text:
      Ex parte PARIS RUPERT.
    No. A-1141.
    Opinion Filed June 20, 1911.
    (116 Pac. 350.)
    HABEAS CORPUS — Scope of Review — Irregularities of Procedure. This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors in law on questions over which the court had jurisdiction.' The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, and should be limited to cases in which the judgment and sentence of the court attacked is clearly void.
    (Syllabus by the Court.)

      Application by Paris Rupert for writ of habeas corpus.

    Writ discharged.

      William O. Woolman and H. N. Boardman, for petitioner.
    Stewart„ Cruce & Gilbert and A. L,. Bmery, for the State.
   FURMAN, P. J.

Petitioner applied for a writ of habeas corpus upon the ground that he was illegally restrained of his liberty by Sam Southerland, sheriff of Blaine county, Okla. The said sheriff, in his answer and return, stated that he held petitioner by virtue of two certain commitments issued out of the county court of Blaine county, Okla., based upon two judgments rendered against petitioner by said county court of Blaine county. Upon the hearing of this matter, certified copies of judgments in causes numbered 1758 and 1759 on the county court docket of Blaine county, Okla., were introduced in evidence, from which it appeared that petitioner had pleaded guilty in both of said cases for having violated the game laws of Oklahoma, and that this punishment in each case had been assessed at a fine of $100 and 15 days’ imprisonment in the county jail. The county court had jurisdiction of these offenses, and the judgments oh their faces are regular and valid.

Oral testimony and affidavits were introduced on the part of both petitioner and the state, attacking and supporting the regularity of the judgments in question. On the state’s own showing there were irregularities in the proceedings prior to the rendition of the judgments. On the other hand, even if everything contended for by petitioner was true, nothing was proven which would render the judgments in questions void. We cannot pass upon the regularity of these judgments in this proceeding.

In Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933, 25 L. R. A. (N. S.) 483, this court said:

“This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors in law on questions over which the court had jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, and should be limited to cases in which the judgment and sentence of the court attacked is clearly void.”

In re Coyle, 4 Okla. Cr. 133, 111 Pac. 666, this court expressly declared that when the judgment of a court of record appears to have been properly entered, and the court has jurisdiction of the matter, such judgment could not be impeached or contradicted in habeas corpus proceedings.

In the case of In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, this court held that, where a petitioner is imprisoned under a judgment of conviction for crime, unless the court is without jurisdiction to render the particular judgment, and the judgment is therefore void and not merely voidable, relief could not be had by habeas corpus.

In Ex parte Wilkins, 115 Pac. 1118, this court said:

“While it is well settled that mere irregularity in proceedings resulting in the imprisonment, however flagrant, is not sufficient ground to discharge on habeas corpus, yet, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction to render the judgment complained of, such want of jurisdiction may be inquired into on habeas corpus, and, if found to exist, is ground for a discharge of the petitioner. Ex parte Johnson, 1 Okla. Cr. 414, 98 Pac. 461; In re McNaught, 1 Okla. 528, 99 Pac. 241; Ex parte Gudenoge, 2 Okla. Cr. 110, 100 Pac. 39; Ex parte Howard, 2 Okla. Cr. 563, 103 Pac. 663; Ex parte Justus, 3 Okla. Cr. 111, 104 Pac. 933 [25 L. R. A. (N. S.) 483]; Ex parte Brown, 3 Okla. Cr. 329, 105 Pac. 577; In re Talley, 4 Okla. Cr. 398 [112 Pac. 36]; Ex parte Show, 4 Okla. Cr. 416 [113 Pac. 1062].”

We regard these cases as conclusive of the question here presented. If the judgments against petitioner were irregular or voidable, his remedy would have been by appeal. But we cannot grant the relief sought by habeas corpus proceedings.

Section 6207 of Snyder’s Comp. Laws of Oklahoma 1909 is as follows:

“No court or judge shah inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: (1) Upon process issued by any court or judge of the United States, or where such court or judge has exclusive jurisdiction; or (2) upon any process issued on any final judgment of a court of competent jurisdiction; or (3) for any contempt of any court, officer or body having authority to commit; but an order of commitment as for contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications; (4) upon a warrant or complaint issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”

The contention of counsel for petitioner that the law does not prescribe the penalty of imprisonment for the offenses to which petitioner pleaded guilty in these cases is not sustained by the law. In cause No. 1758 petitioner is charged with having in his possession game birds, to wit, quail, with the intent to transport the same beyond the state, to wit, to the city of Chicago, in the state of Illinois. This is a direct violation of section 3510 of Snyder’s Comp. Laws of Oklahoma 1909. In cause No. 1759 petitioner is charged with having in his possession game birds, to wit, quail, the same not then and there being had or held as specimens or trophies. This is a. direct violation of section 3510 of Snyder’s Comp. Laws of Oklahoma 1909. Section 3563 of Snyder’s Comp. Laws of Oklahoma 1909 makes it a misdemeanor to violate any of the sections of the law relating to game, not otherwise provided for, and prescribes that upon conviction the party so violating any of said sections shall be punished by a fine of not less than $10 nor more than $100, or by imprisonment in the county jail for not less than 10 days or more than 30 days, or by both such fine and imprisonment.

The writ of habeas corpus is therefore discharged, and the petitioner is remanded to the custody of the sheriff of Blaine county, with directions to execute both judgments of the county court.

ARMSTRONG and DOYLE, JJ., concur.


source: Caselaw Access Project

author: ARMSTRONG, J.

license: Public Domain

text:
    CHARLES STUARD v. STATE.
    No. A-497.
    Opinion Filed June 20, 1911.
    (116 Pac. 204.)
    1. JURY — Petit Jurors — Term of Service, (a) The term of ser-, vice of petit jurors in this state is fixed by statute at two weeks, and no juror is eligible for service longer, unless the court enters an order in the journal that it is of the opinion that the jury business can be concluded within six days, except in cases where jurors are engaged in the trial of a case.
    (b) It is necessary for a juror under the statute to actually serve two weeks before he becomes ineligible for further service at the term of court at which he is selected.
    2. SAME — Motion to Quash, (a) A motion to quash the jury panel is properly overruled when any portion of the panel does not come within the objection made in the motion.
    (b) When a portion of the jurors are disqualified by reason of having served the statutory period, and not having been held over by proper order of the court for six days, and others in the panel are not affected by the disqualification alleged, this question should be raised by a challenge for cause when the jurors are called to the box. When this is not done, objection is waived.
    (Syllabus by the Court.)
    On petition for rehearing.
    Rehearing denied.
    For former opinion see 5 Okla. Cr. 686, 114 Pac. 1133.

      Bridges & Vertrees and Gilbert & Bond, for plaintiff in error.

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

Two questions are raised by the petition for rehearing, one of which has been determined by this court in other cases, and is not urged in th.e brief or oral argument of the counsel. The only question which is briefed and argued is the proposition contended for in the original brief: That the court erroneously overruled a motion of the accused to quash the jury panel on the ground that the jurors constituting the panel had served the two weeks provided by the statutes, and had not been held over by proper order of the trial court as provided by law. Twelve of the jurors who were impaneled on the first day of the term, to wit, on the 4th day of October, were present and constituted a portion of the panel on the date this case was called for trial, to wit, the 26th day of October. In addition the panel consisted of five others, who had been drawn at the end of the first week’s session. It is admitted by counsel in the oral argument that a portion of the jurors were not disqualified under the contention they make. Section 3986, Snyder’s Statutes, is in part as follows:

“No juror shall be allowed to serve more than two weeks at one term, unless at the end of such period, he is upon a panel engaged in the consideration of a case in which event he may be excused when such case is terminated; Provided, that if the judge of the court is of the opinion that the jury business of a term of court may be concluded within six days, he may require a jury or a juror to remain until the termination of said jury service, by entering an order to that effect upon the court journal.”

The term of service of the jurors is by this statute fixed at two weeks, and, if at the end of that time the court is to continue in session longer, a new jury must be summoned, unless the court is of the opinion that the jury business may be concluded within six days, and enters an order upon the journal of the court requiring the jurors present to remain until the termination of the business. 'The words, “No juror shall be allowed to serve more than two weeks at one term,” are qualifications, and mandatory. This section also provides that a jury engaged in the consideration of a case shall serve to the conclusion of .the case upon which he is sitting. We are of the opinion that jurors who have served two weeks consecutively under the provision of this statute are-disqualified to serve further at that term of court, except upon an order of the court holding them over six days longer, when he is of the opinion that the jury business can be completed within that time, and except in cases where the jury, or juror, is engaged in considering a case on trial. In the case at bar, the court failed to make such an order at the expiration of the two weeks.

Arkansas has a similar statute. In that state the law provides that the term of the service of any person summoned to serve on a petit jury of the circuit court shall be limited to four weeks, and no person serving for such time shall be eligible for further service during that term or the next succeeding term. The court construed this statute, in the case of Humphrey v. State, 74 Ark. 554, 86 S. W. 431, and said: “Under this statute, four weeks actual service was necessary to render a person ineligible for further service during the term for which he was impaneled.” We think this is the correct rule. It would be necessary for a juror under our statute to actually serve two weeks before he would be ineligible for further service at the term of court at which he is selected. See, also, Cribb v. State, 118 Ga. 316, 45 S. E. 396. The accused made no objection to the jury, other than by a motion to quash the panel. As.already stated, a portion of the panel had not served the two weeks provided by the statute, and were therefore not disqualified as jurors. The motion to quash was properly overruled.

A motion to quash the panel cannot be sustained when any number of the jurors composing the panel are not involved in the disqualification as set out in the motion. If all the jurors on this panel had been disqualified, the motion to quash would have been well founded, and should have been sustained. All not having been disqualified, the only way to raise the question was by challenge for cause when the jurors were called to the box to try the case. The plaintiff in error interposed no objection by challenge to any of the jurors mentioned, on the ground that they were disqualified when they were called to the box. Not having done so, he waived any objection to them on such ground.

The motion for rehearing is denied, and the trial court directed to enforce the judgment and sentence.

FURMAN, P. J., and DOYEE, J., concur.


author: DOYLE, J.

text:
    JOHN SILVA v. STATE.
    No. A-582.
    Opinion Filed June 20, 1911.
    (116 Pac. 199.)
    EVIDENCE — Admissibility- — ■ Search. Warrant. Evidence obtained by-means of a search warrant is not inadmissible, either upon grounds that it is in the nature of admissions made under' duress, or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence - has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued.
    (Syllabus by the Court.)

      Appeal from' Pittsburg County Court; R. W. Higgins, Judge.

    John Silva was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Stuart, Gordon & Liedtke, for plaintiff in error.

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

Plaintiff in error was convicted of the crime of having possession of intoxicating liquor with the intent to sell, barter, give away, and otherwise furnish said liquor, and was, on October 23, 1909, sentenced to be confined in the county jail for a period of three months, and to pay a fine of $250 and costs.

The testimony in this case is in substance as follows: Pour deputy sheriffs testified that on the day of the alleged offense they went to the defendant’s premises at Krebs to execute a search warrant, and there found about a dozen cases of whisky, two or three barrels of beer, and several bottles of wine; some of the beer was in the ice-box; part of the whisky was found under the floor, and the rest found in a partition wall. They found several persons drinking beer, and a man was. lying on the floor drunk.

The testimony of these witnesses was received over the objection of the defendant that the same was incompetent and inadmissible for the reason that the search warrant was illegally issued, and in support of this objection the affidavit and warrant were introduced in evidence. This objection is renewed here, and it is further contended:

“That an officer executing a search warrant against a defendant, cannot testify on the trial of the defendant as to what occurred during his search, because this would be equivalent to forcing the defendant to testify against himself.”

The affidavit, it appears, was made upon information and belief, and it must be conceded that the search warrant was issued without warrant of law and in violation of section 30 of the Bill of Rights, providing that:

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

However, admitting that the search warrant illegally issued, and the officers in serving it exceeded their authority, this would not constitute a legal objection to the admissibility of the evidence. The accepted rule is that the admissibility of evidence is not affected by the illegality of the means through which the witnesses were enabled to obtain the evidence.

“The evidence procured by a search warrant may be used against the party; not being inadmissible as an admission under duress or compulsion, or as otherwise wrongly obtained, even if the issuing of the warrant was illegal.” (Bishop’s New Crim. Proc. § 246.)

See, also, State v. Plunket, 64 Me. 536; State v. Flynn, 36 N. H. 64; Com. v. Dana, 2 Metc. (Mass.) 329.

In the case of Williams v. State, 100 Ga,. 511, 28 S. E. 624, 39 L. R. A. 269, Lumpkin, P. J., delivering the opinion of the court, after an elaborate review of the authorities, said:

“Irrespective of the many respectable authorities above referred to, and speaking for ourselves, we are satisfied that the contention of the accused that her constitutional rights were infringed by the ruling of the trial judge admitting the evidence complained of ought not to be sustained. As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures was to place a salutary restriction upon the the powers of government. That is to say, we believe the framers of the Constitution of the United States and of this and other states merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful any unreasonable search or seizure. This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color or authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition, surely none of the three divisions of gow> ernment is responsible. If an official, or a mere petty agent of the state, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting, not for the state', but for himself only; and therefore he alone, and not the state, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of government can do is to afford the citizen such redress as is possible, and bring the wrongdoer to account for his unlawful conduct. The office of the federal and state Constitutions is simply to create and declare these rights. To the legislative branch of government is confided the power, and upon that branch alone devolves the duty, of framing such remedial laws as are best calculated to protect the citizen in the enjoyment of such rights, and as will render the same a real, and not an empty, blessing. With faithfully enforcing such'laws as are thus provided, the responsibility devolving upon the executive and judicial branches must necessarily end. We know of no law in Georgia which renders inadmissible in evidence the fruits of an illegal and wrongful search and seizure, nor are we aware of any statute from which it could be logically gathered that the admission of-such evidence violates any recognized principle of public policy. Whether or not prohibiting the courts from receiving evidence of this character would have any practical and salutary effect in discouraging unreasonable searches and seizures, and thus tend towards the preservation of the citizen’s constitutional right to immunity therefrom, is a matter for legislative determination.”

We have carefully examined the record and are clearly of opinion that there is no merit in this appeal.

The judgment of the county court of Pittsburg county is therefore affirmed.

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


text:
    M. H. CLARK v. STATE.
    No. A-188.
    Opinion Filed June 20, 1911.
    (116 Pac. 200.)
    1. HOMICIDE — Assault With Intent to Kill — Indictment. Tinder section 2307, Snyder’s Stat. 1909, whieh provides that "every person who attempts to shoot at another with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, ’ ’ etc., an indictment for an attempt to shoot another with intent to kill must allege the act or acts done by the accused toward the commission of the crime.
    2. HOMICIDE — Evidence of Lower Offense — Instructions. Where the evidence is clearly insufficient to sustain the major offense charged in an indictment for assault with intent to kill, and there is evidence tending to prove the commission of an offense which is necessarily included in the offense charged, it is the duty of the trial court to instruct the jury of their right to convict of the lesser offense.
    (Syllabus by the Court.)

      Appeal from District Court, Atoka County; A. T. West, Judge.

    On rehearing.
    Reversed.
    7. H. Gernert and 7. G. Ralls, for plaintiff in error.

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

Plaintiff in error was indicted, tried and convicted of the crime of attempt to shoot with intent to kill W. A. Blackburn, and was sentenced to serve a term of 10 years in the penitentiary. The judgment and sentence was entered on December 5, 1908', from which judgment and sentence an appeal was taken'by filing in this court on May 26, 1909, a petition in error and case-made. Pending said appeal defendant was committed to the penitentiary. At the January, 19i0, term of this court said cause was affirmed. A petition for rehearing was duly filed, and, owing to the fact that the record in said cause was misplaced, the cause has been continued from term to term.

The evidence on the part of the state is substantially as follows :

The first witness, W. A. Blackburn, testified that he was a constable of Stringtown, and knew the defendant; that on the day named in the indictment the defendant was drinking and would not go home, but stayed around town all day; that about half past five in the evening he was informed that the defendant was down town, saying that no white man could take a gun off him; that he went down and found him; that the defendant ran his hand down in his clothes and he told defendant not to draw a gun on him, and ordered him to throw up his hands; that defendant then attempted to j erk his gun out, and he grabbed it and knocked defendant down and jerked the gun our of his clothes; that defendant got up and started at him; and he knocked him down again; that he had to hit him three or four times with his gun before he could stop defendant from fighting him; that the gun he took from him was a 45-caliber Colts; that Winters, Scott, Garside, O’Neal, and Irvin were present. On cross-examination he testified as follows:

“Q. Where was the defendant’s gun when you first got it? A. Right in his pants here. He had his hand on it, and had it cocked. Pie had it just far enough that it hung in his clothing here. I liked never to have jerked it out. As I pulled it out, he pulled back and it caught my hand here. I jerked it out of his hand as I hit him. Q. You already had your gun out did you? A. Yes, sir; I had my gun in my hand.”

On re-direct examination he testified:

“Q. I will ask you what was defendant trying to do when you caught that gun? A. He was trying to get it out of his clothes— trying to get it out all the time, and me hanging to it, and me telling him not to.”

Claud Irvin was the next witness for the state, and testified that he drove a dray for Blackburn; that the defendant got in the wagon and rode to the depot with him; that, when they got to the depot, the defendant dropped a gun and picked it up, and put it down in his pants leg, and started off down the track, and about a minute or so afterwards Blackburn came, and witness told him what defendant had said, and Blackburn went after him; that defendant was some 30 or 35 yards away, and when Blackburn got up within 10 or 15 feet of defendant, he said stop, and defendant kept on walking down the track; that, when Blackburn got up within 5 or 6 feet of him, defendant stopped and put his hand to his pants; that Blackburn went for his gun, and it seemed as if defendant still held his hand where he first put it, but he could not tell what he was doing; that Blackburn reached over and got defendant’s hand or gun, and struck defendant on the head with a gun; that defendant rolled down the dump, and that, when he got up, Blackburn had the gun; that Blackburn then handed to witness defendant’s gun; that defendant did not get his gun out at all; that when defendant started to get up Blackburn hit him again and defendant fell back; that these licks were all on the head; that Blackburn’s gun was a 38-caliber Colts.

J. C. Scott, the next witness for the state, testified that he was at the depot, and Blackburn, when he reached defendant, told him to hold on and told him to give up his gun, and it seemed as if he had hold of him; that they scuffled around a little, and Blackburn hit him over the head with a six-shooter, and defendant fell down the dump and Blackburn with him; that when Blackburn got up he had a six-shooter in each hand; that when Blackburn pulled the pistol out of defendant’s pants something hung onto it which looked like a part of the defendant’s underclothing.

C. H. O’Neal and M. R. Winters also testified for the state that they saw the difficulty; and their testimony was substantially the same as -that of the other witnesses.

This was all the testimony received upon the trial.

Counsel for defendant at the close of the testimony moved the court to direct a verdict of not guilty.

This statement of the • evidence tending to show the guilt of the defendant is made for the purpose of showing that the evidence is not necessarily conclusive of the guilt of the defendant of the crime charged. It might be sufficient to show the commission of an included crime of lesser degree, but it is clearly insufficient to support the verdict and judgment. There was no request on the part of defendant, and the court failed, to instruct the jury that they might find the defendant guilty of an offense the commission of which is necessarily included, but of lesser degree than assault with intent to kill. Section 6875, Snyder’s Stat. 1909, provides:

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

An assault with intent to do bodily harm by shooting or attempting to shoot at another without justifiable or excusable cause is included in an indictment of assault with itent to kill by shooting or attempting to shoot at another.

Whenever the evidence as in this case warrants it, it is the duty of the court, whether requested by the defendant or not, to instruct the jury upon the other offenses included in the crime charged. Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467. Mr. Bishop says that the subject of attempt to commit crime is alike intricate and important. The reports are full of cases upon it, yet it is but imperfectly understood by the courts. Bishop’s New Crim. Law, § 725.

Here the indictment is for an attempt to shoot with intent to kill, and it is necessary, to constitute the crime, that the defendant should have done some overt act towards the commission of the crime. This is an essential element of the offense, and without it’ the crime does not exist. Being therefore an essential element of the offense which is not complete without it, the acts constituting the offense must be alleged and proved. There must be an intent to commit the crime and some act don'e in pursuance of such intent, which falls short of the result intended. Here the only act of the defendant as shown by the evidence was an attempt to draw a pistol from his waistband, and the evidence fails to show that the pistol was loaded. The attempt to kill as contemplated by the statute must be manifested by some act which goes beyond mere preparation to commit the crime. Mr. Bishop says:

“It is plain that, if a man who has a wicked purpose in his heart does something entirely foreign in its nature from that purpose, he does not commit a criminal attempt to do the thing proposed. On the other hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doijig for the cognizance of the law, he still escapes punishment. Again, if he does a thing not completely, as the result discloses, ¿adapted to accomplish the wrong, he may under some circumstances be punishable-, while under other circumstances he may escape. And the difficulty is not a small one to lay down rules readily applied, which shall guide the practitioner in respect to the circumstances in which the criminal attempt is sufficient.”

If the verdict finding the defendant guilty as charged and assessing the maximum penalty of the law was not the result of passion or prejudice, obviously it was not tempered with mercy. Upon a careful examination of the record, we are convinced that the verdict and judgment is contrary to the law and to the evidence.

The judgment of conviction is therefore reversed and the cause remanded, with directions to grant a new trial, and the warden of the state penitentiary at McAlester is directed to deliver the defendant to the sheriff of Atoka county, and said sheriff is ordered to hold said defendant in custody subject to the order of the district court of Atoka county.

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


author: FURMAN, P. J.

text:
    GEO. D. LEDGERWOOD v. STATE.
    No. A-585.
    Opinion Filed June 20, 1911.
    (116 Pac. 202.)
    1. LABCENY — Evidence—Sufficiency. For facts fully sustaining a conviction for grand larceny, see opinion.
    2. APPEAL AND EBBOB — Presenting and Beserving in* Lower Court Grounds of Beview. Errors occurring during the trial cannot be considered by this court unless they were incorporated in the motion for a new trial, and thereby submitted to the trial court, and its ruling thereon excepted to, and afterwards assigned for error in this court.
    (Syllabus by the Court.)

      Appeal from Comanche County Court; J. R. Tolbert, Special Judge.

    George D. Ledgerwood was convicted of grand larceny, and appeals.
    Affirmed.

      Al Jennings, for appellant.

      Smith C. Matson, Asst. Atty. Gen., and J. A. Tain, County Atty., for the State.
   FURMAN, P. J.

This case was submitted on oral argument on behalf of the state and a brief on behalf of appellant. Only two questions are presented in the brief. Therefore the other assignments of error are waived.

First. -The first question presented in the brief challenges the sufficiency of the testimony to support the conviction. The first witness for the state was Dewitt Eddins. He testified: That he was 20 years old, and that at the time of the commission of this offense he lived north of Cornish, in the Indian Territory, and that he was a farmer by occupation. That about 4 or 5 o’clock on the afternoon of November 9, 1907, he ■ arrived in the city of Lawton, in the territory of Oklahoma. That he had been picking cotton- over near Chattanooga, and that he was on his way to the home of his brother, A.- A. Eddins, who lived five miles north of Hastings. That he reached Lawton on the Rock Island train, and got off at the depot, and began to look around for a place to put his suit case until the train would come that night. That he finally went into the Monarch saloon, and asked the bartender if he could leave his suit case there, and the bartender said, “Yes; put it behind the office.” That he then went on the street, and hung around a window watching his suit case for a while, and then went to a barber shop and'got a shave and hair cut. That about 7:30 he returned to the Monarch saloon and got his suit case and carried it to the depot. He then found the train was 40 minutes late; that he came back to the Monarch saloon. That he was around there three or four minutes, when a man whom he did not then know, but has since found out to be Bud Grimes, walked up and caught him by the arm, and said, “How much money have you got?” The witness first denied having any money. Grimes replied, “You have got some money. How much have you got?” The witness replied that he had about 50 cents. Grimes then said, “You have got more money than that, and you are under arrest for the crime you have done.” Grimes further said, “I will have to take you to jail. Come on.” The witness then thought that he was under arrest, and went with Grimes into the Monarch saloon. The witness stopped, and Grimes said, “Come on, come on,” and Grimes said that he hated to have witness under arrest, but that it was his duty, and further said that he would have to take witness in and search witness before he took him to jail, and that it was about one-half mile up to the courthouse, and Grimes took him into George Ledgerwood’s saloon into a small room where he made witness sit down. Grimes then walked to a door, and said, “Come here, Bob, here is a fellow we have got for the rape up close to Amarillo,” and appellant then came back to where they were, and said, “Yes; this is the lad. The description is all right.” Grimes then had the witness sit down, and made the witness hold up his hands while he went through the pockets of- the witness and took out $3.50 in silver and some change. •Grimes then asked the witness if that was all the money he had,, saying that,-if he had more money, he would have to give it up; .that, if he carried money with him to the jail, it would go much harder with him. .That witness then told Grimes he had $15 more in his shoes. That Grimes told witness to take off his .shoes, and give him the $15 referred to. That Grimes had everything written down on a large envelope he had taken from the witness. That witness then asked what they were going to do with his money. That the appellant then said: “I have .$15 in currency and $3.50 in silver. It will all have to go into court.” That after a while Grimes said that he was a marshal from Waurika, and that he had to go there that night. He therefore did not have time to take the witness to jail. That Ledger-wood then told the witness he would have to take him to jail. That witness objected to going to jail. That the' appellant then called the witness out around the corner at the south door, and says, “I’ll give you the money to get to where you want to go, and, if you want to get away from that man, you had better do so.” Witness replied, “I have not done anything,” and walked back into the room, 'and Grimes walked into the room, and says, “I have thought the matter over, and I guess I will have to take you to jail.” The witness replied that he had four brothers and an old mother, and it would break her heart for him to be put in jail. That Grimes then asked the witness if he could make bond. Witness replied in the affirmative, and Grimes said it would have to be a $25,000 bond. That they sat there for some time. That witness and Grimes then went over to the depot. That Grimes said to the witness, “I don’t want them to know you are under arrest, and I will' give you the money to buy your ticket.” Witness replied that he would not do so. That Grimes then informed the witness that the ticket office was closed, and they could pay their fare when they got on the train. 'That the witness then got his suit case, and Grimes then insisted on the witness taking $2. That witness entered the train in front of Grimes. That Grimes then placed witness in a seat in the car, and told him not to move. That Grimes then informed the witness that he had to go into another car- and see a fellow. That after the train had gone three or four miles and the conductor came through he asked the conductor where the marshal was, and the conductor replied that he was back in another car. Thereupon Mr. Patterson, a deputy sheriff, came to where the witness was, and carried the witness to his home in Walters that night, and they came back the next morning at Patterson’s request. All this occurred in Comanche county, Okla. That when his money was taken from him witness believed that he was under arrest, and thought that Grimes and Ledgerwood had the right to take the money from him. That witness was only a boy, and did not know anything about the law and courts. That witness never got aily of his money back. That the money was taken without his consent.

John Dossett testified on behalf of the state that at the time of the commission of this offense he was deputy sheriff of Comanche county, Okla.; that he was acquainted with both Bud Grimes and the appellant, George Ledgerwood; that on the night when the witness Eddins claimed he had been' robbed he saw Bud Grimes and Eddins about half way between the theater and appellant’s saloon; that they were going west; that after-wards he saw said parties, Bud Grimes and Eddins, down at the depot when they got on the train about five minutes before the train started.

Claude Small, a witness for the state, testified that on the night in question he saw Bud Grimes and the witness Eddins at the Rock Island depot get on the car.

J. PI. Patterson- testified on behalf of the state that he was deputy sheriff of Comanche county, Okla.; that he was acquainted with appellant; that on the night of November 9, 1907', he saw the witness Eddins and Bud Grimes going from the Monarch Theater in a westerly direction; that the Monarch Theater was four or five doors east of the saloon of appellant; that afterwards he saw Bud Grimes and the witness Eddins get on the train going south; that witness was on the same train; that Eddins related to the witness what had taken place, and the witness carried Eddins to his home in Walters that night. Thereupon the state rested.

Appellant, Ledgerwood, placed a number of witnesses on the stand who testified to facts which, if believed by the jury, would have established a complete alibi for him. Appellant took the stand as a witness in his own behalf, and denied the testimony on the part of the state connecting him with the commission of this offense. The testimony on behalf of the state, if believed by the jury, made a clear case against the appellant of grand larceny.

Section 2594 of Snyder’s Compiled Laws of Oklahoma of 1909 is as follows: ' *

“Grand larceny is larceny committed in either of the following cases: (1) When the property taken is of value exceeding twenty dollars. (2) When such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in other cases is petit larceny.”

The jury saw the witnesses and heard their testimony. Appellant had not exhausted all of his peremptory challenges. The jury was therefore satisfactory to him. It was their exclusive province to settle all questions as to the credibility of the witnesses and conflicts in the evidence, and they having accepted as true the testimony of the state, and as we see nothing in the record which would indicate that the jury was influenced by improper motives in convicting the appellant, we cannot disturb their verdict upon the ground that it is contrary to the testimony.

Second. Appellant in his brief complains of improper conduct and improper argument upon the part of counsel for the state in the trial of this case. We have carefully examined the record in this case, and find that appellant did not complain of such improper conduct in his motion for a new trial. Neither was such alleged conduct mentioned or assigned in the petition in'error, by means of which this case was brought before this court. It is true that errors which go to the jurisdiction of the court to try a case may be raised for the first time in this court, or in fact at any time before the final completion of the judgment and sentence of the lower court. But, in order to bring before us on appeal errors of law alleged to have occurred during the trial, they must be incorporated in the motion for a new trial, and thereby submitted to the determination of the trial court, and the action of the trial court thereon excepted to and then .brought before us by proper assignments in the petition in error.

As we understand the law, the correct rule of procedure in matters of this kind is stated by Mr. Justice Kane of our Supreme Court in the case of Stinchcomb v. Myers, 28 Okla. 597, 115 Pac. 602, which is as follows :

“It has long been the settled rule of practice in this court that errors occurring during the trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court. Beall v. Mutual Life Ins. Co. of N. Y., 7 Okla. 285, 54 Pac. 474; Glaser et al. v. Glaser et al., 13 Okla. 389, 74 Pac. 944; Bradford v. Brennan et al., 15 Okla. 47, 78 Pac. 387.”

We find no error in the record, and the judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    LAWRENCE OWENS v. STATE.
    No. A-622.
    Opinion Filed June 20, 1911.
    (116 Pac. 345.)
    1. PARENT AND CHILD — Duties of Parent — Medical Assistance for Child — “Support.” (a) Under the statutes of this state, it is the duty of a parent having custody of a minor child to support and educate such child; and such “support” includes medical attendance necessary to preserve the health and life of such child.
    (b) A reasonable construction of the statutes would require the furnishing of medical treatment in such a manner and on such . occasions as an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote his recovery, would provide.
    2. SAME — Failure to Furnish — Defenses—Religious Belief. In a prosecution for a violation of that section of the statutes (Comp. Laws 1909, sec. 2369) which provides, “Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon Mm by law to furnish necessary food, clothing, shelter, or medical attendance, for such child, is guilty of a misdemeanor,” an instruction of the trial eourt that religious belief would not constitute a defense to such prosecution is correctly given.
    3. PARENT AND CHILD — Medical Aid to Child — Question for Jury. The question of the necessity for medical treatment is a question of fact for the jury in any ease for a violation of the statute, supra, and when submitted under -proper instruction of the court a finding of the jury, contrary to the contentions of an accused, will not be disturbed on appeal, when the evidence tends reasonably to support the finding.
    (Syllabus by the Court.)

      Appeal from Beaver County Court; R. A. Dickson, Judge.

    Lawrence Owens was convicted of a misdemeanor, and he appeals.
    Affirmed.

      J. W. Culwell, for plaintiff in error.

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

An information was- filed in the county court of Beaver county in July, 1909, charging plaintiff in error with wilfully omitting, without lawful excuse, to furnish medical attendance to his minor child, Cora Owens.

It appears that this child was afflicted with typhoid fever during part of November and December, 1908; that the county health officer and other physicians and neighbors of the accused’ called upon and endeavored to induce him to permit the child to be attended by physicians and nurses. He refused to do so, even though the medical attendance was offered without expense.

In the testimony of the accused, he admits that he was acquainted with the serious nature of typhoid lever, and knew his child was seriously ill, and offered no excuse for his conduct. The testimony on behalf of the state, and by the mother of the child, who testified on behalf of the accused, discloses that the reason for refusing to provide medical attendance was on account of religious belief. On the presentation of the case in this court, that is the only question that is argued, and the only one we shall consider.

This prosecution is based on section 2369, Snyder’s Statutes, which is as follows:

“Every parent of any child who wilfully omits, without lawful excuse to perform any duty imposed upon him by law to ■furnish necessary food, clothing, shelter, or medical attendance for such child is guilty of a misdemeanor.”

Section 4898, Snyder’s Statutes, makes it the duty of the parent who is intrusted with the custody of the child to give such child support and education. Section 4899, Id., provides, that the father of a legitimate unmarried minor is entitled to the custody of such child. The word “support,” as used in the statute, includes necessary medical attendance, as much so as necessary food and clothing. See Morse v. Powers, 45 Vt. 300, wherein the court says:

“The plaintiff agreed that the son should have ‘support for himself and family from the business,’ and he was in the habit of appropriating goods for that purpose. Proper medical treatment to the sick is deemed by usage as necessary as the provision of bread to the hungry.”

The trial court instructed the jury that religious belief would not constitute a defense to a prosecution under this statute. It is argued by counsel for the accused that this instruction by the court was an unwarranted invasion upon its part of the province of the jury. He says: “The defenses in this case are upon religious belief and upon the necessity of furnishing to this child in its ■ condition medical attendance. As to whether or not his religious belief was or is a lawful excuse should have been left to- the jury. * * * ”

_ We cannot agree with this contention. Under the statutes, supra, it is the duty of the parent, regardless of his religious belief or superstition, to f-urnish necessary food, clothing, shelter, and medical attendance to his child. A reasonable construction of these statutes would be that the parent is required to furnish the necessary food, clothing, shelter, and medical attendance looking to the preservation of the health, as well as the life, of the child.- The law does not contemplate the calling of a physician or the furnishing of medical attendance for every trivial complaint with which a child may be .afflicted. A reasonable amount of discretion is vested in the parents charged with the duty of maintaining and bringing up infant children. We think that the correct rule would require the furnishing of medical treatment in such a manner and on such occasions as an ordinary prudent person, solicitous for the welfare of his child and anxious .to promote its recovery, would provide.

A leading case dealing with this particular question is People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. Rep. 666. In that case the identical question was raised .that is raised here. The'statutes are identical. The court in part says :

“Section 28S' of the Penal Code, so far as is material upon the question under consideration, provides as follows: ‘A person who (1) wilfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, shelter, or medical attendance to a minor * * * or (4) neglects, refuses, or omits to comply with any provisions of this section * * * is guilty of a misdemeanor.’ It would seem that the legislative intent in adopting this provision of the Cod.e is reasonably clear, although possibly more precise language could have been employed. It contemplates that there are persons upon whom the law casts a duty of caring for minors, but it does not specify the persons. They are, however, those upon whom the duty is /by law imposed.’ They are designated in the statutes and in the common law as the parents, guardians, or those who, by adoption or otherwise, have assumed the relation in loco parentis. The duty of such a person is specified by the provisions of the section. It is ‘to furnish food, clothing, shelter, or medical attendance.’ Giving the statute a reasonable construction,' by applying, the rule of necessity, it is apparent that it means the necessary food, clothing, shelter, or medical attendance required for the preservation of the health and life of the child. We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household nursing by members of the family; that a reasonable amount of discretion is vested in parents .charged with the duty of maintaining and bringing up infant children; and that.the standard is, At what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to-promote its recovery, deem it necessary to call in the services of a physician? * * . * It is now contended that section £88-of the Penal Code does not, in terms or in effect, make it the duty of any one to furnish medical attendance to a minor Child, and that' under the common law it is not part of the -duty of parents to provide medical attendance for their children. We have already considered, in part, the provisions of the section, and have indicated our conclusion that the clause ‘a duty by'law imposed,’ as found in this section, had reference to the person upon whom the law imposed the duty of caring for minors,, leaving it to the provisions of the section to particularize as to the character of those duties. In other words, that the section properly construed means that a person upon whom the law has imposed the duty to care for a minor, who wilfully omits, without lawful excuse, to furnish such minor with necessary food, clothing, shelter, or medical attendance, -is guilty of a misdemeanor. Under this construction of -the statute, the duty of parents to' furnish medical attendance for their children is expressly provided for, ancl is made obligatory upon them, even if they were exempt from such duty under the common law.”

Continuing, the court says:

“The remaining question which we deem it necessary to comsider is the claim that the provisions of the Code are violative of Const, art. 1, § 3, which provides that 'the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to bé a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of this state.’ The peace and safety of the state involve the protection 'of the lives and health 'Of its children, as well as the obedience to its laws. Full and free enjoyment of religious profession and worship is guaranteed, but acts which are not worship are not. A person -cannot, under the guise of religious belief, practice polygamy, and still be protected from the statutes constituting' the crime of bigamy. Fie cannot, under the belief or profession of belief that he should be 'relieved from the care 'of children, be excused from punishment for slaying, those who have been born' to him. Children, when-born into 'the world, are utterly. helpless, having neither the power to care for, protect, or maintain themselves. They are exposed to all the ills to which flesh is heir, and require careful nursing, and, at times when danger is present, the help of an experienced physician. But the law of nature, as well as the common law, devolves upon the parents the duty of caring for their young in sickness and in health, and of doing whatever may be necessary for their care, maintenance, and preservation, including medical attendance, if necessary; and an omission to do this is a public wrong, which the state, under its police powers, may prevent. The Legislature is the sovereign power of the state. It may enact laws for the maintenance of order by prescribing a punishment for those who transgress.”

The proposition that religious belief constitutes no defense for violation of a penal statute has been repeatedly announced by the courts in construing various other statutes, principally the violation of statutes on Sabbath breaking. The reasons given in those cases support the position of the court in this case. If religious belief would be a defense to the violation of the statute, supra, it .would necessarily follow that it would be a defense to the violation of the statutes against Sabbath breaking, and the statutes against polygamous marriages, and various other wholesome penal laws.

. The Supreme Court of Arkansas, in an opinion by Chief Justice Cockfill, discusses the proposition of religious belief as a defense to the violation of the provisions of the Sunday law, in the case of Scales v. State, 47 Ark. 476, 1 S. W. 769, 58 Am. Rep. 768. We quote the following extract from the opinion in that case: '

“The proof showed that the appellant was found painting a church on Sunday. He offered to prove that he was a member of a religious society known as the Seventh Day Baptists, one of the tenets of which is the observance .of Saturday as the Sabbath, instead of Sunday,' and that he had regularly refrained from all secular work and labor on Saturday agreeably to his religious faith and that of his church. * ■ * * It is said that every day in the week is observed by some one of the religious sects of the world as a day of rest, and, if the power is denied to fix by law Sunday as such a day, the same reason would prevent the selection of any day; but the power of the Legislature to select a day as a holiday is every where conceded. This state, from the beginning has appropriated Sunday as such. On that day the business of' our courts and public offices has always been suspended; the issuance and service of legal process prohibited; presentment and notice of dishonor of commercial paper not allowed; and the performance of an act in execution of a contract which matures on Sunday postponed to the next day. This observance of Sunday as a day of refrainment from secular business has always been required of the people generally, without reference to creed, and they continue to so observe it, without complaint that, as a municipal institution, it violates any'of their constitutional or religious rights. The principle which upholds these regulations underlies the right of the state to prescribe a penalty for the violation of the Sunday law. The law which imposes the penalty operates upon all alike, and interferes with no man’s religious belief, for in limiting the prohibition to secular pursuits it leaves religious profession and worship free. * * * The appellant’s argument, then, is reduced to this: That, because he conscientiously believes that he is permitted by the law of God to labor on Sunday, he may violate with impunity a statute declaring it illegal to do so. But a man’s religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.”

The Supreme Court of Pennsylvania, in the case of Commonwealth v. Herr et al., reported in 229 Pa. 132, 78 Atl. 68, discusses a statute involving this principle. The argument used on behalf of the accused in that case is the same as that urged by counsel in the case at bar, and the reasoning and conclusion of the court sustain our position that the statute is directed against the acts, and not beliefs, of the citizen; that the statute is valid; and that a violation■ thereof cannot be justified by the contention that it interferes with the religious belief of the citizen.

The doctrine is laid down by the United States Supreme Court, in the case of Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244. In that case the question involved was a polygamous marriage consummated in Utah Territory, between two persons commonly known as Mormons, who had been previously married. The rule is laid down in the following language: .

“A party’s religious belief cannot be accepted as a justificalion for his committing an overt act, made criminal by the law of the land.”

The opinion is quite lengthy and covers a number of other questions. We quote the following as bearing upon the question under consideration:

“In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, .while those who do must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and, while they cannot interfere with mere religious belief and opinions, they may with'practices. Suppose one believed that human sacrifices were a necessary part of a religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the' exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. * * * ”

In the case under consideration, “every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed.” The accused in his testimony admits knowledge of the seriousness of typhoid fever; admits that his child was seriously ill; and does not deny that the physician offered treatment and nurses free of expense; yet he refused to permit the child to receive the care and attention offered, and which it clearly needed. .He was advised by the county health officer that he was laying himself liable to prosecution'; yet he persisted in refusing aid for the child. A case of more wanton neglect could hardly be found. There was neither ignorance of fact nor ignorance pf law in this case.

In the case of Reynolds v. United States, supra, the court, discussing this feature of that case, says:

“The breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly commited. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defense of -the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief'was a part of his professed religion; it was still belief, and belief only. * * * When the offense consists of a positive act, which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.”

In the case under consideration the constitutionality of the statute involved is not raised. The authorities cited, however, clearly establish the validity and wisdom of the law. We conclude that the instruction of the trial court, advising the jury that religious belief constitutes no defense under the statute, was correct.

The question of the necessity of medical attendance would be a question of fact for' the jury. That question was submitted to the jury, and they found against the accused, and properly so under the record. Under the law in this state, there is probably no way of reaching an adult who refuses to accept medical aid for himself on his own'responsibility; but under the statute, supra,, persons will not be permitted to allow innocent children, dependent upon them, to suffer for the lack of necessary food, clothing, shelter, or medical attendance. As before stated, the law contemplates the administering of such aid for the protection of the health, as well as the life, of the child.

Finding no error prejudicial to- the rights of the accused, the judgment is affirmed.

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


text:
    JOHN SCHRIEBAR v. STATE.
    No. A-547.
    Opinion Filed June 20, 1911.
    (116 Pac. 348.)
    1. APPEAL AND ERROR — Judgment—Entry, (a) It is the duty of a trial judge to pronounce judgment in accordance with the verdict of the jury, and cause the same to be entered in the journal of the court.
    (b) It is necessary for such judgment to be entered as provided by law before an appeal can be taken to this court.
    (c) When a trial court fails to enter judgment as provided by law until after the time fixed by the statute in which an appeal can be perfected, and then does so by a nunc pro tunc order, an appeal may be taken in the manner provided by the statute from the date the nunc pro tunc order is made.
    2. APPEAL AND ERROR — Loss of Records. When the records of this court show the filing -of proof of service of notices of appeal . with the clerk thereof, and the return showing such service is lost from the papers through no fault of the plaintiff in error, it will be presumed that the service and.proof of service were regular, in the absence of any showing to the contrary.
    (Syllabus by the Court.)

      Appeal from Garfield County Court; Jas. B. Cullison, Judge.

    John Schriebar was convicted of violating the prohibitory-law, and appeals.
    Reversed and remanded.

      A'. J. Jones, for plaintiff in error.

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

From the transcript before us it appears that an information was filed against the plaintiff in error in the county court of Garfield county on the 24th day of July, 1909, charging him with selling' intoxicating liquor to one Joe Foster. The case came on for trial on the 20th day of September thereafter; the plaintiff in error being represented on the' trial by H. J. Sturgis. On the same day a verdict of guilty was returned, without fixing the punishment. Motion for new trial was filed on the 23d day of September. The transcript fails to show any order overruling or denying this motion. An order appears to have been made on the 27th of September forfeiting the bond of the plaintiff in error in this cause and four others pending against him in the trial court. On the 5th day of January, 1910, A. J. Jones, a member of the Garfield county bar, appeared in the county court and filed a motion, the purpose of which was to require the county attorney to submit a journal entry of the judgment of the trial court in this cause. On the 8th. day of January the transcript recites that the county attorney, without an order being made on said motion, submitted the journal entry. It appears that the attorney for plaintiff in error also filed a motion on the 5th day of January, 1910, praying the county court to fix time in which to make and serve case-made for appeal to this court after the journal entry of the judgment should be submitted. On the 10th day of January this motion was overruled, and on the same date the county attorney filed a journal entry of the judgment, together with a motion asking that it be entered nunc pro tunc, which was done.

The Attorney General has filed a motion to dismiss the appeal in this case on the following grounds, to wit:

“First, because the record shows that this judgment appealed from was for a misdemeanor, and was rendered on the 8th day of October, 1909 (Record, pages 73 and 75), and this attempted appeal is by transcript, and the same was not filed in this court with the petition in error until the 13th day of January, 1910, and more than 60 days after the rendition of the judgment, in violation of section 6948 of Snyder’s Compiled Laws of Oklahoma of 1909; second, because no notices of appeal were served on the clerk of the court and the county attorney, as provided in section 6949, Snyder’s Compiled Laws of Oklahoma of 1909; third, because the record does not show that plaintiff in error ever gave an appeal bond or stayed the execution of the 'judgment rendered, and the same would have been served according to the terms of the judgment before this time, and thereby render useless any action by this court.”

We do not think that this appeal ought to be dismissed on the first ground contended for by the Attorney General. The journal entry of the judgment clearly shows that it was. not entered on the 8th day of October, 1909, but was entered on the 10th day of January, 1910. To dismiss the appeal on this ground would be in effect laying down a rule whereby arbitrary, careless, or corrupt trial judges could defeat the appeal of every case tried by refusing or neglecting to enter judgment. We think the plaintiff in error was entitled to perfect his appeal in the manner provided by the statute as if the judgment had been originally entered on the 10th day of January, 1910, the date upon which the nunc pro tunc order was made by the court.

The second ground set out in the motion for dismissal of this appeal is not well'taken. The records of this court show that proof of service of notices of appeal was filed with the clerk of this court on the 15th day of January, 1910.

, The third ground set out in the motion for dismissal is overruled, for the reason that this court fixed the bail, and the record shows that the same was given as provided by the order, and plaintiff in error released from custody pending the determination of the appeal.

The plaintiff in error urges in this court the proposition that the court below erred in refusing time for plaintiff in error to prepare and file bill of exceptions at the time the nunc pro tunc order was filed and entered of record. This contention is not well taken. The statute gives 30 days without any order of the court being made. The plaintiff in error filed this appeal in this court within three days from the date that the order was entered, which indicates conclusively that he was not prejudiced by the action of the trial court.

It appears, however, that the trial court refused to grant any relief whatever in aid of the appeal in this case, upon the theory that the time had elapsed within which the same could be taken. The trial court should have signed and settled the case-made, so that this court could have reviewed any and all errors properly raised by the complete record. This court is without jurisdiction to review any errors that may have occurred during the trial, by reason of the fact that the case-made is not signed and settled as the law requires, except such errors as appear from the transcript.

In order that no injustice may result to the plaintiff in error by reason of the 'trial court neglecting to properly enter judgment, as it was his duty to do, and for his failure to certify the case-made, the judgment is reversed, and the cause remanded for a new trial.

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


author: RICHARDSON, Special, Judge.

text:
    FRED WYCHOFF v. STATE.
    No. A-769.
    Opinion Filed July 3, 1911.
    (116 Pac. 355.)
    INDICTMENT AND INFORMATION — Transfer From District Court. The district court has no power to receive, file, or take cognizance of an information charging a misdemeanor; and an information charging a misdemeanor filei). in the district court cannot be transferred to the county court, but must be dismissed.
    (Syllabus by the Court.)

      Appeal from District Court, Okfuskee County; John Caruthers, Judge.

    Fred Wychoff was convicted of selling liquor to a minor, and brings error.
    Reversed and remanded.

      C. T. Huddleston and W. T. Banks, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   RICHARDSON, Special, Judge.

This was a prosecution for selling liquor to a minor, instituted by information filed in the

district court of Okfuskee county. The cause was tried in that court, and plaintiff in error was found guilty as charged and sentenced to imprisonment in the penitentiary for a term of one year. He filed a motion for a new trial and-in arrest of judgment, both of which were overruled; and he appeals.

In the case of John Nowakowski v. State, post, 116 Pac. 351, just decided, it was held that the act under which this prosecution was instituted and carried on is unconstitutional and void; that the offense denounced by the act is still only a misdemeanor; and that the district court therefore has no jurisdiction of the offense.

This proceeding was instituted by information and not by indictment. The district court has no power to receive, file, or take cognizance of an information charging a misdemeanor, and no power to transfer such information to the county court; the provision for transfers being limited to indictments for misdemeanors returned by the grand jury into the district court. Article 2, c. 10, Snyder’s Comp. Laws 1909. It follows therefore that this prosecution has never been legally instituted, and must be dismissed. This will not prevent the county attorney from filing an information against plaintiff in error for this offense in the county court.

The judgment of the lower court will therefore be reversed, and the cause remanded, with directions to dismiss the same.

FURMAN, P. J., and DOYLE, J., concur; ARMSTRONG, J., disqualified and not sitting.


author: RICHARDSON, Special Judge.

text:
    JOHN NOWAKOWSKI v. STATE.
    No. A-835.
    Opinion Filed July 3, 1911.
    (116 Pac. 351.)
    1. CONSTITUTIONAL LAW — Construction-rLimitation of Legislative Power — Offenses and Punishment. The .prohibitory provision of the Oklahoma Constitution forbidding the manufacture and sale of intoxicating liquor, and declaring a violation of the "provision punishable by a fine of not less than $50 and imprisonment for not less than 30 days, but which fails to fix the maximum punishment therefor, is not a limitation upon the power of the Legislature to fix such maximum punishment and to declare such offense ‘a felony.
    2. CONSTITUTIONAL LAW — Intoxicating Liquors — Sales to Minors —Punishment—Self-Executing Provisions. The prohibitory provision of the Oklahoma Constitution is self-executing, and declares that the unlawful sale of intoxicating liquor shall be punished by a fine of not less than $50 and imprisonment for not less than 30 days. An act of the Legislature approved March 9, 1909 (Session Laws 1909, p. 164), provides that the punishment for selling intoxicating liquor to a minor shall be imprisonment in the penitentiary for a term of not less than one nor more than five years. Held, that the constitutional provision is all-embracing in its terms and includes a sale to a minor; that the Legislature cannot remit the constitutional requirement that the offense shall be punished by a fine of not less than $50; that, while the Legislature may fix the maximum punishment for the offense, it cannot change the minimum punishment which the Constitution has fixed; and that the act is therefore unconstitutional and void.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie County; Roy Hoffman, Judge.

    John Nowakowski was convicted of selling intoxicating liquors to a minor, and appeals.
    Affirmed.

      A. J. Carlton and A. M. Baldwin, for plaintiff in error.

      Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   RICHARDSON, Special Judge.

The indictment in this case charged that on February 22, 1910, plaintiff in error unlawfully sold a quantify of whisky to one Walter Voils, who was then and there a male person under the age of 21 years. The indictment was returned into the district court of Pottawatomie county. _ It was there retained, and in that court plaintiff in error was tried and convicted thereon. The constitutionality of the act creating the offense charged, and the jurisdiction of the court to hear and determine the cause, were questioned by plaintiff in error and were determined by the court adversely to his contention; and whether the court’s ruling was right or erroneous is the sole question'in this case. The indictment was based upon an act of the Legislature approved March 9, 1909 (Session Laws, 1909, p. 164; Snyder’s Compiled Laws 1909, §§ 43210, 4211), which reads as follows:

“Sec. 1. It shall be unlawful for any person to barter, sell or give to any minor, person of unsound mind, or habitual drunkard any vinous, malt, spirituous or other intoxicating liquor. Provided, parents or guardians may give such liquors to their minor children or wards.
“Sec. 2. Any person violating section one of this act shall be deemed guilty of a felony, and upon conviction-thereof shall be punished by imprisonment in the state penitentiary for a period of not less than one year nor more than five years.”

It is contended that the act is void, for the reason that it conflicts with the prohibitory provision of the state Constitution, which is as follows:

“The manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within this state or any part thereof, is prohibited for a period of twenty-one years from the date of the admission of this state into the Union, and thereafter until the people of the state shall otherwise provide by amendment of this Constitution and proper state legislation. Any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale and wine, contrary to the provisions of this section, * * * shall be punished, on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense. * * * Upon the admission of this state into the Union these provisions shall be immediately enforceable in the courts of this State.” (Const, art. 1, § 7.)

Plaintiff in error’s first contention is that the constitutional inhibition against the barter, sale, and giving away of intoxicating liquor is all-embracing in its terms, and is as applicable to a sale to a minor, person of unsound mind, or habitual drunkard as it is to a sale to any other person; that the Supreme Court of this state, in Ex parte Cain, 20 Okla. 125, 93 Pac. 974; Id., 1 Okla. Cr. 7, 93 Pac. 974, held this provision self-executing and the offense therein created to be a misdemeanor; that therefore legislative action upon the subject is foreclosed, and the Legislature cannot make the barter, sale, or giving of intoxicating liquor to any person under any circumstances a felony.

We agree that this constitutional provision is all-embracing in its terms, and is as applicable to a sale to a minor, person of unsound mind, or habitual drunkard as it is to a sale to any other person. We also agree that the provision is self-executing, and that immediately upon the admission of the state into the Union it became, and ever since has been, an enforceable law. We further agree that, under our statutory definitions of felony and misdemeanor, our statutory provisions for their punishment, and certain rules of statutory construction, every offense created by this constitutional provision was a misdemeanor. We also agree that the Legislature can enact no law taking from this section of the Constitution a single term or provision contained therein. But we do not assent to the conclusion that legislative action upon the subject is thereby foreclosed, and that it is not within the power of the Legislature to make the barter, sale, or giving away of intoxicating liquor a felony.

The definitions of “felony” and “misdemeanor” in this state ■ are statutory and not constitutional. The Constitution by this provision has created a crime, but it has not in itself indicated whether that crime should be known as a felony or a misdemeanor; neither has it fixed the maximum punishment to be inflicted for its violation, nor stated whether the imprisonment which it fixed as a part of the minimum punishment shall be in a county jail or in the state penitentiary. -On the contrary, it has left it to our statutes, and therefore to the Legislature, to determine all these questions. The Supreme Court, in Ex parte Cain, supra, as we understand that case, reasoned the matter in this way: (1) It is a rule for the construction of penal acts that where imprisonment is prescribed as a punishment for crime, and there is no express provision of law stating where such imprisonment shall be, it will be in a county jail rather than in the state penitentiary; that being “preferred which is most favorable to the defendant.” (2) This constitutional provision does not fix the maximum term of imprisonment for its violation or state where the imprisonment shall be. Applying the above rule, therefore, it will be in a jail rather than in the penitentiary. (3) Our statutes define a felony as a crime which is, or may be, punishable with death or by imprisonment in the penitentiary; and declare that every other crime is a misdemeanor. (4) Since the rule for the construction of penal acts directs that the imprisonment prescribed for a violation of the constitutional provision shall be in a county jail and not in the penitentiary, it follows that such rule, together with our statutory definitions of felony and misdemeanor, determines this offense to be a misdemeanor. The Supreme Court did not hold that "the Constitution itself made the offense which it created a misdemeanor, but expressly based its ruling upon our mutable statutory provisions. And inasmuch as the Constitution does not declare the grade of the offense, and the statutes must be looked to in determining its grade, and as the Legislature has power to amend the' determining provisions, how can it be said that it cannot make the offense a felony?

But we do not think it necessary that the Legislature adopt any such indirect means to accomplish that purpose. The Constitution itself says that the offender “shall be punished, on conviction thereof, by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.” This follows word for word the prohibitory provision which section 3 of the Oklahoma Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 269) required to be inserted in the Constitution as to Indian Territory and the Osage Indian Reservation; and' the Enabling Act also required that the Constitution should declare that upon the admission of the state into 'the Union the provision should he immediately enforceable in the courts of the state, thus requiring that the provision be made self-execúting. The only difference between the requirement of the Enabling Act,'and the provision as ultimately adopted by the people, is that the people chose to make and did make the provision applicable to the whole state; whereas, the Enabling Act required that it be made .effective only in that portion of the state formerly Indian Territory and the Osage Indian Reservation. And we think it cannot be plausibly contended that Congress in formulating the Enabling Act, and the constitutional convention in framing and the people of the' proposed state in adopting the Constitution, had in mind, in connection with the prohibitory provision, the statutes of Oklahoma Territory defining felonies and misdemeanors and providing the punishment therefor, and that Congress enacted the act and the convention framed and the people adopted the Constitution with reference to such statutory provisions, and thereby made them an integral part of our organic law. On the contrary, we think that, while Congress and the people intended to fix the minimum punishment for the offense and to make the provision self-executing, a present enforceable law' for the violation of which there could be imposed in any event the minimum punishment therein prescribed, and a severer one if the statutory provisions put in force sufficiently supplemented the Constitution as to authorize it, nevertheless the} purposely omitted to declare the maximum punishment in order that the Legislature might be free to fix it as future conditions might render proper, even varying such punishment, if it saw fit, according to the age, sex, or condition of the person to whom the liquor should be dispensed, the nature of the liquor sold, the manner of the sale, or the status of the seller. If it had been intended that a fine of only $50 and imprisonment for only 30 days could be imposed for this offense, then the Constitution would have stated simply that the punishment should be a fine of $50 and imprisonment, for 30 days, instead of saying, as it does, that the punishment should be a fine of not less than $50 and imprisonment for not less than 30 days. And, had it not been intended that the Legislature should fix the maximum punishment, then the Constitution would itself have fixed it. The fact that the Constitution did not do so is sufficient reason why the Legislature may do so. The fact that we look to our statutes for the maximum punishment is proof that such punishment is not immutably fixed.

It is not' every' self-executing provision of a' Constitution which exhausts legislative power upon the subject with which it deals. There are many such where legislation in aid of or in addition to the provision is both permissible and desirable. Certainly the Legislature can enact nothing in derogation of the constitutional provision; but unless such provision, in addition to being self-executing, is also a limitation upon the power of the Legislature, it may enact laws in aid of and in addition to the provision and extending its terms. We think this in accord with the holding of the Supreme Court in Ex parte Cain, supra, where it is said:

“The rules of construction should be so applied to written Constitutions as to give effect, if possible, to the intent of the framers and of the "people who adopted it and to promote the objects for which the same was framed and adopted. But it may be contended, if we adopt the literal words of this provision, that, whilst it is stated that the same shall be immediately enforceable, yet we find no maximum punishment provided, and that consequently the same is not a complete criminal statute without such definite provision, and that therefore it is not enforceable without additional legislation to give it effect. A statute providing a minimum, without fixing the maximum, punishment, is neither invalid as being in violation of section 9, article, 2, of our Constitution, nor as being too vague and indefinite to' be enforced, at least as to the minimum punishment which is valid without additional enactments. State v. Fackler, 91 Wis. 419, 64 N. W. 1029; State v. Williams, 77 Mo. 310. Hence it is not necessary, in considering as to whether or not said provision is self-executing, to determine as to whether or not punishment in excess of 30 days’ imprisonment and $50 fine ttnder said prohibition provision incorporated in our Constitution, without further legislation, could be imposed; for,' having determined that said prohibitory provision prescribed an enforceable minimum punishment, we necessarily conclude that said provision, as it appears in said Constitution, is self-executing.”

And again, in State ex rel. Caldwell v. Hooker, County Judge, 22 Okla. 712, 98 Pac. 964, the Supreme Court, in passing upon the constitutionality.of the so-called “Billups Bill,” said:

“Was it the intention of the framers of the Constitution of our state, in proposing and separately submitting the prohibition clause, that it should operate as a limitation upon the power of the Legislature, with respect to dealing with the liquor question? .In construing same, the primary inquiry is to ascertain the intention of the framers, and of the people who'adopted the clause under consideration, to determine which technical rules should be disregarded, and a mean between a strict and liberal construction adopted. Cooley’s Const. Lim. (7th Ed.) p. 93; 8 Cyc. 730; 5 Current Law, 622; 6 Am. & Eng. Law (2d Ed.) 921. This provision has been held by this court to be self-executing, capable of being put into operation without additional legislation. Ex parte Cain, 20 Okla. 125, 93 Pac. 974. Respondent contends, Thus far will we go in the matter of prohibiting the legal traffic in intoxicating liquors,' and no further,’ insisting that, when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition or extend the penalty to other cases. Holley v. State, 14 Tex. App. 508. In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution, and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified. Stevens v. Benson [50 Ore. 269], 91 Pac. 578; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Beecher v. Baldy, 7 Mich. 488; Willis v. Mahon, 48 Minn. 140, 30 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; People v. Draper, 15 N. Y. 532; Cooley’s Const. Lim. (7th Ed.) 122; Ordronaux’s Const. Legislation, 262-265.
“In creating the legislative department, and in conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United' States. The legislative department of a state is not made a special agency for the exercise' of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. Cooley’s Const. Lim. (7th Ed.) 126. By section 3 of the Enabling Act (Act June 16, 1906, c 3335, 34 Stat. 269), it was specifically-provided by Congress that the constitutional convention, in forming a Constitution for the proposed state of Oklahoma, should provide therein that ‘the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within those parts of said state now (then) known as the Indian Territory and the Osage Indian Reservation and-within any other parts of said state which existed as Indian reservations on the first day of January, nineteen hundred arid six, is prohibited for a period of twenty-one years from the date of the admission of said state into the Union. * * * ’ Such provision is incorporated ip sis verbis in section 7, art. 1 (Bunn’s Ed. par. 9), of the Constitution. The convention submitted practically the same provision, separately, to the voters of the state for ratification or rejection at the same time the Constitution was voted on, which was adopted, extending such provision to the entire state. It is presumed that the same was submitted with the same view that it was required by Congress to be incorporated in our Constitution, and that was certainly not with a purpose to limit, by implication, the power of the Legislature to deal with the liquor question. Rigorous prohibition laws having been in force in the Indian Territory since the Five Civilized Indian Tribes had migrated there, it was considered obligatory by Congress that prohibitory laws should be required to be continued in such portions of the state as were, at the time of the admission of the state into the Union, Indian reservations, or under the. exclusive control of the federal government. When Congress made it man-' datory upon the Constitution framers that such a provision should be incorporated in the Constitution, it was certainly not with a view of limiting the power of the Legislature to act, except in so far that it could not pass legislation in conflict therewith.”

If our Constitution was silent upon the liquor question, or merely forbade its sale without prescribing any punishment therefor, certainly the Legislature, its authority extending “to all rightful subjects of legislation,” would have power to make the sale of liquor a felony; and, that being true, why would a constitutional provision, which forbids the sale of liquor and fixes the minimum but not the maximum punishment therefor, prevent the Legislature from declaring the offense a felony? An enactment of that character may be so drawn as not to take from the Constitution one item or term contained therein, as not to authorize one thing r which the Constitution forbids, or remit any of' the punishment which • the Constitution imposes; and, should it be so framed, then we fail to perceive wherein it would violate the Constitution. That instrument avowedly'fixes only the minimum punishment for the offense, leaving the power to fix the maximum punishment limited only by the provision that such punishment must not be cruel or unusual.

State v. Weiss, 84 Kan. 165, 113 Pac. 388, presents practically the same question as the one now .under consideration. Article 15, § 10, Constitution of Kansas, provides that the manufacture and sale of intoxicating liquors shall be forever prohibited in that state, except for medical, scientific, and mechanical purposes. Sections 4361 and 4362, Kan. Gen. Stat. 1909, made it an offense to sell intoxicating liquors in that state for any purpose. And in that case it was contended that the Constitution was a limitation upon 'the power of the Legislature to interfere with the manufacture and sale of intoxicating liquor for the three excepted purposes, and that the act was therefore unconstitutional. But the Supreme Court of Kansas held the act constitutional, saying in effect that the exceptions contained in the constitutional provision only defined the limit to which the Constitution itself went in prohibiting the manufacture and sale of intoxicating liquors; that in the absence of such provision the Legislature would have had the power to enact everything contained in the constitutional provision and the act combined; and that the fact that the Constitution went no further than it did was no limitation upon the power of the Legislature to legislate in the same direction as fully as it could otherwise have done. • And in State v. Durein, 70 Kan. 13, 80 Pac. 987, 15 L. R. A. (N. S.) 908, that court, in considering the-same question, said:

“The amendment to the Constitution of this state already quoted does not limit or abridge the power of the Legislature further to-prohibit the traffic in intoxicating liquors. It restrains the Legislature in its power to tolerate only, and not in its power to suppress.” , ...

Certainly, if our Constitution had fixed the maximum, as it has fixed the minimum, punishment for this .offense, the Legislature would have no more power to change such maximum punishment than it now has to change the minimum punishment so fixed; but, the Constitution not. having declared the maximum .punishment, it-is within the power of the Legislature to declare the same; and assuredly the solicitude which the state ought to feel for the welfare of its future citizenship is ample warrant for making felonious the furnishing of intoxicating liquors to a minor.

But with all this, wholesome and beneficent as we deem the purpose and intent of this legislation, and reluctant as we are to disturb it, we are nevertheless compelled to hold the act unconstitutional in another respect. The constitutional provision is all-embracing in its terms, an'd it includes a sale to a minor as fully as it' does a sale to any other person. If it did not, then prior to the passage of the act under consideration a prosecution would not lie for a sale of liquor if the sale were made to a minor. And the Constitution says that:

“Any person * * * who shall sell, barter, give away or otherwise furnish any intoxicating liquor of any kind * * * shall be punished,‘on conviction thereof, by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense.”

The Legislature may add to the stringency of this provision; but it cannot remit or repeal the requirement that a violation of the provision shall be punished by a fine, and that the fine shall be not less than $50, and make the offense punishable by imprisonment alone. If it could, then by the same reasoning it could remit the imprisonment and make the offense punishable by a fine alone; and, if it could remit either, then, it could remit both and say to the man who thrives by the debauchery of children that he may do so with absolute impunity. The act in question remits the fine; and it'fixes'the minimhm punishment at one year in the penitentiary: • The Constitution- has fixed the minimum punishment for this offense, and the Legislature, while it may fix the maximum punishment, is nevertheless powerless to change that which the Constitution has fixed. .If it can do so with resp'ect to a sale to a minor, person of unsound mind, or habitual drunkard, then by a division of the purchasers or sellers into classes according to their age, sex, condition, or occupation, so arranging the classification as to include all the people, and fixing the punishment specially for a sale to or by persons in each class without regard to the constitutional provision, such provision could be entirely abrogated. It goes without saying that this may not be done.

It thus follows that the enactment in question is unconstitutional and void; and the act charged in this indictment is still only a misdemeanor, of which the district court had no jurisdiction.

The judgment of the lower court is therefore reversed, and the cause remanded, with directions to certify the indictment and record in this cause to a court having jurisdiction thereof, as required by law.

FURMAN, P. J., and DOYLE, J., concur; ARMSTRONG, J., disqualified and not sitting.


author: PER CURIAM.

text:
      Ex parte GARLAND BROWN.
    No. A-1280.
    Opinion Filed July 31, 1911.
    (116 Pac. 1113.)
    1. PUNISHMENT — Intoxicating . Liquors — Constitutional and Stat- . utory Provisions. Act March 9, 1909' (Sess. Laws 1909, c. 12, art. 4) see. 2, providing that the punishment for. selling intoxicating liquors to a‘minor shall be imprisonment in the penitentiary " for not less than one nor more than five years, is unconstitutional.
    2. COURTS — Jurisdiction—Misdemeanor. The offense of selling intoxicating liquors to’ a minor being a misdemeanor, the district court has no jurisdiction of a prosecution therefor.
    3. COURTS — Jurisdiction — Transfer of Causes. An information charging a misdemeanor, filed in the district court, cannot be transferred to the county court, but must be dismissed.
    (Syllabus by the Court.)

      Application by Garland Brown for writ of habeas corpus.

    Writ granted, and prisoner ordered discharged.

      Thompson & Mason, for petitioner.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Garland Brown, was tried

and convicted upon an information filed in the district court of the Twenty-third judicial district, sitting in and for Ottawa county, charging the -crime of selling intoxicating liquor to a minor, and sentenced to be imprisoned in the state reformatory at Granite for a term of one year. Judgment and sentence was pronounced and entered on April 20, ,1911, and was executed by delivering the petitioner to the warden of 1he state reformatory at Granite, where he lias beeiji and is now confined.

Petitioner avers that said imprisonment is illegal and unauthorized, because the act of the Legislature, approved March 9, 1909 (Session Laws 1909, p. 164), under which said proceedings were had, is unconstitutional and void, and petitioner prays for a writ of habeas corpus that he may be discharged without delay from said unlawful imprisonment. The Attorney General appearing for the respondent, Clyde A. Reed, warden of the state reformatory at Granite, confesses on the part of the state that a writ of habeas corpus be allowed as prayed for.

In the case of Nowakowski v. State, infra, 116 Pac. 351, it was held by this court that the statute in question is unconstitutional and void, and the offense charged in the information is only a misdemeanor, of which a district court has no jurisdiction.

In the case of Wychoff v. State, infra, 116 Pac. 355, it was held that the district court has no power to receive, file, or take cognizance of an information charging a misdemeanor; and an information charging a misdemeanor, filed in the district court, cannot be transferred to the county court, but must be dismissed. See, also, Evans v. State, infra, 116 Pac. 356; Kester v. State, infra, 116 Pac. 356; Meek v. State, infra, 116 Pac. 356.

Under the foregoing decisions of this court, the district court of Ottawa county did not upon the information filed in said case acquire jurisdiction to try, convict, 'and - sentence the petitioner for a felony under the statute in question. It therefore follows that petitioner is unlawfully imprisoned under said judgment of conviction and commitment at the state reformatory at Granite.

Wherefore a 'writ of habeas corpus is allowed, and it is ordered that the petitioner, Garland Brown, be discharged from said judgment and commitment, and that respondent, the warden of the state reformatory, upon receipt of a certified copy of this opinion from the clerk of this court, immediately discharge said petitioner.