text:
    P. P. DISMUKES v. STATE.
    No. A-4214.
    Opinion Filed Sept. 18, 1923.
    (218 Pac. 175.)
    (Syllabus.)
    Appeal and Eirror — Dismissal of Appeal Where Pardon Accepted. Where an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, LeFlore County; Harve L. Melton, Judge.
    P. P. Dismukes was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    See, also, 19 Okla. Cr. 376, 200 Pac. 267.
    Lunsford & Bulgin, Williams & Lewis, and S. M. Rutherford, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, P. P. Dismukes, was! informed against for the murder of one Orpheus Varner, alleged to have been committed in LeFlore county on or about the 26th day of December, 1920. The trial jury found him guilty, of manslaughter in the first degree and assessed his punishment at imprisonment in the penitentiary for the term of 10 years. From the judgment rendered in accordance with the verdict on the 6th day of September, 1921, an appeal was taken by filing in this court on February 23, 1922, a petition in error with case-made.

The Attorney General has' filed a motion to dismiss the appeal on the ground that plaintiff in error, on August 31, 1923, accepted and is now enjoying the privilege of a pardon.

By numerous decisions of this court it is held that, when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same is granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed as having been abandoned. Cameron v. State, 15 Okla. Cr. 398, 177 Pac. 118; Noret v. State, 15 Okla. Cr. 574, 179 Pac. 617; Ballew v. State, 15 Okla. Cr. 646, 179 Pac. 945.

It is therefore considered, adjudged, and ordered that this appeal be, and the same is hereby dismissed, and the cause remanded to the trial court.

MATSON, P. J., and BESSEY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    BUD GOSS v. STATE.
    No. A-4603.
    Opinion Filed Sept. 22, 1923.
    (218 Pac. 339.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Court — Refusal of Change of Venue. Statements of affiants whose affidavits were filed in support of defendant’s application for a change of venue, to the effect that they had heard a great many people talk about the case, and that the minds of the people were so prejudiced, etc., are too . vague and indefinite for this court to say, as a matter of law, that the trial court abused his discretion in refusing a change of vénue.
    2. Venue — Effect of Application for Change of Venue Without Notice. to County Attorney — Change of Venue Summarily Refused Where Showing by Defendant not Convincing. An application for a change of venue made when the case is called for trial, where no notice of such application was served on the county attorney as provided in section 2628, Comp. Stat. 1921, does not operate to require the court to halt the proceedings in order to give the state an opportunity to controvert the showing made by the applicant. The court may refuse the application sumjmarily where the showing made by the defendant is not convincing.
    3. Homicide — When Dying Declaration Inadmissible Stated. Dying declarations are not admissible where they consist of statements of facts or circumstances not immediately connected with the act of the- killing, but relate to previous distinct transactions, though they may have reference to occurrences which disclose a motive or provocation for the killing, or show a state of hostility existing between the parties.
    Appeal from District Court, Carter County; B. C. Logsdon, Judge.
    Bud Goss was convicted of murder, and he appeals).
    Affirmed.
    Bass & Hardy and James H. Mathers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State..
   BESSEY, J.

Bud Goss, plaintiff in error, in this opinion referred to as the defendant, was by information filed in the district court of Carter county, June 20,1922, charged with the murder of Nat Shivers on the 18th day of June, 1922. At the trial, by a verdict of the jury rendered September 24, 1922, the defendant was found guilty as charged, and his punishment assessed at confinement in the state penitentiary for the term of his natural life. From the judgment on the verdict he appeals.

The testimony introduced by the state was to the effect: That the wife of Nat Shivers, the deceased, a short time before this tragedy, had obtained a divorce from Shivers, based upon service by publication. She soon thereafter married the defendant, Bud Goss. That Shivers did not know of this divorce (or claimed that he did not) nor of the remarriage, and, upon his return to Carter county, finding his former wife living with Goss, on Friday before the killing on Sunday he caused the arrest of the defendant, Goss, upon a charge of living in adultery with his (Shivers’) wife. That, when the defendant was arrested on this! charge, Shivers accompanied the officers who. made the arrest to the office of the justice of the peace. The justice refused to entertain the charge of adultery, and explained to Shivers that his former wife had obtained a divorce, and was then married to Goss, and that the charges could therefore not be maintained. Shivers then became very angry and excited, and in the presence of the justice and others made threats against the life of Gos's, stating that he would ‘ ‘ get him if he had to' shoot him in the back.” About 30 minutes later, after leaving the justice’s office, Shivers and Goss met on the streets of Ardmore, and Goss, armed with a pistol, chased Shivers through a hardware, store. A few minutes later Shivers' returned to the hardware store and purchased a new Colts pistol. On Sunday, the day of the homicide, Goss informed a policeman that Shivers was going armed, and had threatened to take his life, and requested the officer to disarm Shivers.

Concerning this incident, Clarence Stokes, a police officer, testified that he saw defendant at about 12 o’clock noon, sitting in a ear in front of the Adolphus theater, in Ardmore, and that, after some preliminary conversation defendant said to him: ‘ ‘ This man Shivers has a gun on him; I want you to get it off of him. ’ ’ The officer then inquired where Shivers was, and. defendant told Mm that he was at the Randolph Hotel. The officer told defendant he would search Shivers and disarm him, left the defendant sitting there in the car, and went directly to the hotel, where he found Shivers and disarmed him. The officer then took SMvers to the police station, passing along Main street, near where defendant was still sitting in the automobile. At this time defendant was so seated and facing in such way that he could see that Shivers was in the custody of the officer, and witnesses testified that defendant appeared to be looking in that direction. At the police station, SMvers made bond for his appearance later to answer to a charge of carrying concealed weapons. Leaving the police station, SMvers again passed along Main street, in front of the Adolphus theatre, at about 12:20 or 12:30 o’clock, where he was fatally shot by the defendant under circumstances which might be taken to indicate that the defendant knew, or had reason to believe, that Shivers had been disarmed a few minutes .earlier.

One of the state’s witnesses testified that just before the defendant fired he said to the deceased, "Have you got any-tMng?” and that the deceased replied, "I haven’t a thing; don’t shoot.” Another witness testified that he saw the shooting and heard the parties say something, but could not distinguish what it was. Other witnesses testified that they did not hear either party say anything just' prior to the shooting. The testimony on the part of the state was also to the effect that, when the'defendant saw Shivers on the sidewalk in front of him, SMvers made no hostile gesture or movement indicating that he was about to draw a gun.

The testimony on the part of the defendant was to the effect : That Mr. and Mrs. Shivers had separated some months previous, and that the whereabouts of Shivers was unknown to her. That she had obtained a divorce and had married Goss soon thereafter. That after the divorce had been granted Shivers had visited a sister and other members of the family of Mrs. Goss (his former wife), from whom he had learned that his former wife had procured a divorce, and had married Goss. That he told this sister that he intended to go back to Ardmore and kill both the defendant and Mrs. Goss, and that this threat was communicated by the sister to Goss and Mrs. Goss. That soon thereafter Shivers did appear in Ardmore, and had Goss arrested for living in adultery with Mrs. Goss. When the justice of the peace refused to entertain the adultery charge against Goss, Shivers became violently enraged, and made the threat, “I am going to get you if I have to shoot you in the back.” That about 30 minutes later Shivers met Goss on the street, and started toward Goss, pulling off his coat as he came. Goss drew his pistol, and Shivers ran, and Shivers then went and bought a new pistol. Shivers then went out into the oil fields, where he told certain persons that he intended to kill Goss, and that some of these threats were communicated to Goss. On Sunday morning Goss went down town to get his Sunday papers, and while he was sitting in a car in front of the First National Bank Building with some friends Shivers walked by with his hand on his pistol. That he did this twice, and that Goss then, in order to avoid trouble, drove home. That he attempted to telephone the justice of the peace to have Shivers arrested and placed under a peace bond, but that, after failing to get telephone connection, he again went down on the Street. That while he was sitting in an automobile in front of a theater he saw a policeman, and informed him that Shivers was armed and had threatened to take defendant’s life. The police officer found Shivers at a hotel and disarmed him. Goss however, claimed that he had no knowledge that the policeman had done so. While still sitting in this car, a few minutes later, Goss saw Shivers on the sidewalk in front of him, in the act of turning toward Mm, at the same time throwing his hand be-Mnd him, as if about to draw a pistol. Goss then jumped out of the car, and fired one shot into the body of Shivers, which entered from the rear near the shoulder. Shivers sank down, and bystanders carried him to the hospital, where he later died. At the time he was shot Shivers' was unarmed, as before stated.

The testimony on the part of the state and that on the part of the defendant do not differ materially, except upon the question of whether the defendant knew at the time he fired the fatal shot that SMvers had been disarmed, and upon the question of whether or not the deceased made any movement or gesture indicating that he was about to draw Ms pistol. Upon these two issues there was ample evidence to support the theory of the state that defendant knew the deceased was unarmed, and, being unarmed, the jury could reasonably believe that deceased would, make no gesture indicating an effort to draw a gun.

Before the commencement of the trial, but on the day the trial actually began, the defendant made a motion for a change of venue on the ground that the minds of the inhabitants of Carter county were so inflamed and prejudiced against the defendant that a fair trial could not be had in the county, due cMefly to several newspaper articles indicating that the defendant was guilty of murder, and that' public sentiment throughout the county had been molded against him. This application was. supported by four affidavits' in form as follows (all four being identical, except as to name of affiant and years of residence in Carter county) :

“I,-, upon my oath state: That I am a resident of Carter county, Oklahoma; that I have so resided for more than— years; that I have heard a great many people of Carter county, Oklahoma, talk about the Bud Goss murder case. I further state that the minds of the inhabitants of Carter county, Oklahoma, in which said cause is pending for trial, are so prejudiced against the defendant, Bud G-oss, that a fair and impartial trial cannot be had in said county. -. ’ ’

Without hearing any counter affidavits or other evidence resisting this showing, the court ruled as follows:

“It is the opinion of the court that the showing for change of venue is insufficient. I think when a motion .for change of venue is presented that it shows sufficiently to the court from testimony from various parts of the county to raise a doubt in the mind of the court as to whether a prejudice exists against the defendant; and that such prejudice exists against the defendant generally throughout the county. Jurors for the trial of cases do not come from one section of the county, and a county the size of Carter county, with numerous towns and thousands of qualified electors outside of Ardmore, the court is not satisfied from the .affidavits of four residents of Carter county, all in Ardmore, as I understand, that the prejudice, if existing in Ardmore, is general throughout all the county, and the motion for change of venue is overruled and exception allowed.”

Under our practice the granting or refusing of a change of venue is within the discretion of the trial court. This discretion, of course, should not be captiously exercised; it is a discretion which may be and sometimes is abused. The right to a change of venue is defined by statute; section 2628, Comp. Stat. 1921, providing among other things that:

“Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice * * * be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits.of at least three credible persons, who reside in said county. ’ ’

The record shows that in this case no notice of an intention to apply for a change of venue was served on the eounty attorney. The county attorney had no opportunity to prepare to meet the supporting affidavits by counter affidavits, or other evidence. The ease, we assume, was set for trial on the day the application for a change of venue was made. It would be unfair to the state, and contrary to the provisions of the statute, to thus halt the proceedings in order to try this issue without notice. Furthermore, the application and the supporting affidavits, for the most part, stated mere conclusions of af-fiants. The newspaper articles complained of were not offered in evidence, and the statements of affiants in support of the petition may be considered as their own personal opinions, which may or may not have been sufficiently founded in fact. The mere fact that the affiants had heard a great many people talk about this case and the statement that the minds of the people were so prejudiced are too vague, too indefinite, for this court to say, as a matter of law, that the trial court abused his discretion in refusing a change of venue.

In the case of Starr v. State, 5 Okla. Cr. 440, 115 Pac. 536, the court said:

“On an application for a change of venue the affidavit of the defendant in support thereof must not only aver ‘that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein’, but it must also set forth the facts rendering a fair and impartial trial there improbable.”

The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and, if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto. Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883.

Defendant complains that be was denied the alleged right to interrogate each and all of the jurors as to whether they were or had recently been or ever expected to be members of the Ku Klux Klan. The examination of a juror on his voir dire has a twofold purpose, namely, to ascertain whether a cause for challenge exists; and to ascertain whether it is wise or expedient to exercise the right of peremptory challenge given to parties by law. Such an examination is proper so long as it is conducted strictly within the right to discover the state of mind of the juror as regards the matter in hand or any collateral matter reasonably liable to influence him. The trial court, in the exercise of a sound discretion, may limit the extent of an examination upon any of the particulars of the qualifications of jurors. 16 R. C. L. 246, 247. In this case the testimony nowhere discloses that this ’organization, or any organization, was taking any interest in this prosecution, or that the things advocated or condemned by it would in any way directly or indirectly affect' the trial. The rule might be otherwise if a showing had been made that this organization, or members of it, were actively interested in the prosecution or the defense.

The motion of defendant to quash the special panel drawn from the jury list, ordered by the court, also a motion to quash a subsequent list of jurors ordered summoned from the body of the county, and to strike the names of certain jurors from the panel because they had served as jurors within a year of this trial, have all been considered, and we find no error in this regard apparent in the record.

A dying declaration was admitted in evidence, as follows:

"I realize I am near death, and have no hope of recovery, and I wish to make a statement. I was walking up this straight street in Ardmore, the main thoroughfare. I saw this man, Bud Goss, that I had had a lot of trouble with. I says, ‘Bud, I have not got a gun.! He threw his gun on me. I started to run, and he shot me in the shoulder and back. He told me three or four days ago that he was going to kill me. I had him prosecuted for breaking up my home and happiness. Nat Shivers.”

The defendant urges that there was error in the refusal of the court to sustain his motion to exclude the concluding sentence of this dying declaration: “I had him prosecuted for breaking up my home and happiness. ”

Dying declarations .are not admissible were they consist of statements of facts or circumstances not immediately connected with the act of the killing, but relate to previous distinct transactions, even though they have reference to occurrences which disclose a motive or provocation for the killing, or show .a state of hostility existing between the parties. 1 R. C. L. 533, 535; Ann. Cas. 1912C, 429, note; State v. Kelleher, 224 Mo. 145, 123 S. W. 551; 19 Ann. Cas. 1270; 21 Ann. Cas. 152, note. This court, in a well-considered opinion written by Judge Armstrong (Wratislaw v. State, 18 Okla. Cr. 150, 194 Pac. 273), adopted the rule above stated, and reviewed the authorities on this point at length. Applying this rule to the sentence to which objection was made in this case, the motion of defendant to exclude that part of the dying statement should have been sustained. We think, however, under the circumstances in the instant case, that the' error in refusing to exclude this sentence did not operate to the prejudice of the defendant. The testimony on both sides was to the effect that the deceased and his wife had separated some months earlier, and that the defendant Goss had nothing to do with the separation; that the ■ wife of the deceased obtained a divorce, and, so far as the record shows, Goss had nothing to do with procuring the divorce; that, after the separation of the deceased and his wife, the deceased left the state of Oklahoma, and went to Louisiana and Arkansas, where he traveled about from place to place; that the defendant, who had also obtained a divorce from his wife, married the wife of the deceased; that deceased, upon returning to Ardmore, caused the arrest of the defendant on the charge of living in adultery with his former wife, and that the justice of the peace and the county attorney refused to entertain the prosecution because the parties were legally married, after having obtained their divorces. We conclude, therefore, that, notwithstanding the improper admission of this part of the dying declaration, the jury were not misled, but were in possession of all the facts indicating that the defendant in reality had nothing to do with the domestic troubles of the deceased. Under such circumstances the error was manifestly not prejudicial. Section 2822, Comp. Stat. 1921.

Several of the assignments of error are to the effect that the court excluded competent evidence on the part of the defendant, .and permitted the state to introduce incompetent evidence. Some of thé claims so made are not supported by the record. In other cases the evidence was properly refused. In one or two other instances the court improperly excluded testimony which was subsequently admitted.

"The exclusion of evidence to prove particular facts is harmless, if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded could not have changed the result.” Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166.

A careful examination of the evidence in this case convinces us that all the evidence offered whieh was pertinent to the issues went to the jury, in some form or other, and that no competent evidence was finally withheld from the jury, so that the jury, when the cause was finally submitted, was in possession of every fact which bore upon the issues involved. If the policeman had not disarmed the deceased a few minutes before the tragedy it may be that the defendant wonld have suffered death, and that the deceased would have been the survivor. Even so, the ease must be considered upon the facts and circumstances as they occurred, not upon what might have occurred if the deceased had been armed. From a consideration of the facts herein recited, and from other evidence appearing of record, we suspect that each of the parties to the affray had been going armed for the purpose of taking the life of the other if that could be done under color or claim of self-defense. Whether .the homicide was actually committed in self-defense, as distinguished from a mere pretext of self-defense, was a question for the jury. This issue was submitted to them under apt instructions, and the finding of the jury that the defendant’s plea of self-defense was not sustained should not be disturbed' by this court.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


author: BESSEY, J. MATSON, P. J.

text:
    F. G. GORE v. STATE.
    No. A-4075.
    Opinion Filed Sept. 22, 1923.
    (218 Pac. 545.)
    (Syllabus.)
    1. Searches and Seizures — Search Warrant — Requisites of Affidavit. A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause. An affidavit stating mere conclusions, or made on belief without stating the facts, is insufficient, and a search warrant based upon such a showing is void.
    2. Same — “Unreasonable Search and Seizure” under Void Search Warrant. A search and seizure forcibly made under color of a void search warrant is an “unreasonable search and seizure,” within the meaning of section 30 of our Bill of Rights.
    3. Evidence — Articles Seized Under Color of Unauthorized Search and Seizure Inadmissible and Oral Testimony as to Artioles. Any articles, papers or property seized by the officers or agents of the court, under color of an unreasonable or unauthorized search and seizure, taken from the home, office, or private premises of one accused of an offense, should not be used as evidence against an accused, where timely objections are made to the introduction of such evidence so illegally obtained.
    (a) The same rule will apply to objections made to oral testimony of the officers relating to such illegal search and seizure.
    (b) The reception of evidence so obtained is in conflict with sections 21 and 30 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself, and inhibiting unauthorized searches and seizures.
    (c) The holdings of this court hitherto, So far as in conflict with the rule of evidence here announced, are overruled.
    4. Courts — Decisions of United States Supreme Court Relating •to Searches and Seizures not Binding on State Courts. A rule of evidence established by the Supreme Court of the United States, relating to evidence illegally obtained by officers or agents of the court, by means of an illegal search and seizure, or against compelling an accused to be a witness against himself, is not binding on state courts in cases relating to like seizures in violation of like provisions in state Constitutions, but will, in the interest of uniformity of decisions, be highly persuasive.
    5, Trial — Objection to Evidence Obtained by Illegal Search and Seizure During Trial. The objections to such illegal evidence, if the purpose to use it is known to the accused, should be made by motion or otherwise before the trial begins; but where it appears that the state’s attorney knew of the plan or acquiesced in the plan to introduce such evidence, an objection seasonably made during the trial is sufficient.
    Appeal from County Court, Caddo County; C. B. Case, Judge.
    F. G. Gore was convicted of unlawfully manufacturing whisky, and he appeals.
    Reversed and remanded.'
    C. H. Carswell, for plaintiff in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

F. G. Gore, plaintiff in error, here designated the defendant, was by information filed in the county court of Caddo county, April 27, 1921, charged with having on that day manufactured spirituous liquors by a method of distillation from some unknown substance containing alcohol as a by-product through the operation of an apparatus known as a whisky still. At the trial, June 10, 1921, by a verdict of the jury, the defendant was found guilty as charged, without assessing the punishment. Subsequently the court rendered judgment upon the verdict, fixing the defendant’s punishment at a fine of $250 and confinement in the county jail for a period of 90 days. From the judgment so rendered, the defendant appeals to this court.

The defendant says the judgment of the trial court should be reversed- because he was convicted upon evidence forcibly and illegally obtained by the officers of the court, evidence seized and obtained by means of two void and illegal search warrants procured from a magistrate upon two affidavits of a deputy sheriff, based on information and belief only, in violation of defendant’s rights under the Fourth and Fifth Amendments to the federal Constitution, and in violation of sections 21 and' 30 of the Bill of Rights of our state Constitution, and of sections 2876-2880, Comp. Stat. 1921, relating to search warrants.

The Fourth Amendment to' the Constitution of the United States reads thus:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing tbe place to be searched, and the persons or things to be seized.”

The Fifth federal Amendment, so far as here involved, reads:

“No person * * * shall be compelled in any criminal case to be a witness against himself.”

Section 21 of our Bill of Rights, so far as it here applies, reads:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided. ’ ’

Section 30 of our Bill of Rights is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 2877, Comp. Stat. 1921, provides that a search-warrant may be issued when the thing sought to be seized is in the possession of any person, with the intent to use it as a means of committing any public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing or preventing its being discovered. Section 2879, idem, provides that a magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.

In this case two affidavits were made by a deputy sheriff, for the purpose of procuring two search warrants, one authorizing him to search the residence and premises belonging to the defendant in town, and the other authorizing him to search certain premises belonging to the defendant, in the country, some distance from town. The written affidavits upon which these two search warrants were procured were in form as follows:

“Now comes W. L. Townsend, and upon oath says that he has probable cause for believing and does believe that ■intoxicating liquors are being manufactured, sold, bartered and given away and otherwise disposed of, and are being kept for the purpose of selling, bartering, giving away, dividing, distributing, and otherwise furnishing said liquors, in violation of the laws of the state of Oklahoma, by F. G. Gore; that said intoxicating liquors are stored and being kept in the buildings and premises on (here the premises in each instance are particularly described), and that said building is (not) the residence of said F. G. Gore, or any other person, but the same is used as a place of storage of the said intoxicating liquors.”

The defendant says these two affidavits are insufficient in form and substance to authorize the issuance of search warrants, and that the two search warrants issued, based upon these affidavits, are therefore void, not being in compliance with the constitutional and statutory regulations relating to search and seizure; that the statement made in the affidavits that the affiant “has probable cause for believing and does believe that intoxicating liquors are being manufactured,” etc., amounts to a complaint made on information and belief only, and does not “set forth the facts tending to establish the grounds of the application or probable cause for believing they exist,” as provided in our statutes. This court is of the opinion that this objection is well taken.

In Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935, the question of the issuance of warrants, whether in felony or misdemeanor eases, is ably discussed and analyzed by Judge Doyle, in which opinion the decisions of the United States Supreme Court, touching upon the question, are reviewed from the beginning, as well as the rulings of other courts, all to the effect that a complaint upon information and belief constitutes no grounds upon which a magistrate may issue a warrant. The probable cause must be shown, as distinguished from the mere information and belief of affiant.

In another opinion written by Judge Doyle, Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199, this court held, among other things, that a search warrant issued upon information and belief is issued without warrant of law and in violation of section 30 of our Bill of Bights.

This rule had its origin in England, before the organization of this government. In an opinion by Chief Justice Marshall rendered in 1806, Ex parte Burford, 3 Cranch, 448, 2 L. Ed. 495, a prisoner was released because there was no sufficient affidavit made as a foundation for the warrant of arrest. There was no preliminary showing made on oath that the petitioner had committed any specific crime. The charge, such as it was, was not supported by the oath of any one having knowledge of the facts. The eminent Chief Justice said:

“If the charge against him was malicious, or grounded on perjury, whom could he sue for the malicious prosecution? or whom could he indict for perjury?”

There are authorities holding that affidavits on information and belief are sufficient grounds for the issuance of search warrants, and are sufficient compliance with federal' and state Constitutions, but the holdings of this court and the weight of authority in other courts seem to be to the contrary. 16 Corpus Juris, 292.

If, -however, there is any doubt that, the Constitution requires that an affidavit to obtain a search warrant must show facts to warrant a, magistrate to issue, such warrant, as distinguished from mere information and belief of affiant, that doubt may be set at rest by section 2879, Comp. Stat. 1921, which says that the affidavit “must set forth the facts tending to establish * * * probable cause,” etc.

After the search warrants in the instant case had been issued, pursuant to directions stated in the warrants, the officer Townsend went to defendant’s home in Hinton, where he found a jar of whisky in a storm cave near the house, and a gallon bottle of,whisky buried in the cow stable. From there the officer went to defendant’s farm some miles distant in the country, where he found some empty barrels and a sack of meal near' a fireplace or furnace in a thicket some distance from the house; another officer found a part of a still, a cooker, and a condenser, and in a corn crib, under lock and key, a-one hundred pound sack of sugar, some mash, a funnel, and some jugs; All of these things were seized, and placed in custody of the sheriff.

Before the trial, the defendant filed a motion requesting the court to make an order excluding the use of the articles seized as evidence, and to exclude the- testimony of the officers who made the seizure, in all matters relating to such seizure, on the ground that the search'and seizure were made by forcé, and without authority of law. This motion was by the court denied. Subsequently, over the objections of the defendant, nearly all of these articles were introduced in evidence, and marked as exhibits, and the officers were permitted to explain how and where these articles were obtained.

If these affidavits were insufficient to authorize the issuance of search warrants, the warrants so issued were void, and tbe officers making tbe search and seizure thereunder did so, in so far as tbe issues here are concerned, with no more authority than they would have bad without a warrant of any kind. Where there is no foundation there can be no superstructure. It follows, then, that this search and seizure were illegal and “unreasonable,” within the meaning of both the federal and the state Constitutions, and not in keeping with the provisions of our statutes relating to search and seizure. That brings us to the question' of whether the things so illegally obtained in this ease could be introduced in evidence over the timely objections of the defendant.

This court has held in a number of cases, supported by the decisions of many other appellate courts of high standing, that evidence obtained by means of an illegal search and seizure is admissible; that trial courts will not inquire into the collateral issue of whether the evidence offered was obtained by the officers of the court in violation of law, directly or indirectly; in effect holding that it is sometimes necessary to condone or encourage an offense committed by an officer of the court in order to obtain evidence to convict one accused of some offense. This practice was justified on the ground that the trial courts could not halt the trial of eases to try collateral issues; but it is manifest that the more impelling reason in many instances was a consideration of expediency, in order to make possible the procuring of evidence that might not otherwise be available. In other words, this and other courts have held that the end justifies the means.

We will presently show that the Supreme Court of the United States, in several recent cases has held that this is not good law, nor even good morals, and is a practice not calculated to inspire that respect for courts and court procedure which rightfully appertains to them. If the doctrine that the end justifies the means can be defended in any case, as in ward polities, shady business transactions, or summary punishments inflicted by self-constituted guardians of the conduct and morals of others, it certainly should not be extended to apply to courts and agents of the courts, whose primary function is to enforce impartially all the laws without condoning or encouraging the violation of any.

The guaranties of immunity from unreasonable searches and seizures, and that an accused shall not be compelled to give incriminating evidence against himself, contained in the federal Constitution, and in our state Constitution, are practically the same. Therefore, if it appears that the highest court of the land has definitely fixed a rule applying to the introduction of evidence obtained by illegal seizure, it follows without argument that the rule of evidence in the state courts, where .like facts and principles of law are involved, should conform to that settled by the court having supreme prestige and authority. This is further emphasized by the decision of the Supreme Court of Oklahoma (concurred in by all the justices participating) in Hess v. State, 84 Okla. 73, 202 Pac. 310, following the construction given by the federal Supreme Court. Besting on sound principles, and to promote a uniformity of judicial decisions, it would seem that the decisions of this court should be in harmony with the constitutional construction of the issues here involved, as announced by these two courts.

The case of Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647 (1921), involved the admission in evidence of a paper surreptitiously taken from the office of the accused by persons acting under the direction of the Intelligence Department of the Army; the introduction of papers taken from defendant’s office, pursuant to search warrants commanding the officer to seize certain contracts and papers used by the accused as a means of committing a felony; papers used as' means of bribing an officer of the United States; and papers used in aid of the perpetration of a criminal conspiracy to defraud the United States. Concerning the rights of the people, safeguarded by the Fourth and Fifth Amendments to the Constitution, to be immune from unreasonable searches and seizures, and the immunity in a criminal case from being compelled to be a witness against oneself, Mr. Justice Clarke, speaking for the court, said:

“Such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty, and private property;’ that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly overzealous executive officers.” Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. (N. S.) 1915B, 834, Ann. Cas. 1915C, 1177. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319.
“The prohibition of the Fourth Amendment is against all unreasonable searches and seizures; and if for a government officer to obtain entrance to a man’s house or office by force, or by an illegal threat, or show of force, amounting to coercion, and then to search for and seize his private papers, would be an unreasonable, and therefore prohibited, search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office, and of the papers of the owner would be as much invaded, and the search and seizure would be as much against his will in the one case as in the other; and it must therefore be regarded as equally in violation of his constitutional rights. * * *
"Upon authority of the Boyd Case, supra, this second question must also be answered in the affirmative. In practice, the result is the same to one accused of crime, whether he be obliged to supply evidence against himself, or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to give evidence against himself in a criminal case. * * *
"The wording of the Fourth Amendment implies that search warrants were in familiar use when the Constitution was adopted, and, plainly, that when issued ‘upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized/ searches and seizures made under them are to be regarded as not unreasonable, and therefore not prohibited by the amendment. Searches and seizures are as constitutional under the amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them — the permission of the amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter. All of this is abundantly recognized in the opinions of the Boyd Case, 116 U. S. 619, 29 L. Ed. 746, 6 Sup. Ct. Rep. 524, and the Weeks Case, 232 U. S. 383, 58 L. Ed. 652, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, in which it is pointed out that, at the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglars’ tools, and weapons, implements of gambling, ‘and many other things, of like character/ might be searched for in home or office, and, if found, might be seized under search warrants lawfully applied for, issued, and executed. * * *

“There is no special sanctity in papers, as distinguished from other forms of' property, to render them immune from search and seizure, if only they fall within the scope of the principles of the eases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized (Langdon v. People, 133 Ill. 382, 24 N. E. 874), and lottery tickets, under a statute prohibiting their possession with intent to sell them (Com. v. Dana, 2 Metc. 329), and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the government, as to give the public an interest in them, which would justify the search for and seizure of them, under a properly issued search warrant, for the purpose of preventing further frauds.”

The claim that the character of the things seized in this case, being parts of a still, materials from which whisky could be made, and the whisky actually taken, would bring this case within the exception above mentioned, as being within the same class as counterfeit coin, burglars’ tools, and implements of gambling, cannot be sustained for two reasons: First, because whatever their classification may be, they were not seized according to law; and, second, because it is manifest from this record that the purpose of the seizure was not to condemn or destroy the property, as provided by our prohibitory liquor law, but was solely for the purpose of introducing the articles in evidence. No return was made by the sheriff on these warrants, and no judicial order made to confiscate or destroy the property. For aught that appears here, as has been the practice in some places, the liquor may have finally been distributed and drunk by “courthouse fans,” or by friends of persons having it in charge, or even resold. The purpose of the law is to destroy the liquor.

We do not hold that such things, when lawfully seized, may in no case be used in evidence, but we do hold that they cannot be so used where they were seized and held illegally, over the timely protest of the accused.

With the exception pointed out in the Gouled Case, supra, there is no distinction between the introduction of evidence obtained by the seizure of papers having an evidential value only, and articles which are ordinarily or may be used for an unlawful purpose. The case of Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, involved the seizure of two quart bottles and one pint bottle of whisky, taken by United States revenue officers while searching the house and store “within his curtilage.” The defendant was charged with having removed whisky on which the revenue tax had not been paid, and with selling whisky on which no tax had been paid. The circumstances of the seizure in the Amos Case, as shown by the testimony of two deputy revenue collectors, were that they went to defendant’s home, and, not finding him there, but finding a woman who said she was his wife, told her they were revenue officers, and had come to search the premises for “violations of the revenue law”; that thereupon the woman opened the store and the witnesses entered, and in a barrel of peas found a bottle containing not quite a half pint of illicitly distilled whisky, which they called “blockade whisky”; that they then went into the home of defendant, and, on searching, found two bottles under the quilt on the bed, one of which contained a full quart, and the other a little over a quart of illicitly distilled whisky. The government introduced in evidence a pint bottle containing whisky, which the witness Coleman stated “was not one of the bottles found by him, but that the whis-ky contained in the same was poured out of one of the two bottles that had been found in defendant’s house on the bed under the quilt, as stated.” On cross-examination both witnesses testified that they did not have any warrant for the arrest of the defendant, nor any search warrant to search his house, and that the search was made during the daytime, in the absence of the defendant, who did not appear on the scene until after the search had been made. After these revenue officers had so testified, the accused made a motion to strike the testimony, because it was obtained by force, by an illegal invasion of his constitutional rights and also filed a petition for the return of the property seized. The court held that the petition to have the property returned was properly denied, as coming too late when first presented after the jury was impaneled. The motion to exclude the property and the testimony of the government agents relating thereto, after the manner of the search had been described, was by the trial court also denied. With reference to these rulings, the United States Supreme Court said:

“There is nothing in the record to indicate that the allegations of the petition for the return of the property, sworn to by the defendant, were in any respect questioned or denied, and the report of the examination and appropriate cross-examination of the government’s witnesses, called to make out its case, shows clearly the unconstitutional character of the seizure by which the property which it introduced was obtained. The facts essential to the disposition of the motion were not and could not be denied; they were literally thrust upon the attention of -the court by the government itself. The petition should have been granted; but, it having been denied, the motion should have been sustained.
“The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive Ms constitutional rights, for it is perfectly clear that, under the implied coercion here presented, no such waiver was intended or effected.”

Other United States Supreme Court decisions supporting the conclusions announced in the Gouled Case and the Amos Case are Boyd v. United States, supra, and Weeks v. United States, supra.

The insidious encroachments upon the liberty and private affairs of the individual by boards, commissions, examiners, detectives, inspectors, and other agents of the state and municipalities' now prevail to such an extent that self-respecting citizens, in urban communities especially, do not know in the course of a day how many rules or regulations they have violated, for which they may be subject to a penalty. If one inadvertently expectorates in the street, or parks his car at a wrong angle, or places his garbage in the wrong kind of receptacle he may be guilty of an offense. If these governmental agencies, contrary to the letter and the spirit of our Constitution, are encouraged or condoned by the courts in their invasion of the privacy of homes, offices and places of business, forcibly and without invitation, for the purpose of procuring evidence to convict one of some misdemeanor, the practice followed to its logical conclusion will make our vaunted freedom a mere pretense, valueless, and without sub-istance. Whenever the courts actively encourage officers to procure evidence illegally by force, the officers soon become dictatorial, arrogant, and even brutal — a natural consequence of the court’s approval of obtaining evidence illegally by force.

This rule of evidence is not based alone on the constitutional right of an accused to be immune from being forced to testify against himself in a criminal ease. It rests in part on the principle that the courts and their agencies shall not actively participate in procuring evidence illegally, and by a rule of evidence make nugatory the rights conferred by the Constitution. Citations and Annotations, 24 A. L. R. 1417, et seq.; State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398 (1922); Tucker v. State, 128 Miss. 211, 90 South. 845, 24 A. L. R. 1377 (1922).

In the case under consideration, the officers were armed with specific, written court orders to do an illegal thing. The evidence so procured is inadmissible. The order was equivalent to no order at all. Now, suppose these officers had made this illegal search and seizure without a warrant of any kind, upon the authority of their duties as officers of the court— the evidence so obtained would be subject to the same rule. Our statutes provide that sheriffs, deputy sheriffs, and constables are peace officers,. charged among other things with the duty of maldng arrests in the manner provided by law. Section 2471, Comp. Stat. 1921, provides:

“A peace officer may, without a warrant, arrest a person:
“First. For a public offense, committed or attempted in his presence.
“Second. When the person arrested has committed a felony, although not in his presence.
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”

The making or vending of intoxicating liquor is a misdemeanor. An officer may, without a warrant, arrest one for this offense when the offense is committed in his presence, but not otherwise. Now, it may be argued that because the officer was without authority, either specific or general, he may be deemed to be a mere independent trespasser, punishable as such; but that any evidence obtained by means of the trespass would be admissible. The United States Supreme Court has held that this subtle line of reasoning is unsound— as in the Amos Case, where an officer goes to the residence of a suspected person, and informs him that he is an officer, and has come to search the premises for things used to com,mit an offense; whether actual force is used or not, he is acting under color of authority of the court for which he assumes to act, so that the court cannot later adopt, condone, or encourage such illegal act by receiving evidence so obtained to the prejudice of the accused. The court must not become a party to such illegal practices, either before or after the fact. An officer without a warrant, in his endeavors to make an arrest or a search and seizure, is acting for and in behalf of the court for which he acts in an-administrative capacity. The statutes clothe him with authority without special process issued by the court, and the rules of evidence applying in a case where he goes armed with written directions of a court issued without authority of law and the rules of evidence applying to a case where an arrest or a search and seizure is made without any written directions, should be the same. In principle and effect they are the -same. The evils growing out of the one are of equal magnitude with those growing out of the other.

The rule of evidence here adopted need not materially hinder or impair the efficiency of the courts or their officers in the discovery and punishment of crime. Usually the identical evidence can be obtained in a legal manner. There are justices of the peace or other magistrates in every community who, upon a proper showing, will issue search warrants, and the evidence obtained by their execution and use will not then be obtained by an “illegal search and seizure,” and may be admitted. The introduction of evidence obtained under legal search warrants, properly issued, is not forcing the accused to testify against himself; it is the use of evidence obtained as an incident to the execution of the legal processes of the court.

Many appellate courts of high standing have held that the interpretation placed on the Fourth and Fifth Amendments to the federal Constitution is. not binding upon the state courts in construing like provisions in state Constitutions. The courts and the cases so holding are cited in Banks v. State, 207 Ala. 179, 93 South. 293, 24 A. L. R. 1359. Citations of state decisions in accord with the interpretation given these constitutional provisions by the United States Supreme Court, as they relate to rules of evidence, are assembled and 'discussed in the annotations following State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398, at page 1417; those holding to the contrary, at page 1411.

The right of a state court to construe its own Constitution may be conceded, but when doing so the construction given like provisions in the federal Constitution by the United States Supreme Court should be more than persuasive, especially where the holding of the highest court *is in full accord with the primary purposes of such provisions, that is, to safeguard the tranquillity and sanctity of the home and to minimize interference with private affairs.

The rule as to the introduction of evidence illegally obtained is well stated in State v. Wills, supra, thus:

“Generally, the admissibility of evidence is not affected by the -illegality of the means through which the evidence is obtained; but this general rule is qualified and restricted by section 5 of article 3 of the Constitution, which provides that no person in any criminal case shall be compelled to be a witness against himself, and by section 6 of the same article, which inhibits unreasonable searches and seizures.
“It is unnecessary for the accused, before trial, * * * to move the court to return the articles so illegally taken from him or to reject the evidence obtained by means of the unlawful search or seizure, in order to exclude such articles or evidence against him at the trial, but objection is properly and seasonably made, by motion, when they are offered on the trial. ’ ’

It was not the purpose of these constitutional provisions to build a wall behind which criminals could hide and escape punishment. Some of them do and will escape, bur better so than to disregard these safe-guards designed to protect the innocent from being harrassed and annoyed, and sometimes abused, by trespassing officers.

The declarations of this court in the several opinions heretofore rendered which are in conflict with the principles and rule of evidence herein announced are expressly overruled. Some of these are Silva v. State, 6 Okla. Cr. 97, 116 Pac. 199; Boone v. State, 15 Okla. Cr. 29, 175 Pac. 61; Knight v. State, 16 Okla. Cr. 298, 182 Pac. 736.

The rule here announced will not necessarily apply to officers or others who may procure evidence illegally when not acting under authority or color of authority from the court or some of its agencies or beyond the pale of statutory authority.

The judgment of the trial court is reversed, and the cause remanded.

MATSON, P. J., concurs in the result.

DOYLE,. J., concurs.

MATSON, P. J.

(concurring). Constitutions should be liberally construed. A narrow and technical rule of construction should never be applied to any provision of the Constitution. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381; Salter v. State, 2 Okla. Cr. 464, 102 Pac. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935.

The right of the people to be “secure in their persons, houses, papers, and effects against unreasonable searches and seizures” as provided in section 30, art. 2, Constitution of Oklahoma, was clearly violated by the search made in this case.

That right is not “secure” if the government by its own officers, and through the agency of its courts, openly and defiantly violates such provision by an unlawful search, and then permits the fruits of that search to be used as weapons of condemnation and conviction through the same channels that committed the first wrong.

It is not enough to say, in my opinion, that the courts will not stop to inquire into the legality of the means by which such evidence is obtained. Can full expression be given to the intention of our people if such rule is to prevail? I think not. Should the members of this court close their eyes to such a plain mandate against the invasion of personal liberty and domestic security? The answer is no.

I concur in the opinion in so far as it relates to the admission in evidence of property and things seized of the accused under an invalid and illegal search warrant, or where the officers of the state act without a search warrant.

I am inclined to the view that the admission of such evidence is not violative of section 21, art. 2, Constitution of Oklahoma.

Section 30, art. 2, Constitution, is self-executing. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 241. The protection guaranteed to the people by such self-executing provisions cannot obtain if the people’s forums for the redress of their wrongs are to wholly ignore its plain inhibitions, and justify their conduct on grounds of necessity or expediency.

If the courts of this state will hesitate long enough to determine whether an accused’s extrajudicial confession is or is not voluntary, that is, to determine whether its admission in evidence could be violative of another of accused’s constitutional rights, why should not the courts hesitate here for a sufficient time to determine whether or not this constitutional right of accused has been violated by the government itself — a subtle distinction in practice without difference in principle. If an involuntary confession should not be used against accused without his consent, the fruits of an illegal seizure by government agents should not receive the sanction of evidential competency by the courts over accused’s timely objection. The practice of so receiving such evidence necessarily results in widespread invasion of constitutional rights and makes of the Constitution a mockery and myth.

While this court has heretofore adhered to the view expressed by eminent authority that “it is a general rule of evidence that its competency is not affected by the fact that it was wrongfully obtained,” I think, in view of the need for uniformity between the rules of evidence prevalent in the federal courts and state courts, the holding of the United States Supreme Court on this subject, as said in the majority opinion, at least should be persuasive in cases where evidence is procured by an illegal search.

Many federal and state statutes overlap, and while the provisions of the Fourth and Fifth Amendments to the federal Constitution are not applicable to the state, nevertheless sections 21 and 30 of article 2, Constitution of Oklahoma, are substantially identical with such amendments, and the protection afforded an accused in the courts of this state should be coequal to that afforded an accused in the federal courts. As the federal courts have departed from the rule, the state courts should follow.

For reasons stated I concur in the conclusion reached that this conviction should be reversed.'


text:
    Ex parte D. E. SMITH.
    No. A-4643.
    Opinion Filed Sept. 22, 1923.
    (218 Pac. 708.)
    (Syllabus.)
    1. intoxicating Liquors — Law Making Violations of Prohibitory Law Felony Held Unconstitutional. The act approved February 5, 1923, chapter 1 Session Laws 1923, making it a felony to make or possess mash, or wort, or wash fit for distillation, or to make or set up a still or parts thereof used in the process of manufacturing intoxicating liquor, is in conflict with and exceeds the limitations contained in the constitutional ordinance prohibiting the manufacture and sale of intoxicating liquor.
    2. Same — Existing Law not Repealed by Law Making Violation of Prohibitory Law Felony, Neither the title nor the text of the act, nor the import of its provisions, indicate that it was the intention of the Legislature to repeal any substantive provisions of our prohibitory liquor law then in force, or to repeal any existing law.
    3. Same — Violation of Prohibitory Law Misdemeanor Under Constitution, The penal provisions of our Constitution relating to the illegal sale and manufacture of intoxicating liquor contemplate that' the offense shall be a misdemeanor. This constitutional provision is self-executing, and the Legislature is powerless to alter the minimum punishment provided for its violation.
    4. Same — Law Making Violation of Prohibitory Law a Felony Held Unenforceable. The act is not susceptible of enforcement as a necessary part of our prohibitory liquor law, in that it attempts to make of a constituent part of the constitutional and statutory offense of manufacturing liquor a felony, whereas the Constitution and law makes the commission of the whole offense a misdemeanor only.
    5. Evidence — Rule of Presumptive Evidence in Law Making Violation of Prohibitory Liquor Law Felony Held Open to Criticism. The rule of presumptive evidence as stated in section 6 of the act (Laws 1923, c. 1) is open to criticism, in that it bases a presumption on an inference or another presumption, and that it may be made to apply to facts having no intrinsic evidential value.
    Habeas corpus by D. E. Smith for release from custody.
    Writ allowed.
    Mathers & Coakley, Thomas Norman, and John W. Scott, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
    E. E. Blake, Harold 0. Mulks, Lewis Paullin, and Edward Hirsh, amici curiae.
   BESSEY, J.

The petitioner, D. E. Smith, in the district court of Stephens county entered a plea of guilty to the charge of having possession of three barrels of mash, in violation of chapter 1, pp. 1 and 2, Session Laws 1923. Upon the plea so entered the court rendered judgment and sentenced the petitioner to serve a term of one year in the state penitentiary and to pay a fine of $100. The petitioner is now in the penitentiary serving this sentence.

This application for a writ of habeas corpus is brought to secure the release of petitioner and his discharge from the custody of the warden of the state penitentiary at McAlester, where he is incarcerated and confined by virtue of a commitment based upon this judgment. The petitioner says that the writ should be granted for the reason that the act upon /which his conviction and incarceration are based is illegal, ■unconstitutional, and void, and asks that an order be made directing his release from custody.

The act so attacked reads as follows:

“An act relating to stills, distilleries, mash, wort, wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor; fixing the penalty for the violation thereof, and declaring an emergency.
“Be it enacted by the people of the state of Oklahoma: “Intoxicating Liquors — Possession of Ingredients.
“Section 1. No mash, wort or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor shall be made, fermented or possessed by any person, other than a person duly authorized' under the laws of the United States and the state of Oklahoma, to manufacture sweet eider, vinegar, nonalcoholic beverages, or spirits for other than beverage purposes.
“Still — Registration.
“Section 2. No person shall keep in his possession any still worm or still, without registering the same with the proper United States officer, and no person shall set up to be used as a distillery, any still worm or substitute therefor, or a still or a substitute therefor, such as a kettle, wash-pot, metal tank or other vessel of any kind for the purpose of using same, or which after being set up may be used for the production of distilled spirits, or any liquor the sale of which is prohibited by the laws of the state of Oklahoma.
“Distillery — Prohibited Within Oklahoma.
“Section 3. No distillery shall be set up in this state for the purpose of manufacturing distilled spirits, or any liquor the sale of which is prohibited by the laws of the state of Oklahoma, for beverage purposes, and no distillery shall be used in the manufacture of such spirits or liquor, and no distillery shall be sold or possessed for the manufacture of such spirits or liquor. Any device or any process which separates alcoholic spirits from any fermented substance shall be regarded as a distillery.
“Stills — Manufacture of Prohibited.
“Section 4. No person shall manufacture a still worm, or still without first having qualified under the laws of the United States as a manufacturer of stills, and without paying the tax required by the laws of the United States on the stills and worms manufactured. Any person who converts a kettle, wash-pot, metal can, tank, barrel or other vessel into a still or who converts any metal pipe of any kind into a still worm or condenser for a still, shall be deemed a manufacturer of stills.
“Collector Internal Revenue — Certificates—Evidence.
“Section 5. The certificate of the proper collector of internal revenue with respect to any particular still or distillery found in this state, shall be accepted in any court of the state as prima facie evidence of the status of such still or distilling apparatus.
“Possession — Prima Facie Evidence of Ownership.
“Section 6. Any mash, wort, or wash, and any distillery found in any house, or building, or within any inclosure shall prima facie be deemed, in the case of mash, wort or wash, to have been made and fermented by, and in the case of a distillery to have been set up by, and to be the property of the person or persons who are in actual possession and control of the house, building or inelosure as the case may be; provided, further, that it shall be unlawful for any person to place any mash, wort, or wash, or any distillery or still on the premises of another.
“Felony.
“Section 7. Any person who shall violate any provision of this act shall be guilty of a felony and punished by fine not less than one hundred dollars ($100.00) nor more than five thousand dollars ($5,000.00) and imprisonment in the penitentiary not less than one year nor more than ten years.
“Emergency.
“Section 8. It being immediately necessary for the preservation of tbe public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.”

The reasons urged by petitioner why this act should be declared unconstitutional and void may be summarized thus:

(1) That the penal provisions of our Constitution relating to the illegal sale and manufacture of intoxicating liquor contemplate that the offense shall be a misdemeanor; that this constitutional provision is self-executing and that the Legislature is powerless to change the minimum punishment there prescribed for its violation.

(2) That neither the title nor the text of the act, nor the import of its provisions, indicate that it was the intention of the Legislature to repeal any substantive provisions of our prohibitory laws then in force, or to repeal any other existing law.

(3) That considered in connection with the Constitution and laws then in force, the act is not susceptible of enforcement as a necessary part of our prohibitory liquor law, in that it attempts to make a constituent part of the constitutional and statutory offense a felony, whereas the Constitution and the statutes make the commission of the whole offense a misdemeanor only.

(4) That it attempts to establish a statutory rule of probative evidence of guilt based on facts not inconsistent with innocence, which facts may have and often do have no actual evidential force tending to establish guilt.

(5) That the act, considered in connection with the constitutional and other prohibitory acts, is so inconsistent and incongruous as to amount to an absurdity, and that it is not susceptible of reasonable enforcement.

The Enabling Act, in which our constitutional prohibitory liquor law had its inception, provided:

“That the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors, * * * is prohibited for a period of twenty-one years from the date of the admission of the state into the Union, and thereafter until the people of said state shall otherwise provide. * * * Any person, individual or corporation who shall manufacture, sell, barter, give away or otherwise furnish any intoxicating liquor * * * 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. # # » Upon admission of said state into the Union these provisions shall be immediately enforceable in the courts of said state. ’ ’

The provision above quoted from the Enabling Act was submitted to the people of the state and adopted as a part of its Constitution. It was held in State v. Hooker, 22 Okla. 712, 98 Pac. 964, that this constitutional provision was self-executing, but that it did not impose a limitation or a restriction upon the power of the Legislature to enact additional or supplemental legislation, except that no enactment .should contravene the provisions of such ordinance.

In Ex parte Cain, 1 Okla. Cr. 7, 93 Pac. 974, in an opinion written by Chief Justice Williams, it was held that the prohibitory provision in the Constitution was self-executing and that a violation of its provisions was a misdemeanor; that section 13 of the Enabling Act provided that upon the admission of the state the laws in force in the territory of Oklahoma, as far as applicable, should extend over and apply to said state until changed by the Legislature; that section 2 of the Schedule of the Constitution provided that all laws in force in the territory of Oklahoma at the time of the admission of the state into the Union which were not repugnant to the Constitution and which were not locally inapplicable should be extended to and remain in force in the state of Oklahoma until they expired by their own limitations, or were altered or repealed.

With reference to the punishment of misdemeanors, one of these laws adopted at the advent of statehood provided:

"Except in eases where a different punishment is prescribed by this code or by some existing provisions of law, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding one year or by a fine not exceeding $500.00, or both such fine and imprisonment.” Comp. Laws 1909, § 2032.

Construing these provisions together, it seems apparent that the Constitution directly provided for a minimum punishment for a violation of the prohibitory liquor law and indirectly provided a maximum punishment by the adoption of the statute relating to punishment in misdemeanor cases to apply in all eases where no specific punishment was provided.

The language used in section 13 of the Enabling Act, the laws of Oklahoma shall prevail until changed by the Legislature thereof, indicates that the maximum punishment for this or any other offense may be altered, modified, or increased by subsequent legislation. The question here arises .whether the minimum punishment may be so altered, modified, or increased. The Constitution provides that the minimum imprisonment shall be for a period not less than 30 days; has the Legislature now the authority to make this minimum period of imprisonment more or less? The Constitution provides that the imprisonment should be in connection with a fine of not less than $50; can the Legislature now provide for the imposing of a greater or less minimum fine, or abrogate the one or the other? In other words, is there an express or necessarily implied limitation against pushing the minimum penalty named in the Constitution forward, or must it remain where the Constitution placed it?

The fact that a provision in a Constitution is self-executing does not necessarily preclude the Legislature from legislating on the same subject. Such provision may be supplemented by appropriate laws designed to make it more effective, within the bounds reserved by the Constitution and not exceeding the limitations specified. 2 Corpus Juris, 731; 6 R. C. L. 61; Stevens v. Benson, 50 Or. 269, 91 Pac. 578; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Beecher v. Baldy, 7 Mich. 488; Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; People v. Draper, 15 N. Y. 532; Cooley’s Const. Lim. (7th Ed.) 122.

Usually, if a constitutional provision supplies the rule for its enforcement and fixes a penalty for its violation, it is not only self-executing, but also limits the power of the Legislature to change the penalty. 12 C. J. “Constitutional Law,” § 109; Louisville, etc., Ry. Co. v. Com., 105 Ky. 179, 48 S. W. 416, 43 L. R. A. 550; State ex rel. Bennett v. State Board of Examiners, 40 Mont. 59, 104 Pac. 1055; 8 Cyc. 753; Commonwealth v. Jones, 10 Bush (Ky.) 735.

A self-executing constitutional provision is a higher form of statutory law, designed to prevent the Legislature from making it nugatory or modifying its essential features. Kitchin v. Wood, 154 N. C. 565, 70 S. E. 995; Lyons v. Longmont, 54 Colo. 112, 129 Pac. 198.

The Constitution of Kentucky provides that for willfully and knowingly violating a statute prohibiting discrimination in freight rates by a railway or transportation company such company should be fined $2,000 for the first offense, $5,000 for the second offense, and for the third offense should suffer a forfeiture of its charter and franchise. The Constitution also contained a proviso that the transportation company in special cases, on investigation and order of the State (Railway) Commission, might be relieved from its operation. Subsequently a statute was enacted prohibiting freight rate discrimination in language similar to that used in the Constitution, except that the doing of the things prohibited, whether purposely or not, constituted the offense, whereas the Constitution made it an offense to willfully and knowingly do the acts prohibited. The statute also contained directions as to methods and procedure before the Commission to determine how and in what manner transportation companies should be exempt from its operation, and prescribed a less penalty than that named in the Constitution. The indictment in the case of Louisville, etc., Ry. Co. v. Commonwealth, supra, was framed to follow the statute and made no mention of the proviso in the Constitution. The indictment was attacked as not being in compliance with the Constitution, for reasons relating to long and short hauls and individual discrimina-tions in the aggregate, but was not attacked on the specific ground that the statute prescribed a different penalty than that prescribed by the Constitution, so that that feature was not directly before the court for consideration. There were two dissenting opinions in the ease, in one of which this statement was .made:

“The penalty for the offense, as prescribed (by state) is a fine, for the first offense, of not less than $500 nor more than $1,000; for the second offense, not less than $500 nor more than $2,000; and for the third offense, not less than $2,000 nor more than $5,000. * * *
“The penalty (under the Constitution) shall be, for the first offense, a fine of $2,000; for the second offense, a fine of $5,000; and, for the third offense, a forfeiture, ipso facto, of franchise privileges and charter rights. * * * It is therefore manifest that, so far as (the statutes) conflict with (the Constitution) they are void.”

So far as we know, a self-executing Constitutional provision specifically prohibiting and fixing the penalty for the illegal sale or manufacture of intoxicating liquor has never been incorporated in any state Constitution excepting only those of Oklahoma and Arizona. The constitutional prohibitory provisions in Maine, Rhode Island, Kansas, Idaho, and Colorado briefly state that the sale and manufacture of liquor shall be prohibited, leaving the whole question with the Legislature to enforce and vitalize by appropriate legislation. It is clear that in these states the Legislature may establish and change both the maximum and minimum penalties at will.

The Constitution of Arizona (Amendment 23) provides that—

“Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind * * * or who manufactures, or introduces into the state any such liquor” shall be guilty of a misdemeanor, and iipon conviction shall be “imprisoned for not less than ten days nor more than two years, and fined not less than $25.00 and costs, nor more than $300 and costs for each offense.”

Section 2 thereof provides:

“The Legislature shall by appropriate legislation provide for the carrying into effect of this amendment.”

Section 3:

“This amendment shall take effect on and be in force on and after the 1st day of January, 1915.”

In Gherna v. State, 16 Ariz. 344, 146 Pac. 494, Ann. Cas. 1916D, 94, the court held that these provisions of the Constitution were self-executing; that it was a self-operating legislative measure, prohibiting the things mentioned and prescribing a punishment for its violation; a self-executing, positive penal law, capable of enforcement without supporting legislation. The court said that in order to make the enforcement of its provisions more certain and effective the Legislature was empowered to supplement the law with such safe-guards as to them seemed appropriate, and by implication held that the penalty provided could not be altered by the Legislature. Upon this point the court said:

“This prohibition amendment is an act of the sovereignty. The Legislature, therefore, cannot take from it or add to it, but it may pass suitable, fit or proper laws as an aid to the authorities whose duty it is to enforce the constitutional provision. The experience of those states that have tried to suppress the liquor traffic has been that many subterfuges are resorted to to defeat the object aimed at. This fact was doubtless well known to the electorate, and in anticipation of like tactics being practiced in this state, and out of abundant caution, they requested, * * * that the Legislature pass appropriate legislation, for instance, such as declaring places where liquor is sold nuisances, making possession of liquor prima facie evidence of guilt, providing for the search of blind tigers, and rules requiring transportation companies to keep records of liquor shipped into the state, etc.,” citing with approval Nowakowski v. State, 6 Okla. Cr. 123, 116 Pac. 351.

If this limitation holds where both the minimum and maximum punishments are fixed by the Constitution, we see no reason why, in principle, it would not apply where only the minimum is fixed, as in the Oklahoma Constitution. It has been argued that it was placed there to make the law self-executing until such time as the Legislature might change it, but the Constitution contains no declaration and, as we think, no implication, that the minimum punishment should stand as fixed “until otherwise provided by law,” as appears in some of the other provisions of the Constitution. The same reasoning was outlined by this court in the Nowakowski Case, supra, thus:

“In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it. more available, and such laws must not curtail the rights reserved, or exceed the limitations specified.”

As an aid in determining the intent of the delegates who framed this prohibitory enactment, it is not improper to consider that its adoption as applied to the Indian Territory part of the state was made at the behest of Congress, as a condition precedent to the admission of the state into the Union. To make an offense a felony will, in many instances, have a more deterrent effect on possible violators of the law than to make it a misdemeanor, provided that public sentiment will aid and support its enforcement. But if the people, courts, and juries are loath or unwilling to enforce it, or will enforce it only in its graver aspects, an unusually severe penalty will sometimes defeat its very object.

The chief evil which constitutional prohibition sought to reach was the open saloon, which had degenerated into a kind of clearing house for thieves, robbers, prostitution, and political corruption, and which had a general debauching influence on society. On the other hand, subsequent events have demonstrated that a large class of citizens, possibly a majority, voted for this measure with the expectation that it would be enforced sufficiently to abate those evils but not to the extent of depriving them of the moderate use of liquor in the home or in private social intercourse. A recent report made by the Attorney General to the President indicates that the same sentiment prevails nationally. These were prohibitionists with reservations, but without their support these measures might not have been adopted. Prom the dawn of history until recently a regulated use and sale of liquor has prevailed more or less everywhere. The efforts made by the federal government to enforce prohibition since the adoption of the Eighteenth Amendment have demonstrated that the habits and taste of man cannot be quickly changed by law. Anticipating these conditions, Congress and the framers of the state Constitutions expressly provided in the constitutional ordinance, as we construe it, an unalterable minimum punishment for its violation. The maximum penalty to be prescribed was left open, to be decreased or increased at the will of the Legislature, as the public sentiment and the exigencies of the situation might demand. If this specific penal provision in no way limited the power of the Legislature, why did Congress direct that it be incorporated in the measure? We would not be justified in holding that it means nothing. The only other construction it could be given would be that the provision was to be self-operating until the Legislature should meet and act upon it; to our mind that would be a strained construction, not contemplated by the authors.

It must be conceded that the Legislature may act at will upon any legitimate subject not limited by the Constitution. Without the constitutional provision the Legislature could have enacted any reasonable kind of penal law to suppress the manufacture and sale of intoxicating liquor. In this connection it has been urged that the prohibiting of the making of mash and the erecting of a still is general legislation and that it is within the powers of the Legislature to suppress such acts, independent of our constitutional prohibitory provisions. Clearly such a claim is illogical. The statute here attacked was passed in aid of and auxiliary to the enforcement of our self-executing constitutional prohibition measure. It would have amounted to an absurdity to pass such an act in a case where the Constitution and laws permitted the sale and manufacture of liquor. This act was designed to be a supplemental measure in aid of the enforcement of the prohibitory laws then existing. From a legal standpoint, the prohibiting of the making of mash or the setting up of a still would be useless if there was no law against the manufacture or sale of liquor. The manifest purpose of this act was to make it an integral part of all the acts dealing with that subject.

Holding, as we do, that the statute here attacked was designed to be and must be construed to be a part of our other prohibitory laws and supplementary thereto, with no intent to repeal any existing law, an incongruity appears, in that a violation of the complete act, i. e., the manufacture of intoxicating liquor, is a misdemeanor, while a constituent portion of the offense, i. e., the steps taken towards such manufacture, is a felony. It is self-evident that a part cannot be greater than the whole. For instance, the offense of assault and battery is by statute made a misdemeanor; could the Legislature, without repealing that statute, make a simple assault a felony, the latter being a necessary, constituent part of the former? If this could be done, how could each law be enforced? Where a statute does not operate as a repeal of some other existing statute and is so conflicting and inconsistent with the law it seeks to vitalize, and the provisions of the supplemental act are so indefinite, that the two cannot be harmonized, the court should declare the supplemental act inoperative. People v. Sweitzer, 266 Ill. 459, 107 N. E. 902, Ann. Cas. 1916B, 586; State v. Excelsior Springs Light Co., 212 Mo. 101, 110 S. W. 1079, 126 Am. St. Rep. 563; State ex rel. Hustings v. Bd. of State Convassers, 159 Wis. 216, 150 N. W. 542, Ann. Cas. 1916D, 159.

Furthermore, the penalty sought to be imposed by this supplementary act is in conflict with the general statutes. Section 2296, Comp. Stat. 1921, provides:

“No person can be convicted of an attempt to commit a crime when it appears that the crime intended or attempted was perpetrated by such, person in pursuance of such attempt.”

And the section following, section 2297, provides that an attempt to commit a crime by doing some act in the course .of its commission shall be punished by one-half the penalty provided for the commission of the completed offense. These two sections were not repealed, either expressly or by implication, by the terms and import of the act here attacked.

It is claimed that the rule of prima facie evidence sought to be established by section 6 of the act attacked, to the effect that mash, wort, or wash found in any house, building, or inelosure shall be deemed to have been made and fermented by the person in possession of the premises, is an evidential rule beyond the powers of the Legislature to establish; and that the same is true as to the still or parts thereof.

The Legislature has the power, even in criminal cases, to prescribe a rule of evidence to the effect that where certain facts have been proved they shall be prima facie evidence of the main facts in question, provided the fact proved has some fair evidential relation tending to establish the main issue. It is doubtful whether the Legislature may make a certain state of facts prima facie evidence of the crime charged where the facts proved are merely of an artificial or speculative evidential character. Certainly the Legislature is without power to make prima facie evidence of crime facts or circumstances over which the party charged had no control or with which he had no connection. 20 C. J. “Evidence,” §§27 and 88; 10 R. C. L. 864; Wigmore on Evidence, vol. 1, § 7.

Condensing what Prof. Wigmore says on this point: A rule of substantive law may be protected by the Constitution, and a statutory rule of evidence that infringes that right may be invalid. The legislative function is separate from the judicial function and a statute which has for its purpose the exercise of judicial power is invalid. The judicial power applies the law to concrete facts and involves an investigation to establish the facts. But no one has a vested right in a rule of evidence. He can only complain when the right to establish or rebut a substantial issue is taken from him. Ordinarily, a rule of prima facie evidence does not deprive one of any substantial right, although it may operate to shift the burden of proof. Wigmore on Evidence, §§ 8 and 1354, par. 3 et seq. -

A presumption must be based upon a fact, and not upon an inference or upon another presumption. Lawson on Presumptive Evidence, Rule 118, p. 652; 10 R. C. L. 870, and cases cited. The rule of presumptive evidence attempted to be established by this act is based on a presumption that the person in possession of the premises and its inclosure where the things prohibited may be found had knowledge of their existence and location, and upon that presumption bases another presumption that they belonged to him and that he intended to use them for an illegal purpose. This violates the rule well established everywhere that one presumption cannot be based upon another.

If it can be said that the presumption stated in section 6 is not based on another presumption and is not void for that reason, there are cases to which such statutory presumption, though valid, should not apply. For instance, in a case recently decided in this court the record showed that a still had been found on a ranch which contained more than 18 sections of land and was more than four miles square. It could hardly be said that there was a presumption of law that the person in possession of the ranch placed it there. All the authorities agree that such a statutory rule of evidence is a dangerous one, and that it should not be applied where it has no intrinsic evidential force or where its application will impair some positive statutory or constitutional right.

The rule of evidence as provided in section 6 of the act might not necessarily impair its enforcement if otherwise valid, but on account of the other reason stated we hold the act is in conflict with the Constitution, and is a subsidiary act in conflict with other prohibition statutes which it did not repeal, and that it is not susceptible of practical enforcement.

The application for a writ of habeas corpus will be sustained and the writ shall issue, ordering the discharge of the petitioner.

DOYLE, J., concurs.

MATSON, P. J., concurs in the result.

MATSON, P. J.

(concurring). In Ex parte Cain, 20 Okla. 125, 93 Pac. 974; Id., 1 Okla. Cr. 7, 93 Pac. 974, the Supreme Court held that the constitutional provision prohibiting the barter, sale, manufacture, giving away, etc., of intoxicating liquors was self-executing and became immediately enforceable in the courts of this state on admission of the state into the Union.

Further in that opinion it was held that the word “imprisonment” as used in such article meant imprisonment in the county jail, and for that reason the offense there defined was a misdemeanor and not a felony.

In that opinion it was held also that the territorial statute prescribing a maximum punishment for misdemeanors (where there was “no different punishment * * * by some existing provision of law”) at imprisonment in the county jail not exceeding one year and a fine not exceeding $500 was not in conflict with such article of the Constitution and was applicable to the maximum punishment for a violation of the article; that unless otherwise specifically provided the word “imprisonment” meant imprisonment in the jail.

The Legislature was inhibited to make the fine “less than fifty dollars” and the imprisonment “less than thirty days” —to quote the language of the Constitution.

According to the opinion in Ex parte Cain, supra, the penalty provision of the prohibitory liquor article of the Constitution should read to mean “shall be punished, on conviction thereof, by fine not less than $50.00 and by imprisonment (in the county jail) not less than thirty days for each offense.”

The framers of the Constitution employed the language of the Enabling Act in the prescription of the penalty provision. In adopting this language the people fixed a minimum punishment below which the Legislature could not go, but left the maximum punishment to be later provided by legislative action. But the Enabling Act provided that the provisions of the Enabling Act relative to . prohibition “should be immediately enforceable in the courts of said state.” In order to make the constitutional article on prohibition immediately enforceable in the courts of the state, that is, to make it self-executing, it was necessary that the word “imprisonment,” as used in said article, have a definite and fixed meaning as applied to the amount of minimum punishment therein temporarily fixed. The people therefore provided, as held by the Supreme Court, that the word “imprisonment,” unless specified otherwise, meant “imprisonment” in the “county jail.” The word “imprisonment” therefore had a fixed meaning in the minds of the people when this article of the Constitution was adopted. The adoption of the article was equivalent to saying that the place of imprisonment for the minimum punishment for this offense is fixed as the “county jail.”

The act here in question provides a minimum imprisonment of one year in the penitentiary. The act is directed at various “attempts” or “steps” in the manufacture of intoxicating liquor. The manufacturing of intoxicating liquor is punishable by the self-executing prohibition article of the Constitution and supplemental legislation which leaves the place of minimum imprisonment in the county jail. The place of “imprisonment” for the minimum punishment for manufacturing intoxicating liquor has been fixed by the Constitution to be in the “county jail.” It follows, therefore, that the Legislature is powerless to fix the place of “imprisonment” for the minimum punishment for the attempted offense in the penitentiary while the minimum punishment for the complete offense must remain to be in the county jail. If, as held in Ex parte Cain, the word “imprisonment” meant county jail when the Constitution was adopted, it means county jail now.

As to the place o£ “imprisonment” provided as the minimum punishment under the'terms of the present act, there seems to be, under the former holdings of this and the Supreme Court; a clear conflict with the constitutional prohibition article, and for that reason the act in question cannot be enforced.

In my opinion the amount of minimum fine and the length of the term of minimum imprisonment may be in-, creased but not diminished, but the place of the term of minimum “imprisonment” became a fixture when the Constitution was adopted.


author: DOYLE, J.

text:
    Ex parte LOUIS BOYD.
    No. A-4866.
    Opinion Filed Sept. 28, 1923.
    (218 Pac. 715.)
    (Syllabus.)
    Habeas Corpus — One Convicted Under Unconstitutional Law Discharged. A person who has been convicted of violating an unconstitutional law will be discharged on habeas corpus.
    Habeas corpus by Louis Boyd for release from custody.
    Writ allowed, and petitioner discharged.
    H. M. Adams, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus for the discharge of Louis Boyd from the penitentiary at McAlester, wherein it is alleged that he is unlawfully re-' strained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a commitment issued upon a judgment of conviction pronounced by the district court of Logan county, on a charge of having in his possession mash, and rendered on the 22d day of September, 1923; and alleging that said restraint is illegal and unauthorized because act approved February 5, 1923 (chapter 1, Session Laws 1923), making it a felony to'possess mash, wort, or .wash fit for distillation, is unconstitutional and void, as determined and decided by this.court in the case of Ex parte D. E. Smith, 24 Okla. Cr. 415, 218 Pac. 708, which opinion was handed down on the same day as the judgment herein complained of was rendered.

The Attorney General concedes that the writ should issue and the petitioner be discharged.

In the case of Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708, the statute upon which this prosecution is based was held unconstitutional and‘void. It follows that petitioner is unlawfully restrained of his liberty by the respondent, and that he is entitled to a discharge from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.

The clerk of this court will forthwith forward to the warden of the penitentiary at McAlester a duly certified copy of this opinion, and upon receipt of the same said warden is directed to discharge said petitioner, Louis Boyd.

MATSON, P. J., and BESSEY, J., concur.