text:
    DAVE JONES v. STATE.
    No. A-1537.
    Opinion Filed June 28, 1913.
    (133 Pac. 249.)
    1. CONSTITUTIONAL LAW — Ex Post Facto — Punishment. The act of the Legislature providing that upon a second conviction for a violation of the prohibitory liquor law a higher punishment shall be inflicted is a reasonable classification which the Legislature had the power to make, and it is not ex post facto, although by its terms it máy be enforced against one whose former conviction occurred before its passage.
    2. WITNESSES — Hearsay Evidence — Impeachment—Supporting Testimony. When the credibility of a witness is attacked, it may be supported by evidence that the witness had made similar statements about the time of the occurrence testified to; but, in the absence of any attack upon the credibility of a witness, his statements made out of court cannot be introduced against a defendant, and when so introduced upon a material question in a close case constitutes reversible error.
    3. CONSTITUTIONAL LAW — “Ex Post Facto Law.” An “ex post facto law” is one which renders an act punishable in a mann'er in which it was not punishable when it was committed.
    (Syllabus by the Court.)

      Appeal from County Court, Craig County; S. F. Parles, Judge.

    Dave Jones was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.

      James 8. Davenport, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and C. Caldwell, Co. Atty., for the State.
   FURMAN, J.

This is a conviction for violating section 16 of the Act of March 11, 1911' (Sess. Laws 1911, e. 70) relating to the illegal sale of intoxicating liquors. Said section is as follows:

“For the second conviction for the violation of any of the provisions of this act, the penalty shall be a fine of not less than five hundred dollars nor more than one thousand dollars, and by imprisonment for not less than six months nor more than twelve months, and it shall be mandatory upon the trial judge, in cases where any one has been convicted under any of the provisions of this act, to pronounce sentence within ten days from, the date of conviction.”

The information in this case is as follows:

“In the Name and by the Authority of the State of Oklahoma: Now comes C. Caldwell, the duly qualified and acting county attorney in and for the county of Craig, state of Oklahoma, and gives the county court in and for the said Craig county, state of Oklahoma, to know and be informed that heretofore one Dave Jones was indicted in the district court of the Second judicial district of the state of Oklahoma, sitting in and for Craig county, Okla., .for the crime of selling whisky to one Dennis Holland in the county of Craig and state of Oklahoma, on the 10th day of October, 1910, and the said indictment against the said Dave Jones for said charge was by order of said district court transferred to the county court in and for Craig county, Okla., for trial and final disposition, and that the said Dave Jones- on the 11th day of April, 1911, personally appeared in open court in the said county court ■of Craig county, Okla., and entered his plea of guilty to said ' charge contained in said indictment, and w.as on the same date sentenced by said -court to serve a term of 30 days in the county jail of Craig county, Okla., at hard labor, and to pay a fine of $50 and costs and that thereafter the said Dave Jones, did, in the -county of Craig, in the state of Oklahoma, -on, to wit, the 21st day of July, in the year of our Lord, one thousand nine hundred and eleven, and anterior to the presentment, hereof commit the crime of selling bartering, giving away, and furnishing spirituous, vinous, fermented, and malt liquor in the manner and form as follows, to wit: That the said Dave Jones in the county -of Craig, and in the state -of Oklahoma, on the 21st day of July, 1911, did knowingly and unlawfully sell, barter, give away, and otherwise furnish one pint of spirituous liquor, one pint ' of vinous liquor, one pint of fermented and one pint -of malt liquor to William Hunt, contrary to the form of the statutes in such cases made -and provided,- and against the peace and dignity, of the state-of-Oklahoma. C. Caldwell, County Attorney.”

The jury returned the following verdict:

“We, the jury duly impaneled and sworn to try the above-entitled cause, do upon our oaths find the defendant guilty of having been once convicted of violating the provisions of the prohibitory law of the state of Oklahoma, prior to the 21st day of July, 1911, as charged in the information. And we, the jury impaneled and sworn to try the above-entitled cause, do upon our oaths find the' defendant guilty" as charged in the information. F. M. Collins, Foreman.”

Appellant was by the court sentenced to 12 months’ imprisonment and to pay a fine of $500.

In his brief counsel for appellant says:

“Section 16, p. 165, Sess. Laws 1910-11, can never be held by any court to authorize an increased penalty for the violation of the prohibition law, where the alleged first offense was committed under some pre-existing law.”

Counsel for appellant did not make any argument or cite any authorities in support of the position assumed. The contention of counsel for appellant is plausible upon its face, and as a matter of first impression we were inclined to agree with the position assumed upon the ground that the first offense having been committed prior to the enactment of the law could not constitute an element of an offense committed after the passage of the law. It is a well-settled rule of law that criminal statutes cannot have a retroactive effect, and cannot prescribe punishment for acts committed before their enactment. Neither can subsequent legislation increase the punishment for past offenses. But upon further reflection and a critical analysis of the statute, we find that the first conviction is in no sense of the word an element of the second offense. The statute does not attempt t-o inflict any additional punishment for the first offense. The punishment is exclusively for the second offense. The second offense is complete within itself without reference to any acts which occured before the enactment of the statute. When the second sale was made appellant knew of his previous conviction, and he was bound to take notice of the law. The first conviction is simply a fact which must be taken into consideration in fixing the punishment for the second offense, which was eomtmitted’ after the passage of the act. It simply requires that the court or jury in fixing the punishment for the crime committed after the qoassage of the law shall consider the past conduct of the defendant. In other words it provides one punishment for ordinary offenders and a higher punishment for incorrigible offenders, and was intended to protect society from the continuous depredations of- confirmed criminals. That the Legislature has the power to make such a- classification cannot be denied. In this position we are supported by the letter of the statute and the philosophy of the law.

We find a very able discussion of this question in the case of Ex parte Gutierrez, 45 Cal. 430, as follows:

“In 1872 the petitioner was convicted of the offense of petit larceny — a misdemeanor. On the 1st day of January, 1873, the present Penal Code went into effect, containing a provision, in substance, that any person convicted a second time of the crime of petit larceny shall be deemed guilty of a felony, and punished by imprisonment in the state prison. The commitment here sets forth, in the usual form, that the prisoner committed the offense of petit larceny on the 13th of January, 1873, and also that he had been previously convicted of the like offense, and thereupon directs that he be held to answer for felony. It was suggested, rather than urged for the prisoner, that it was not the intention of the Penal Code ito' take into account, for this purpose, a conviction of petit larceny, occurring anterior to the time at which the Code itself went into effect. There is, however, nothing to be found in the phraseology of the act which can be brought to the support of this view. Those who enacted this law have certainly made no distinction upon its face, between convictions suffered- before and like convictions suffered after the 1st day óf January, 1873. Nor is there any principle of interpretation which will avail to restrain the general words of the statute for the benefit of the prisoner in this instance. The established rule of the common law undoubtedly was that statutes of the character of the one now under consideration should receive a strict construction in favor of him upon whom a penalty was to be inflicted; but this rule has been abrogated by the Code, which has constituted itself, in this respect, its own interpreter. Section 4 of the Penal Code is as follows: ‘The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects, and to promote justice/
“1. I have remarked already that- there is nothing to be found in the terms or language employed in the act which, distinguishes between a first conviction of petit larceny and anterior to January 1, lSIB, and such an one had after that day. The object of the Code, evident in this respect, was to protect society from the further depredations of an abandoned class of criminals infesting the cities and larger towns in the state, whose ordinary avocation is larceny, and whose severest punishment has heretofore been confinement in idleness and for inconsiderable periods of time in the ,county jail, escaping of course, the graver, though well deserved, consequences ensuing upon a conviction of a felony. Neither the purpose of justice nor a consideration of the object to be effected will, in my opinion, justify me in giving the Code the interpretation in this respect • claimed by the prisoner.
It is next claimed for the prisoner that the Penal Code, sought to be so - applied here as to constitute the petit larceny charged against him a felony, is ex post facto, and so prohibited by the federal Constitution. Article 1, sec. 10. Undoubtedly if the purpose of the Code were to aggravate the punishment of a crime committed before the Code took effect, it would be obnoxious to the objection taken. But such -is not the case. The offense ■ to be punished by imprisonment in the state prison was one committed since the Code took effect. By the rule announced in the Code any person in the situation of the prisoner — that is, any person who had already been convicted of the offense of petit larceny — who should again, and subsequently to the .taking effect-of the Code, commit the offense of petit larceny, is to be deemed a felon, and punished by imprisonment in the state prison. The act to be punished is, however, only that act done by the prisoner after the Code took effect, -and therefore in no sense can the Code be said to become ex post facto when applied to the case of the prisoner. The true principle in this respect is well- expressed by Judge Cooley in his ■ invaluable work upon Constitutional Limitations, as follows: ‘And a law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into-account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for. the first, and it has not been deemed objectionable that in providing for such heavier .penalties the prior conviction authorized to be taken into account may have taken place before the law was passed. In such cases it is the second or subsequent offense that is punished, not the first,’ etc.
“The adjudicated cases are believed to be uniform in support of the principle of constitutional law, as thus enunciated in the text-book referred to. Among these cases are Rand v. Commonwealth, 50 Va. 738, in the Supreme Court of Appeals of Virginia, and Ross’ Case, 2 Pick. [Mass.] 165, in the Supreme judicial Court of Massachusetts. Neither of these cases are at all distinguishable in its circumstances (so far as those circumstances relate to the point in hand) from the ease of the prisoner here. In each oi them the statute under which the severer punishment was imposed was enacted intermediate the first conviction and the commission of the second offense.
“It results that the prisoner must be remanded; and it is so ordered. “(Italics ours.

■The Supreme Court of New York took the same view of this question in the case of People v. Raymond, 96 <N. 'Y. 39' as follows:

“That no offense can be considered a second offense under the Penal Code unless it .appears that the first offense charged is a crime under such Code by reason of section 719, and the first offense here was before the Code went into operation, is a contention without adequate foundation. The first offense was not an element of or included in the second, and so subjected to added punishment, but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense. That only is punished.”

In the case of State of Iowa ex rel. Gregory v. Jones (D. C.) 128 Fed. 626, we find the following:

“The contention of .the prisoner is that the statute of 1898, as construed and enforced against him, is an ex post facto law. The entire strength of the argument is that the last 15 years of the imprisonment imposed upon him were because of crimes committed prior to the enactment of the statute of 1898. And while it is not material, he seeks to strengthen his claim that not only were his three crimes committed prior to the enactment of that statute, but that he had wholly served the terms of imprisonment imposed for those three crimes before the action of the Legislature of 1898. Prior to the argument of the case at bar, and before reading the decisions of the courts upon the question, it seemed quite plausible that Gregory, under the judgment now assailed, is being imprisoned for 5 years or less for the stealing of the mule in Pottawatomie county in 1899, and for 15 years or more for his larcenies prior to 1898. But plausible as this statement is, it is only plausible, and not a correct statement. It is unsound. Const. U. S. art. 1, sec. 9, provides that Congress shall not enact an ex post facto law, and by section 10 of the same article it is provided 'no state shall * * * pass any ex post facto law. And what is an ex post facto law? In Fletcher v. Peck, 6 Craneh, 87, 3 L. Ed. 162, Chief Justice Marshall said: 'An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.’ A better, or more accurate definition has not been given. From this definition it is seen that the punishment provided for when the crime was co'mmitted is the punishment that must be imposed. If no' punishment was then provided for, none can be imposed by subsequent legislation. If punishment was then provided for, subsequent legislation cannot be enacted, increasing the punishment, and such legislation can only refer to subsequent crimes. The punishment can bo lessened, but never increased, as against any one, for a crime already committed. No more beneficent provision is found in the Constitution for the protection of the individual, and it must be and will be enforced on behalf of the bad citizen or criminal as well as for the good citizen.
“But the learned counsel of the relator concedes that the statute of 1898 is within the Constitution, and therefore valid, but claims that it is only valid when it relates to other convictions committed after the enactment of the statute. But the authorities are against him, whatever might be urged if it were 'an original question. Kelly v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. Rep. 184, is in a measure in point, although it does not go to the extent as claimed. The federal constitutional provision was not relied on nor discussed in that case. But the case of Commonwealth v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256, is in point. In that ease the- offense pleaded as a prior conviction was committed prior to the enactment of the .statute under which the convictions appealed from were enacted. And it was held that the statute, as thus construed, was not an ex post facto law. Sturtevant v. Commonwealth, 158 Mass. 598, 33 N. E. 648, is of like holding. And so is In re Miller [110 Mich. 676], 68 N. W. 990 [34 L. R. A. 398, 64 Am. St. Rep. 376], Blackbrown v. State, 50 Ohio St. 428, 36 N. E. 18, is squarely in point. In that case the defendant was indicted for breaking and entering a building with intent therein to commit larceny April 4, 1890. The indictment also pleaded two former convictions of felonies, one of June, 1881, and the other of October, 1886. The statute was of date May, 1885. So that one of the prior offenses, and convictions as well, was of a prior date to the enactment of the statute. The prisoner urged the point that the statute, as applied to him, was an ex post facto law. The jury finding him guilty as charged, and finding the allegations of the indictment as to the prior convictions to be true, he was sentenced to the penitentiary for life. The judgment was affirmed by the Ohio Supremee Court.
"Moor v. State of Missouri, 159 U. S. 673, 16 Sup. Ct. 179, 40 L. Ed. 301, by argument, at least, is in point. The indictment charged felony as of date May 26, 1893. It also set forth a prior conviction of a felony. The date of the enactment of the statute in question is not given, and therefore it will be assumed that it was prior to the commission of the first offense. The defendant, by reason of the crime charged and the former conviction^ was sentenced to prison for life. So far as appears from the opinion, it was not urged that the statute was an ex post facto law. At all events, that question was not discussed in the opinion. The point decided was that the statute was not in conflict with the fourteenth amendment. Therefore it cannot be said that the case is an authority on the point now before this court. But the fact is that by argument, at least, much of what is said by the Chief Justice is persuasive on the question now presented, and is worthy of being considered in the case. at bar.
“It is always with satisfaction that quotations are made from Cooley’s Constitutional Limitations — one of the few really great text-books. That work (7th Ed., at page 383) recites: ‘And a law is not objectionable as an ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into the account, and the punishment -to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for' the first,* and it has not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case it is the second or subsequent offense that is punished, not the first; and the statute would be void if the offense to be actually punished under it had -been committed before it had taken effect, even though it was after its passage.’
“From these authorities it will be seen that a prisoner is convicted and sentenced for the one crime charged, and is not convicted on account of or for the prior crime or crimes. But he is convicted of the crime charged, and as belonging to a class of incorrigibles, for whom punishment does no good —a class into which the accused has voluntarily brought himself, and as against whom society has the right to be protected by placing hiim for the balance of his life where he cannot prey upon the people. In this case it was fortunate for Gregory that his sentence was for 20 years, instead of for life, as it could have been — fortunate because at the end of 20 years, with four convictions behind him, he will have one more chance in life.
“A law is also ex post faclOj and therefore void, if it alters the rules of evidence, and allows less or- different testimony than the law required at the time of the commission of the offense in order to convict the accused. It is therefore urged that the statute changes the rules of evidence, and is therefore void. But this point has already been covered.
“The prisoner was convicted for stealing ’the mule in Pottawatomie county in the year 1899, after the enactment of the statute, and in stealing the mule, thereby, by his .own act, he brought himself into a class of thieves, as distinguished from those not yet classified by judicial records. As already observed, the statute in question covers cases wherein the accused has been -twice before convicted.
“The indictment against Gregory recited that he had been three times before convicted, and the trial jury, by special verdicts, found the allegations to be true. And because of such allegations and special verdicts it is claimed that the judgment is void. This cannot be so-. It is a familiar, and perhaps elementary, rule of crijminal law and pleading that' the greater includes the lesser, -the same as in mathematics. If he had been three times before convicted, as, of course, he had been twice -before convicted, then the indictment would have been good, and the special verdicts v-alid, if innumerable convictions had been pleaded and proven. Two prior convictions would bring the accused into the class, and 20 prior convictions would do no more. But -all this was a question for the Pottawatomie district court, subject only to review by the Iowa Supreme Court, and with which this court has no concern.”

The case of State v. Adams will -be found in 132 Pac. 171, of June 9, 1913. The Supreme Court of Kansas passed upon this very question and said:

“Under page 165, Laws 1911, providing a punishment' for persistent violators of the liquor law, it is -not necessary that the former conviction which aggravates the second offense should occur subsequent to the date upon which the statute became effective. * * * Former conviction of crime is a sufficient basis for the classification of offenders with respect to the severity of the punishment they shall receive. ‘The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.’ Graham v. West Virginia, 224 U. S. 616, 623, 32 Sup. Ct. 583, 585 (56 L. Ed. 917).” ■ '

The following authorities are to the same effect:' Com. v. Graves, 155. Mass. 163, 29 N. E. 579, 16 L. R. A. 256; Rand v. Com., 50 Va. 738; People v. Butler, 3 Cow. (N. Y.) 347; Ross’ Case, 2 Pick. (Mass.) 165; Com. v. Hughes, 133 Mass. 496; Com. v. Marchand, 155 Mass. 8, 29 N. E. 578.

Second. The state placed William Hunt and Cecil Hunt on the stand as witnesses, and they testified to having-purchased whisky from appellant at the time mentioned in the information. The state then placed D. A. Reed on the stand who testified that he was a policeman in the city of Yinita. He then proceeded to testify as follows:

“Q. Do you know William Hunt and Cecil Hunt? A. I know them now, I never seen them before that time. Q. I will ask you if you saw them on or about .the 21st day of July, 1911? A. Yes. sir. Q. Just tell the court and jury ■about it. (The defendant objects to this, witness telling anything about William Hunt and Cecil Hunt, unless they were in company with this defendant, for anything that might have happened after the transaction could not be admissible in an offense of this defendant, which objection is overruled, to which ruling of the court the defendant duly excepted). A. Well,, on the 21st day of July, along between 3 and 4 o’clock I think it was, I was about probably 40 or 50 steps of Mr. Tittle’s cab barn, when these two boys passed me going south on Second .street. They stopped at Mr. Tittle’s bam, and they were around there probably five minutes, maybe a little longer, I didn’t just time them, and finally they went south on Second street to Delaware, and after turning the corner on Delaware. I went down north on Second and around on Canadian and' met them on First street. They went south, and I went north and west. They went west and north. We met on First street. I asked them if they had any whisky. Mr. Hunt said he had a pint. (The defendant moves -to strike the conversation between this witness and William Hunt from the record, on the ground that it fails to disclose that the defendant was. present when this conversation took place, and the conversation between this witness and the witness, William Hunt,, in the absence of the defendant, would not be admissible ■against the defendant, which objection is by the court overruled, to which ruling of the court the defendant excepts. Motion denied by the court, to which ruling of the court the-defendant duly excepted.) Q. Did you see whether or not he had .any whisky? A. Yes_, sir. Q. What did he have? A. 'A pint of whisky. (The defendant objects to that, and moves-to strike the answer from the record as not in any way connecting this defendant with the pint of whisky, which objection ' and motion are overruled by the court, to which rulings of the court the defendant duly excepted.) Q. Which one had the whisky? A. William Hunt.”

Counsel for appellant strenuously objects to this testimony upon the ground that it is hearsay, and that it is permitting statements made by -the witness Hunt out of court, and not in the presence of appellant, to be introduced in evi-. dence against appellant. If the court had allowed any statements made by the witness Hunt to the effect that he had purchased the whisky found in his possession from appellant, then this objection would have been good, for the law is that statements made by a witness out of court are not admissible in evidence against the defendant, unless the credibility of such witness is attacked. Under these conditions the statements made by a witness out of court, about the time of the transaction with reference to which he testifies, may be introduced, not as evidence of the guilt of a defendant, but solely for the purpose of sustaining the credibility of such witness. But this is not the ease before us. The witness Keed did not testify to any statements made by the witness Hunt ■as to when, where, or from whom he had obtained the whisky which was found upon his person. The testimony simply shows that the witness Beed had watched the Hunt boys, and that upon their coming from the place where appellant was, he arrested them and found whisky in their possession. There was no issue .as to the truthfulness of Beed’s testimony, and we think that the fact that William Hunt was found in possession of whisky just after leaving the place where the appellant was, was a proper circumstance for the consideration of the jury.

We find no error in the ruling of the court, and the judgment is affirmed. ■

ABMSTBONG,. P. J., «and DOYLE, J., concur.


source: Caselaw Access Project

author: FURMAN, J.

license: Public Domain

text:
    WILL HARRIS v. STATE.
    No. A-1743.
    Opinion Filed June 28, 1913.
    (132 Pac. 1121.)
    1. INDICTMENT AND INFORMATIQN — Amendment—Effect. The filing of an amended information m a misdemeanor case operates as an abandonment of the original information, and a subsequent trial is upon such amended information.
    2. CONTINUANCE — Amendment of Information. While an information may be amended, yet if such amendment operates as a surprise to the defendant, reasonable time should be allowed him to prepare for trial.
    3. SAME. It is the duty of trial judges and prosecuting attorneys to treat defendants with fairness, and to allow them reasonable opportunity to prepare to defend themselves.
    4. SAME — Opportunity to prepare for Trial. Justice requires that a . . defendant in a criminal case should be allowed a reasonable opportunity to prepare to make his defense, and that he should be treated with reasonable fairness at every stage of the trial.
    (’Syllabus by the Court.)

      Appeal from County Court, Atoha County; Baxter Taylor, Judge.

    Will Harris was convicted of violating tbe -prohibitory liquor law, and his punishment was assessed at a fine of $500 •and six months’ confinement in the county jail, and he appeals.
    Reversed.

      J. U. Gernert and J. Q. Balls, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for State.
   FURMAN, J.

The record shows that when this cause was reached and called for trial the state announced ready for trial, and the defendant announced not ready for trial; that thereupon the county attorney -asked permission to amend the information, and also to indorse the .names of nine additional witnesses on the amended information, which requests were by the court granted, to all of which the defendant objected and pleaded surprise, and stated that he could not safely go to trial without having some time to infofim. himself as -to what the testimony of the nine additional witnesses would be and prepare to meet the same, and requested that the court grant him time to make investigation of these matters, all of 'which was by the court overruled. The record further discloses the fact that an amended information was filed, and that the defendant demurred to the same, which demurrer was by the court overruled, to which appellant excepted; that the defendant then asked to be allowed 24 hours in which to plead to the amended information, which request was by the court overruled; and that the defendant was required to plead to mid amended information, which he' declined to do. Thereupon the court ordered that a plea of not guilty be entered for him, and that the trial should proceed. But the record does, not contain a copy of the amended information or the demurrer thereto, and we are left entirely in the dark as to what it contains.

In the case of Brown v. State, 5 Okla. Cr. 567, 115 Pac. 615, this court held that by the filing of an amended information in a misdemeanor case the original information is thereby set aside and abandoned.

Without having the amended information before us upon which the appellant was tried, we have no knowledge as to what the accusation against him was; neither are we in a position to determine as to whether or not the court erred in refusing to give appellant 24 hours in which to plead to the (amended information.

In the case of Smith v. State, 4 Okla. Cr. 283, 111 Pac. 960, 140 Am. St. Rep. 688, this court said:

“According to the record in .this case defendant did not know until the amendment was filed as to what transaction he would be called upon to defend. He had no tilme to prepare for trial, to consult his' attorneys, or to summon witnesses. His request for a postponement of the case for 24 hours to enable him to prepare to meet the amended information was reasonable, and should have been allowed by the trial court.”

In the case of Kimbrell v. State, 7 Okla Cr. 356,123 Pac. 1028, this court said that it was true that an information might be amended, “but if such amendment operates as -a surprise to a defendant reasonable time should be allowed him to prepare for trial.”

The certificate of the trial judge is that the record before us contains all of the pleadings, etc., in the case. Therefore, upon the face of the -record, appellant was tried without a written information, or in fact without any information at all, because the effect of the order permitting the filing of an amended information was to set aside the original information. It is true that we might possibly cure the defect arising from the absence from the record of the amended information by ordering an amendment to the record, but we are not satisfied with the manner in which this case was tried, especially in view -of the fact that appellant received the maximum punishment, and there is no tiling in the record indicating that he is a ■ confirmed offender. While it is true that the county judge had the power to grant the county -attorney permission to add the names of additional witnesses to the information, yet this power should not be exercised in an arbitrary manner. In all fairness and justice -to the appellant the names of these witnesses should, have been indorsed on the information, or he should have had notice that they would be used against him before the case was called for trial, -and no reason is shown in the record why this was not done. We do not believe that it was the intention of the county judge and the county attorney in this case to take an unfair advantage of appellant, but if this kind of practice is encouraged it may- result in great injustice. We have therefore decided to reverse this case, upon the ground that the amended information is not in' the record, and we therefore have no means of knowing as to whether or not the court abused its discretion in refusing to grant appellant time in which to plead to the amended information. And we desire -to admonish all trial judges and county attorneys in Oklahoma that it is their duty to treat defendants with fairness and give them a reasonable opportunity to prepare to 'defend themselves. Such a thing as an ambuscade should never be permitted in a court of justice.

The judgment -of the lower court is reversed, and the cause is remanded for a new trial.

ARMSTRONG, P. J., and DOYLE, J., concur.


author: EURMAN, J.

text:
    BILL GRESHAM v. STATE.
    No. A-1697.
    Opinion Filed June 28, 1913.
    (132 Pac. 1122.)
    INTOXICATING LIQUORS — Prosecution—Sufficiency of Evidence. For evidence held to be totally insufficient to support a verdict of guilty of selling whisky, see opinion.
    (Syllabus by the Court.)

      Ap-peal .from Stephens County Court; W. H. Admire, Judge.

    Bill Gresham was convicted of violating the prohibition law, and appeals.
    Reversed.

      Wilkinson & Morris, for appellant.

      W. M. Peck, for the State.
   EURMAN, J.

The conviction in this ease rests' alone upon the testimony of one J. A. Johnson, who testified that he was a man without any business. In one place witness testified that he bought a pint of whisky from appellant. In another place he said “it was a bottle of whisky or a hot-tie of Coca-Cola, one or the other, I got from Bill Gresham.” Witness further testified that he was in a very bad mental condition; that he used cocaine nearly all of the time; that .the cocaine had .affected his memory badly and caused him to imagine things that had never happened; and ■ that he had used cocaine for 15 years. He -further testified that he had no positive recollection of buying anything from appellant.

We do not -believe that any conviction upon such evidence as this should be allowed to stand. If the witness did not know as to whether or not it was a bottle of whisky or a bottle of -Coca-Cola which he purchased from appellant, we do not see how the court or jury, without some other evidence, could determine that appellant was guilty beyond a reasonable doubt.

The judgment of the lower court is reversed, with directions to dismiss this case, unless some more reliable testimony can be produced as to appellant’s guilt.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    J. L. WILKERSON v. STATE.
    No. A-1696.
    Opinion Filed June 28, 1913.
    (132 Pac. 1120.)
    1. INTOXICATING LIQUORS — Evidence of Character. Where a defendant is on trial charged with having possession of intoxicating liquors with intent to sell the same, it is not competent for the state to prove, as evidence in chief against him, that he has the general reputation of being a bootlegger.
    2. TRIAL — Character of Accused — Evidence. Where the character or reputation of a defendant is not an element of the offense for which he is upon trial, and the defendant does not take the stand as a witness in his own behalf, it is error for the state to offer evidence of his bad character. • »
    ('Syllabus by the Court.)

      Appeal from County Court, Stephens County; W. H. Admire, Judge.

    J. L. Wilkerson was convicted of having intoxicating liquor in his possession with intent to sell, and appeals.
    Keversed.

      Wilkerson & Morris, for appellant.

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

Upon the trial of the canse, over the repeated objection of counsel for appellant, the state was per-mittel to prove by' a number of witnesses that the appellant had the general reputation in the community in which he resided of being a bootlegger. The question which we are called upon to decide is as to whether or not such' testimony is admissible as evidence in chief against a defendant, where the ■ defendant is upon trial charged with having in his possession intoxicating liquors with the intention of selling the saime.

Where a defendant is .upon trial for keeping a house. of ill fame or for maintaining a place at which intoxicating liquors are sold, or for maintaining any nuisance, the character of the house or place .kept is an element of the offense, and in such cases the general reputation of the house may be proven. This is the settled law in Oklahoma. See Carroll v. State, 4 Okla. Cr. 242, 111 Pac. 1021; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003; Ostendorf v. State, 8 Okla. Cr. 360, 128 Pa. 143; Putnam v. State, ante, 132 Pac. 916; and Edmons v. State, ante, 132 Pac. 923.

The reason and philosophy of the law underlying the principle stated in the above eases is that the character of the house is an element of the offense committed, for it is the advertisement of the owner, and • assists him in committing the offense and is a source of revenue to him, and the offense is continuous. But where a person is charged with an offense which is based upon one specific transaction, the question of character does not become an element of the offense, and therefore the general reputation of the defendant in such case is not admissible. This is the line of demarcation between the cases in which reputation is admissible and is not admissible.

If appellant had taken the stand as a witness and testified in his own behalf, his general reputation as to his being a bootlegger would have been admissible in evidence, not for the purpose of proving him guilty of this specific offense, but for the purpose of affecting his credibility. But appellant did not testify in this case. In this instance the whisky in question was found in the home' of appellant. In the absence of any testimony to the contrary the presumption of law was that he had it there for his own use. If the whisky, however, had been found at a place to which the public generally resorted, and the' circumstances of the case indicated that such place was used for the purpose of selling whisky, then the ■reputation of such place might be proven as a circumstance to be considered by the jury in determining as to whether the whisky was kept there for sale. But even in such a case the personal reputation of the appellant as to his being a bootlegger should not be admitted, and the evidence should be confined to the reputation of the place at which the whisky was kept.

We .think that the. trial court erred in admitting the evidence complained of. The judgment of the lower court is therefore reversed, and the case remanded for a new trial.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
      Ex parte J. O. SPARKS.
    No. A-1986.
    Opinion Filed June 28, 1913.
    (132 Pac. 1118.)
    JUDGMENT — Entry of Judgment — Time for Rendering Judgment— Time for Rendition. The statute does not require that a judgment must of necessity he pronounced at the same term of the court at which a verdict of guilty in a criminal case is rendered. If the court is unable to render judgment at such term, it may be rendered at a subsequent term.
    ('Syllabus by the Court.)
    Original proceedings by J. 0. Sparks for a writ of habeas corpus.

    Writ denied.
    This case is correctly stated in the brief of counsel for petitioner as follows :
    “The petitioner, J. 0. Sparks, was convicted of tbe crime of murder on the - day of January, 1913, at an adjourned term of the district court of Choctaw county, Okla. That immediately after his conviction, and before judgment and sentence were passed upon him, the case was continued by order of the court to February 3, 1913, at which time the defendant might file his motion for a new. trial, and at which time the defendant would receive such judgment and sentence as the court might impose upon him. That before the.3d of February, and on the 3d day of February, 1913, there prevailed an epidemic of smallpox in the city of Hugo. That Summers Hardy, judge of the Sixth judicial district of Oklahoma, of which Choctaw county w.as a part, resided in the city of Madill, in the county of Marshall, state of Oklahoma, did while at Madill continue said cause from the 3d day of February, 1913, until the first day of the next term of the district court of Choctaw county, Okla. That said continuance was had upon the agreement of the counsel for the petitioner, J. 0. Sparks. That the order was made at Madill, and mailed to the clerk of the district court of Choctaw county, Oklahoma, at Hugo. That said defendant was not present when said agreement was entered into, or when said order was made at Madill, or when entered upon the records of this court. That on the first day of .the term of the court next succeeding the term at which petitioner, J. 0. Sparks, was convicted, said cause was again continued by the court for judgment and sentence, and .after hearing the objections ’ of petitioner that he had no jurisdiction to pronounce judgment and sentence, proceeded to pronounce judgment and sentence of imprisonment for life upon your petitioner, • J. 0. Sparks, and petitioner is held by reason of said judgment and sentence.”

      J. H. Warren, B. D. Jordan, and B. B. Sturgeon, for petitioner.

      Smith G. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

(after stating the facts as above). In their brief counsel for petitioner say:

“It is our contention that by the terms of this statute that the court is without authority to continue a case to a subsequent term for sentence, and that sections of the statute make it mandatory on the court to sentence defendant at the term of court at which the verdict is rendered.”

•Sections 5942, 5943, and 5953, Bev. Laws 1910, are as follows :

“Sec. 5942. Court Appoints Time for Judgment. After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.
“Sec. 5943. When Time to be. The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be .allowed.”
“Sec. 5.953. Judgment Eendered, When. If no sufficient cause be alleged or appear to the court why judgment should not be pronounced it must thereupon be rendered.”

It is seen that there is nothing in these sections forbidding pronouncing a judgment at a term subsequent to that on which the verdict was rendered against a defendant. Under section 5953, the court for sufficient cause is expressly authorized to postpone judgment to such time as the court in its discretion may think proper. The law evidently contemplates that ordinarily the judgment should be pronounced at the same term of the court at which the verdict is received, and this should be done unless there is a real necessity for a postponement of the judgment until ia subsequent term of the court, which necessity should appear as a matter of record as it does in this case. Conditions may arise which would render it impossible to render judgment at the same term that a verdict is returned. Suppose a defendant after the verdict has been rendered against him escapes from custody, and is not captured until after the term of the court at which he was convicted has expired; who ¡would say that judgment could not be pronounced against him .as soon as he could be brought before the court? Many other illustrations might be stated, among which are the circumstances of this case, but these are sufficient to illustrate the principle involved.

Counsel for petitioner in oral argument with great confidence and in the most positive manner asserted that this court would not be able to find a single case contrary to the position which they had assumed. Confidence is a good thing in its place, but it should be- accompanied with a little caution. Even if there was no case contrary to the contention of counsel, we would not hesitate to hold that, their position is untenable, for upon its very face it is against reason and might be destructive to the administration of justice. But we will accept the challenge made by counsel for petitioner and refer them to a number of cases holding directly contrary to their position.

The case of People v. Felix, 45 Cal. 163, construes a statute identically similar to ours, as follows:

“The only point made in this case questions the power of the court to render a judgment of conviction at a term succeeding that at which the verdict is found. The statute (Cr. Pr. Act, sec. 447) provides that after a plea or verdict of guilty, if the judgment be not arrested or a new trial granted, the court shall appoint a time for pronouncing judgment. By the terms of the succeeding section it is provided that the time so appointed shall not be less than two days after the verdict, if the court intend to remain in -session so long as two days thereafter; if the court intend to- adjourn within two days, the judgment is to be pronounced at as remote a time during the session as can reasonably be allowed, provided that under no circumstances -shall it be pronounced sooner after the verdict than six hours. There is no provision- — at least we have found none — which requires that the judgment must of necessity be pronounced -at the same term at which the trial is had. The purpose of the statute -seems to be to guard the rights -of the prisoner from a ha-sty or too precipitous entry of judgment against him. In practice it would be highly inconvenient in the administration of criminal justice that the power of the court to pronounce judgment should be limited to the particular term' at which the trial is had. The judgment is often necessarily delayed by an - application for a new trial made in behalf of the prisoner — frequently supported by affidavits showing the existence- of newly discovered evidence and the. like — the very nature of the application sometimes requiring much deliberation in the court and the consideration by it of difficult questions -of law. The application for a new trial is required to be made, if at all, before the entry of judgment, and the judgment to be given is necessarily dependent upon the decision of the motion, for by section 447 the -court is not to render judgment until -after the motion for a new trial, if one be made, has been denied. It is apparent that these provisions of the statute intended for the protection of the rights of the prisoner would be frequently incapable of observance by the court, if it is compelled to render judgment at -a particular term or lose its authority to render it at all.”

In Thurman v. State, 54 Ark. 120, 15 S. W. 84, the Supreme Court said:

"The appellant pleaded guilty -to a charge of felony, and the court adjourned without pronouncing the sentence of the law. Before the next term he escaped from prison, but after an absence of several years was recaptured, and sentence was formally pronounced by -the court in which the -conviction was had. The power to pass sentence under these circumstances is the only question pressed by counsel. The statute does not require that the sentence shall be pronounced and judgment entered at the same term at which -a plea of guilty is entered, and tile entry of the judgment at a subsequent term does not alter or conflict with. anything done by the court at the previous term. There is therefore no lack of power in the court, and the judgment may he deferred until a succeeding term. I Bish. Cr. Pr. sec. 1291; People v. Felix, 45 Cal. 163; U. S. v. May, 2 McArthur [9 D. C.] 512; People v. Reilly, 53 Mich. 200 [18 N. W. 849].”

An examination will show the following cases to the same effect: State v. Overton, 77 N. C. 485; State v. Watson, 95 Mo. 411, 8 S. W. 333; State v. Miller, 6 Baxt. (Tenn.) 513.

The action of the trial court in postponing pronouncing judgment in this case to a subsequent term of the court is approved, and a writ of habeas corpus will not be issued' in this* cause.

ARMSTRONG, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    KNOX GREER v. STATE
    No. A-1562.
    Opinion Filed June 30, 1913.
    (132 Pac. 1122.)
    TRIAL — Verdict—Evidence. It is the province- of the jury to try the issue joined by a plea of not guilty; and, if the evidence of the state uncontradicted will support a conviction, this court will not ordinarily interfere with a verdict against the defendant.
    (Syllabus by the Court.)

      Appeal from Oounty Oourt, Pontotoc County; Conway 0. Barton, Judge.

    Knox Greer was convicted of violating the prohibitory-law, and appeals.
    Affirmed.

      Crawford & Bolen, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, and F. (?. Spillman Asst. Attys. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted upon an information charging him with the unlawful sale of a bottle of whisky 'to one M. V. Smith. On the 5th day of September, 1911, he was sentenced in accordance with the verdict to be confined for 30 days in the county jail and pay a fine of $50. To reverse the judgment he prosecutes this appeal.

Iiis principal contention is that the verdict is not sustained by sufficient evidence. The complaining witness, M. V. Smith testified that some time in the month of February he went into the Palace Pharmacy in the town of Allen, and bought a pint of whisky from the defendant, paying him $1 therefor. ,The defendant testified that he remembered that the complaining witness was in his store, but denied that he sold .him any whisky or other intoxicating liquors of any kind.

There was a direct conflict in the testimony of the complaining witness and. that of the defendant. The jurors had the witnesses before them, and they no doubt in determining the truth took" into consideration fill the attending circumstances of the case. The defendant was interested in the event of the trial, and the complaining witness was not, so far as the record discloses. This of itself, for aught we can know, may have fully warranted the jury in giving credence to -the evidence of the complaining witness. It is not impossible that the verdict is unjust and the result of prejudice, but we cannot so declare when there is sufficient evidence to support it, and no extraneous facts shown which cast any reflection upon the good faith or impartiality of the jury. The record shows that the defendant has received a fair trial within the meaning of the law. The judgment of the county court of Pontotoc county is therefore affirmed. •

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


text:
    J. A. REN et al. v. STATE.
    No. A-1659.
    Opinion Filed June 30, 1913.
    (132 Pac. 1131.)
    INTOXICATING LIQUORS — Criminal Law — Verdict—Sufficiency of Evidence. To justify or sustain a conviction of having possession of intoxicating- liquor with intent to violate any of the provisions of the prohibitory law, there must be evidence sufficient to prove possession, and also evidence of the criminal intent. When a verdict is manifestly contrary to the evidence, this court i has no discretion, but must reverse the judgment. (See opinion for evidence held insufficient to sustain such a conviction.)
    (Syllabus by the Court.)

      Appeal from, -County Court, Pawnee County; Fred 8. Liscurn, Judge.

    J. A. Ren and another were convicted of violating the prohibition law, and appeal.
    Reversed and remanded, with directions.

      W. G. Fairchild, for plaintiffs in error.
   DOYLE, J.

The -plaintiff in error, with one Willard Page, were jointly charged with having in their possession liquor with the unlawful intent' to sell, barter, give away, and otherwise furnish the same. The jury returned a verdict of' guilty as to each defendant: The judgment of the court was that the defendants each be confined • for 30 day-s in the county jail, and that each defendant pay a fine of $50. The defendants, J. A. and Elmer Ren appealed from the judgment. The defendant, Willard Page, being unable to give bail, served his sentence.

It is contended that the verdict is contrary to -the evidence and is insufficient to sustain the conviction.

Joseph Rucker testified that he assisted the city marshal of Ralston in serving the search warrant on -a house owned by the defendant J. A. Ren, and they found there a trunk containing 71 pints of whisky; that they took the whisky to •the police court, where it was suggested that, in order to prevent the whisky from being stolen, they would divide it and each take some of it to his home, and keep it for evidence; one bottle that was produced in evidence was all that witness-could account for; that the police judge and city ¡marshal had informed him that the rest of had been stolen.

John Sebring testified that he lived in a house owned by the defendant, J. A. Ben, occupying .two rooms; that two-other rooms were vacant; that he heard some persons -placing-the trunk in one of the vacant rooms on the night of August 35th, and thought he recognized the voice of the defendant' J. A. Ben, but was not sure; that the next day he informed City Marshal Jones that he heard J. A. Ben say it was Willard Page’s trunk.

C. H. Deskeet testified that he was a justice of the peace-of the town of Balston, identified the trunk, and some Joplin newspapers that were in it; that the city marshal took 30' bottles of the whisky, and told witness that it was stolen from him; that the other 40 or 50 pints were stolen from the room-in which the- trunk wa-s placed adjoining the police courtroom.

The state rested, and the defendants moved that the court-direct -a verdict of not guilty, which was overruled.

The defendant Page as a witness for the defense denied any knowledge of the trunk, but admitted that he had just returned from Joplin, Mo-.

The defendant J. A. Ben testified that he was a carpenter;had lived and worked at his trade for several years at Balston,. and owned the house the trunk was found in; that his young-son told him that his son Elmer had been arrested; that he found the city marshal, and he said, “We have found a trunk-in your house with whisky,” and “I sáid ‘If there is go and get i-t out/ and he wanted to know where Willard Page was,, and I told him, and we then went to the house, and he asked them to take the trunk out of the house;” that this' was the first time he saw the trunk and knew nothing about it, or where it came from.

The defendant Elmer Een testified .that he was a laboring man, that the first time he ever saw the trunk was when he went with the city marshal to the house where the trunk was found, the house was occupied by the witness Sebring and was owned by his father; that he had not lived in the house for about a year, but they had some carpenter’s tools and a heating stove in the empty rooms; that Williard Page worked for his father cutting corn.

J. M. Brock testified that he was a state enforcement officer; that he had known the Ren family five or six years, and that they always worked for a living; that the Saturday after the trunk was taken he was at Mr. Bullick’s hay outfit; six miles east of Ralston; that the phone l’ang, and Mr. Bullick was shaving, and asked him to answer the phone; that there was a lady talking, and said she wanted to talk to her brother, Sam Weatherly, and she said when Sam came in tell him that they have found that trunk, and have him go .and go now;, that as an enforcement officer he made a demand upon the city marshal and the police judge on the day these defendants were arrested for the liquor that was found in the trunk for' the purpose of destroying it, and they told him that it had been stolen.

Fred Williams testified' that he had loaned some money 'and a suit of clothes to Sam Weatherly in August; to go to Kansas City, and when he came back he told him that he had brought 80 pints of whisky in the trunk.

Jesse Hedges testified that .he heard Sam Weatherly say on the day this trunk of whisky was seized that it was his whisky.

James Lee testified that he was a liveryman; that he let a man by the name of Weatherly have a team to haul a trunk frottn the depot; that, when he left, he thought of the bad eondition of the bridge, and followed him and overtook him at the bridge. They brought the trunk back to his bam, and later two men carried it away.

There is no evidence that these defendants owned this trunk or the whisky in it. The only evidence of their possession is the fact that the house in which the trunk was found belonged to the elder Ren. Assuming that there was evidence of possession, there is no evidence to show an unlawful intent.

It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Whether, however, the state fails to offer any evidence tending to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue, is a question of law for the court, and where there is an entire absence of evidence fending to identify the defendant with the commission of the offense charged in the information the court should direct a verdict of acquittal.

It is seldom that this court has felt if to be its duty to reverse the ruling of a trial court in refusing to set aside a verdict for the want of sufficient legal and competent evidence to sustain it. But when, as in this case, it is manifest to this court that the verdict is clearly contrary to the evidence, and that the judgment is wrong and ought not to stand, we have no discretion, in the matter, but must reverse the decision of the trial court. One thing that appears very strange in this case is the fact that the officers by their testimony were afraid that the whisky seized would be stolen from them, and they divided it up among them, so that it would be safe, and yet, after taking this precaution, at the time of the trial it seems that only one half-pint bottle could be produced for evidence.

It is not necessary to consider the other questions presented. For the reason stated the judgment is reversed, and the cause remanded to the county court of Pawnee county, with direction to discharge the defendants.

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


author: FUKMAN, J.

text:
    SAM HUFF v. STATE.
    No. A-1750.
    Opinion Filed July 5, 1913.
    (133 Pac. 265.)
    1. COURTS — Rules of Decision — State and Federal'Courts. The Supreme Court of the United States haying decided that the acts of Congress are valid which suspend for 21 years after the admission of Oklahoma into the Union the interstate federal laws which otherwise would have permitted persons residing in that portion of the state which formerly comprised Indian Territory to introduce into the state as interstate commerce intoxicating liquors for their own use, and this being a federal question, such decisions of the Supreme Court of the United States are binding upon all of the officers and people of the state of Oklahoma, and it is the plain duty of this court to follow these decisions.
    2. INTOXICATING LIQUORS — Unlawful Conveyance — What Constitutes. A person residing in any portion of the state of Oklahoma who may introduce into the state intoxicating liquors and distribute the same among persons who may have furnished him money to purchase said liquors thereby violates the law and is liable to prosecution and conviction for illegally conveying such liquors from one point in the state to another point in the state.
    (Syllabus by the Court.)

      Appeal from County Court, Love Countyj B. A. Keller, Judge.

    Sam Huff was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    E. M. Eskew testified for the state that he was at the depot when defendant Huff got off the train about 11:30 p. m. about 60 feet south of the depot. He had a package under his arm and started on up, passed the depot, with Green White and Sam Huff, when they were stopped and the whisky was taken from them. Said they had the whisky for club. A good many people were present. This occurred at the depot. In the conversation that took place, defendant said that he and Green White went after the whisky, and that Marshall Herd was the secretary of the club. This transaction took place in Love county, Olda. On cross-examination witness said that Green White was making the talk about the- club. He gave the name of the club members and said each had a quart of the whisky.
    C. F. Cochran testified for the state that he was present at the depot when the defendant and Green White arrived with the whisky. Judge Keller was also present. They were being detained by Judge Keller. When witness walked up, they had a package under each arm and were talking when he came up. They said they had whisky. Witness took defendant and Green White to Steel’s restaurant and took from them each four quarts of whisky. Green White did all the talking in the presence and hearing of the defendant and said that he got the whisky at Gainesville, Tex., at the express office and signed up for it.
    Marshall. Herd testified for appellant that he remembers when Sam Huff and Green White were caught with whisky in their possession on March 2, 1912. Eight of the boys made up a pot to get the whisky and defendant and Green White went after it. Whisky came in Green White’s name. Witness had a quart of it. He and Tom Waters ordered it. “I got Bass, depot agent, to write the order; ordered it from Marshall Wright, Ft. Worth, Tex., directed it to be sent to Gainesville, Tex., to Green White.”
    ' Sam Gill testified for appellant that he was a restaurant keeper near the depot at Marietta, testified that he was interested in the whisky brought there on March 2d by the ' defendant and Green White. He owned one quart. On cross-examination witness testified that he was to go to Sam Huff’s home to get his whisky.
    Tom Waters testified for appellant that he had an interest of one quart in the whisky. Witness was to go and get his whisky from either Huff’s or Green’s.

      Chas. Springfield testified for appellant that he owned one quart of the whisky taken from defendant and Green White.
    Dick McCullough testified fox appellant that he owned one quart of the whisky seized and paid his proportion for it.
    Marsall Herd, recalled by the state, testified that the amount raised for the whisky was $6.
    Horace McCullough testified that he paid for and owned one quart of the whisky. Green White was to bring it to him.
    Appellant testified in his own behalf that he was assisting Green White to bring the whisky from Gainesville, Tex., to Marietta; that he owned one quart, which he had in his possession at the time of his arrest; that the rest of the whisky was to be distributed among the owners. Marshall Herd ordered the whisky.

      Eddleman Graham, for appellant.

      E. G. Spilman, Asst. A-tty. Gen., for the State.
   FUKMAN, J.

(after stating the facts as above). First. Appellant, who lives in Love county, Okla., which was formerly a part of the Indian Territory, was convicted for having conveyed whisky from one point in said state and county to another point in said state and county. The defense was that the whisky being conveyed rvas brought by him from Gaines-ville, Tex., on the railroad train and that it belonged to a club of eight, each of whom contributed a proportionate amount to pay for it, and that appellant was conveying the whisky from the depot to his home for distribution among the owners.

Counsel for appellant rely upon a number of decisions of this court as to the right of a citizen of Oklahoma to purchase intoxicating liquors in another state and ship them as interstate commerce to his home for his own use. All of ■these decisions were rendered in obedience to the previous decisions of the Supreme Court of the Hnited States to that effect, for this is purely a federal question and one with reference to which we are bound by the acts of Congress and the decisions of the Supreme Court of the United States. Since the decisions of this court relied upon by counsel for appellant were rendered, the Supreme Court of the United States in the case of Ex parte Webb, rendered June 10, 1912, and reported in 225 U. S. 669, 32 Sup. Ct. 769, 56 L. Ed. 1248, has expressly held that the interstate commerce clause in the Constitution' of the United States, under which the right of a citizen of Oklahoma to purchase whisky in another state and ship it as interstate commerce to his home or place of business for his own use, was not applicable to the Indian Territory portion of the state of Oklahoma and would not be until the expiration of 21 years from the date of the admission of Oklahoma into the Union. On this question that court said:

“The reservation of the authority of Congress to legislate in the future respecting the Indians residing within the new state is clearly supportable under the federal Constitution, art. 1, sec. 8, which confers upon Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’ It has been repeatedly held by this court that under this clause traffic or intercourse with an Indian tribe, or with a member of such a tribe is subject to the regulation of Congress, although it be within the limits of a state. United States v. Holliday, 3 Wall. 407, 418, 18 L. Ed. 182, 186; United States v. 43 Gallons of Whisky (United States v. Lariviere) 93 U. S. 188, 195, 197, 23 L. Ed. 846-848; Dick v. United States, 208 U. S. 340, 28 Sup. Ct. 399, 52 L. Ed. 520, and cases cited.
“And it is as clearly consistent with the Constitution to maintain in force an existing act of Congress relating to such traffic and intercourse, so that it shall continue effective within the limits of the new state, as it is to reserve the right to enact new laws in the future upon the same subject-matter.
“We must read the proviso contained in section 1 of the enabling act, and also the declaration in section 21 that 'the laws of the United States not locally inapplicable shall have the same force and effect within the said" state as elsewhere within the United States,’ in the light of the existing relations, then, recently established by treaties and by acts of Congress between the government of the United States and the Five Civ bized Tribes that occupied the area known as the Indian Territory. Although those tribes had long been treated more liberally than other Indians, they remained none the less wards of the government and in all respects subject to its control. Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 653, 10 Sup. Ct. 965, 34 L. Ed. 295, 301, and eases cited. And after Congress in the year 1893 had inaugurated the policy of terminating their tribal existence and government and allotting their lands in severalty (Acts of March 3, 1893, c. 209, sec. 16, 27 Stat. at L. 645), agreements were negotiated by the Dawes Commission with each of the tribes designated to carry out the objects indicated; and in each of -those agreements there was some recognition of the importance of preserving restrictions upon the introduction of intoxicating liquors from without and the traffic in them within the Indian Territory.
“The agreement with the Seminóles was made in 1898 (30 Stat. at L. 567, c. 542), with the Creeks in 1901 and 1902 (31 Stat. at L. 861, c. 676; 32 Stat. at L. 500, c. 1323), with the Choctaws and Chickasaws in 1898 (30 Stat. at L. 507, c. 517) and in 1902 (32 Stat. at L. 641, c. 1362), and with the Cherokees in the latter year (32 Stat. at L. 716, c. 1375.)
“Section 73 of the agreement with the Cherokees (32 Stat. at L. 727, c. 1375) continued in force in that nation the ■fourteenth section of an act of June 28, 1898, entitled ‘An act for the protection of the people of the Indian Territory and for other purposes’ (30 Stat. at L. 500, c. 517), which contained a proviso against the sale of liquor in the territory and against the introduction thereof into the territory.
“In the first Choctaw and Chickasaw agreement there was a provision (30 Stat. at L. 509, c. 517) that no law or ordinance should be passed by any town interfering with the enforcement of or conflicting with the laws of the United States in force in said territory, ‘and the United States agrees to maintain strict laws in the territory of the Choctaw and Chickasaw tribes against the introduction, sale, barter, or giving away of liquors and intoxieatants of any kind or quality.’
“In the Choctaw-Chickasaw Agreement of 1902, sec. 64, which provided for the cession to the United States of lands at the Sulphur Springs, contained a provision (32 Stat. at L. 656, c. 1362) that, ‘until otherwise provided by Congress, the laws of the United States relating to the introduction, possession, sale, and giving .away of liquors or intoxicants of any kind within the Indian country or Indian reservations shall be applicable to the lands so ceded, and said lands shall remain within the jurisdiction of the United States court for the southern district of Indian territory/
“The Seminole agreement likewise provided that The United States agrees to maintain strict laws in the Seminole country against the introduction, sale, barter, or giving away of intoxicatants of any kind or quality. 30 Stat. at L. 568, c. 542.
“The first Creek agreement provided that The United States agrees to maintain strict laws in said nation against the introduction, sale, barter, or giving away of liquors or intoxicants of any kind whatsoever/ Acts of March 1, 1901, c. 676, sec. 43, 31 Stat. at L. 872. And this was not modified by the supplemental agreement. Acts of June 30, 1902, c. 1323, 32 Stat. at L. 500.
“It seems to us that the provisions of the enabling act-show that Congress recognized that, because of these agreements or otherwise, the government of the United States was under a duty to the inhabitants of the Indian Territory different from its duty to the inhabitants of the other territory that went to form the new state. We are unable otherwise to explain the insertion in the proposed Constitution of the clause establishing liquor prohibition within the Indian Territory and the exclusion of the other territory from the operation of this clause. This action is indicative of a purpose on the part of Congress to' fulfill the spirit as well as the letter of the agreements with the Five Tribes. There were differences in those treaties, so far as the liquor traffic is concerned. But in' the enabling act all the tribes were treated alike and in a manner to fulfill the amplest promise given to any tribe, so far — but only so far — as the establishment of general prohibition within the new state was concerned.
“But, if the federal law that had prevented the bringing in of intoxicating liquors from without the state was at the same time repealed, the pledges of the government were thereby in a material part broken. For manifestly it would be of comparatively little use to prohibit the manufacture of intoxicating liquors within the territory and their shipment from other parts of the state into 'the territory, if at the same time all laws prohibiting the introduction of such liquors from other states into the territory were to be repealed.
“And it is clear that in framing the enabling act Congress was mindful not only of its jurisdiction over commerce with the Indian tribes but was-mindful that trafile in liquors between one state and another is /subject only to the control of Congress. Bowman v. Chicago & N. W. R. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700; Id., 1 Interst. Com. R. 823; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Id., 3 Interst. Com. R. 36; Lottery Case (Champion v. Ames) 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492. * * * We are reminded that daws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid’ (United States v. Brewer, 139 U. S. 278, 288, 11 Sup. Ct. 538, 35 L. Ed. 190, 193), and that ambiguity and uncertainty about the meaning of a criminal statute ought to be resolved by a strict interpretation in favor of the liberty of the citizen.
“But there is no uncertainty or ambiguity about the prohibition of the act of 1895 against carrying intoxicating liquors into the Indian Territory. It is not suggested that there is any express repeal of that prohibition. And we are unable to see that a pro tanto repeal by implication leaves anything doubtful or ambiguous in the meaning of that which remains.
“It is not our purpose to qualify the doctrine- established by repeated decisions of this court that the admission of a new state into the Union on an equal footing with the original states imports an equality of power over internal afiiairs. The eases cited by counsel for the petitioner under this head are cases that dealt with matters wholly internal. United States v. McBratney, 104 U. S. 621, 26 L. Ed. 869; Draper v. United States, 164 U. S. 240, 17 Sup. Ct. 107, 41 L. Ed. 419; Re Heff, 197 U. S. 488, 505, 25 Sup. Ct. 506, 49 L. Ed. 848, 855. And see Ward v. Race Horse, 163 U. S. 504, 16 Sup. Ct. 1076, 41 L. Ed. 244; United States v. Celestine, 215 U. S. 278, 288, 30 Sup. Ct. .93, 54 L. Ed. 195, 199; United States v. Sutton, 215 U. S. 291, 294, 30 Sup. Ct. 116, 54 L. Ed. 200, 202; Hallowell v. United States, 221 U. S. 317, 323, 31 Sup. Ct. 587, 55 L. Ed. 750, 753; Dick v. United States, 208 U. S. 340, 28 Sup. Ct. 399, 52. L. Ed. 520.
“The most recent decision of this court upon the subject of the proper construction of acts of Congress passed for the admission, of new states into the Union is Doyle v. Smith, 221 U. S. 559, 31 Snp. Ct. 688, 55 L. Ed. 853, ,wbere it was held that the Oklahoma enabling act (34 Stat. at L. c. 3335, p. 267), in providing that the capítol of the state should temporarily be at the city of Guthrie and should not be changed therefrom previous to the year 1913, ceased to be a limitation upon the power of the state after its admission. The court, however, was careful to state (221 U. S. 574 [31 Sup. Ct. 693, 55 L. Ed. 853]) : ‘It may well happen that Congress should embrace in an enactment introducing a new state into the Union legislation intended as a regulation of commerce among the states, or with Indian tribes situated within the limits of such new state, or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of Congress. But in every such case such legislation would derive its force not from any agreement or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the state’s legislative power in respect of any matter which was not plainly within the regulating power of Congress.’
“We are here dealing with one of those matters such as are referred to in this citation. The power of Congress to regulate commerce between the states, and with Indian tribes situate within, the limits of a state, justifies Congress when creating a new state out of a territory inhabited by Indian tribes, and into which territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in so legislating as to preserve those laws and treaties in force to the extent of excluding interstate traffic in intoxicating liquors that would be inconsistent with the prohibition. Dick v. United States, 208 U. S. 340, 353, 28 Sup. Ct. 399, 52 L. Ed. 520, 525. This being so, and since we find in the Oklahoma enabling act no repeal, express or implied, of the act of 1895 so far as pertains to the carrying of liquor from without the new state into that part of it which was the Indian Territory (saving as to liquor brought in by the state for the use state agencies established under the provisions of the enabling act), it follows upon the admitted facts that the United States District Court has jurisdiction to punish the petitioner for the offense that he has committed.”

On the 26th day of May, 1913, the Supreme Court of the United States, in the ease of United States v. Wright, 229 U. S. — , 33 Sup. Ct. 630, 57 L. Ed. —, again passed upon this question. Mr. Justice Pitney, delivering the opinion of the court, said:

“The defendant in error was indicted in the United States District Court for the Eastern District of Oklahoma; the charge being that ‘on the 19th day of March, in the year 1912, in the county of Muskogee, in the said district, and within the jurisdiction of said court, the said county and district then and there being a portion of the Indian country of the United States, (he) did at the time and place aforesaid unlawfully, willfully, knowingly, and feloniously introduce into said Indian country one quart of malt, vinous, spirituous, distilled, ardent, and intoxicating liquor, to wit, whisky, contrary to the form of the statute in such case made and provided,’ etc.
“The District Court sustained his demurrer, and the case is brought here under the Criminal Appeals Act.
“The statutes involved are: Section 2139 of the Revised Statutes, as amended by the act of July 23, 1892 (chapter 234, 27 Stat. at L. 260), and by the act of January 30, 1897 (chapter 109, 29 Stat. at L. 506), also section 8 of the act of March 1, 1895 (chapter 145, 28 Stat. at L. 693), and the Oklahoma Enabling Act of June 16, 1906 (chapter 3335, 34 Stat. at L. 267). Extracts from these are set forth in footnotes to the opinion in Ex parte Webb, 225 U. S. 663, 671, 677 [32 Sup. Ct. 769, 56 L. Ed. 1248], Muskogee county is a part of what was the Indian Territory.
“The District Court in effect construed the indictment as charging, not an interstate transaction, but an introduction of liquor from a point within the state of Oklahoma but outside of what is now Indian country into such Indian country. The decision of this court in the Webb case, which had to do with section 8 of the act of March 1, 1895, and the effect of the Enabling Act upon it, and also the decisions of the Circuit Court of Appeals for the Eighth Circuit in United States Express Co. v. Friedman, 191 Fed. 673 [112 C. C. A. 219], and Mosier v. United States, 198 Fed. 54 [117 C. C. A. 162], both of which turned upon the effect of the Enabling Act upon the act of January 30, 1897, were reviewed by the District Court, and the conclusion reached, principally because of the line of reasoning expressed in the opinion in the Webb case., was ‘that the provisions of R. S. sec. 2139, as amended by the act of 1892 and the act of 1897, so far as they related, if at all, to the introduction of liquor into the Indian Territory from points outside of that territory but within what is now Oklahoma, must be considered as having been repealed by the Enabling Act.’
“And again: ‘This confines offenses of this character, of which the federal court has jurisdiction to those in which the liquor is introduced from a point without the state. It is a violation. of the state law, as established by the constitutional provision above referred to, to introduce liquor into what - was formerly Indian Territory from some other portion of Oklahoma, 'but such violation is an offense exclusively within the jurisdiction of the state court. In order to give the federal court jurisdiction, it is necessary that the introduction of the liquor should have been from a point without the state. This is an essential element of the offense, so far as the federal court is concerned, and should therefore be charged in the indictment. It follows that the demurrer must be sustained.’
“The Criminal Appeals Act (Act March 2, 1907, c. 2464, 34 Stat. at L. 1246) provides for a writ of error, to be taken by the United States from the District Court direct to this court, from a decision or judgment sustaining a demurrer to an indictment, ‘where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded.’ The present case is .clearly within this act, as previously interpreted and applied. United States v. Sutton, 215 U. S. 291, 294 [30 Sup. Ct. 116, 54 L. Ed. 200]; United States v. Keitel, 211 U. S. 370, 385 [29 Sup. Ct. 123, 53 L. Ed. 230]; United States v. Biggs, 211 U. S. 507, 518 [29 Sup. Ct. 181, 53 L. Ed. 305]; United States v. Stevenson, 215 U. S. 190, 195; United States v. Miller, 223 U. S. 599, 602, [32 Sup. Ct. 323, 56 L. Ed. 568]; United States v. Patten, 226 U. S. 525, 535 [33 Sup. Ct. 141, 57 L. Ed. —] ; United States v. George, 228 U. S. 14, 17 [33 Sup. Ct. 412, 57 L. Ed. —] ; United States v. Anderson, 228 U. S. 52 [33 Sup. Ct. 500, 57 L. Ed. —] ; United States v. Pacific & Arctic Co., 228 U. S. 87, 100 [33 Sup. Ct. 443, 57 L. Ed. — ].
“Upon the merits, the principal question is whether the acts of 1892 and of 1897 were repealed, as to intrastate transactions, by the effect of the Enabling Act and the admission of the state with the constitutional prohibition of the liquor traffic that was prescribed by that act. It is not contended that there was any express repeal. The insistence that there was a necessary repeal by implication is supported by arguments that may be outlined as follows: * * *
“IJpon the whole, while the matter is not free from difficulty, it seems to us the better argument is against the implied repeal. It follows that the District Court erred in holding the acts in question, viz.; section 2139, Rev. Stat., as amended by the acts of 1892 and 1897, to be no longer in force, and erred in sustaining the demurrer to the indictment. The judgmént should be reversed, and the cause remanded for further proceedings in accordance with the views above expressed.”

It matters not what the personal opinion of any member of this court may be; this involves a federal question which, under the Constitution of the United States, the Supreme Court of the United States alone has the right to settle. The judges of this court are sworn to support the Constitution of the United States, and, when that court has spoken upon a federal question, this ends the discussion with us, and we are bound to decide in conformity with the opinions so rendered.

In the case of Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288, this court said:

“If the decisions of the Supreme Court of the United States are wrong, application should and can be made to that court for a reversal of these decisions. It is a waste of time, money, and labor to appeal to this court to set aside anything which that court has decided. The Supreme Court of the United States of necessity must be the final' judge of the construction of the United States Constitution. Otherwise we would have a hydra-headed judicial system in which 47 independent appellate courts could construe this instrument as they pleased, which would result, not only in confusion, but in civil war. Each tribunal would be supported by the military force of the government which it represented. This would result in death and destruction to our form of government. Certainly no reasonable person desires this court to adopt a policy which would bring about such serious consequences as this. It would be treason itself. One thing can be depended upon, and that is that this court will not make any such insane attempt.”

We cannot consider the convenience or desires of the people living on the east side of the state. The Legislature itself is powerless to pass any law which would in the least evade the federal decisions on this question. If it is illegal to introduce intoxicating liquors into that portion of the state which formerly comprised Indian Territory, as the Supreme Court of the United States now holds, then the purchase of such liquor is illegal and such liquor could not lawfully be conveyed from one point in that portion of the state to another.

In the case of Maynes v. State, 6 Okla. Cr. 487, 119 Pac. 644, this court, speaking through Judge Armstrong, said:

“The law clearly forbids the conveyance from one place to another of intoxicating liquor for any purpose, except such liquor -as is purchased at a lawful sale.”

Second. But there is another view to take of this question which has already been decided adversely to the contention of counsel for appellant in the case of Landrum v. State, ante, 132 Pac. 830, decided at the last term. In that case appellant’s defense was that he was the representative of a wholesale liquor house situated in Ft. Worth; that upon application of persons desiring whisky he would write to his house, which, upon receipt of his order, would ship the whisky direct to the persons ordering the same; and that he (appellant) had no interest in the whisky whatever. On this statement of facts this court said:

“The trial court was authorized to find 'from the agreed statement of facts that this entire transaction was a cunningly devised subterfuge deliberately planned for the purpose of defeating the law. This case is but an illustration of the fact that men who are engaged in the illegal sale of intoxicating liquors in Oklahoma will resort to any expedient or subterfuge for the purpose of carrying on their illegal business. If this judgment is reversed, every liquor house in the United States could establish an agent in every town in Oklahoma to whom persons could apply and get such agent to write letters and sign the name of the purchaser and forward them to his house, which, seeing the letter written in the handwriting of their agent, would take it as an indorsement of the solvency of the purchaser and would, upon receipt of such letter, ship whisky to entire -strangers of whom they knew nothing. If this can be done, the prohibitory law of Oklahoma will become the laughing stock of all intelligent persons, and this court would be open to- the most severe censure for its misconstruction of the law. It is our duty in -good faith to so construe the laws of Oklahoma 'as to enable them to be enforced with reasonable certainty.”

If a person cannot send in orders as the representative of a whisky house and have intoxicating liquors shipped into the state, neither can he, as the representative of others, go out of the state and bring intoxicating liquor into the state and distribute it among those who gave him such orders. If we were going to hold that such conduct was legal, we ought in good faith to place as -a syllabus to the opinion, “Bootlegging made safe in Oklahoma.” It matters not what the members of this court may think of prohibition, the people of Oklahoma have placed it in the law and it is our duty in good faith to so construe the law -that it can be .enforced, and this we are going to do, it matters not who may be offended or made to suifer thereby. There is no -danger of any man being punished in Oklahoma who obeys the law. The jail is made alone for those who violate -the law, -and, if a man is sent to jail for violating the law, he has no one except himself to blame.

We fully approve the views expressed by Supreme Court Commissioner Ames in the case of Blunk v. Waugh, 32 Okla. 616, 122 Pac. 717, 39 L. R. A. (N. S.) 1093, as follows:

“If plaintiff was the agent of the brewery and was distributing its beer for its benefit, it is manifest that he was furnishing such liquor within the prohibition of the statute. If, on the other hand, the plaintiff received this consignment as the agent of the 105 persons to whom - the beer was to be delivered, it is plain that after he received it from the railroad company it had been delivered to the consignee, he being the consignee, and that his subsequent acts in delivering the 105 casks to the 105 owners was conveying it from one place to another within this state. It is likewise manifest, if the plaintiff was engaged in the business on his own account, that he was merely operating a saloon in this ingenious manner, and that therefore he was either selling or giving away, or otherwise furnishing, the beer. It is manifest, therefore, that the business of the plaintiff is in violation of the laws of this state. * * *
“The argument is made by the plaintiff, however, that if' these 105 casks of beer might have been shipped in 105 separate express packages, and have been delivered by the express company to the 105 consignees, there is nothing illegal in the business which he is transacting. This argument, however’, overlooks the fundamental and substantial difference between the plaintiff and the express company. The express company is a common carrier pure and simple and can be compelled to accept for transportation and delivery any legitimate article of commerce, and its entire service, rendered in connection with a shipment of intoxicating liquors, is in the actual transportation and delivery thereof. For us. to believe this of the plaintiff requires an amount of credulity which we do not possess. The plaintiff is engaged in the business of receiving large consignments of intoxicating liquor by interstate carrier and distributing them to a large number of small' consumers in Oklahoma City. He is either the bona fide consignee of these large shipments or he is not. If he is the bona fide consignee, it is plain that the shipment is terminated when received by the plaintiff, and certainly his disposition of’ it thereafter cannot possibly be protected as a part of interstate commerce. To do so would in substance reinstate the original package law, which Congress has expressly legislated' against. If the plaintiff is not the bona fide consignee, then his business involves a violation of the sections in the Penal Laws of 1909, which we have quoted. It therefore seems to us a demonstrable fact that the business of the plaintiff' is not and cannot be protected by the Constitution and laws-of the United States; .and this conclusion is reached without-considering several other aspects of the plaintiff’s business which seem to conflict with those sections of the Penal Laws.”

We find that the facts and law of this case are against appellant. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG, ■ P. J., and DOYLE, J., concur.


text:
    J. N. DE FREECE v. STATE.
    No. A-1663.
    Opinion Filed June 30, 1913.
    (133 Pac. 254.)
    INTOXICATING LIQUORS — Illegal Sale — Evidence. See the opinion for evidence held insufficient to sustain a verdict and judgment of conviction for the unlawful sale of intoxicating liquor.
    (Syllabus by the Court.)

      Appeal from County Court, Love County. B. A. Keller, Judge.

      J. N. De Ereeee was convicted of violation of the prohibitory law, and brings error.
    Reversed.

      Eddleman & Graham, for plaintiff in error.

      C. J. Davenport, Asst. Atty. Gen., for -the State.
   DOYLE, J.

This appeal was prosecuted from a conviction had in the county court of Love county on the 30th day of January, 1912, in which, in accordance with the verdict of the jury, the defendant was sentenced to be confined in the county jail for 30 days and pay a fine of $50. The only question presented is whether the judgment of conviction is supported by the evidence.

The only witness for the state was Geo. S. Newell, who testified as follows:

“I live six miles east of Orr, near Simon; have known the defendant 10 years; he has been my family physician •in years past. I was in his drug store at Orr, on or about ■October 23d and bought 15 cents worth of medicine, and said to him, ‘I would love to have a P. T.’ He walked back in the back of the drug store then — and I walked back there, and picked up a package, and walked out. I don’t think he said anything at all; he was busy there; I do not know what he said. The package ivas a pint of whisky. I went back to the drug store, and put $1.15 down on the 'Counter. T think Bob Oartright picked it up. The defendant was not present when I paid the money.”

On cross-examination he said he brought cotton to the gin, and that Mr. Greenway went to Orr with him; that on his way home he went by Mr. Greenway’s, and found Sheriff Al J. Davis there; that in going to town that morning be had been drinking.

On behalf of the defendant, Mr. Greenway testified that he went to town with Mr. Newell on a load of cotton; Mr. Newell laying down, and witness driving; that Mr. Newell ■was sick and throwing up, and his breath smelled like mean whisky to him; that he drove the wagon to Palmer’s Gin and got off and left him there; that Mr. Newell was drunk when he got back to witness’ house that evening.

On cross-examination he said he was born in North Carolina, lived in Texas, had never been convicted of a crime; that he drove Newell’s wagon back with the cotton seed in it, and Newell returned in Less Harrington’s wagon; that when witness got ready to start home Newell had not sobered up, he still staggered; that this was the only time he went with him to town.

Henry Power testified that he was acquainted with the prosecuting witness, Newell, and met him near Mr. Green-way’s the day Mr. Greenway went with him to town; that Newell had cotton in the wagon, and seemed like he was drinking. He had a bottle of whisky two-thirds full, and asked witness to take a drink; that he then went on in the .direction of • Mr. Greenway’s house.

Will Hodges testified that he was acquainted with the prosecuting witness, Newell, for about three years; that “on the clay in question I met him in 'Orr and took him to be intoxicated; he had a bottle of- whisky and offered me a drink, and I told him that I did not want any, that he had better be careful or he would get it taken aw-ay from him, and Newell said: 'I will put this in Dr. De Freece’s store/ When. I met Newell he 'was coming from Palmer’s Gin, and when he left me he went toward the .defendant’s - drug store.”

The defendant took the stand, and testified that he is a physician and pharmaceutist with a drug store in the town of Orr; and swore positively that he had never been engaged in the sale of whisky; that'he never did, at any time,'furnish or sell intoxicating liquor to the prosecuting witness or any other person; that he had been engaged in the dfug business about six years, a part of the time at Fletcher, Okla.

On cross-examination he was asked:

“Q. Can you account for Geo. Newell coming here and testifying as he has against you that he got this bottle of whisky from you that day? A. I -don’t know .why he did it; I guess that he thought that would clear him from the transaction. Q. You think that would make Geo. Newell lie? A. I don’t know.”

There was no effort made to impeach any of the witnesses for the defendant, all of whom seem to be creditable men; and, on the part of the only witness for the state, we have the fact that he himself testifies to having drank whisky on his way to town that day; and we must take this into consideration in -determining how far we shall credit his statement that the defendant had permitted him to take a pint of whisky from his drug store, as against the strong-defense which was presented by the' defendant, not only supporting his denial of having delivered the pint of whisky to the prosecuting witness, but showing that said witness was intoxicated, and in possession of a bottle of whisky before he went to the defendant’s drug store.

While the cases are very rare in which this court interferes to disturb the judgment of the trial court, and it is only in a case where the verdict is clearly contrary to the evidence, or when from the doubtful character of the evidence against ' the defendant the preponderance in his favor is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it, in this case, we think that the evidence, unless we are to discredit entirely the testimony of unimpeached witnesses, falls within the rule laid down by these cases, and that a new trial should be granted. The judgment is therefore reversed.

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