a fact. Implied malice is sufficient, at common law, to make the offense murder, but under our statute, 'to make it murder in the first degree, actual malice must be proved. Upon this question, the state of the prisoner’s mind is material. In behalf of the defense, insanity, intoxication or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, or in mitigation of punishment, but as tending to show that the less and not the greater offense was in fact committed.’ State v. Johnson, 41 Conn. 585; Jones v. State, 29 Ga. 594.
“ 'In those states,’ says a learned author, ‘in which murder has been divided by statute into degrees, it has been held that if the accused was intoxicated to such an extent as to deprive him of the power to form a design, the offense could be no more than murder in the second degree.’ Lawson, Insanity, p. 74; 1 Wharton, Crim. Law, par. 51, 52.
“ ‘Drunkenness, we have seen, does not incapacitate one to commit either murder or manslaughter at the common law,’ says Mr. Bishop, ‘because to constitute either the specific intent to take life need not exist, but general malevolence is sufficient. But where murder is divided by statute into two degrees, and to constitute it in the first degree there must be the specific intent to take life, the specific intent does not in fact exist, and the murder is not in this degree where one, not meaning to commit homicide, becomes so drunk as to be incapable of intending to do it and then kills a man.’ Bishop, Cr. L. par. 404.
“This court, although not always enunciating it with entire accuracy, has constantly recognized the rule declared in the above cases.”

And Elliott, J., in a concurring opinion, said:

“I concur in the conclusion that the judgment should be reversed, for I think that the very able opinion of the court prepared by the chief justice unanswerably proves that where the element of premeditation is essential to create the crime of murder in the first degree, the accused cannot be found guilty of that crime if at the time of the killing he was so completely overcome by intoxication as to be incapable of premeditation.”

In Morris v. Territory, 1 Okla. Cr. 617, 99 Pac. 760, it is said:

“If from any cause, at the time of the homicide, the mind of the defendant was in such a condition as to be incapable of forming a premeditated design to effect the death of the person slain, or of any other human being, he cannot be guilty of murder, unless it be proven that this state of mind, at the time of the killing, grew out of his intentional and wrongful conduct, of such character as to show that the killing was the result of previous premeditation and formed design.”

In Miller v. State, supra, it is said:

“At most, a state of intoxication rendering the defendant incapable of forming a criminal intent would only reduce murder to manslaughter.”

There is no intention here to give the least intimation of opinion as to the weight of this evidence, as establishing one conclusion or another in reference to the degree of homicide. The testimony is detailed simply to show that there was evidence tending to show the want of mental capacity to form- a premeditated design to kill.

The brief filed by the state concedes error and concludes as follows:

“The evidence of the defendant presented the issue as to whether or not he was by reason of the immediate use of intoxicating liquors, unable to form a design to effect the death of Tandy Harrell. Under the first sub-division of section 2320, Rev. Raws 1910, .homicide is not murder unless the accused entertained a design to effect death, and if the design exists, it is immaterial whether the accused is in a state of voluntary intoxication, and although being in a state of voluntary intoxication, yet the character of the act when the offense is divided into degrees and where as in homicide the intent is material, will be determined by the state of mind of the accused. So that where the evidence showed that the accused was drunk at the time of the commission of the homicide, evidence thereof is admissible as bearing upon whether the accused entertained a design to kill; and under the evidence in the case we believe that the court should have instructed the jury upon manslaughter in the first degree.”

Our Procedure Criminal provides that:

“When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which1 of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.” (Section 5877, Rev. Laws 1910.)

And that:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” (Section 5923, Rev. Laws 1910.)

In the case of Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685, it is said:

“It is always the duty of the trial court to instruct on the law of manslaughter if there is any evidence that the alleged crime might have been done under circumstances that would reduce the crime from murder to manslaughter.
“In other words, where there may be the slightest 'doubt in the mind of the trial court whether the crime was murder, then that doubt should be resolved in favor of the accused and a manslaughter Instruction given.”

After carefully considering the evidence we are of opinion that the refusal of the trial judge to instruct the jury in reference to manslaughter in the first degree constitutes prejudicial error. The judgment must, therefore, be reversed and Ihe cause remanded for a new trial.

The warden of the penitentiary at McAlester, on presentation of a certified copy of this opinion by the sheriff of Johnston county, Oklahoma, is hereby directed to deliver the defendant, Tom Oreadle, to such sheriff, who shall confine the defendant in the common jail of Johnston county, there to await another trial, or until discharged according to law.

FURMAN and ARMSTRONG, JJ., concur.


author: DOYUE, P. J.

text:
    MIKE MARKESON v. STATE.
    No. A-2240.
    Opinion Filed June 26, 1915.
    1. INTOXICATING LIQUOR — Sale—Evidence. In a prosecution for selling intoxicating liquor the evidence examined and held sufficient to sustain the conviction, and that no prejudicial error was committed on the trial.
    (Syllabus by the Court.)

      Appeal from County Court, Comanche County; H. N. Whalin, Judge.

    Mike Markeson, convicted of selling intoxicating licuor, appeals.
    Affirmed.

      Fain & Young and Stevens & Myers, for plaintiff in error.

      Chas. West, Atty. Gen., and T. I. McBlhoes, Asst. Atty. Gen., for the State.
   DOYUE, P. J.

On an information which jointly charged the plaintiff in error, Mike Markeson, and Sam Remer with selling whisky to one Claud Story, the plaintiff in error, Mike Markeson, was, upon his separate trial, convicted and his punishment assessed at confinement in the county jail for ninety days and a fine of five hundred dollars. Judgment was rendered in pursuance of the verdict, and from the judgment the plaintiff in error appeals.

There are numerous assignments of error, but we will notice only those assignments discussed in the brief.

The second assignment of error is that the court erred in allowing to be introduced in evidence a copy of the certificate of the internal revenue collector.

It is contended that the retail liquor dealer’s license issued to plaintiff in error was inadmissible because it shows on its face that it permits the sale of malt liquors only, and the plaintiff in error was charged with the sale of spirituous liquors.

Section 3609, Rev. Laws 1910; is as follows:

“The payment of the special tax required of liquor dealers „by the United States by any person within this state, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this chapter.”

The admissibility of the certificate has been so often passed upon by this court that citations are unnecessary. It will be observed that the statute does not say that the payment of a special tax to sell malt liquors is prima facie evidence of the intent to violate the law by the sale of malt liquors. There is nothing in the’ statute which confines the operations of this prima facie evidence to some particular character or kind of violation of the liquor law, and hence the same was properly admissible in this case.

The third assignment questions the sufficiency of the evidence to sustain the verdict.

The state introduced two witnesses and the internal revenue collector’s certificate. At the close of this evidence a demurrer thereto was interposed and overruled. No evidence whatever was introduced on behalf of the plaintiff in error. The particular weakness in the testimony which the plaintiff in error sets out is that it was not shown that the place where the whisky was sold was that of Mike Markeson, and that it was not shown that the place for which the liquor license was issued was that where the whisky was sold.

The evidence shows that the place where the liquor was sold was commonly known as the Monarch Theater, and that the actual sale was made by Sam Remer, the co-defendant. The witness, Story, described the plaintiff in error as follows:

“Q. Was that all who were in there except the man who waited on you behind the counter? A. There was some fellow sitting in a chair at the front end. Q. What kind of looking fellow was he? A. I didn’t pay much attention to him. As well as I remember, a big fellow with one arm. Q. You see the defendant sitting over there? A. Yes. Q. Was he similar to this man here? A. Yes. Q. You didn’t know Mike Markeson at that time? A. No.”

The witness, Story, testified that Mike Markeson’s place was the Monarch Theatre; that it was located between First and Railroad streets on D avenue. The internal revenue collector’s certificate puts it on D street, lot No. 9. It is true there is no exact identity between lot No. 9 and Mike Markeson’s place, yet there is no discrepancy between the statements of the witness and the certificate. It is also reasonable to presume that Mike Markeson secured the permit to sell whisky at his own place. The evidence shows that there was a bar and glasses and bottles and a bartender, and that Mike Markeson was in the room when the sale was made.

In the absence of any evidence to the contrary it must be assumed that this liquor business on Mike Markeson’s property with Mike Markeson present, with Mike Markeson having a federal retail liquor dealer’s license, was in fact the liquor business of Mike Markeson, and that his co-defendant, Sam Remer, was acting as his bartender.

We have carefully examined the charge of the court and considered each and all of the assignments based thereon and discussed in the brief, and we find the charge, considered as a whole, fairly and fully presented the law applicable to the case. Finding no prejudicial error in the record the judgment appealed from is affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: DQYEE, P. J.

text:
    BEN DEW v. STATE.
    No. A-2286.
    Opinion Filed July 1, 1915.
    1. RECORDS — Indictment and Information — Transfers—Compliance With Statute. The statute provides that in the transfer of indictments for misdemeanor from district courts to inferior courts having jurisdiction of the offense charged, the clerk of the district court shall deliver the indictment, together with all the papers relating to each case to the proper court or justice, as directed in the order of transfer, and shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court. (Section 5552, Rev. Laws 1910.) Held, that as the statute prescribes no particular form of certificate to such' transfer, a substantial compliance with its provisions is all that is required in such proceedings.
    2. SAME. The original indictment and its indorsements constitute a necessary part of the record, and whatever is properly shown by them is considered as shown by the record.
    S. INDICTMENT AND INFORMATION — Validity—Motion to Quash. The authenticity of an indictment should be raised by motion to quash and set aside, or by plea in abatement, in the trial court.
    4. APPEAL — Exceptions in Lower Court — Record. Only those questions can be considered on appeal, unless jurisdictional, which were raised in the trial court on exceptions taken, and unless incorporated in the motion for a new trial, will not .be considered on appeal.
    5. INTOXICATING- LIQUORS — Possession—Evidence. In a prosecution for unlawful possession of intoxicating liquors, the evidence considered and held sufficient to sustain the verdict and that no reversible error was committed on the trial.
    (Syllabxrs by the Court.)

      Appeal from County Court, Tulsa County; Conn Linn, Judge.

    Ben Dew, convicted of a violation of the prohibitory law, appeals.
    Affirmed.

      Prentice & Elliott, for plaintiff in error.
    5. P. Ereeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DQYEE, P. J.

Ben Dew, plaintiff in error, was prosecuted by indictment returned by the grand jury into the district court of Tulsa county and transferred to the county court of said county, wherein it was charged that on the 2nd day of December, 1913, Ben Dew did unlawfully have in his possession one hundred eight quarts of whisky, one hundred twelve quarts of gin, and one hundred fifty pints of beer, with intent then and there to sell, barter, give away and otherwise furnish the same in violation of the prohibitory liquor law. Upon his trial the jury found him guilty and fixed the punishment at a fine of five hundred dollars and confinement in the county jail for a period of four months.

From the judgment rendered on the verdict, he appealed, by filing in this court on June 2, 1914 a petition in error with case-made.

The evidence for the state was substantially as follows:

Edward Yoder, chief of police of the city of Tulsa, testified that, accompanied by Henry Saunders, he went to the Boston drug store about the 2nd of December, and there found one hundred eighteen quarts of whisky, fifty or sixty quarts of gin and one hundred fifty bottles of beer; that he knew the reputation of the Boston drug store at that time as to being a place where intoxicating liquors were sold, and that reputation was that intoxicating liquors were sold there. Did not see the defendant there that night, but saw him there later back of a desk in the front part of the store room.

Plenry Sanders testified as to finding the liquors, and that in the rear of the building there was a bar and fixtures, including an ice cooler, ice chest and beer and whisky bottles; that he knew the general reputation of the Boston drug store at that time as to being a place where intoxicating liquors were sold; that it had the reputation of being that kind of place. That he had seen the defendant there at different times, both in front of and behind the counter; saw him there just before and after the raid.

John O. Mitchell testified that he was the owner of the building occupied by the Boston drug store and had a transaction with Ben Dew, the defendant, with reference to the building, in August or September last; that Ben Dew asked him if he would rent it to him for a drug store; that they finally agreed verbally, and the defendant took possession of the building about October 1st, and paid one month’s rent; that after that his bookkeeper collected the rent; that a part of the fixtures in the drug store belonged to witness; that there is a man named. Alsop in there now, but witness never had any agreement with Alsop about the rent.

J. C. Hall testified that he attended to the collection of rents for John O. Mitchell; that Ben Dew paid the rent for October, and a man named Alsop paid the rent since that time; that he did not know what arrangements the defendant had with Alsop; that he carried the rental account on his books in the name of the Boston Drug Co., and Ben Dew never notified him that there had been any change made in the firm.

This was all the evidence in the case. The defendant did not testify.

On arraignment the defendant filed the following plea:

“Comes the defendant, Ben Dew, and pleads to the jurisdiction of this court and for said plea states that this court has no jurisdiction to hear and determine this alleged cause for the following reasons:
“First: That the purported transcript accompanying the indictment in this case does not show that the orders embraced in said transcript were ever lodged with, or filed in the minutes of, the district court of Tulsa county, Oklahoma.
“Second: That the order embraced in said transcript purported to have been made by L. M. Poe, judge, does not show of what he was judge and does not show that the said order was ever filed or lodged in the minutes of the clerk’s office of any court.
“Third: For the reason that the order which purported to have been made by L. M. Poe, judge, does not show the name of this defendant, or any crime he is charged with committing, or from what court the numbered case attempted to be transferred to the county court are sent.
“Fourth. It does not appear in said purported order signed by D. M. Poe, judge, whether or not this case was one of the cases that was attempted to be transferred to this court.
“Fifth. That it does not appear from the purported certificate made by the clerk of the district court of what record the transcript to which it is attached is a copy, or whether said record is in the district court, superior court, or elsewhere, and it is not shown by the clerk’s certificate that it is a transcript of all the proceedings had in said case in said district court.
“Wherefore this defendant claims that this court has no jurisdiction to proceed to trial upon this indictment, and asks that the same be dismissed and the proceedings quashed.”

The overruling of this so-called plea to the jurisdiction of the court is assigned as error. The transcript shows that the grand jury was convened upon the order of the judge of said district court at the November, 1910, term of the court, and the proceedings of empaneling the grand jury, and that “the following among other proceedings were had, to wit:

“Whereupon the grand jury returns into open court, and all are present, and the foreman of the grand jury in the presence of the grand jury, presents the following true bills, eighteen in number, which are duly filed by the clerk in open court in the presence of the grand jury and numbered 985 to 1002 inclusive.
“Order.
“It appearing to the court that a number of true bills have been returned in number and numbered 964 to 1002 inclusive, as the indictment numbers thereon; and it further appearing to the court that said above numbered indictments have been found and returned on misdemeanors as charged therein.
“It is therefore ordered that said indictments numbered 973 to 993 inclusive be transferred to the county court of Tulsa county, Oklahoma, together with a certified copy of all the proceedings herein. It is so ordered.
“E. M. Poe, Judge ”

Attached to the indictment is the following certificate:

“State of Oklahoma, Plaintiff vs. Criminal No. 988. “Ben Dew, Defendant. 10
entering 45 12-19-13 Entering order transferring_ co bi O Ot 12-19-13 Making transcript 12-19-13 D. I. T_ 1o o Cvi o • rH C'i
Total_4.10
“I, W. W. Stuckey, clerk of the district court, in and for Tulsa county, Oklahoma, do hereby certify that the above and foregoing is a full, true and correct transcript of record, together with the original indictment, and bill of costs in the above numbered criminal case.
“In witness whereof, I have hereunto subscribed and caused the seal of said court to be affixed this 19th day of December, 1913. “W. W. STUCKEY,
“Clerk of the district court.
“J. H. .Losweee, Deputy.”'

Under the provisions of our criminal code it is not the duty of the clerk to make an entry upon the minutes or journal of the court of the return of an indictment. It is the clerk’s duty to note on the indictment that it was presented in open court by the foreman of the grand jury, in their presence, to the court, and to file it, and when so filed the original indictment with all its endorsements becomes a part of the record of the case and whatever is properly shown by the caption and the indorsement is- considered as shown by the record. Jolly v. State, 5 Okla. Cr. 301.

The statute provides that in the transfer of indictments for misdemeanors from district courts to inferior courts having jurisdiction of the offense charged, the clerk of the district court shall deliver the indictment, together with all the papers relating to each case to the proper court or justice as directed in the order of transfer, and shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court. Section 5552, Rev. Laws 1910.

The record discloses that the transfer of said indictment from the district court to the county court was made in substantial compliance with the requirements of the statute. Taylor v. State, 5 Okla. Cr. 183, 114 Pac. 628.

In Hunter v. State, 8 Okla. Cr. 505, 129 Pac. 440, it is said:

“Courts are established to preserve the pure administration of justice, and to secure substantial, and not mere technical rights. Yet it would seem that there is a tendency, manifest in a few of the courts of inferior jurisdiction in this state, to set aside and hold for naught indictments transferred to them from the district courts on motions and pleas that do not sef forth any statutory ground for setting aside an indictment. No indictment should be set aside by an inferior court on the grounds of technical errors, informalities, or irregularities in the proceedings had in the district court returning said indictment and in transferring the same to the trial court.”

The identical question here presented was determined adversely to the defendant’s contention in the case of Miles et al. v. State, 11 Okla. Cr. 477, wherein it was held:

“That as the statute prescribes no particular form of certificate to such transfer a substantial compliance with its provisions is all that is required in such proceedings.”

The record shows that the indictment was returned into the district court of Tulsa county, presented in open court by the foreman of the grand jury, in the presence of the grand jury and duly filed by the clerk. It is signed: “Pat -Malloy, county attorney,” indorsed, “A true bill,” W. H. Hendren, foreman of the grand jury. It follows that the plea to the jurisdiction was properly overruled.

The next assignment is, “the court erred in requiring plaintiff in error to go to trial when the names of the witnesses examined before the grand jury did not appear on some part of the indictment as provided by law, and in permitting witnesses to testify against the defendant when the names of such witnesses were not indorsed on the indictment.”

Our Procedure Criminal provides:

“When an indictment is found, the names of the witnesses examined before the grand jury must be indorsed thereon be^ fore the same is presented to the court; but a failure to so indorse the said names shall not be sufficient reason for setting aside the indictment, if the county attorney or prosecuting officer will, within a reasonable time, to be fixed by the court, indorse the names of the witnesses for the prosecution on the indictment.” (Section 5?33, Rev. Laws 1910.)

It further provides that the indictment must be set aside by the court, “when the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment.” (Section 5?80, Rev. Laws 1910.)

It appears from the record that no motion to quash or set aside the indictment was filed in this case; tfhat no objection was made to the witnesses testifying and no question was raised on this point in the' motion for a new trial. It follows that the assignment presents no questions for review by this court.

The next assignment is that the court erred in overruling , plaintiff in error’s demurrer to the evidence, and motion to direct a verdict of not guilty.

His counsel contend that, “there is nothing in the evidence to connect Ben Dew with being in possession of the building known as the Boston drug store on December 2, 1913, and there is nothing in the evidence that Ben Dew ever had anything to do with the drug store or joint known as the Boston drug store for more than one month.”

It is undisputed that the defendant leased this property from the owner and went into possession in the month of September. The question as to whether or not he assigned or transferred his lease was a question of fact for the jury to determine. Under the common law a tenant could sub-lease without restraint, but under our statute this cannot be done. It reads as follows:

“No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord or person holding under him." (Section 3793, Rev, Laws 1910.)

After a careful examination of the evidence in the case, we are not prepared to say that the jury were not warranted in finding the verdict returned by them. While the jury might have had a reasonable doubt, they might also regard the testimony as sufficient to exclude every reasonable doubt of the defendant’s guilt. We see no reason to doubt that the conviction of the defendant was right. The judgment herein is therefore affirmed.

FURMAN and ARMSTRONG, JJ., concur.


text:
    ALEX SELLERS v. STATE.
    (No. A-2197.
    Opinion Filed July 3, 1915.)
    X. INTOXICATING- LIQUORS — Quantity in Possession — Prima Facie Evidence-. A statute, making the possession ol more than a certain amount of intoxicating liquor prima facie evidence of an intent to violate provisions of the prohibitory law, is not unconstitutional as invading the province of the judiciary, and depriving the accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or does not tend to prove, the criminal act.
    2. SAME. Instruction — Burden of Proof. Under section 6, chapter 26 Sess. Laws 1913, providing that, “The keeping in excess of one quart or in any manner permitting any other person to have or keep any such liquors in or about his place of business, * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors,” it is error to charge, “That if you find from the evidence beyond a reasonable doubt, that the defendant had in his possession, controlled by himself, or by his agent, or any one for him, any whisky or alcohol, at his place of business, or on the premises thereof, in excess of one quart, at the ' time as alleged in the information, that that fact is prima facie evidence that the .defendant had such possession with the intent to sell, barter and give away the same, as charged in the information, then it devolves upon the defendant to produce sufficient evidence to create in your minds a reasonable doubt as to his •guilt,” since the statute only means to- make such evidence competent to prove the unlawful intent, and sufficient to justify the jury in finding a defendant guilty, provided it satisfies them beyond a reasonable doubt, but, not otherwise.
    '3. EVIDENCE — “Prima Facie” — When Sufficient. The phrase, “Prima Facie Evidence” as used in the statute is such evidence as in the judgment of the law, -is sufficient to establish the fact, ' and evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence including the presumptions are considered, is-for the determination of the jury.
    (Syllabus by the Court.)

      Appeal from" County Court, McIntosh County; Ben D. Gross, Judge.

    Alex Sellers, convicted of a violation of the prohibitory law, appeals.
    Reversed.

      B. J. Van Court and H. B. Reubelt, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Upon an information which charged that on or about the 24th day of June, 1913, he did unlawfully have possession of certain intoxicating liquors with intent to sell the same, the plaintiff in error was convicted and his punishment fixed at confinement in the county jail for thirty days and a fine of one hundred dollars. From the judgment entered in pursuance of the verdict he prosecutes this appeal.

The questions presented arise upon the sufficiency of the evidence to show that the defendant did have in his possession any intoxicating liquors, or that he in any manner permitted any other person to keep any such liquors in or about his place of business, and upon an exception reserved to the following instruction :

“You are further instructed that, if you find from the evir dence beyond a reasonable doubt, that the defendant had in his possesison, controlled by himself, or by his agent, or any one for him, any whisky or alcohol, at his place of business, or on the premises thereof, in excess of one quart, at the time as alleged in the information, that that fact is prima facie evidence that the defendant had such possession with the intent to sell, barter and give away the same, as charged in the information, then it devolves upon the defendant to produce sufficient evidence to create in your minds a reasonable doubt as to his guilt.”

These questions arise upon that part of section 6, ch. 26, Sess. Daws 1913, which provides that:

“The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, -or any imitation thereof, or substitute therefor; or any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being uspd as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, or in any manner permitting any other person to 'have or keep any such liquors in or about his place of business, or any place of amusement or recreation, or any public resort, or any club room * * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors.”

The undisputed facts are that the alcohol was found in the defendant’s drug store on June 24th. The defendant left Eufaula on June 15th, and the president of the First National Bank of Eufaula testifies that he went on the train with him to St. Eouis. The defendant went from St. Eouis to Metropolis, Ill., on account of sickness of one of his daughters there. According to the testimony of Mrs. Kincaid, a school teacher of Eufaula, whose residence is Metropolis, Ill., the defendant was at Metropolis from June 17th to June 24th.

As a witness in his own behalf the defendant testifies that he left Eufaula on June 15th for Metropolis, Ill., returning to Eufaula June 26th, and that the liquor was not on his premises with his knowledge or permission.

The evidence shows that certain employees had charge of the drug store during his absence.

The defendant’s counsel in their brief state:

“We contend that there is absolutely no evidence that the defendant either kept or permitted any other person to keep the alcohol in the store. And this being true, then the instruction above quoted was clearly erroneous and not warranted by the evidence because the statute does not purport to make the mere finding of liquor in a place of business prima facie evidence of guilty intent. The state must go further, and show a keeping by the owner, or his permitting a keeping by some other person.”

After a careful consideration, we are convinced that the word “permitting” as used in the statute was not intended to, and by fair construction does not, cover a case like this. The keeping in excess of more than one quart of intoxicating liquor as a part of the defendant's stock of drugs made a prima facie case. “A principal is prima facie liable for the illegal acts of an agent done in a general course of illegal business authorized by the principal.” Wharton Crim. L. par. 247. In the absence of evidence to the contrary, the authority to keep said liquors may be inferred from the relations of the parties. Under the evidence in this case it was a question of fact to be determined by the jury.

It is next contended that the statute above quoted is unconstitutional. This question has been determined in the case of Caffee v. State, ante, 148 Pac. 680, wherein it was held that:

“A statute, making the possession of more than a certain amount of intoxicating liquor prima facie evidence of an intent to violate provisions of the prohibitory law, is not unconstitutional as evading the province of the judiciary, and depriving the accused of the presumption of innocence, or as making prima facie evidence of guilt a fact which has no relation to, or does not tend to prove, the criminal act.”

Finally it is contended that a statuté of this character only operates to create a presumption, and that the instruction excepted to invades the province of the jury and deprives the defendant of the presumption of innocence, and is a comment on the weight of the evidence. We are of the opinion that the exception to the instruction was well taken.

We think the language used is in effect a comment upon the weight of the evidence, and the following words: “Then it devolves upon the defendant to produce sufficient evidence to create in your minds a reasonable doubt as to his guilt,” was in effect instructing the jury that the burden of proof was on the defendant to show his innocence.

The phrase “prima facie evidence,” as used in the statute, is su.ch evidence as, in the judgment of the law, is sufficient to establish the unlawful intent, and, if it be credited by the jury, it is sufficient for that purpose, unless rebutted, or the contrary proved and which evidence of such possession is sufficient to establish the unlawful intent unless rebutted or the contrary proved yet it does not make it obligatory upon the jury to convict after the presentation of such proof, but such evidence is competent and sufficient to justify a jury in finding the defendant guilty provided it does in effect satisfy them of his guilt beyond a reasonable doubt. Caffee v. State, supra.

Similar statutes of other states in which the words, “prima facie evidence” are used have been construed to mean “That such evidence is competent and sufficient to justify a jury in finding a defendant guilty, provided it does in effect satisfy them of his guilt beyond a reasonable doubt, and not otherwise" State v. Intoxicating Liquors, 80 Me. 57, 12 Atl. 794, 7 Am. Cr. Rep. 291; State v. O’Connell (Me), 19 Atl. 86; State v. Momberg (N. D.), 103 N. W. 566.

“These statutes, it is said are merely declaratory of the common law, and are valid, but they do not raise a conclusive presumption against the defendant. It is error to instruct the jury that they must find him guilty on proof of such facts alone, for such evidence is competent and sufficient to justify a verdict, only if the jury are satisfied of defendant’s guilt beyond a reasonable doubt.” (Black on Intoxicating Liquors, par 509.)

In Com. v. Kimball, 24 Peck. (Mass.) 366, it is said:

“Making out a prima facie case does not necessarily or usually change the burden of proof. A prima facie case is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it. But the establishment of a prima facie case does not take away from a defendant the presumption of innocence, though it may, in the opinion of a jury, be such as to rebut and control it, but that presumption remains, in aid of any other proofs offered by the defendant, to rebut the prosecutor’s prima facie case.”
“The use of the term ‘prima facie,’ as applied to evidence, does not shift the burden of proof.” (Bownman v. State, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 835.)

In State v. Hardelin (Mo.), 70 S. W. 130, it is said:

“Where a defendant pleads not guilty, and admits nothing against himself, as in the case at bar, the burden of proof is on the state to first make out a case against him which would entitle it to go to the jury; but this does not change the burden of proof, which remains with the state throughout the trial, and whether or not the evidence is sufficient to overcome the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence on both sides, including the presumptions, are considered, is for the consideration of the jury.’"

Bishop says:

“It would be a wide departure from the humanity of the criminal law to compel a jury, by a technical rule, to convict one of whose guilt, upon the whole evidence, they had reasonable doubt. And it would reverse the presumption of innocence to hold a defendant guilty unless, taking the burden upon himself, he could affirmatively prove himself innocent. All evidence should be viewed in its entirety, not in detached parts. The whole of an alleged crime must be proved, just as the whole of it must have been committed.” (1 Bish. New Cr. Proc. (4th Ed. par. 1051.)

In Wilson v. State, ante, it is held:

“The phrase ‘prima facie evidence/ as used in the statute, is such evidence as, in the judgment of the law, is sufficient to establish the fact, if it be credited by the jury, and unless rebutted or the contrary proved, remains sufficient for that purpose, whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence including the presumptions are considered, is for the determination of the jury.”

Under our system of jurisprudence there is no conclusion or presumption of fact which is not entirely within the disposal of the jury, as it is also entirely for them to determine what portion of testimony to believe or disbelieve, and “It is the conscience of the jury that must pronounce the prisoner guilty or not guilty.” 2 Hale, 313.

For the reasons stated we are of opinion that the instruction complained of was erroneous and prejudicial'. It follows the judgment should be, and the same is, hereby reversed and a new trial granted.

FURMAN and ARMSTRONG, JJ., concur.


text:
    S. B. BOLEN v. STATE.
    (Nos. A-1911, A-1912.
    Opinion Filed June 5, 1915.)
    1. INSURANCE — License—Agency—“Compensation.” A prosecution based on the following provision of sec. 3750, Snyder's Comp. Laws of Oklahoma, 1909, to-wit: “Whoever shall assume to act as such agent, or, unless a licensed broker, shall in any manner for compensation negotiate contracts of insurance on behalf of such corporation for a person other than himself, prior to the filing of such notices of appointment or after receiving notice of such finding of unsuitability, shall be subject to the penalties provided by this act for soliciting insurance without license” — penalizes and was intended to penalize persons only who acted as insurance solicitors without license, and while actng in such capacity negotiated and concluded insurance contracts for compensation.
    2. SAME — Indictment and Information — Necessary Allegations. An information based upon this provision must contain an allegation to the effect that such insurance contracts were negotiated for compensation.
    (Syllabus by the Court.)

      Appeal from County Court, Beckham County; John C. Hendrix, Judge.

    S. B. Bolen was convicted of violating the insurance law, and appeals.
    Reversed.

      Choat & Smith, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, S. B. Bolen, was convicted in the comity court of Beckham county upon two charges of violating the insurance law.. In A-1911 his punishment was fixed at a fine of one hundred dollars, and in A-1912 the punishment was fixed at a fine of two hundred dollars.

The appeal is by transcript only. The same questions are raised in both cases, and involve only the sufficiency . of. the information. Omitting the caption, the information is as follows :

“Comes now the county attorney for the said county of Beck-ham, in the name and by the authority of the state of Oklahoma, and information makes that one S. B. Bolen, late of the county aforesaid, on or about the 10th day of May, 1912, in the county of Beckham and state of Oklahoma, did then and there unlawfully represent himself to be a legal and licensed insurance agent with full authority to represent the Union Mutual Insurance Company of Enid, Oklahoma, and did then and there unlawfully solicit a contract and effect' a contract of insurance between the said The Union Mutual Insurance Company of Enid, Oklahoma, and said A. S. Johnston, he the said S. B. Bolen being not then a legal, licensed agent for the said Union Mutual Insurance Company of Enid, Oklahoma, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.”

A demurrer was interposed to each information on the ground that it failed to charge facts sufficient to show that a violation of the law of this state had occurred. The demurrer was overruled by the trial court, and exceptions duly reserved.

The informations in each case plead the same facts, with the exception of the names of the parties dealt with. These in-formations were intended to charge a violation of the following provisions of section 3750, Comp. Laws 1909:

“* * * Whoever shall assume to act as such agent, or, unless a licensed broker, shall in any manner for compensation negotiate contracts of insurance on behalf of such corporation for a person other than himself, prior to the filing of such notices of appointment or after receiving notice of such finding of unsuitability, shall be subject to the penalties provided by this act for soliciting insurance without license.”

The purpose of this provision was to penalize any person who had not been properly licensed as an insurance solicitor, for negotiating insurance contracts for compensation. The in-formations in question do not charge that the act complained of, to wit: The negotiation of an insurance contract with the individuals named in the informations, was done for compensation. This was essential, and having been omitted, the demurrer should have been sustained.

The judgment is reversed and the cause remanded, with direction to sustain the demurrer and permit the county attorney to file a new information in each case if there is to be further prosecution of the actions.

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


text:
    EMMA BRUMBAUGH v. STATE.
    (No. A-2273.
    Opinion Filed July 3, 1915.)
    1. TRIAL — Instructions—Evidence—Bias.__tlnder the laws of this state, trial courts are not warranted in giving an instruction which has the effect of bolstering up or tending to discredit the tesfc'fnony of any particular witness or class of witnesses, who may testify in any criminal ease-
    2. SAME — Evidence of Detective, (a) The credibility of the witnesses and the weight and value to be given their testimony are to be determined solely by the jury, under correct rules of law submitted by the court.
    (b) For an instruction of this character, which is condemned by this court as being wholly unwarranted in this jurisdiction see opinion.
    (Syllabus by the Court.)

      Appeal from County Court, Comanche County; H. N. Wlhalin, Judge.

    Emma Brumbaugh was convicted of violating the prohibitory law, and appeals.
    Reversed.
    /. F. Thomas, for plaintiff in error.

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

The plaintiff in error, Emma Brum-baugh, was convicted at the March, 1914, term of the county court of Comanche county, on a charge of selling intoxicating liquor, and her punishment fixed at a fine of three hundred dollars and imprisonment in the county jail for a period of sixty 'days. Among other errors assigned as ground for a reversal of this judgment is one based upon the following instruction of the court:

“The jury are instructed that under the law of this state, it is permissible for any person to act as detective or enforcement officer, for the purpose of apprehending and prosecuting those engaged in the violation of the prohibitory laws of the state of Oklahoma, and under the law there is no criticism to expend upon any public officer, league, or individual who may find it necessary or convenient to adopt this means of discovering infractions of the law. And'in some instances, habitual and flagrant violations of the liquor laws can be detected by no other means.”

In this case there were only two witnesses, to wit, the witness Brown, who testified on behalf of the state, and the plaintiff in error, who testified in her own defense. This instruction was wholly unwarranted by the law, and should not have been given by the court. The vice of the instruction was more acute when considered in the light of the fact that only this spotter testified on behalf of the state; while the plaintiff in error gave the only testimony that was offered in her defense. The courts of this state are not charged with the burden of making stump speeches to bolster up the credibility of any witness for either the state or the defendant, and most certainly the court is not called upon to inject this character of statement in the guise of law as a rule to bind the jury. It is a matter of common knowledge, recognized by all those experienced in court affairs and all the law writers and courts for centuries, that testimony of paid spotters is to be regarded with great caution, and in some jurisdictions, juries are even warned by the courts to exercise care in basing a conclusion upon any such testimony. In no jurisdiction in this country is such a rule tolerated as promulgated by the foregoing instructions. ■ While these spotters are permitted to testify just like a person in interest is permitted to testify, the weight and value of their testimony is to be determined exclusively by the jury, who, under our law, are the sole judges of the credibility of witnesses.

The county attorney is always permitted to argue the credibility of the defendant when he takes the stand and testifies as a witness in his own behalf, his interest in the result of the trial, and his zeal in seeking an acquittal, as well as any other circumstance or fact that in his judgment will enable him to discredit the witness before the jury. Counsel for the defendant has the same right as to any witness introduced on behalf of the state. Whatever legitimate argument counsel may wish to advance as to the bias or prejudice of the prosecuting witness, who is interested in the capacity of sleuth for hire, as to his apparent bias, truthfulness or credibility, is not to be precluded by any such instructions as the foregoing.

It is not necessary to discuss other assignments. For the error indicated, the judgment is reversed and the cause remanded with directions to grant a new trial.

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


text:
    T. J. BALLEW v. STATE.
    No. A-1934.
    Opinion Filed July 3, 1915
    1. EMBEZZLEMENT — Bank Deposits — Specific Funds. Under section 2673, Eev. Laws 1910, (see. 2612, Comp. Laws 1909), which penalizes any person acting as trustee, banker, merchant, etc., contemplates the prosecution of a banker for embezzling the funds of any bank as such, or any specific fund or property which is left for safe-keeping as distinguished from money or its equivalent deposited on account.
    2. BANKS AND BANKING — Cash Deposits — Eight to Specific Currency. Cash or equivalent when deposited in a bank becomes immediately the property of the bank, and no depositor -in the ordinary course of business has any right to have the specific currency or cash item returned.
    3. SAME — Embezzlement of Deposits. Any transaction had with an officer in charge of a banking institution, which transaction is within the scope of the bank’s business and which clearly was intended to be a transaction with the bank, is conclusively presumed to be such. If any employee of a bank, after funds have been deposited with the bank by a customer, embezzles the same, the embezzlement is against the property of the bank and not the property of the depositor.
    4. EMBEZZLEMENT — Indictment—Bank Deposits — Allegations. An information which attempts to charge offense under see. 2673, Eev. Laws, supra., should not attempt to charge that the embezzlement was made from a depositor and at the same time contain allega- , tions that the transaction was had with the embezzler as an agent of the bank by a customer of the bank, transacting the regular and ordinary business of a depositor.

      5. SAME — Allegation as to Party Defended. Nor an information which is held insufficient to charge an offense under sec. 2673, Rev. Laws 1910, see opinion.
    (Syllabus by the Court.)

      Appeal from District Court, Blaine County; J. R. Tolbert, Judge.

    T. J. Ballew was convicted of embezzlement, and appeals.
    Reversed.

      Seymour Boose, R. C. Brown, and L. H. Hampton, for plaintiff in error.

      A. E. Emery, county attorney, for the State.
   ARMSTRONG, J.

The plaintiff in error, T. J. Ballew, was convicted at the September, 1912, term of the district court of Blaine county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a period of two and one-half years.

There are many assignments of error, only two of which we find it necessary to discuss. The first is based upon the contention that the information does not charge a crime under the statute. The information, omitting the caption, is as follows:

“Now comes A. L. Emery, county attorney in and for the state and county aforesaid, and gives the court to know and be informed that one T. J. Ballew, late of the county of Blaine and state of Oklahoma, on the 24th day of June in the year of our Lord one thousand nine hundred and eight, 'at and within the said county and state, was then and there and for' a long time prior thereto, the cashier of the Bank of Commerce, a banking corporation existing and doing business under and by virtue of the laws of the state of Oklahoma, at Geary, and did as said cashier of said bank have in his possession and control and was otherwise entrusted with personal property, to,wit: United States money for the use of another person, then and there belonging, to wit, H. R. Paden, did then and there unlawfully, willfully and intentionally, knowingly, wantonly, maliciously, feloniously and fraudulently embezzle, appropriate and convert to his own use and purpose, not in the due and lawful execution of his trust, the sum of one hundred nine ($109.25) dollars and twenty-five cents, good and lawful money of the United States, and of the value of one hundred nine ($109.25) dollars and twenty-five cents, the property of him the said H. R. Paden, with the unlawful, felonious and fraudulent intent upon the part of him the said T. J. Ballew then and there to deprive the lawful owner thereof, the said PI. R. Paden of said corporeal personal property and to convert, embezzle and appropriate the same to his T. J. Ballew, own use and benfit, contrary to the form of statute in such case made and provided and against the peace and dignity of the state.”

A demurrer was filed to the information based upon the ground, among others, that it did not plead facts sufficient to charge a public offense, and further, that same was not direct and certain as to the particular circumstances of the offense, and did not sufficiently inform the defendant of the nature of the accusation. The demurrer was overruled and exception duly saved. It is conceded by the state that the information is drawn under section 2612, Comp. Laws 1909, which is as follows:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

The county attorney in his brief argues that it is sufficient to plead and prove that money was entrusted to the accused as cashier of the Bank of Commerce, for the use and benefit of Paden, and that the accused fraudulently appropriated the same to his own use. With this contention we cannot agree. The money in question, if embezzled at all, was embezzled from the Bank of Commerce and not -from Paden. This plaintiff in error should have been prosecuted for embezzling the funds of the bank, and not the funds of Paden. The transaction as charged in the information and proved in the record clearly indicates that it was had, so far as Paden was concerned, with Ballew as agent of the bank, and not with Ballew acting for and on his own account. The bank could not escape liability in the premises for the reason that the transaction was one in the regular course of the bank’s business, and not one in the regular course of the business of T. J. Ballew on his own account. The information charges that Ballew was acting in the capacity of cashier of the bank. A rule which would declare Ballew liable to prosecution for embezzling this money as funds of Paden, would have the effect of absolving the bank from any civil liability for the funds. The crime could be as easily and strongly established, and more so, under an information charging the embezzlement of the funds of the bank than for embezzling the funds as the property of Paden. There is no reason why the state should rely upon the contention that an officer of a bank can embezzle the funds deposited by a customer and thereby absolve the bank from liability. The moment the funds cross the threshold of the bank’s receiving window, and enter the custody of any officer of the institution, that custody is the custody of the bank itself, if the transaction is one in the due and regular course of banking business and customs. The information should have charged this plaintiff in error with embezzling the funds of the bank and he should have been punished, under the testimony, for such crime. Under the law in Oklahoma, there are no individual bankers, in a strict sense; the banking business is done exclusively by corporations, either federal or state, who act through individiials as their agents. Money deposited in banks is not left in trust of the officers or agents, but is left as a trust with the bank, and becomes the property of the bank, with the only obligation, ordinarily, that its equivalent in like kind be returned to the depositor on demand. There is no agreement, express or implied, that the officer or agent of the bank is to personally account to each depositor. These officers and agents account to the bank, and it to the customer.

The second proposition is based upon the contention that the state’s special prosecutor was guilty of prejudicial, conduct in the closing argument. It is clearly apparent that the special prosecutor, who was employed 'by the State Banking Board, was entirely too vigorous and clearly unfair in the closing ’ argument. Since the facts disclosed by the record and within the knowledge of the court are such that the prosecution will not again be conducted by the same counsel, we feel inclined to forego a discussion of the errors assigned on this feature.

The judgment is reversed and the cause remanded with direction to the trial court to dispose of the same according to law.

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