source: Caselaw Access Project

license: Public Domain

text:
    John R. Thomas v. Town of Mount Vernon.
    A town ordinance prohibiting the keeping a grocery without a license is valid, though, it enumerate articles licensed to be sold by the court of common pleas, for state or county purposes.
    The mayor of a town may have jurisdiction of breaches of its ordinances, though a citizen.
    Application for a writ of error to the Supreme Court of Knox. The charter of the town gives the council power to make “such by-laws and ordinances consistent with the constitution and laws of the United States and this state, as they may deem necessary for the regulation, interest, safety, health, cleanliness, and convenience of said town, and the inhabitants thereof,” and confers the “exclusive power to grant or refuse license to all ale houses, confectioneries or groceries, established within the limits of said town, and regulato the same as they shall think proper.” It is made the “special duty” of the mayor to see the ordinances of the town enforced. A town ordinance forbids the opening of a “ grocery shop, or vending by retail within the limits of the town, bread; cakes, ale, wine, porter, mead, cider, metheglin, beer, confectionery, or spirituous liquors,” without license, under penalty of not exceeding five dollars.
    ^Complaint was made before the mayor against Thomas for having violated this ordinance, of which be was convicted and fined five dollars. Thomas brought this conviction before the court of common pleas, by a writ of certiorari, and assigned for error the following causes, viz: 1. That the mayor, being a citizen, was a party, and could not take jurisdiction to try the complaint. 2. That the mayor admitted the ordinance of the town to sustain his jurisdiction. 3. The ordinance is void, as in restraint of trade, and as imposing a tax upon the sale of articles exempt by law. The court of common pleas affirmed the judgment. Thomas brought a writ of error in the Supreme Court to reverse this affirming order of the common pleas, but the Supreme Court affirmed the order. Thomas now applies for a writ of error to the Supreme Court of Knox to reverse these proceedings.

      M. H. Mitchell, for the application,
    cited 1 Salk. 397; 5 Bur. 1847; 5 Cow. 462.
    H. B. Curtis, for the town,
    insisted that the ordinance was valid; that a citizen of a municipal corporation was competent to take jurisdiction of offenses against one of its ordinances, or to be -a witness. He cited 1 Bay. 382; Ang. & Ames Corp. 200; 5 Bur. 1858. The court unanimously refused the writ.


author: Lane, C. J.

text:
    In the Matter of the Ohio Life Insurance and Trust Company.
    The seventh item of section 2 of the act incorporating the Ohio Life Insurance and Trust Company, “to buy and sell drafts and bills of exchange,” confers no power to issue evidences of debt designed to circulate as money.
    The only power of such company to issue bills and notes for circulation is con-. tained in section 23 of the act of incorporation, which does not authorize the issue of bills or notes 'for circulation, payable otherwise than on demand.
    The special master, Goddard, appointed to examine into and report upon the affairs of the Ohio Life Insurance and Trust Company, reported at the last term that the company had issued notes or bills calculated to circulate as money, and payable on time, which were not authorized by their charter.
    *V. Worthington, solicitor for the company,
    took exceptions to the report in that particular, and insisted upon the right to issue under the power in the seventh item of section 2 of the act of incorporation, “ to buy and sell drafts, and bills of exchange.”
   By the Court,

Lane, C. J.

The authority “ to buy and sell drafts and bills of exchange,” contained in the seventh item of section 2 of the act incorporating the Trust Company, confers no power to issue evidences of debt designed to be used as money. The power of the company to issue bills and notes, designed to be used in circulation as money, depends upon section 23 only, under which, in the opinion of the court, the issue of bills and notes designed for circulation as money, and payable otherwise than on demand, is unwarranted and inexpedient.

This court, therefore, executing the authority conferred by section 21 of the act of incorporation, do recommend to said company to suppress all notes and bills designed to circulate as money, and not payable on demand, and to issue such notes and bills no more; and court do order that the clerk forthwith transmit by mail to said company this act of the court, and that said company make return of their doings in this behalf to the next term of the Supreme Court in Hamilton county.


author: Williams, C. J.

text:
    Abbott v. Territory.
    No. 1785,
    Okla. T.
    Opinion Filed January 22, 1908.
    (94 Pac. 179.)
    INSTRUCTIONS — Reasonable Doubt. An instruction which states “by the term ‘reasonable doubt’ is meant a doubt that has a reason for it; it is a doubt you can give a. reason for" — was erroneous, and is cause for reversal of tha judgment.

      Error from District Court, Kiowa County; before F. E. Gillette, Judge.

    T. A. Abbott was convicted of shooting with intent to kill and brings error.
    Reversed and remanded.
    Plaintiff in error was indicted, tried, and convicted of the crime of shooting with intent to kill, and sentenced to serve a term of 18 months in the territorial prison. From this judgment he appeals.
    At the conclusion of the evidence the court gave the following instruction on reasonable doubt:
    “By the term ‘reasonable doubt,’ as used generally in these instructions, is meant a doubt that has a reason for it; it is a doubt you can give a reason for. It is that state of the case which, after a full consideration of all the evidence, leaves your minds in that condition that you cannot say that you feel an abiding conviction of the guilt of the defendant. You should not go beyond the evidence to hunt for doubt, or entertain doubt from mere caprice or conjecture. Such doubt should arise only from an impartial and candid consideration of all the testimony and all the facts and circumstances presented upon the trial. If doubt does so arise, and by reason of it you cannot say that you are satisfied to a moral certainty of the guilt of the defendant, you should return your verdict herein of not guilty.”
    To this instruction the defendant at the time duly excepted, and now assigns error thereon.

      Doyle & Cress and Keys, Rummons & Cline, for plaintiff in error. ■ j

      Chas. West, Atty. Gen., and G. A. Henshaw, Asst. Aity. Gen., for the Territory.
   Williams, C. J.

(after stating the facts as above). Elementary writers, in discussing the measure of proof necessary to require a conviction in a criminal c'ase, have often stated that, “in cases of doubt, it is safer to acquit than to convict or condemn.” Best on Evidence, §§ 49, 95, and 440. “In some cases presumptive evidences go far to prove guilty though there may be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons escape unpunished than one innocent person should die.” Hale’s Pleas of the Crown, vol 2, p. 289. Mr. Best in his excellent work on Evidence (section 95), in speaking of these statements which have become under the common law crystallized into maxims, says, they “are often perverted to justify acquittal.” He further states that such other maxims as, “It is to the interest of the commonwealth that malefactors do not go unpunished,” and “he threatens the innocent who spare the guilty,” are not to be lost sight of. The foregoing maxims declare safe and humane rules for the guidance of both courts and juries. For him, however, who executes the laws, the moving course should be: Neither shall an innocent person be punished nor shall a guilty one go free.

Whilst this should be the purpose of the administrator of the law, yet quite a different rule is laid down for triors of facts, the jury. “The presumption of innocence is not a mere phrase without meaning, it is in the nature of evidence for the defendant; it is as irresistible as the heavens until overcome; it hovers over the prisoner as a guardian angel throughout the trial; it goes with every part and parcel of the evidence.” Neither the law nor the exigencies of human government require the punishment of the doubtfully guilty. Doubts are to be resolved in favor of the prisoner. There should be no conviction until guilt is proved by competent evidence to the exclusion of all reasonable doubt. This is the mandate of the law, and the birthright of every .English and American citizen. But in criminal trials it is not every species of doubt that would justify an acquittal. Such a doubt as to be a basis for an acquittal must be actual and substantial, not mere speculation or possibility. It must be a reasonable doubt; “that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the jury in that condition that they cannot say they have an abiding conviction, to a moral certainty, of the charge.” There are degrees' of doubt; moral certainty, excluding all reasonable doubt, is the required measure of proof in criminal cases.

It is contended by the plaintiff in error that this instruction, in effect, directs the jury to find the defendant guilty of the crime charged, unless they entertain a reasonable doubt arising out of the evidence, for which the jury are able to give some reason. We are of the opinion, after careful consideration, that this contention is well taken. After considerable research among the authorities, it seems that this instruction, or one given in substantially the same language, has been uniformly disapproved by the courts. The vice of this instruction is in the use of the language “by the term ‘reasonable doubt’ * * * is meant a doubt that has a reason for it; it is a doubt you can give a reason for.”

In Cowan v. State, 22 Neb. 519, 35 N. W. 405, the Supreme Court of Nebraska, speaking by Chief Justice Maxwell, in passing upon this question, has held that an instruction which contained the following words: “It is a doubt for having which the jury can give a reason based upon the testimony,” was calculated to mislead, and no doubt did mislead, the jury. And in Childs v. State, 34 Neb. 236, 51 N. W. 837, the same court decided that in a prosecution for grand larceny, where the court instructed the jury: “On the question of reasonable doubt the court instructs the jury that the term ‘reasonable doubt/ as used in these instructions, means a doubt which has some good reason for it arising out of the evidence in the case; such a doubt as you are able to find a reason in the evidence for,” etc. — such instruction was erroneous, and cause- for reversal of the judgment. This instruction is practically in the identical language of the instruction we now have under consideration. It appears that the instruction that was given by the court was taken substantially from Sackett in his Instructions to Juries (2d Ed.)p. 646, and, from an examination of the authorities cited by the author, we are clearly of the opinion that 'they do not support the text.

In Greenleaf on Evidence (8th Ed.) vol. 3, § 29, the learned author says:

“A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict for the government. In civil cases their duty is to weigh the evidence carefully, and find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt. But in criminal trials the party accused is entitled to the benefit of the legal persumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. It is, therefore, a rule of criminal law, that the guilt of the accused must be fully proved. Neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt.”

The other authority cited by Sackett is the case of Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, which is the celebrated Webster case in which Chief Justice Shaw, in defining the degree of proof, uses the following language:

“Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law. independent of evidence are in favor of innocence and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish -a probability, though a strong one arising from the doctrine of chances,. that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty —a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this and require absolute certainty, it would exclude circumstantial evidence altogether.”

This instruction by-Chief Justice Shaw has been approved by the Supreme Court of Oklahoma Territory in the. case of Patswald v. United States, 7 Okla. 232, 54 Pac. 458, and by all the leading-courts of the country.

This same question has been before the Supreme Court of Iowa. An instruction in almost the identical’ language was disapproved in the case of State v. Cohen, 108 Iowa, 208, 78 N. W. 857, 75 Am. St. Rep. 213, where it was held that: “An instruction defining a reasonable doubt as one that the jury are able to give a reason for is erroneous, as in effect, placing the burckn on defendant to furnish reasons for acquittal.” And where it was also further held that: “An instruction defining a reasonable doubt as one that the jury are able to give a reason for is erroneous, as requiring jurors to give reasons for their conclusions.” And in this case the court, speaking by Mr. Justice Ladd, uses the following language:

“Nor can we approve the fifth instruction as a safe definition of ‘reasonable doubt.’ ‘By a “reasonable doubf’as herein instructed is meant a doubt such as a reasonable man might entertain, after a careful review of all the evidence in the case, as to the guilt of the defendant. In a legal sense, a reasonable doubt is one which has some reason for its basis. It does not mean a doubt from mere caprice or groundless conjecture. A reasonable doubt is such a doubt as the jury are able to give a reason for.’ The last clause is the one to which exception is taken. Who shall determine whether able to give a reason, and what kind of a reason will suffice? To whom shall it be given? One juror may declare he does not believe the defendant guilty. Under this instruction another may demand his reason for so thinking. Indeed, each juror may in turn be held by his fellows to give his reasons for acquitting, though the better rule would seem to require these for convicting. The burden of finding reasons for not finding guilt established is thus cast on the defendant, whereas it is on the state to make out a case excluding all reasonable doubt. Besides, jurors are not bound to give reasons to others for the conclusion reached.”

In Siberry v. State, 133 Ind. 677, 33 N. E. 681, the Supreme Court of Indiana held that: “It is erroneous to instruct the jury that a ‘reasonable doubt is such a doubt as the jury are able to give a reason for.’ ” In State v. Sauer, 38 Minn. 439 38 N. W. 355, Mr. Justice Mitchell, who delivered the opinion of the court, says: “The most serious objection to it is that it is liable to be understood as meaning a doubt for which a person could express a reason in words. A person may, after a consideration and comparison of all the evidence, feel a reasonable doubt as to the guilt of a defendant, and yet find-it difficult to state the reason for the doubt.” In Owens v. United States, 130 Fed. 279, 64 C. C. A. 525, an instruction in the following language: “A reasonable ground of doubt is one which is reasonable from the evidence. It must be a ground of doubt for which a reason can be given, which reason must lie based upon the evidence or want of evidence”— was disapproved.

We are of the opinion that the instruction given in this case was erroneous, and it therefore requires a reversal of this case.

Other errors arising during the course of the trial are assigned and argued, but as the cause must be reversed and remanded, with directions to grant a new trial, it is unnecessary to review them.

The judgment of the couri below is reversed, and the cause remanded, with directions to giant a new trial.

All the Justices concur.


text:
      Ex parte Cain.
    No. 39.
    Opinion Filed February 3, 1908.
    (93 Pac. 974.)
    1. WORDS AND PHRASES — “Imprisonment.” The word “imprisonment,” in its ordinary sense, contemplates and means within the common jail, rather than in the penitentiary.
    2. INTOXICATING LIQUORS — Violation of Prohibitory Article of Constitution — Misdemeanor. The offense of manufacturing, selling, bartering, giving away, or otherwise furnishing any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of the prohibition article of the Constitution, is a misdemeanor.
    3. SAME — Punishment. The maximum punishment for said offense is by imprisonment in the county jail not exceeding one year, and by fine not exceeding $500.
    4. SAME — Prohibition Article Self-Executing. The prohibition provision in the Constitution prohibiting the manufacture, sale, barter, or giving away of any intoxicating liquors, including ale, beer, and wine, contrary to said provisions is valid and self-executing.
    (Syllabus by the Court.)
    Petition of Jim Cain for writ of habeas corpus.

    Writ denied.

      F. E. Riddle, for'petitioner.

      W. C. Reeves, Asst. Atty. Gen., and J. D. Carmichael, Asst. Co. Atty., for respondent.
   Williams, C. J.

The petitoner in this case was tried in the county court of Grady county, sitting as such and exercising the jurisdiction of a .county court of the state of Oklahoma, on the nth day of January, 1908, and adjudged guilty of the crime of selling intoxicating liquor, and is now confined in the jail of said county in the custody of M. B. Louthan, sheriff of said county, under a commitment duly issued out of said county by virtue of said adjudication. The information made against said petitioner, and on which he was convicted, is in due form and charges that the said petitioner “at and within said county and state on the 23d day of November, 1907, then and there being, did, then and there wilfully and unlawfully sell.to one Emmett Ades intoxicating liquors, to- wit, one-half pint of whisky, for a price unknown to the affiant, contrary to the form of the statute,” etc. This cause is now properly before this court on writ of habeas corpus; the petitioner contending that said county court was without jurisdiction to try said cause or to sentence said petitioner, under said conviction, and for the reason of said want of jurisdiction that he is now unlawfully restrained of his liberty by said sheriff.

“Any person, individual or corporation who shall manufacture, sell, barter, give away or otherwise furnish intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section * * * shall be punished on conviction thereof, by a fine not less than fifty dollars and by imprisonment not less than thirty days for each offense. * * * Upon the admission of this state into the Union, these provisions shall be immediately enforceable in the courts of the state. * * *” (Prohibition article of the Constitution.)

Counsel for petitioner earnestly contends that the offense charged is a felony, and that, the county court having no jurisdiction of felonies, the judgment rendered in said court adjudging said defendant guilty of said charge is absolutely void.

The retail liquor traffic is a mere privilege, and, in defining the extent to which the privilege goes, the law should be strictly construed against the traffic. Schmidt v. State, 14 Mo. 137. That the state in the exercise of its police powers has the right to prohibit the manufacture and sale of intoxicating liquors is no longer an open question. Bartemeyer v. Iowa, 85 U. S. 129, 21 L. Ed. 929; Boston Beer Co. v. Massachusetts, 97 U. S. 33,24 L. Ed. 992 Foster v. Kansas, 112 U. S. 205, 5 Sup. Ct. 8, 97, 28 L. Ed. 629; Muller v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.

But is said provision self-executing ? If not, the statutes of Oklahoma Territory relative to the licensing of the liquor traffic are still in force, and will so remain until statutory provisions are enacted to make said prohibition provision effective. C. & F. R. Co. v. Trout, 32 Ark. 17; Lamb v. Lane, 4 Ohio St. 167; Doddridge v. Stout, 9 W. Va., 703; Chahoon v. Commonwealth, 20 Grat. (Va.) 733. The doctrine is well settled that, as a rule, negative or prohibitory clauses in a Constitution are self-executing. Law v. People, 87 Ill. 385; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; De Turk v. Commonwealth, 129 Pa. 151, 18 Atl. 757, 5 L. R. A. 853, 15 Am. St. Rep. 705; State v. Woodward, 89 Ind. 110, 46 Am. Rep. 160. If it supplies the rule for enforcement and fixes the penalty for violation, there can be no doubt as to its character, but a provision- may sometimes be both prohibitive and mandatory, and not self-executing; hence in such cases it always becomes a question of intention, and to determine-the intent the rule is courts will consider the language used, the-object to be accomplished by the provision, and the surrounding-circumstances, and to determine these questions from which the intention is to be gathered courts will utilize extrinsic matters when it becomes necessary. Even though there may be no penalty attached for violations of constitutional provisions, it does not necessarily imply that the provision is not self-executing. The want of a penalty, however, is a circumstance which should be-given great weight in determining as to whether or not the same is self-executing. The proper rule is that prohibitive and restrictive provisions are self-executing when they may be enforced by the courts independent of statutory enactments.

The next thing to determine is whether or not a penalty has been prescribed for such violation. Was it the intention that the words “shall be punished on conviction thereof by fine of not less’ than fifty dollars and by imprisonment of not less than thirty days fur each offense,” should be a limitation upon the action of the Legislature, or prescribe a penalty that was immediately enforceable in the courts ? The same provision states: “Upon the admission of this state into the Union this provision shall be immediately enforceable in the courts of the state.” 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 have 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 minimum 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, art. 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 under 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.

Section 13 of the enabling act provides as follows:

“That said state, when admitted as aforesaid, shall constitute * * * ; and that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof.”

Also section 2 of the schedule of the Constitution reads as follows:

“All laws in force in the territory of Oklahoma at the time of the admission of the state into the Union which are not repugnant to this Constitution and which are not locally inapplicable shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.”

Section 1935, Wilson’s Rev. & Ann. St. Okla. T. 1903, being section 14, art. 1, c. 25, is as follows:

“Except in cases where a different punishment is prescribed by this code or by some existing provisions of law, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding one year and by a fine not exceeding five hundred dollars or both such1 fine and imprisonment. * *

The question now arises as to whether or not said section 1935 is in conflict with the prohibition provision of the Constitution heretofore referred to. In said séction 1935 it is stated that, except in cases where definite punishment is prescribed by the Code or by some existing provision of law, every offense declared to be a misdemeanor is punishable by .imprisonment in the county jail not exceeding one year or by a fine not exceeding $500, or by both such fine and imprisonment. Said section is in conflict or inapplicable to the penalty in said prohibition provision only in one respect; and that is where it provides that said misdemeanor may be punished by imprisonment not to exceed one year in the county jail or by a fine not exceeding $200, but that otherwise it is applicable; and hence we reach the conclusion that the maximum punishment for the offense of,which the relator stands convicted is punishable by not exceeding one year’s imprisonment and also a fine not exceeding $500, provided the charge is a misdemeanor.

A felony at common law is an offense which occasions a total forfeiture of either lands or goods or both and to which capital or other punishment may be superadded according to the degree of guilt.' 1 Russell on Crimes, c. 4, p. 77.

“By the early common law in England felonies were those crimes punishable capitally, or by forfeiture of land, or goods, or both, but the term was not one of settled meaning, and by some authorities the test was the liability to forfeiture rather than the liability to capital punishment. * * * In statutes creating or defining offenses, the language usually expressly, indicates whether the offense is to be deemed a felony or misdemeanor, and for practical purposes it may be said that those crimes which, by the common law, were punishable capitally, or which are expressly made felonies by statute, are now to be considered of that class, while all other criminal offenses are to be deemed misdemeanors, and no offense is to be deemed a felony unless it comes within this description. But, if the offense has been a felony the mere reduction of the punishment will not of itself change it to a misdemeanor.” (1 McClain on Criminal Law, sec. 18.)
“An offense shall never be made felony by the construction of any doubtful and ambiguous words of a statute; and therefore, if it be prohibited under 'a pain of forfeiting all that a man has/ or of ‘forfeiting body and goods/ it shall amount to no more than a high misdemeanor. * * * The word ‘misdemeanor/ in its usual acceptation, is applied to all those crimes and offenses for which the law has not provided a particular name; and they may be punished according to the degree of the offense, by fine or imprisonment, or both. A misdemeanor is, in truth, any crime less than a felony; and the word is generally used in contradistinction to felony, misdemeanors comprehending all indictable offenses which do not amount to felony.” (1 Russell on Crimes [9th Ed.] C. 4, p. 78.)

The selling of intoxicating liquors at common law was not a felony, not even a crime. So, when it is made a crime, and the statute does not expressly state as to whether it is a felony oi misdemeanor, the presumption is that it is a misdemeanor. State v. Hill, 91 N. C. 561; U. S. v. Belvin (C. C.) 46 Fed. 385. Constitutions being instruments in the nature of re-enactments of approved systems and principles coeval with, and a part of, the common law, itself a subject of judicial interpretation, though there is exception, it necessarily follows that the definitions of the terms used in Constitutions are, to a great extent, to be found in'the common law. People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; State v. Noble, 118 Ind. 350, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143; Durham v. State, 117 Ind. 477, 19 N. E. 327; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; People v. Draper, 15 N. Y. 532; Cooley on Constitutional Limitations (6th Ed.) 75; 10 Century Digest, tit. “Constitutional Law,” sec. 13; Fox v. McDonald, 101 Ala. 51, 13 South. 416, 21 L. R. A. 429, 46 Am. St. Rep. 98; English v. State, 31 Fla. 340, 12 South. 689; Flavell’s Case, 8 Watts & S. (Pa.) 197; English v. State, 31 Fla. 340, 12 South. 689; State v. Barker, 107 N. C. 913, 12 S. E. 115, 10 L. R. A. 50; 8 Cyc., p. 740-1.

Section 1931 of Wilson’s Revised and Annotated Statutes of Oklahoma Territory of 1903 is as follows:

“The rule of the common law that penal statutes are to be strictly construed, has no application to this Code. All of its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice.”

This section has no application to the interpretation or construction of the Constitution, for the Legislature has the power to repeal or amend this section. And, whilst it is a fact that the Legislature has the power to repeal or amend certain sections in the Constitution, yet they are specifically designated therein, and if the relator’s contention that said section 1931 applies to the interpretation of the Constitution, the Legislature would have it within its power to hereafter change the Constitution by providing as to the interpretation or construction of the same. Such a proposition is without merit.

Hence we come to the proposition as to the meaning of “imprisonment” in the section under consideration; that is, whether it means imprisonment within a jail, or state prison or penitentiary. The word “imprisonment” means imprisonment in the county jail or local prison unless expressed to be in the penitentiary. Cheaney v. State, 36 Ark. 75; State v. McNeill, 75 N. C. 15; Hockheimer on Crimes and Criminal Procedure, § § 112, 345. There is a distinction in law between the gaol, or jail, and penitentiary. Black’s Law Dictionary; Anderson’s Law Dictionary; Bouvier’s Law Dictionary. Under the statute imposing as to certain offenses a punishment by imprisonment not more than one year, which is silent as to the place of imprisonment, a sentence inflicting punishment by imprisonment in the penitentiary for one year, is error and must be reversed. Horner v. State, 1 Or. 268. A person convicted of conspiracy to defraud under a section of the Colorado Code which did not prescribe the place of imprisonment was illegally sentenced and sent to penitentiary in place of the county jail, holding that, where two statutes are susceptible of the same construction, that is to be preferred which is most favorable to defendant. Brooks v. People, 14 Colo. 413, 24 Pac. 553.

Section 18 of article 7 of the Constitution limits the jurisdiction of justices of the peace to misdemeanors in which the punishment may not exceed a fine of $200 or imprisonment in the county jail not exceeding 30 days, or both such fine and imprisonment. Section 12, article 7, also provides that the county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases in which the justices of the peace have no jurisdiction. The relator having been convicted of a misdemeanor for which the maximum punishment is more than 30 days in jail or a .fine of $200 or both the county court has exclusive jurisdiction in his case.

For these reasons we overrule relator’s demurrer to the sheriff’s return herein and remand the relator to the custody of the sheriff of Grady county, with directions that he be recommitted to the jail of said county, pursuant to the judgment of said county court.

Writ of habeas corpus denied.

All the Justices concur.


author: Kane, J. Dunn and Turner, JJ.,

text:
      In re Thomas et al.

    No. 43.
    Opinion Filed Feb. 4, 1908.
    (93 Pac. 980.)
    1. BAIL — Application for — Burden of Proof on Applicant. Upon an application to the Supreme Court for bail, by writ of habeas corpus, after commitment for a capital offense by a justice of the peace, the burden is upon the petitioner to show that he is illegally deprived of, his liberty.
    2. SAME — Reasonable Doubt. If, after hearing the whole evidence, introduced on the application for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused.
    3. SAME — Conflict in Evidence — Force to be Given. It is not all conflicting exculpatory evidence that will have the effect to raise a reasonable doubt of guilt, and destroy or impair the force of ‘‘evident proof” made by inculpatory evidence. It is for the judge or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a capital offense is not generated the proof is evident and bail should be denied.
    (Syllabus by the Court.)

      Original Proceeding in Habeas Corpus.

    Application of John F. Thomas and Will Thomas for writ of habeas corpus.

    Bail refused.

      T. J. McMurray, Al J. Jennings, and John H. Burford, foi petitioners.

      Charles West, A tty. Gen.; W. C. Reeves, Asst. Atty. Gen.; S. M. Cunningham, Fain & Young, and W. Poindexter, for the State.
   Kane, J.

This cause is here on a petition for a writ of habeas corpus by John F. Thomas and Will Thomas, in which they contend they are unlawfully imprisoned and restrained at Lawton in the common jail of Comanche county, state of Oklahoma, by Rufe Le Fors, sheriff of said county, and one Julian, jailor of said Comanche county jail; that the cause of restraint, according to their best knowledge and belief, is that they have been committed to said Comanche county jail for the crime of murder, without bail, by a justice of the peace sitting as an examining magistrate. Said petitioners further allege that they are innocent of the crime of murder and that the proof, as shown by the record of this cause in the examining trial under which they were committed, shows that the proof against them is not evident nor the presumption thereof great. On this petition a writ of habeas corpus was issued For his return to the writ Rufe Le Fors, sheriff of Comanche county, state of Oklahoma, shows to the court that he holds the petitioners in his custody and restrains them of their liberty by virtue of a writ of commitment issued by S. Armstrong, justice of the peace in and for the city of Lawton, Comanche county, state of Oklahoma, to him issued and delivered on the 22d day of January, 1908, upon hearing before said S. Armstrong, justice of the peace, in a preliminary trial in said court, charging the petitioners with the crime of murder; that the petitioners were committed to the common jail of Comanche county, Okla., and are being held by him as the duly qualified and acting sheriff of Comanche county, under and by virtue of said commitment; and that he now produces said petitioners in person in this court in obedience to said writ of habeas corpus.

Upon agreement of counsel the case was heard in this court upon the record and testimony introduced at the preliminary examination before Hon. S. Armstrong, justice of the peace within and for the city of Lawton, Comanche county, Okla. The question, then, before the court is: Are the petitioners entitled to bail upon the showing made at the preliminary examination before the committing magistrate, under section 17, art. 2, of the Bill of Rights of the state of Oklahoma? which reads:

“All persons shall be liable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

The first appearance of the above terms in American statutory or constitutional law seems to have been in a part of article 2 of an Ordinance for the Government of the Territories of the United States north of the River Ohio, which reads as follows:

“The inhabitants of the said territory shall always be entitled to the benefit of the writ of habeas corpus, and of the trial by jury, of a proportionate representation of the people in the Legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.” (1 Stat. 52.)

From this original this language has been copied into most of the state Constitutions and statutes. With the exception that some Constitutions contain only provisions as “excessive bail.” and that others use the words “before conviction,” or words of like import, or the words “murder” and “treason,” instead of the words “capital offenses,” and other slight changes, the language used above is substantially that of all the Constitutions

The only use of the term, “when the proof is evident or the presumption great,” independent of statute or Constitution, we have been able to find in the Reports is in Territory v. Benoit, 1 Mart. (O. S.) 141, by the Supreme Court of Louisiana The indictment was for a capital offense, and the motion was to have the defendant bailed. The court said:

“It cannot be done. Bail is never allowed in offenses punishable by death, when the proof is evident or the presumption great.”

In High v. United States, reported in Morris (Iowa) 407, 43 Am. Dec. in, Mr. Chief Justice Mason, speaking of this provision as it appears in the Ordinance of 1787, says:

“The Ordinance of 1787, the benefits of which have been transmitted to us,' declares that ‘all persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great.1 This is no new provision, but is in express terms incorporated in the Constitutions of at least one-half of the states of the Union, and is the rule of action in all the rest. It is merely declaratory of the common law of the United States.”

By the common law all offenses, including treason, murder, and other felonies, were bailable before indictment found. Certain restrictions were, however, enforced upon justices of the peace concerning their right to let to bail; but in the Court of King’s Bench bail was not a matter of right in capital felonies, being limited by judicial discretion exercised according to the degree of proof of guilt. Rex. v. Marks, 3 East, 157; Ex parte Baxonett, 16 Eng. L. & Eq. 361; 2 Hale, P. C. 129. These principles of the common law are materially modified, in all except capital offenses, by our constitutional provision quoted above, and now, instead of all cases being bailable in the discretion of the court and not as a matter of right, under section 17 of the Bill of Rights all persons shall be bailable by sufficient sureties, as a matter of right, except for capital offenses when the proof of guilt is evident or the presumption thereof is great.

“If the offense is not shown by evident proof or great presumption to be one for the commission of which the law inflicts capital punishment, bail is not a matter of mere discretion with the court, but of right to the prisoner.” (Ex parte Bryant, 34 Ala. 270.)

The policy pervading our jurisprudence is to commit as little as possible to judicial discretion, presuming that “that system of laws is best which confides as little as possible to the discretion of the judge — that judge is best who relies as little as possible upon his own opinion.” In pursuance of this policy, ever since the provisions “that all persons shall be bailable by sufficient sureties except for capital offenses, where the proof of guilt is evident or the presumption thereof is great,” became a part of the settled constitutional and statutory law of nearly all the states of the Union, the courts have endeavored, with more or less success, to formulate some stable rule to guide their judgment in cases like the one at bar. •

Thus it was said by the court of common pleas of Philadelphia county in an early case, construing exactly the same provision in the Pennsylvania Constitution:

“It is a safe rule, where malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction if pronounced by a jury on such evidence of guilt as was exhibited by him on the hearing of the application to admit to bail. (Com. v. Keeper of Prison, 2 Ashm. [Pa.] 227.)

This doctrine is approved in a per curiam opinion in the Matter of Salvador Troia on Habeas Corpus, 64 Cal. 152, 28 Pac. 231, where the court adopts the above excerpt from the Pennsylvania case as part of its syllabus.

Simrall, J., in Street v. State, 43 Miss. 1 cites the rule laid down in the same approvingly, saying:

“There is much force in the words of the Pennsylvania court in the case of Commonwealth v. Keeper of Prison, 1 Ashm. (Pa.) 234.”

Street v. State, supra, was in the Supreme Court on a writ of error issued to the district court of Yazoo county, and Justice Simrall stated as a reason for adopting the Pennsylvania rule that:

“It would be going very far in the appellate court to reverse the judgment of the court who saw, heard, and observed the witnesses.”

Ohio in State v. Summons, 19 Ohio, 139; Indiana, in Lumm v. State, 3 Ind. 239; California, in the Matter of Salvador Troia on habeas corpus, 64 Cal. 152, 28 Pac. 231; Texas, In Re Foster, 5 Tex. App. 625, 32 Am. Rep. 577, and possibly one or two other cases, refer to the Pennsylvania 'case approvingly.

But most of these cases were in the Supreme Courts on appeal, and in others of them the rule has since been disapproved by the highest courts of the same states.

Another line of decisions hold that the terms “when the proof of guilt is evident, or the presumption thereof is great,” are as definite to the legal mind as any words of explanation, could make them. In the states where this rule prevails the courts, when they refuse bail, do so with the statement “that bail should be refused where the proof of guilt is evident or the presumption thereof is great;” and when bail is granted, by the statement, “that where the proof of guilt is not evident, nor the presumption thereof great, bail should be allowed in capital cases.” Thus in California, in Ex parte Walpole, 85 Cal. 362, 24 Pac. 657, Fox, J., without commenting on the rule laid down in the Matter of Salvador Troia, supra, says:

“On the question of admission to bail, the offense charged is punishable with death, unless the jury fix it at imprisonment for life. The defendant, therefore, cannot be admitted to bail if the proof of his guilt is evident or the presumption thereof great.”

Colorado, Kansas, Kentucky, and Texas in several cases have followed this rule.

This court does not look with favor on either of the above rules. The first one seems to us to be unmindful of the inherent right of life, liberty, and the pursuit of happiness of the citizen, and casts burdens upon those charged with capital offenses not contemplated by the law. The second is too general to be useful as a guide to the judgment of the court in weighing the evidence when the liberty of the citizen is in the balance. Primarily a person charged with a capital offense cannot demand bail as a matter of right, since, upon ascertaining the character of the charge against the accused, the next question would be as to the degree of proof and the nature of the presumption of guilt. Upon an application to the Supreme Court for bail, by writ of habeas corpus, after commitment for a capital offense by a justice of the peace, the burden is upon the petitioner to show that he is illegally deprived of his liberty. Ex parte Hammock, 78 Ala. 414; Ex parte Rhear, 77 Ala. 92; Ex parte Vaughan, 44 Ala. 417. On this question there is ittle conflict in the authorities. Alabama, California, Florida, Indiana, Nevada, New Jersey, New York, Utah, and Wyoming all support the proposition. Texas seems to be the only state placing the burden of proof upon the state to snow that the offense is a capital'one and that the proof is evident; but even there the doctrine of the text prevailed until it was upset in the case of Ex parte Bud Newman, 38 Tex. Cr. R. 164, 41 S. W. 628 70 Am. St. Rep. 740.

We believe that, with the burden of proof on the petitioners, if, after hearing the whole evidence introduced on the application, for bail, it is insufficient to generate in the mind of the court a reasonable doubt whether the accused committed the act charged, and in doing so they were guilty of a capital offense, bail should be refused. But we do not wish to be understood as laying this down as a hard and fast rule, to which there may be no exceptions. There may be exceptional circumstances, such as the serious ana 'probably fatal injury to health, or unusual and protracted delay upon the part of the state in bringing the prisoner to trial, that may warrant the court hearing all the evidence to admit to bail, when the proof of guilt is evident or the presumption thereof is great. The admission to bail, however, under these circumstances is not a constitutional right, but a matter resting in the sound judicial discretion of the trial judge, who should not grant it save under extraordinary circumstances. The rule herein laid down is supported by an array of well-reasoned cases. Those we particularly rely on are Ex parte McAnally, 53 Ala. 495, 25 Am. Rep. 646, Ex parte Bridewell, 57 Miss. 39; Ex parte Tom Smith, Jr., 23 Tex. App. 100, 5 S. W. 99.

In Ex parte McAnally, Brickwell, C. J., states the rule thus:

“If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.”

Ex parte Bridewell, Chalmers, J., states the rule as follows.

“Upon an application for bail by writ of habeas corpus, the burden is upon the relator to show that he is illegally deprived of his liberty. * * * If, upon the whole testimony adduced, the court entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime,. he should admit him to bail in such sum and with such sureties as will in his opinion certainly insure his appearance.”

We wish here to quote with approval the language of Chalmers, J., in rejecting the Pennsylvania rule laid down in Com. v. Keeper of Prison, 2 Ashm. (Pa.) 227:

“The error of the Pennsylvania rule is in failing to give due effect to a verdict of conviction, or in overlooking the vast change it effects in the attitude of the party. By it the legal presumption of innocence is overthrown, all doubtful questions of fact are resolved in favor of the state, and the credibility or noncredibility of witnesses is conclusively established. A verdict of conviction where no error of law has intervened will never be set aside unless manifestly wrong, or, as is sometimes said, if there be any evidence to support it. To say that bail will only be granted where there is no evidence showing guilt, or where the proof of guilt is so slight upon the whole testimony that a conviction would be manifestly wrong, is plainly inconsistent with the constitutional requirement that it shall be granted in- all cases except where the proof is evident or the presumption great.”

Both of the foregoing cases were reviewed in Ex parte Tom Smith, Jr., supra. Mr. Justice Willson, speaking of the rule laid down in the Case of McAnally, supra, said:

“With regard to the second rule, it is not, as we can perceive, objectionable. It is, as we understand it, in harmony with the constitutional requirement that bail shall be granted unless the proof is evident. It is, in effect, the same rule stated as a correct one in the Bridewell Case, supra, but in different language.”

We approve the Alabama rule, as stated in the Mc Anally Case, in the main; but we believe that the part reading, “and that he would probably be punished capitally if the law is administered,” is 'a little more liberal in favor of the accused than a fair construction of the provision under discussion warrants. Under the statutes of Oklahoma the jury have the power in all cases of murder to determine whether the punishment shall be death or imprisonment for life; but this does not make the offense less capital. It would seem to us that a rule that would require the court to speculate as to what punishment a jury might probably inflict upon any given state of facts would be more harmful than helpful. Speaking of the rule of the Pennsylvania case, supra, Justice Willson, in Ex pevrte Tom Smith, Jr., said:

“With respect to the first rule, we are convinced that it is wrong and should no longer be recognized as a guide. It is ably and justly criticised in the Bridewell Case, 57 Miss. 39.”

And the doctrine of this case is not without support from the courts where the common-law rule prevails. The law is laid down to the same effect in 4 Bl. Com. 299; and in Rex v. Marks, 3 East. 165, the rule is advanced in these cautious and qualified terms:

. “The court will bail whenever there is any doubt on the law or the facts in the case.”

And again in New York, a state following the common-law rule, we find the following in relation to a case similar to the one at bar: \

“If there be no reasonable doubt of the prisoner’s guilt, he ought not to be bailed.” (Ex parte Taylor, 5 Cow. 39.)

The same doctrine is sanctioned in State v. McNab, 20 N. H. 160, and State v. Rockafellow, 6 N. J. Law, 335. The rule is practically the same in the federal courts:

“On testimony given in court on the return of a writ of habeas corpus, if it is clear to the mind of the judge that a conviction for murder should not take place, he will order the prisonei to give bail for his appearance.” (U. S. v. Marshal of Dis. of Col., Fed. Cas. No. 15,725a.)

The point is made that, as there is a conflict m the testimony adduced at the hearing, the proof of guilt cannot be said to be evident or the presumption thereof great. This contention cannot be sustained.

“To the mind of the tribunal passing upon the evidence the guilt of the applicant of a capital offense may be evident — that is, clear, strong, not admitting of a reasonable doubt — and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of ‘evident proof’ made by inculpatory evidence. It is for the judge, or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a capital offense is not generated the proof is evident and bail should be- denied.” (Ex parte Tom Smith, Jr., 23 Tex. App. 127, 5 S. W. 102.)

We will not comment upon the evidence, lest our comments should influence the final trial. To decline to do so seems to be the uniform practice, as it has always obtained in such cases. We will only say that, applying the rules herein enunciated to the facts as shown by all the evidence before us, we are of the opinion that the proof of guilt is evident and the presumption thereof is great. We do not wish to be understood as saying that the petitioners are guilty of murder, or that their innocence of the offense charged or of a lower degree of homicide may not be made ,to appear most fully upon their final trial. We are only passing upon the sufficiency of the evidence exhibited in this record, and upon it alone is our opinion predicated.

It follows that bail must be refused.

Dunn and Turner, JJ.,

concur; Hayes, J., concurs in the reasoning and the rules enunciated, but dissents from the conclusion refusing bail to petitioner John F. Thomas; Williams, C. J., dissents from some of the reasoning and some of the rules enunciated, but concurs in the conclusion refusing bail.


author: Hayes, J.

text:
    McGinley v. Territory.
    No. 1908,
    Okla. T.
    Opinion Filed Feb. 18, 1908.
    (94 Pac. 525.)
    GRAND JURY — Drawing—Fatal Irregularity. A jury box was prepared under an order of the court by leaving therein that portion of the names which had been taken by the county clerk from the jury lists of 10 precincts of the county from which jury lists had been properly returned by the judges of election that had not hitherto been withdrawn in the formation of juries, and by placing in said jury box names of persons from the other 17 precincts of the county from which returns of jury lists were not made by the judges of election in accordance with the law, which said names from said 17 precincts were equal in number to the full quota and proportion to which said precincts were respectively entitled, and were furnished by the board o,f county commissioners. H'eld that, under the rule announced in Sharp v. United States, 138 Fed. 878,-71 C. C. A. 258, said jury box was not prepared in accordance with section 6 of chapter 46 (section 3313) of Wilson’s Rev. & Ann. St. 1903 of Oklahoma, and that a grand jury drawn from said jury box is illegal, and an indictment returned by said grand jury, on motion of the defendant, should be set aside. (Syllabus by the Court.)

      Error from the District Court, Logan County; before John H. Burford, Judge.

    N. D. McGinley was convicted of embezzlement, and he brings error.
    Reversed and remanded.

      Devereux & Hildreth and C: G. Horner, for plaintiff in error.

      C. J. West, Dale & Bierer, and Ben F. Hegler, Jr., for the .Territory.
   Hayes, J.

. Plaintiff in error (who, for convenience, will hereinafter be called defendant) was indicted for the crime of embezzlement in the district court of Logan county on the 29th day of November, 1905, which was a day of the regular October, 1905, term. The indictment contained six counts. On the trial, however, the court withdrew from the jury all the counts except the second one, which count charges that the defendant, McGinley, being intrusted with six bonds, issued by school district No. 87 of Kay county, as agent of said school district No. 87, to sell the same, sold said bonds for the sum of $3,000, and converted the proceeds of the same, which proceeds were then and there the property of said school district.

Before pleading to the indictment the defendant moved the court to set aside the indictment on the ground that the grand jury that returned said indictment was not drawn and impaneled as provided by law. The defendant, in said motion, alleges in detail the irregularities complained of in drawing said grand jury; but since the contents of said motion are, in substance, as the facts hereinafter stated, we do not deem it necessary to set forth in full the contents of said motion. A stipulation of facts upon which said motion should be heard was filed. The court overruled the motion to set aside the indictment. Defendant filed a demurrer to the indictment which was overruled by the court, and the case thereupon was tried before a jury. The jury returned a -verdict against the defendant, finding him guilty as charged in the second- count of the indictment. A motion for a new trial was argued and overruled by the court, and exceptions were reserved, and the defendant was sentenced to imprisonment in the penitentiary at Lansing, Kan., for a term of two years.

Defendant seeks to reverse the judgment of the trial court on i r assignments of error, but under the view taken by the court in this case it will be necessary to consider only the first assignment of error, which is that the trial court erred in overruling the defendant’s motion to set aside the indictment, because of irregularities and illegalities in the formation of the grand jury that returned the same.

At the time the indictment in this' case was returned, the statute providing for grand and petit juries and prescribing the manner of forming the same is found in chapter 46, §§ 3308-3319, Wilson’s Rev. & Ann. St. 1903 of Oklahoma. The third section of this chapter (section 3310) requires that the county clerk in preparing the pollbooks shall have printed thereon an oath to the effect that the judges of each election precinct when the polls are closed, at the time of making a poll of the votes cast, will select from the list of names on the pollbook to serve as jurors the number of names designated by the county clerk, and that in making such selection they will.select only such persons as hav< the qualifications prescribed in the oath. It further provides that said oath shall be taken by the judges of the election before the same person who administers to them the oath to properly conduct the election; that, before delivering the pollbooks, the county clerk shall estimate the number of jurors that will be required to be drawn from each precinct to make up the number of 350, in the ratio that the vote cast at any precinct at the last general election bears to the whole vote cast in the county, and shall order the judges of election to return that number; that when the election is over the judges of election shall, under their oaths, -select from the names on the pollbooks the number of persons to act as jurors designated by the clerk, and shall make a list of same, and sign and return it to the county clerk; that the county clerk shall write the names returned on the lists from all the precincts of the county on separate .slips of paper, and place them in a box . with lock and key, and keep the same locked, and, from the names placed in the box, grand and petit jurors shall be drawn; that the clerk of the district court, sheriff and county clerk of the county, in drawing a jury panel, shall take the box containing the names and thoroughly shake the same, and then in the manner prescribed shall draw therefrom names, until the required number of grand and petit jurors are drawn; that the names first drawn shall constitute the grand jury for the terms to which they are drawn. It further provides that, if from any cause the.judges of election of any precinct fail to make returns of jurors from their precinct, it shall be the duty of the board of county commissioners to take the pollbooks returned from such precinct, and select the number of persons required to serve as jurors from that precinct.

Attorneys for the prosecution insist that the stipulation filed in this case in support of defendant’s motion to set aside the indictment cannot be considered, for the reason that same is signed only by attorneys for the defendant, and that it nowhere appears that the prosecution in any manner assented to be bound by said stipulation. An examination of the record discloses the stipulation was not signed at its conclusion by the attorney for the prosecution, but on it appears this indorsement: “No. 1,305. Territory v. N. D. McGinley — Stipulation O. K. F. H. McGuire, County Attorney.” From this indorsement, it appears to the court that said stipulation was considered a part of the record in this case, and that same was assented to by the county attorney who represented the territory in the prosecution of the case. It is not very material, however, whether the stipulation is considered a part of the- record or not, for the reason that the motion to set aside the indictment is duly sworn to by the-defendant, and since same was not controverted, the allegations therein sí and as admitted. Sharp v. United States, 138 Fed. 883, 71 C. C. A. 258; Neal v. Delaware, 103 U. S. 394, 26 L. Ed. 567.

The irregularities in impaneling the grand jury that returned the indictment against defendant, complained of in defendant’s motion to set aside the indictment, and as disclosed hv the record in this case, are substantially as follows: At the regular election held in Logan county in November, 1902, 5,059 votes were cast. At that time there existed in Logan county 27 election precincts. The county clerk in preparing the pollbooks for the various election precincts at the election in the year 1904, failed in 17 of the precincts of said county to make, any proper apportionment or estimate of the number of jurors that should be returned from each of said precincts, and failed to insert said number in blank oaths for the judges of election, and in 10 of the said precincts the judges of election took no oath, as required by law, to return the lists of jurors. In the other 10 .precincts of the county correct estimates of jurors were made by the county clerk, the number inserted in the blank oaths, and proper returns were made by the judges of election under oath in the manner and form prescribed by law. Following the election of 1904, the county clerk prepared a jury box, by using the list returned by the judges of election of the various precincts of the county, using the lists from those precincts from which the returns had been irregularly made, as well as the lists from those precincts from which returns had been made in conformity with the law. From the jury box thus formed, the juries were drawn for the different terms of court held subsequent to the election in 1904, and prior to the October, 1905, term of said court. A grand jury was drawn from said box for the October, 1905, term of the court, but, at the time said grand jury was impaneled, various attorneys appeared for their clients, an^ challenged the array, and the court, after hearing the evidence, and examining the pollbooks and election returns, sustained the challenge to said jury and discharged the same. The court then found that, of the 17 precincts from which returns of jurors had been irregularly made at the election in 1904, the returns from 1 precinct had been corrected by an order of the court. The court then ordered that all names that then remained in the jury box from the 16 precincts in the county from which the returns had been improperly made be taken from the jury box and that the board of county commissioners select names from said precincts in number equal to the full quota or proportion of 350 names that said precincts were entitled to, and that the same be returned to the county clerk of Logan county, and that he place the same in,said jury box, thus leaving in said jury box all the names of jurors from those precincts from which jury lists had been properly returned that had not been drawn out' from said jury box in the making up of juries for the terms of court held since said jury box was prepared.

The record further discloses that, of the names from the 10 precincts from which returns had been properly made, a great portion had been drawn out of the jury box in the formation of juries theretofore impaneled since -the election in 1904, and that there remained in the jury box prepared under the order of the court, and from which the grand jury that returned the indictment in this case was drawn, only a part of the names to which said 10 precincts were entitled under the law. It was clearly the purpose of the court in making said order to have prepared a new jury box to meet the requirements of the rule announced in the case of Sharp v. United States, supra, which had been announced by the Circuit Court of Appeals a short time before said order was .made by the trial courts; but we think the course directed by said order of the court was not a compliance with the statute, for the reason that the jury box thus formed did not contain names from the various precincts of the county in the proportion prescribed by law. We do not doubt that the court, upon ascertaining that the jury box had been prepared theretofore was irregularly and illegally prepared, had the right to order the same opened, and' all the names taken therefrom, or to have entirely discarded said box and ordered a new box prepared, but we think that since the first jury box prepared after the election in 1904, which the trial court found had been irregularly prepared, should have been treated as no jury box at all, and the court should have directed the clerk and the county commissioners to dp that which had never been done since the election in 1904, to wit, to form a valid jury box by the county clerk’s placing therein all names of jurors from those precincts from which the returns had been properly made, and by the board of county commissioners’ furnishing to the clerk lists of jurors from those precincts from which returns had not been properly made, to be placed in the jury box by the county clerk as prescribed by law. By pursuing this course a jury box, containing in the proportion from the various precincts of the county prescribed by law the names of persons that had been furnished the. county clerk for jurors either b} the judges of election or by the board of county commissionets, could have been prepared in the manner prescribed by law. The jury box formed under the order of the court, from which the grand jury that returned the indictment in this case was drawn, did not contain the names of persons from the various precincts of the county in the proportion the law ’ requires, and never at any time contained names in such proportion, because there were 10 precincts of the county that did not have in said box their proportion of the names of persons for jurors, because a part of the names of all of said precincts had been drawn from said jury box prior to the order of the court, and from several of said precincts over one-half of the names had been drawn.

In commenting upon the purpose of this provision, Justice Phillips, speaking for the court in Sharp v. United States, 138 Fed. 878, 71 C. C. A. 285, said:

“The evident purpose of the Legislature was, first, to place the judges of election upon their consciences under the pains and penalties of perjury in pursuing the course prescribed by the statute in selecting and placing the names of jurors in the jury box. In the second place, it was to prevent the packing of juries by drawing them from particular communities, by requiring the list to be made up proportioned to the number of voters in each precinct in the county.”

The court further held in that case that this statutory provision for preparing the jury box is mandatory, and that when the statute is not obeyed, in the formation of a jury, the logical presumption is conclusive that it is hurtful to the defendant.

Able counsel for the prosecution insist, however, that the case of Sharp v. United States does not control in the case at bar, and was not binding upon the trial court, for the reason that the defendant, Sharp, in that case was charged with an offense against the criminal statutes of the United States, and not against a territorial statute, and for the reason that the Circuit Court of Appeals has not appellate jurisdiction over the judgments of the Supreme Courts of the territories in cases where prosecutions for violation of territorial statutes are made. To support their contention, the prosecution quotes the following language, from Aztec Mining Co. v. Ripley, 151 U. S. 79, 14 Sup. Ct. 236, 3 L. Ed. 80:

“By the fifteenth section of the Judiciary act of March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 554] the Circuit Courts of Appeals , in cases in which their judgments were made final by the'act, were empowered to exercise appellate jurisdiction over the judgments, orders, or decrees of the Supreme Courts of the several territories; but as this case was not a case in admiralty, nor a case arising under the criminal, revenue, or patent laws of the United States, nor a case between aliens and citizens of the United States, or between either of the classes defined by section 6 of that act, as cases in which the judgments or decrees of the Circuit Courts of Appeals should be final, and therefore the Circuit Court of Appeals, for the Eighth Circuit properly declined to take jurisdiction.”

But in Ex parte Moran, 144 Fed. 594, 75 C. C. A. 396, in which case the petitioner was charged with a capital crime, Judge Sanborn, speaking for the court, said:

“This court has the power to review in that way final decisions of the Supreme Court of Oklahoma in all cases in which the jurisdiction below is dependent upon the citizenship of the opposite parties to the suit, in all admiralty cases, in all cases arising under the patent laws, the revenue laws, and the bankruptcy laws, and in all cases arising under the criminal laws except in cases of the conviction of a capital crime.”

In that case, the court, in commenting upon the language quoted, supra, from the case of Aztec Mining Co. v. Ripley, said:

“It is evident that the words ‘of the United States’ were either a mere inadvertence, or that it was intended to apply alone to patent or revenue laws. The structure of the clause in the statute is ‘in all cases arising under the patent laws, under the revenue laws, and under the criminal laws.’ There is nothing in the language employed by the statute to indicate that a review would not apply to cases arising under the criminal laws of the territory as well as those of the United States. All statutes enacted by the territorial government are under authority of the organic act; and decisions of the territorial courts, in the absence of some words of negation or manifest omission in the organic act, are reviewable either by the Supreme Court or by the United States Courts of Appeal; and such has been the practice on appeals and writs of error from the Indian and Oklahoma Territories since the creation of the Courts of Appeals.”

In the case of Miller v. Territory of Oklahoma, 149 Fed. 330, 79 C. C. A. 269, the jurisdiction of the Circuit Court of Appeals, to review the judgments of the Supreme Courts of the several territories in the character of cases of the case at bar, was presented and passed upon directly by that-court, and it held in that case that the Circuit Court of Appeals had jurisdiction to review a conviction for grand larceny in violation of the laws of a territory.

We therefore conclude that the construction of the statute for preparing and impaneling juries as laid down by the Circuit Court of Appeals in Sharp v. United States was binding upon the trial court and upon the Supreme Court of the territory of Oklahoma, and that the defendant’s motion to set aside the indictment should have been sustained by the trial court.

However much this court may deplore that any of its decisions may result in permitting any one who has violated the law to go unpunished by reason of the fact that the statute of limitation may have run against the offense with which such person is charged, it still remains the duty of this court to apply as expeditiously as possible the law as it has been written by the authorized representatives of the people, and as interpreted by the highest court to which jurisdiction was given in cases similar to the case at bar.

It results that the judgment of the trial court must be reversed, and the cause remanded to the district court, with directions to set aside the judgment of conviction, and set aside the indictment.

All the Justices concur.